GN Remedial Law 2014

GENERAL PRINCIPLES GENERAL PRINCIPLES

3.

CONCEPT OF REMEDIAL LAW Remedial Law (2006 Bar Question) They are adjective laws which prescribe rules and forms of procedure of enforcing rights or obtaining redress for their invasion. They refer to rules of procedure by which courts applying laws of all kinds can properly administer justice. They include rules of pleadings, practice and evidence (Tan, Jr. v. CA, G.R. No. 136368, January 16, 2002). It plays a vital role in the administration of justice. It lies at the very core of procedural due process, which means a law which hears before it condemns, one which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Albert v. University Publishing, G.R. No. L19118, January 30, 1965; Herrera, 2007).

Enacted by Congress

SUBSTANTIVE LAW VIS-A-VIS REMEDIAL LAW Substantive Law Part of the law which creates, defines or regulates rights concerning life, liberty or property (Primicias v. Ocampo, 81 Phil 650) or the powers of agencies or instrumentalities for the administration of public affairs, which when violated gives rise to a cause of action (Bustos v. Lucero, 81 Phil 640). Creates vested rights

Under appropriate circumstances, courts may deny the retroactive application of procedural laws in the event that to do so would not be feasible or would work injustice

4. If to do so would involve intricate problems of due process or impair the independence of the courts (Tan Jr. v. CA, G.R. No. 136368, January 16, 2002). The SC is expressly empowered to promulgate procedural rules

NOTE: If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals merely with procedure (Fabian v. Desierto, G.R. No. 129742, September 16, 1998).

Remedial Law Prescribes the methods of enforcing those rights and obligations created by substantive law (Bustos v. Lucero, 81 Phil 640).

Principal sources of remedial law 1. 2. 3. 4. 5. 6. 7.

Does not create vested rights Generally prospective in GR: May be applied application retroactively

Constitution Different laws creating the judiciary, defining and allocating jurisdiction to courts different levels Procedural laws and rules promulgated by the SC Circulars Administrative orders Internal rules Court decisions (Herrera, 2007).

Object of remedial law The object is not to cause an undue protraction of the litigation, but to facilitate the adjudication of conflicting claims and to serve, rather than to defeat, the ends of justice (Santo Tomas University Hospital v. Surla, et al., G.R. No. 129718, August 17, 1998 referring to Continental Leaf Tobacco, Inc. v. IAC, 140 SCRA 269).

NOTE: A person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure (Tan Jr. v. CA, G.R. No. 136368, January 16, 2002).

Objective of Rules of Court To secure a: (JuSI) 1. Just, 2. Speedy 3. Inexpensive disposition of every action and proceeding (Sec. 6, Rule 1).

XPNs: 1. The statute itself expressly or by necessary implication provides that pending actions are excepted from its operation

Implementation of remedial laws in our system of government (2006 Bar Question) They are implemented through the judicial system, including the prosecutory service of courts and quasijudicial agencies.

2. To apply it to pending proceedings would impair vested rights

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Interpretations of the provisions of the Rules of Court (1998 Bar Question)

Power of the SC to suspend the application of the Rules of Court and exempt a case from its operation

GR: The Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding (Sec. 6, Rule 1).

The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it (Commissioner of Internal Revenue v. Migrant Pagbilao, Corporation, G.R. No. 159593, October 12, 2006).

XPNs: The following shall be strictly construed: 1. 2. 3.

Reglementary periods; Rule on forum shopping; and Service of summons

Reasons that would warrant the suspension of the Rules of Procedure 1. 2. 3.

NOTE: By liberal construction of statutes the courts from the language used, the subject matter, and the purposes of those framing laws, are able to find out their true meaning (Tanada v. Yulo, G.R. No. L-43575, May 31, 1935).

4.

Rule on Uniform Interpretation The principle expressed in the maxim interpretare et concordare legibus est optimus interpretendi, or that every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence applies in interpreting both sets of Rules such as the 1997 Rules on Civil Procedure and the Rule on Summary Procedure regarding the finality of judgments (Banares II v. Balising, G.R. No. 132624, March 13, 2000; Herrera, 2007).

5.

Power to stay proceedings and control its processes The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its dockets, considering its time and effort, and that of counsel and the litigants. But if proceedings must be stayed, it must be done in order to avoid multiplicity of suits and prevent vexatious litigations, conflicting judgments, and confusion between litigants and courts (Security Bank Corp. v. Judge Manuel Victorio, 468 SCRA 609).

RULE-MAKING POWER OF THE SUPREME COURT Extent of the rule-making power of the SC It has the power to promulgate rules concerning: 1. The protection and enforcement of constitutional rights, 2. Pleading, practice, and procedure in all courts, 3. The admission to the practice of law, 4. The integrated bar, and 5. Legal assistance to the underprivileged [Art. VIII, Sec. 5(5), 1987 Constitution].

NATURE OF PHILIPPINE COURTS MEANING OF A COURT Court

Limitations on the rule-making power of the SC (SIU-DIM) 1. 2. 3.

The existence of special or compelling circumstances; The merits of the case; A cause not entirely attributable to the fault or negligence of the party favored by the suspension of rules; A lack of any showing that the review sought is merely frivolous and dilatory; and The other party will not be unjustly prejudiced thereby (Sarmiento v. Zaratan, G.R. No. 167471, February 5, 2007).

Court is an organ of the government, belonging to the judicial department, whose function is the application of laws to controversies brought before it and the public administration of justice (Black’s Law Dictionary, 8th ed.).

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

Functions of court (DAI) 1.

POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES

Decide actual controversies and not to give opinions upon abstract propositions (Guarduno v. Diaz, 46 Phil. 472) Apply the law Interpret the law.

Power of the SC to amend the Rules of Court

2. 3.

The SC has the power to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases (Makati Insurance Co., Inc. v. Reyes, G.R. No. 167403, August 6, 2008).

NOTE: It does not formulate public policy, which is the province of the legislative and executive branches of government (Electromat Manufacturing and Recording Corporation v. Hon. Ciriaco Lagunzad, G.R. No. 172699, July 27, 2011 citing Pagpalain Haulers, Inc. v. Honorable Trajano, etc., 1999).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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GENERAL PRINCIPLES COURT AS DISTINGUISHED FROM A JUDGE Court It is a tribunal officially assembled under authority of law.

Disqualification of a judge does not affect the court. It is a being in imagination comparable to a corporation.

CONSTITUTIONAL AND STATUTORY COURTS

Judge Simply an officer of such tribunal (Wagenhorst v. Philadelphia Life Insurance Co., 358 Pa. 55 cited by Black’s 5th ed.). May be disqualified

Constitutional Court Created by the Constitution. e.g. SC

Cannot be abolished by Congress without amending the Constitution

Physical person (People ex rel. Herndon v. Opekl, 188 III 194, 58 NE 1996, cited by Blacks 5th ed.).

NOTE: All courts in the Philippines except the SC are statutory courts. They have been created by statutory enactments (Riano, 2011).The Sandiganbayan is only a constitutionally-mandated court since, although its existence is provided under Constitution, its creation was by statutory enactment.

CLASSIFICATION OF PHILIPPINE COURTS 1. Regular courts a. Supreme Court b. Court of Appeals c. Regional Trial Courts d. Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts , Municipal Circuit Trial Courts

COURTS OF LAW AND EQUITY Courts of Law Any tribunal duly administering the laws of the land

2. Special courts a. Sandiganbayan b. Court of Tax Appeals c. Shari’a District Courts, Shari’a Circuit Courts 3. Quasi-Courts or Quasi-Judicial Agencies COURTS OF ORIGINAL AND SPECIAL JURISDICTION Courts of Original jurisdiction Courts exercising jurisdiction in the first instance

Decides a case according to the promulgated law

Courts of Appellate jurisdiction Superior courts reviewing and deciding cases previously decided by a lower court (21 CJS Courts 3)

Courts of Equity Any tribunal administering justice outside the law, being ethical rather than jural and belonging to the sphere of morals rather than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law (Herrera, 2007). Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

Courts of Record

COURTS OF GENERAL AND SPECIAL JURISDICTION Courts of General jurisdiction Those with competence to decide on their own jurisdiction and to take cognizance of all cases, civil and criminal, of a particular nature (21 CJS Courts 3).

Statutory Court Created by law other than Constitution. e.g. CA, Sandiganbayan, CTA, RTC, MTC, MeTC, MCTC, MTCC May be abolished by Congress by just simply repealing the law which created those courts

These are courts whose proceedings are enrolled and which are bound to keep written records of all trials and proceedings handled by them (Luzano v. Romero et al L33245, September 30, 1971). RA 6031 mandates all MTCs to be courts of record.

Courts of Special jurisdiction Those which have only a special jurisdiction for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind (21 CJS Courts 3).

PRINCIPLE OF JUDICIAL HIERARCHY Principle of Judicial Hierarchy The principle provides that lower courts shall initially decide a case before it is considered by a higher court. A higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts (Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: The rationale is two-fold: 1. It would be an imposition upon the limited time of the Supreme Court. 2. Inevitable result in a delay, intended or otherwise, in adjudication of cases, which in some instances, had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because the Supreme Court is not a trier of facts (Heirs of Bertuldo Hinog v. Hon. Achilles Melicor, G.R. No. 140954, April 12, 2005).

NOTE: It derived from the Latin words “juris” and “dico,” which literally means “I speak of the law.”

Jurisdiction is conferred by substantive law Only jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties, issues and res is governed by procedural laws (Riano, 2011). JURISDICTION OVER THE PARTIES

The SC is a court of last resort and must so remain if it is to satisfactorily perform the duty assigned to it.

HOW JURISDICTION OVER THE PLAINTIFF AND DEFENDANT IS ACQUIRED

Principle of Judicial Hierarchy is NOT absolute

Jurisdiction over the plaintiff and defendant

In several cases, the court has allowed direct invocation of the SC’s original jurisdiction on the following grounds: 1. Special and important reasons clearly stated in the petition; 2. When dictated by public welfare and the advancement of public policy; 3. When demanded by the broader interest of justice; 4. When the challenged orders were patent nullities; or 5. When analogous, exceptional and compelling circumstances called for and justified the immediate and direct handling of the case (Republic of the Philippines v. Hon. Ramon S. Caguioa, etc., et. Al. G.R. No. 174385, February 20, 2013).

Plaintiff Acquired when the action is 1. commenced by the filing of the complaint. This presupposes payment of the docket fees. 2. 3.

By his voluntary appearance in court and his submission to its authority By valid service of summons Other coercive process upon him (arrest in criminal cases)

NOTE: Jurisdiction over the defendant is not essential in actions in rem or quasi in rem as long as the court has jurisdiction over the res (Herrera, 2007).

NOTE: The SC may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations (Riano, 2011).

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY

Voluntary appearance

GR: No court can interfere by injunction with the judgments or orders of another court of concurrent jurisdiction having the power to grant the relief sought by the injunction (Atty. Cabili v. Judge Balindog, A.M. No. RTJ-10-2225, September 6, 2011).

Voluntary appearance is any appearance of the defendant in court, provided he does not raise the question of lack of jurisdiction of the court (Flores v. Zurbito, 37 Phil. 746; Carballo v. Encarnacion, 92 Phil. 974). It is equivalent to service of summons (Sec. 20, Rule 14).

XPN: The doctrine does not apply where a third party claimant is involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).

An appearance in whatever form, without explicitly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person. It may be made by simply filing a formal motion, or plea or answer. If his motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court (Busuego v. CA, L-48955, June 30, 1987; La Naval Drug Corp. v. CA, 54 SCAD 917).

NOTE: The rationale for the rule is founded on the concept of jurisdiction: a court that acquires jurisdiction over the case and renders judgment therein has jurisdiction over its judgment, to the exclusion of all other coordinate courts, for its execution and over all its incidents, and to control, in furtherance of justice, the conduct of ministerial officers acting in connection with this judgment (De Leon v. Hon. Salvador, et al., 146 Phil. 1051, 1057, 1970).

Filing of pleadings seeking affirmative reliefs constitutes voluntary appearance

JURISDICTION

GR: Seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one’s person to the jurisdiction of the court.

Jurisdiction The power and authority of a court to try, hear, and decide a case and the power to enforce its determination (21 CJS, 9).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Defendant

XPNs: In the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance.

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GENERAL PRINCIPLES These pleadings are: 1. In civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; 2. In criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and 3. Motions to quash a warrant of arrest.

elements are established (Salmorin v. Zaldivar, G.R. No. 169691, July 23, 2008).

Conferred by law which may be either the Constitution or a statute

JURISDICTION v. THE EXERCISE OF JURISDICTION Jurisdiction It is the authority to hear and decide cases. It does not depend upon the regularity of the exercise of that power or upon the rightfulness of the decision made (Lim, et al v. Hon. Felipe Pacquing et al, 55 SCAD 112, GR 115044, September 1, 1994).

The first 2 are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The 3rd is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest (Miranda v. Tuliao, G.R. No. 158763, March 31, 2006). JURISDICTION OVER THE SUBJECT MATTER Jurisdiction over the subject matter It is the power or authority to hear and determine cases to which the proceeding in question belongs (Reyes v. Diaz, 73 Phil 484).

Error of Jurisdiction One where the court, officer or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion

XPN: Estoppel by laches by failure to object to the jurisdiction of the court for a long period of time and by invoking its jurisdiction in obtaining affirmative relief (Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968). Jurisdiction over the subject matter v. Jurisdiction over the person

XPN: Where the real issues are evident from the record of the case, jurisdiction over the subject matter cannot be made to depend on how the parties word or phrase their pleadings (Herrera, 2007) e.g. in ejectment cases in which the defendant averred the defense of the existence of tenancy relationship between the parties (Ibid.).

Exercise of Jurisdiction It is any act of the court pursuant to such authority, which includes making decisions. If there is jurisdiction over the person and subject matter, the resolution of all other questions arising in the case is but an exercise of jurisdiction (Herrera v. Baretto, 25 Phil 245; Palma v. Q & S Inc, L-20366, May 16, 1966).

ERROR OF JURISDICTION VIS-A-VIS ERROR OF JUDGMENT (1989 Bar Question)

GR: Jurisdiction over the subject matter cannot be waived, enlarged or diminished by stipulation of the parties (Republic v. Estipular, 336 SCRA 333).

Jurisdiction Over the Subject Matter GR: Determined by the allegations of the complaint (Riano, 2011).

It is sometimes made to depend, indirectly at least, on the party’s volition

Renders a judgment void or at least voidable (Sec 1[a]) & [b] Rule 16; Rule 65)

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

The only exception is when the party raising the issue is barred by estoppel. Correctible by certiorari (Rule 65) There is an exercise of jurisdiction in the absence of jurisdiction

Error of Judgment One that the court may commit in the exercise of jurisdiction; it includes errors of procedure or mistakes in the court’s findings Does not make the court’s decision void

Correctible by appeal (Henderson et al v. Tan 87 Phil 466) The court acted with jurisdiction but committed procedural errors in the appreciation of the facts or the law

HOW JURISDICTION IS CONFERRED AND DETERMINED Conferment of jurisdiction over the subject matter It is conferred by law, that is, BP 129, otherwise known as “Judiciary Reorganization Act.” It does not depend on the objection or the acts or omissions of the parties or anyone of them (Republic v. Sangalang, 159 SCRA 515, 1988; PNB v. Florendo, 206 SCRA 582, 1992).

NOTE: Tenancy relationship is not presumed and it is not enough that it is alleged. There must be evidence to prove that it exists and that all its

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Instances when jurisdiction over the subject matter cannot be conferred 1. 2. 3. 4. 5.

6.

Doctrine of Exhaustion of Administrative Remedies It states that recourse through court action cannot prosper until after all such administrative remedies have first been exhausted. The non-observance of the doctrine of exhaustion of administrative remedies results in lack of cause of action (National Electrification Administration v. Val L. Villanueva, G.R. No. 168203, March 9, 2010).

By the administrative policy of any court; A court’s unilateral assumption of jurisdiction; An erroneous belief by the court that it has jurisdiction; By the parties through a stipulation e.g. contract; The agreement of the parties acquired through, or waived, enlarged or diminished by, any act or omission of the parties; Parties’ silence, acquiescence or consent (Riano, 2011).

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

Determination of jurisdiction over the subject matter

Rationale of Doctrine of Exhaustion of Administrative Remedies

It is determined by the allegations of the complaint (Baltazar v. Ombudsman, 510 SCRA 74) regardless of whether or not the plaintiff is entitled to his claims asserted therein (Gocotano v. Gocotano, 469 SCRA 328).

The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence (Caballes v. Perez-Sison, G.R. No. 131759, March 23, 2004). The rationale for this doctrine is obvious. It entails lesser expenses and provides for the speedier resolution of controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed(Universal Rubina Corporation v. Laguna Lake Authority, G.R. No. 191427, May 30, 2011).

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

Exceptions to the Doctrine of Exhaustion of Administrative Remedies 1.

Objective of Doctrine of Primary Jurisdiction

2.

The objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court (Province of Aklan v. Jody King Construction and Development, G.R. Nos. 197592 & 20262, November 27, 2013 citing Fabia v. CA, 437 Phil. 389).

3.

4. 5. 6.

NOTE: The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which jurisdiction has initially been lodged with an administrative body of special competence. For instance, in agrarian reform cases, jurisdiction is vested in the Department of Agrarian Reform; more specifically, in the Department of Agrarian Reform Adjudication Board (DARAB) (Spouses Jesus Fajardo and Emer Fajardo v. Anita Flores, G.R. No. 167891, January 15, 2010).

7. 8. 9.

Doctrine of Ancillary Jurisdiction

10.

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

11.

12.

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

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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When respondent official acted in utter disregard of due process; When the questions involved are purely judicial or a legal one; When the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; When there is estoppel on the part of the administrative agency concerned; When its application may cause great and irreparable damage; When the respondent is a Department Secretary, whose acts as an alter ego of the President bears the implied or assumed approval of the latter unless actually disapproved by him; When to require administrative remedies would be unreasonable; When the insistence in its observance would result in the nullification of the claim being asserted; When the subject matter is a private land in land case proceedings; When it does not provide a plain, speedy and adequate remedy; Where there are circumstances indicating the urgency of judicial intervention (Paat v. CA, G.R. No. 111107, January 10, 1997); Exhaustion of administrative remedies may also be considered waived if there is a failure to assert it for an unreasonable length of time (Rep. v. Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996);

GENERAL PRINCIPLES 13.

14. 15. 16.

A civil action for damages may, however, proceed notwithstanding the pendency of an administrative action (Escuerte v. CA, G.R. No. L-53485,February 6, 1991); When the claim involved is small; When strong public interest is involved; and In quo warranto proceedings (Castro v. Gloria, G.R. No. 132174, August 20, 2001).

Objections to jurisdiction over the subject matter GR: The prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings and even for the first time on appeal (Riano, 2011). XPNs: 1. Estoppel by laches. SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings (Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).

Effect of failure to exhaust administrative remedies The ground should not be lack of jurisdiction but lack of cause of action as it renders the action premature (Carale v. Abarintos, G.R. No. 120704, March 3, 1997; Pestanas v. Dyogi, 81 SCRA 574).

2.

Public policy – One cannot question the jurisdiction which he invoked, not because the decision is valid and conclusive as an adjudication, but because it cannot be tolerated by reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L44888, February 7, 1992).

3.

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

DOCTRINE OF ADHERENCE TO JURISDICTION/CONTINUITY OF JURISDICTION GR: Jurisdiction, once attached, cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction from attaching in the first instance, and the court retains jurisdiction until it finally disposes of the case. XPNs: 1. Where a subsequent statute expressly prohibits the continued exercise of jurisdiction; 2. Where the law penalizing an act which is punishable is repealed by a subsequent law; 3. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right; 4. Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment; 5. When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void; 6. Once appeal has been perfected; and 7. Curative statutes (Herrera, 2007).

NOTE: Under the Omnibus Motion Rule, a motion attacking a pleading like a motion to dismiss shall include all grounds then available and all objections not so included shall be deemed waived. Even in the absence of lack of jurisdiction raised in a motion to dismiss, a party may, when he files an answer, still raise the lack of jurisdiction as an affirmative defense because such defense is not barred under the omnibus motion rule.

EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION Effect of estoppel on objections to jurisdiction The active participation of a party in a case and seeking of affirmative reliefs is tantamount to recognition of that court’s jurisdiction and will bar a party from impugning the court’s jurisdiction. This only applies to exceptional circumstances (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, February 6, 2007).

Effect of retroactivity of laws on jurisdiction Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines jurisdiction (Herrera, 2007).

The Doctrine in Tijam v. Sibonghanoy on estoppel by laches is NOT the general rule The ruling in Tijam that a party is estopped from questioning the jurisdiction applies only to exceptional circumstances. What is still controlling is that jurisdiction over the subject matter of the action is a matter of law and may not be conferred by consent or agreement of the parties (Calimlim v. Ramirez, G.R. No. L-34362, November 19, 1982).

OBJECTIONS TO JURISDICTION OVER THE SUBJECT MATTER Effect of lack of jurisdiction over the subject matter When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the claim (Sec. 1, Rule 9).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW JURISDICTION OVER THE ISSUES

with the employer-employee relations claims under the Labor Code (Ocheda v. CA, G.R. No. 85517, October 16, 1992).

The power of the court to try and decide issues raised in the pleadings of the parties (Reyes v. Diaz, 73 Phil 484) or by their agreement in a pre-trial order or those tried by the implied consent of the parties (Sec. 5, Rule 10).

NOTE: Where no employer-employee relationship exists between the parties and no issue involved may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the regular courts that has jurisdiction (Jaguar Security Investigation Agency v. Sales, G.R. No. 162420, April 22, 2008).

It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings. The issues tried shall be treated in all respect as if they had been raised in the pleadings (Sec. 5, Rule 10). JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION How jurisdiction over the res is acquired 4. Forcible entry and unlawful detainer

It is acquired either by: 1. The seizure of the property under legal process. 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective (Banco Español Filipino v. Palanca, 37 Phil. 291). 3. The court by placing the property of thing under its custody (custodia legis). Example: attachment of property. 4. The court through statutory authority conferring upon it the power to deal with the property or thing within the court’s territorial jurisdiction. Example: Suits involving the status of the parties or suits involving the property in the Philippines of non-resident defendants (Riano, 2011). JURISDICTION OF COURTS 1. Boundary dispute between municipalities

RTCs are courts of general jurisdiction.

5. Authority to conduct administrative investigations over local elective officials and to impose preventive suspension over elective provincial or city officials

NOTE: Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city of the same province, it follows that RTCs have the power and authority to hear and determine such controversy (Municipality of Kananga v. Madrona, G.R. No. 141375, April 30, 2003).

2. Expropriation

3. Labor dispute

6. Appeals involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman

It is within the jurisdiction of the RTC because it is incapable of pecuniary estimation. It does not involve the recovery of sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use. An action for damages for abuse of right as an incident to dismissal is within the exclusive jurisdiction of the labor arbiter. But the labor arbiter has no jurisdiction for claims of damages based on quasi-delict which has no reasonable connection

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

7. Public teachers

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school

The MTC has exclusive original jurisdiction. NOTE: In such cases, when the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession. All ejectment cases are covered by the Rule on Summary Procedure and are within the jurisdiction of the MTCs regardless of whether they involve questions of ownership. The courts in ejectment cases may determine questions of ownership whenever necessary to decide the question of possession (Gayoso v. Twenty-Two Realty Development Corp., G.R. No. 147874, July 17, 2006; Santiago v. Pilar Development Corp., G.R. No. 153628, July 20, 2006).

It is entrusted to the Secretary of Local Government and concurrent with the Ombudsman upon enactment of RA 6770. There is nothing in the Local Government Code of 1991 to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act (Hagad v. Dadole, G.R. No. 108072, December 12, 1995). It may be appealed to the SC by filing a petition for certiorari within 10 days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Sec. 27, RA 6770).

Generally, the Ombudsman must yield to the Division School Superintendent in the investigation of administrative charges against public school teachers (Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008).

GENERAL PRINCIPLES 8. Enforcement of a money claim against a local government unit

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

SUPREME COURT Cases to be decided by SC En Banc 1. 2.

3. 4.

5.

All cases involving the constitutionality of a treaty, international or executive agreement, or law; Cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations; A case where the required number of vote in a division is not obtained; A doctrine or principle laid down in a decision rendered en banc or by division is modified, or reversed; All other cases required to be heard en banc under the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution).

9

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW SUPREME COURT Civil Cases Exclusive Original Petitions for issuance of writs of certiorari, prohibition and mandamus against the following: 1. CA 2. Court of Tax Appeals 3. Commission on Elections En Banc 4. Commission on Audit 5. Sandiganbayan Appellate 1. Petitions for review on certiorari against: a. CA; b. CTA; c. SB d. RTC in cases involvingIf no question of fact is involved and the case involves: a) Constitutionality or validity of treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation b) Legality of tax, impost, assessments, or toll, or penalty in relation thereto c) Cases in which jurisdiction of lower court is in issue ii. All cases in which only errors or questions of law are involved. 2.Special civil action of certiorari – filed within 30 days against the COMELEC / COA

Criminal Cases Petitions for issuance of writs of certiorari, prohibition and mandamus against the following: 1. CA 2. Sandiganbayan

1.

In cases where the CA imposes reclusion perpetua, life imprisonment or a lesser penalty, the judgment may be appealed to the SC by notice of appeal filed with the CA (A.M. No. 00-5-03-SC, September 28, 2004).

2.

Automatic review for cases of death penalty rendered by the CA (A.M. No. 00-5-03-SC, September 84, 2004).

i.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

10

NOTE: Where the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed, and the accused appeals, the automatic review from the CA to the SC shall include such lesser offense (A.M. No. 00-5-03-SC, September 28, 2004).

3.

Petition for review on certiorari (Rule 45) from the SB if penalty is less than death, life imprisonment or reclusion perpetua in criminal cases, and, in civil cases (A.M. No. 005-03-SC,October 12, 2004).

4.

Notice of appeal from the Sandiganbayan if it imposes life imprisonment or reclusion perpetua or where a lesser penalty is imposed involving 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 of life imprisonment is imposed (A.M. No. 00-5-03SC, October 12, 2004).

GENERAL PRINCIPLES

With CA

Concurrent 1. Petitions for issuance of writs of certiorari, prohibition and mandamus against the following: a. NLRC under the Labor Code.

5.

Automatic review of death penalty imposed by the Sandiganbayan in the exercise of its original jurisdiction (A.M. No. 00-5-03-SC, October 12, 2004).

6.

Automatic review whenever the Sandiganbayan, in the exercise of its appellate jurisdiction, finds that the penalty of death, reclusion perpetua or life imprisonment should be imposed (A.M. No. 00-5-03-SC, October 12, 2004).

7.

Appeals from RTC in which only errors or questions of law are involved.

Petitions for issuance of writs of certiorari, prohibition and mandamus against the RTC and lower courts.

NOTE: The petitions must first be filed with the CA, otherwise, they shall be dismissed (St. Martin Funeral Home v. CA, G.R. No. 130866, September 16, 1998). b. Civil Service Commission

c. Quasi-judicial agencies (file with the CA first) d. RTC and lower courts; 2. With CA and RTC

1. 2.

With CA, SB and RTC

1. 2.

With RTC

Petitions for issuance of writ of Kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, prohibition and mandamus against the lower courts or other bodies

Petitions for the issuance of writ of amparo Petition for writ of habeas data, where the action involves public data or government office Actions affecting ambassadors and other public ministers and consuls

With SB

Petitions for issuance of writs of certiorari, prohibition and mandamus against the lower courts or bodies. Petitions for the issuance of writ of amparo and writ of habeas data

Petitions for mandamus, prohibition, certiorari, injunctions and ancillary writs in aid of its appellate jurisdiction including quo warranto arising or that may arise in cases filed under EOs. 1, 2, 14 and 14-A

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW COURT OF APPEALS

Exclusive Original

Appellate

Civil Cases Actions for annulment of judgments of RTC based upon extrinsic fraud or lack of jurisdiction (Sec. 9 BP 129; Rule 47, 1997 Rules of Civil Procedure).

Criminal Cases Actions for annulment of judgments of RTC (Sec. 9, BP 129). 2. Crimes of Terrorism under the Human Security Act of 2007 or RA 9372 Judgments or decisions of RTC via notice of appeal (except those appealable to the SC or SB): 1.

1. Final judgments, decisions, resolutions, orders, awards of: a. RTC (original jurisdiction or appellate jurisdiction) b. Family Courts; c. RTC on the questions of constitutionality, validity of 1. Exercising its original jurisdiction; tax, jurisdiction involving questions of fact, which 2. Exercising its appellate should be appealed first to the CA; jurisdiction; and d. Appeals from RTC in cases appealed from MTCs 3. Where the imposable penalty is: which are not a matter of right. a. life imprisonment or reclusion 2. Appeal from MTC in the exercise of its delegated perpetua; jurisdiction (RA 7691). b. a lesser penalty for offenses committed on the same 3. Appeals from Civil Service Commission; occasion or which arose from the same occurrence that gave 4. Appeals from quasi-judicial agencies under Rule 43; rise to the offense punishable reclusion perpetua or life 5. Appeals from the National Commission on Indigenous imprisonment (Sec. 3, Rule 122). Peoples (NCIP); and Automatic review in cases of 6. Appeals from the Office of the Ombudsman in death penalty rendered by the administrative disciplinary cases (Mendoza-Arce v. RTC, in which case, it may decide Office of the Ombudsman, G.R. No. 149148, April 5, on whether or not to affirm the 2002). penalty of death. If it affirms the penalty of death, it will render a decision but will not enter the judgment because it will then be forwarded to the SC.

NOTE: Death penalty imposed by the RTC is elevated to the CA by automatic review while death penalty imposed by the Sandiganbayan whether in its original or appellate jurisdiction is elevated to the SC for automatic review.

With SC

1.

2.

Concurrent Petitions for issuance of writs of certiorari, prohibition and mandamus against the following: a. NLRC under the Labor Code. b. Civil Service Commission c. Quasi-judicial agencies d. RTCs and other lower courts. Petitions for issuance of writ of Kalikasan(Sec. 3, Rule 7, A.M. No. 09-6-8-SC). Petitions for habeas corpus and quo warranto; and Petitions for the issuance of writs of certiorari, prohibition and mandamus against the lower courts

With SC and RTC

1. 2.

With SC, SB, and RTC

1. Petitions for the issuance of writ ofamparo 2. Petition for writ of habeas data, where the action involves public data or government office

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

12

Petitions for issuance of writs of certiorari, prohibition and mandamus against the RTCs and lower courts.

Petitions for issuance of writs of certiorari, prohibition and mandamus against the lower courts or bodies. Petitions for the issuance of writ of amparo and writ of habeas data

GENERAL PRINCIPLES COURT OF TAX APPEALS Criminal Cases All criminal cases arising from violation of the NIRC of the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less that Php 1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate). Appellate In tax collection cases involving final and 1. Over appeals from the judgment, executory assessments for taxes, fees, charges resolutions or orders of the RTC in tax and penalties where the principal amount of cases originally decided by them, in their taxes and fees, exclusive of charges and respective territorial jurisdiction. penalties claimed is less than Php 1M tried by 2. Over petitions for review of the the proper MTC, MeTC and RTC. judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction. Exclusive appellate jurisdiction to review by appeal (Sec.7, RA 9282) From Commissioner of Internal 1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees Revenue or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; 2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial via petition for review under Rule 42) Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in From RTC the exercise of their original or appellate jurisdiction via petition for review under Rule 43) 1. Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation From Commissioner of Customs thereto, or 2. Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC; (via petition for review under Rule 42) Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and From Central Board of taxation of real property originally decided by the provincial or city board of assessment Assessment Appeals appeals via petition for review under Rule 43) Decision on customs cases elevated to him automatically for review from decisions of the From Secretary of Finance Commissioner of Customs which are adverse to the government under Sec. 2315 of the TCC via petition for review under Rule 42). Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, From Secretary of Trade and commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and Industry and the Secretary of 302, respectively, of the TCC, and safeguard measures under RA 8800, where either party may Agriculture appeal the decision to impose or not to impose said duties (via petition for review under Rule 42). Exclusive Original

Tax Cases In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of charges and penalties claimed is not less than Php 1M.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW SANDIGANBAYAN

Exclusive Original

Civil Cases Cases involving violations of: a. EO 1 (Creating the PCGG); b. EO 2 (Illegal Acquisition and Misappropriations of Ferdinand Marcos, Imelda Marcos their close relatives, subordinates, business associates, dummies, agents or nominees); c. EO 14 [Cases involving the ill-gotten wealth of the immediately mentioned persons (Marcos and dummies)]; and d. EO 14-A (amendments to EO 14) (Sec. 2, RA 7975 as amended by RA 8294).

Appellate

With SC

With SC, CA and RTC

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

Q: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan for accepting a car in exchange for the award of a series of contracts for medical supplies. The Sandiganbayan, after going over the information, found the same to be valid and ordered the suspension of Charles. The latter contested the suspension claiming that under the law (Sec. 13, RA 3019), his suspension is not automatic upon the filing of the information and his suspension under Sec. 13, RA 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (RA 5185). The Sandiganbayan overruled Charles’ contention stating that the suspension under the circumstances is mandatory. Is the court's ruling correct? (2001 Bar Question)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Criminal Cases 1. Violation of RA 3019 (Anti-Graft and Corrupt Practices Act) where one or more of the accused are officials occupying the following positions in the government, whether in permanent. Acting or interim capacity, at the time of the commission of the offense: a. Officials occupying a position classified as Grade 27 or higher of the Compensation and Position Classification Act of 1989 (RA 6758) in the: i. Executive branch including those occupying the position of regional director; and ii. All other national or local officials. b. Members of Congress c. Members of the judiciary without prejudice to the Constitution; and d. Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. 2. Felonies or offenses, whether simple or complex with other crimes committed by the public officials and employees above mentioned in relation to their office; and 3. Cases filed pursuant to EOs 1, 2, 14 and 14-A (Sec. 2, RA 7975 as amended by RA 8249). Appeals from final judgments, resolutions or orders of the RTC, whether in the exercise of their original or appellate jurisdiction, in cases involving public officials or employees not otherwise mentioned in the preceding enumeration. Petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other ancillary writs in aid of its appellate jurisdiction, including quo warranto arising in cases falling under EOs. 1, 2, 14 and 14-A. Petitions for the issuance of writ of amparo and writ of habeas data.

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

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GENERAL PRINCIPLES REGIONAL TRIAL COURTS

Exclusive Original

With SC, SB and CA With SC With SC and CA

With MTC

Special

Appellate

Civil Cases 1. Actions in which the subject of litigation is incapable of pecuniary estimation; 2. Actions involving title to or possession of real property or any interest therein where the assessed value exceeds Php 20,000 or Php 50,000 in Metro Manila, except forcible entry and unlawful detainer; 3. Actions in admiralty and maritime jurisdiction where demand or claim exceeds Php 300,000 or Php 400,000 in Metro Manila; 4. Matters of probate, testate or intestate, where gross value of estate exceeds Php 300,000 or Php 400,000 in Metro Manila; 5. Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial function; 6. Civil actions and special proceedings falling within exclusive original jurisdiction of Juvenile and Domestic Relations Court and Court of Agrarian Reforms; 7. Other cases where the demand, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, or value of property in controversy exceeds P300,000 or Php 400,000 in Metro Manila (Sec. 19, BP 129 as amended by RA 7691); and 8. Intra-corporate controversies under Sec. 5.2 of the Securities and Regulation Code.

Criminal Cases 1. Criminal cases not within exclusive jurisdiction of any court, tribunal or body (Sec. 20, BP 129). a. Includes criminal cases where the penalty provided by law exceeds 6 years imprisonment irrespective of the fine (RA 7691). b. Includes criminal cases not falling within the exclusive original jurisdiction of the Sandiganbayan where the imposable penalty is imprisonment more than 6 years and none of the accused is occupying positions classified as “Grade 27” and higher (Sec. 4, P.D. 1606 as amended by RA 8249). 2. Cases where the only penalty provided by law is a fine exceeding Php 4,000; 3. Other laws which specifically lodge jurisdiction in the RTC: a. Law on written defamation or libel; b. Decree on Intellectual Property; c. Violations of Dangerous Drugs Act regardless of the imposable penalty except when the offender is under 16 and there are Juvenile and Domestic Relations Court in the province. 4. Cases falling under the Family Courts in areas where there are no Family Courts (Sec. 24, BP 129). 5. Election offenses (Omnibus Election Code) even if committed by an official with salary grade of 27 or higher

Concurrent Jurisdiction 1. Writ of amparo Petitions for the issuance of writs of 2. Writ of habeas data amparo andhabeas data Actions affecting ambassadors and other public ministers and consuls (Sec. 21 [2], BP 129). 1. Certiorari, prohibition and mandamus against lower courts and bodies; 2. Habeas corpus and quo warranto; Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC). SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec. 23, BP 129). GR: All cases decided by lower courts in their respective territorial jurisdictions. XPN: Decisions of lower courts in the exercise of delegated jurisdiction.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Test to determine whether an action is capable of pecuniary estimation

Intra-corporate controversies jurisdiction of the RTC

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

1.

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

2.

3.

4. 5.

that

are

within

the

Devices or schemes employed by, or any act of, the board of directors, business associates, officers or partners, amounting to fraud or misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, or members of any corporation, partnership, or association; Controversies arising out of intra-corporate, partnership, or association relations, between and among stockholders, members, or associates; and between, any or all of them and the corporation, partnership, or association of which they are stockholders, members, or associates, respectively; Controversies in the election or appointment of directors, trustees, officers, or managers of corporations, partnerships, or associations; Derivative suits; and Inspection of corporate book (Rule 1, IRR of RA 8799).

FAMILY COURTS

Exclusive Original

1.

2. 3.

4. 5. 6.

7.

Civil Cases Petitions for guardianship, custody of children, habeas corpus in relation to minor; Petitions for adoption of children and its revocation; Complaints for annulment and declaration of nullity of marriage and those relating to marital status and property relations of spouses or those living together under different status and agreements; and petitions for dissolution of conjugal partnership of gains; Petitions for support and/or acknowledgment; Summary judicial proceedings under the Family Code of the Philippines; Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination, or restoration of parental authority and other cases cognizable under PD 603, EO 56 (Series of 1986) and other related laws; and Petitions for the constitution of the family home (rendered unnecessary by Art. 153, Family Code) (Sec. 5, RA 8369).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

16

1. 2.

3. 4.

5.

Criminal Cases Where one or more of the accused is/are below 18 years of age but not less than 9 years of age; When one or more of the victims is a minor at the time of the commission of the offense (RA 8369, Act establishing the family courts); Cases against minors cognizable under the Dangerous Drugs Act, as amended; and Violations of RA 7610 or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, as amended by RA 7658; and Cases of domestic violence against: a. Women – involving acts of gender-based violence that result, or likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman’s personhood, integrity and freedom of movement; b. Children – which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence and discrimination and all other conditions prejudicial to their development (Sec. 5, RA 8369)

GENERAL PRINCIPLES METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Exclusive Original

Civil Cases 1. Actions involving personal property where the value of the property does not exceed Php 300,000 or, in Metro Manila Php 400,000; 2. Actions for claim of money where the demand does not exceed Php 300,000 or, in Metro Manila Php 400,000; 3. Probate proceedings, testate or intestate, where the value of the estate does not exceed Php 300,000 or, in Metro Manila Php 400,000; NOTE: In the foregoing, claim must be exclusive of interest, damages, attorney’s fees, litigation expense, and costs (Sec. 33, BP 129 as amended by RA 7691).

4. Actions involving title to or possession of real property or any interest therein where the value or amount does not exceed Php 20,000 or, in Metro Manila Php 50,000 exclusive of interest damages, attorney’s fees, litigation expense, and costs; (2008 Bar Question) 5. Maritime claims where the demand or claim does not exceed Php 300,000 or, in Metro Manila Php 400,000 (Sec. 33, BP 129 as amended by RA 7691); 6. Inclusion or exclusion of voters (Sec. 138, BP 881); 7. Those covered by the Rules on Summary Procedure: a. Forcible entry and unlawful detainer; b. Other civil cases except probate where the total amount of the plaintiff’s claims does not exceed Php 100,000 or, in Metro Manila Php 200,000 exclusive of interest and costs (as amended by A.M. No. 02-11-09-SC). 8. Those covered by the Rules on Small Claims, i.e. actions for payment of money where the claim does not exceed Php 100,000 exclusive of interest and costs.

Delegated

Criminal Cases 1. All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine and regardless of other imposable accessory or other penalties; 2. In offenses involving damage to property through criminal negligence where the imposable fine does not exceed Php 10,000 (Sec. 32, BP 129 as amended by RA 7691); 3. Where the only penalty provided by law is a fine not exceeding Php 4,000 (Admin. Circular No. 09-94, June 14, 1994); and 4. Those covered by the Rules on Summary Procedure, i.e. a. Violations of traffic laws, rules and regulations; b. Violations of the rental law; c. Violations of municipal or city ordinances; d. Violations of BP 22 (A.M. No. 00-1101-SC); e. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of Php 1,000 irrespective of other penalties or civil liabilities arising therefrom. 5. All offenses committed by public officers and employees in relation to their office, including government-owned or – controlled corporations, and by private individuals charged as co-principals, accomplices or accessories, punishable with imprisonment not more than 6 years or where none of the accused holds a position classified as “Grade 27” and higher (Sec. 4, P.D. 1606 as amended by RA 8249).

Cadastral or land registration cases covering lots where: 1. There is no controversy or opposition 2. Contested but the value does not exceed Php 100,000 (Sec. 34, BP 129 as amended by RA 7691). NOTE: The value shall be ascertained by the affidavit of the claimant or agreement of the respective claimants (Sec. 34, BP 129 as amended by RA 7691).

Special With RTC

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

17

Application for bail in the absence of all RTC judges in the province or city.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Q: A filed a complaint for sum of money against B in the MTC of Manila, seeking for the award of Php 300,000. B, the defendant filed an answer with counterclaim alleging that A is liable to him in the amount of Php 500,000. Assume that Judge C would hold A liable, how much can be awarded to B by way of his counterclaim? Why? A: The judge can award Php 400,000 only, because that limit is the court’s jurisdiction. When B submitted his claim against A, he voluntarily submitted the same to the jurisdiction of MTC, and he is bound thereby. He is deemed to have waived the excess of his claim beyond Php 400,000. It is as if B set up a counterclaim in the amount of Php 400,000 (Albano 2007, citing Agustin v. Bacalan,1985).

SHARIAH COURTS Exclusive Original

Concurrent (with all civil courts)

1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; 2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property; 3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws; 4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and 5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. 1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum; 2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and 3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims.

JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION Katarungang Pambarangay Law

Rule on Small Claims Cases

Purpose/Object

To effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion (Preamble of PD 1508).(1999 Bar Question)

To provide a simpler and more inexpensive and expeditious means of settling disputes involving purely money claims than the regular civil process

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

Where to file

1.

1. 2. 3. 4.

1. 2. 3. 4.

2.

3.

For disputes between residents of the same barangay: the dispute must be brought for settlement in the said barangay. For disputes between residents of different but adjoining barangays and the parties agree to submit their differences to amicable settlement: within the same city or municipality where any of the respondents reside at the election of the complainant. For disputes involving real

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

18

MeTC MTCC MTC MCTC

MeTC MTCC MTC MCTC

GENERAL PRINCIPLES

Civil Cases

property or any interest when the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon therein shall be brought in the barangay where the real property or larger portion thereof is situated. 4. For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. Cases Covered All disputes involving parties who Small claims cases – civil 1. All cases of forcible entry actually reside in the same city or claims which are exclusively and unlawful detainer municipality may be the subject of for the payment or irrespective of the amount the proceedings for amicable reimbursement of a sum of of damages or unpaid settlement in the barangay. money not exceeding Php rentals sought to be 100,000 exclusive of interest recovered. Where and costs, either attorney’s fees are 1. Purely civil in nature awarded, the same shall where the claim or not exceed Php 20,000; relief prayed for by the and plaintiff is solely for 2. All other civil cases, except payment or probate proceedings, reimbursement of sum where the total amount of of money, or plaintiff’s claim does not 2. The civil aspect of exceed Php 100,000 or criminal actions, either does not exceed Php filed before the 200,000 in Metro Manila, institution of the exclusive of interests and criminal action, or costs (A.M. No. 02-11-09reserved upon the filing SC, November 25, 2005). of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure. These claims or demands may be: 1. For money owed under any of the following: a. Contract of Lease b. Contract of Loan c. Contract of Services d. Contract of Sale e. Contract of Mortgage 2. For damages arising from any of the following: a. Fault or negligence b. Quasi-contract c. Contract 3. The enforcement of a barangay amicable settlement or an

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW

Criminal Cases

When punishable by imprisonment of not more than 1 year or fine of not more than Php 5,000 (Sec. 408, LGC).

TOTALITY RULE

1. Violations of traffic laws, rules and regulations; 2. Violations of the rental law; 3. Violations of municipal or city ordinances; 4. Violations of B.P. 22 or the Bouncing Checks Law (A.M. No. 00-11-01-SC, April 15, 2003); 5. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of Php 1,000 irrespective of other penalties or civil liabilities arising therefrom; and 6. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding Php 10,000.

Claim for damages

Totality or Aggregate Rule

If the main action is for the recovery of sum of money and the damages being claimed are merely the consequences of the main cause of action, the same are not included in determining the jurisdictional amount. However, in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court (Albano, 2010, citing Soliven v. Fastforms).

Where there are several claims or causes of actions between the same or different parties embodied in one complaint, the amount of the demand shall be the totality of the claims in all causes of action irrespective of whether the causes of action arose out of the same or different transaction [Sec .5(d), Rule 2]. NOTE: Under the present law, the totality rule is applied also to cases where two or more plaintiffs having separate causes of action against a defendant join in a single complaint, as well as to cases where a plaintiff has separate causes of action against two or more defendants joined in a single complaint. However, the causes of action in favor of the two or more plaintiffs or against the two or more defendants should arise out of the same transaction or series of transactions and there should be a common question of law or fact, as provided in Sec. 6, Rule 3 (permissive joinder of parties). The totality rule is not applicable if the claims are separate and distinct from each other and did not arise from the same transaction. In the case of Flores v. Mallare Philips, the SC did not apply the totality test where there are two claims filed by Flores first against Ignacio Binongcal and the second cause of action was against Fernando Calion for allegedly refusing to pay an amount representing cost of truck tires.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

arbitration award involving a money claim covered by this Rule pursuant to Sec. 417, LGC None

20

CIVIL PROCEDURE CIVIL PROCEDURE

CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS

ACTIONS

Civil action v. Special proceeding (1998 Bar Question)

MEANING OF ORDINARY ACTIONS

A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong [Rule 1, Sec. 3 (a)], while a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact [Rule 1, Sec. 3 (c)].

Ordinary actions It is one in which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. It is governed by ordinary rules (Bouvier’s Law Dictionary, 8th ed.; Words and Phrases, Vol. 2).

Action v. Special proceeding

Subject matter of an action

Purpose

It is the physical facts, the thing, real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted (Iniego v. Purganan, G.R. No. 166876, March 24, 2006). Commencement of an action It is commenced by the filing of the original complaint in court (Sec. 5, Rule 1). It can be instituted by filing the complaint by personal service or by registered mail (Sec. 3, Rule 13).

Governing Law

NOTE: It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction of the subject matter or nature of the action (Heirs of Hinog v. Melicor, G.R. No. 140954, April 12, 2005). When an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading (Sec. 5, Rule 1).

Court

Instances when the Rules of Court are NOT applicable GR: It is not applicable in:(NICOLE)(Sec. 4, Rule 1) 1. 2. 3. 4. 5. 6.

Procedure

Naturalization proceedings Insolvency proceedings Cadastral proceedings Other cases non provided in the Rules of Court Land registration proceedings Election cases

Action Special Proceeding Civil action: 1. To establish a 1. To protect a right status 2. Prevent or 2. Right, or redress a wrong. 3. Particular fact (Sec. 3 Rule 1). Criminal action: Prosecute a person Specific kinds of special for an act or proceedings are found omission punishable in Rule 72 – 109,e.g. by law (Sec. 3, Rule settlement of estate, 1) escheat, guardianship, etc. (Riano, 2009). Ordinary rules Requires the supplemented by application of specific special rules rules as provided for in the Rules of Court (Natcher v. CA, et al., 418 Phil 669, 677, 2001). Heard by courts of Heard by courts of general jurisdiction limited jurisdiction(Ching v. Rodriguez,G.R. No. 192828) Initiated by a Initiated by an pleading and parties application and parties respond through an respond through an answer opposition

XPNs: 1. By analogy or in a suppletory character, and; 2. Whenever practicable and convenient (Sec. 4, Rule 1) MEANING OF SPECIAL CIVIL ACTIONS It is one in which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong wherein it has special features not found in ordinary civil actions. It is governed by ordinary rules but subject to specific rules prescribed Rules 62-71. MEANING OF CRIMINAL ACTIONS It is one by which the state prosecutes a person for an act or omission punishable by law [Sec. 3 (b), Rule 1].

21

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW REAL ACTIONS AND PERSONAL ACTIONS

Scope

Basis

Real Action When it affects title to or possession of real property, or an interest therein (Sec. 1, Rule 4).

When it is founded upon the privity of a real estate. The realty or interest therein is the subject matter of the action. NOTE: It is important that the matter in litigation must also involve any of the following issue: 1. Title 2. Ownership 3. Possession 4. Partition 5. Foreclosure of mortgage 6. Any interest in real property (Riano, 2011).

Venue

Venue of action shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated (Sec. 1 , Rule 4).

LOCAL AND TRANSITORY ACTIONS

Personal Action Personal property is sought to be recovered or enforcement of a contract or recovery of damage (Riano, 2009)

Venue

Privity of contract

Founded on privity of contract such as damages, claims of money, etc. (Paper Industries Corporation of the Philippines v. Samson, G.R. No. L-30175, November 28, 1975).

Venue of action is the place where the plaintiff or any of the principal plaintiffs resides or any of the defendants resides, at the election of the plaintiff (Sec. 2, Rule 4 ).

NOTE: The distinction between a real action and a personal action is important for the purpose of determining the venue of the action. Questions involving the propriety or impropriety of a particular venue are resolved by initially determining the nature of the action, i.e., if the action is personal or real (Riano, 2011).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

22

Local Action Must be brought in a particular place where the subject property is located, unless there is an agreement to the contrary (Sec. 4, Rule 4)

Transitory Action Dependent on the place where the party resides regardless of where the cause of action arose. Subject to Sec. 4, Rule 4.

No privity of contract and the action is founded on privity of estate only (Riano, 2011).

Founded on privity of contract between the parties whether debt or covenant (Paper Industries Corporation of the Philippines v. Samson, G.R. No. L30175, November 28, 1975).

CIVIL PROCEDURE ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

Nature

Purpose

Scope

Required jurisdiction

Effect of judgment

Example

Action In Rem Action In Personam A proceeding to determine title, status A proceeding to enforce personal or condition of property within its rights and obligations brought borders. against the person (Riano, 2011).

Action Quasi In Rem A proceeding to subject the property of the named defendant or his interests therein to the obligation or lien burdening the property (Riano, 2011). A proceeding to bar indifferently all To impose through the judgment of a Deals with the status, who might be minded to make any court, some responsibility or liability ownership or liability of a objection against the right sought to directly upon the person of the particular property but be enforced, hence the judgment defendant (Domagas v. Jensen, 448 which are intended to therein is binding theoretically upon SCRA 663). operate on these the whole world (Regalado, 2012). questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants (Domagas v. Jensen, 448 SCRA 663). Directed against the thing itself Directed against particular persons Directed against particular instead of against the person (Riano, (Domagas v. Jensen, 448 SCRA 663). persons with respect to 2011). the res. Jurisdiction over the person of the Jurisdiction over the person of the Jurisdiction over the defendant is not required. defendant is required (Biaco v. person of the defendant is Jusrisdiction over the res is required Philippine Countryside Rural Bank, not required as long as through publication in a newspaper of 515 SCRA 106). jurisdiction over the res is general circulation (Biaco v. Philippine acquired (Biaco v. Countryside Rural Bank, 515 SCRA Philippine Countryside 106). Rural Bank, 515 SCRA 106). Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding world (Regalado, 2012). parties impleaded or their only upon the litigants, successors-in-interest. privies, successor in interest but the judgment shall be executed against a particular property. The res involve will answer the judgment. 1. Probate proceeding 1. Action for partition 1. Action for specific performance 2. Cadastral proceeding (In re Estate 2. Action for Accounting (Jose v. Boyon, 414 SCRA 217) of Johnson, 39 Phil 156) (Riano, 2011, citing 2. Action for breach of contract 3. Land registration proceeding Valmonte v. CA, 252 3. Action for a sum of money; for (Republic v. Herbieto, 459 SCRA SCRA 92). damages (Riano, 2011). 183)

NOTE: The distinction between actions in rem, in personam and quasi in rem is important in determining the following: 1. 2. 3.

Whether or not jurisdiction over the person of the defendant is required; and The type of summons to be employed (Gomez v. CA, G.R. No. 127692, March 10, 2004)

CAUSE OF ACTION

Elements of a cause of action (LOV)

Cause of Action

1. A legal right in favor of the plaintiff; 2. An obligation on the part of the named defendant to respect or not to violate such right; and 3. Act or omission on the part of such defendant in violation of the right of the plaintiff; or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief (Riano, 2011).

It is the act or omission by which a party violates a right of another (Sec. 2, Rule 2).

23

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Cause of action in administrative case

FAILURE TO STATE A CAUSE OF ACTION Failure to state cause of action v. absence or lack of cause of action

In an administrative case, the issue is not whether the complainant has a cause of action against the respondent, but whether the respondent has breached the norms and standards of the office (Riano, 2011).

Definition CAUSE OF ACTIONVERSUS RIGHT OF ACTION Cause of Action It is the act or omission by which a party violates the rights of another (Sec. 2, Rule 2).

Definition

Requisites

Nature

Basis

Effect of Affirmative Defense

Right of Action Right of a plaintiff to bring an action and to prosecute that action until final judgment (Marquez v. Varela, 92 Phil. 373). 1. The existence of 1. There must be a a legal right of good cause the plaintiff (existence of a 2. A correlative duty cause of action) of the defendant 2. A compliance to respect one’s with all the right conditions 3. An act or precedent to the omission of the bringing of the defendant in action violation of the 3. Right to bring and plaintiff’s right maintain the (Agrarian Reform action must be in Beneficiaries the person Association v. instituting it Nicolas, G.R. No. (Albano, 2010). 168394, October 6, 2008). It is actually Right of action predicated on which is procedural substantive law or in character is the on quasi delicts consequence of the under NCC (Riano, violation of the right 2011). of the plaintiff (Riano, 2009). Based on the Basis is the allegations of the plaintiff’s cause of plaintiff in the action. There is no complaint right of action where there is no cause of action (Regalado, 2012). Not affected by May be taken away affirmative defenses by running of (fraud, prescription, Statute of limitation, estoppels, etc.) by estoppel or other circumstances which do not at all affect the cause of action (Regalado, 2012).

As a ground for dismissal

Raised in a motion to dismiss under Rule 16 before a responsive pleading is filed

Determination

Determined only from the allegations of the pleading and not from evidentiary matters (Riano, 2011).

Lack of cause of action Failure to prove or establish by evidence one’s stated cause of action Raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case (Enojas v. Comelec, 283 SCRA 232). Resolved only on the basis of the evidence he presented in support of his claim (Riano, 2011).

Dismissal based on failure to state a cause of action does not bar the subsequent re-filing of the complaint Dismissal of a complaint for failure to state a cause of action does not bar the subsequent re-filing of the complaint (Sec. 5, Rule 16). Effect of lack of cause of action on the jurisdiction of the court Lack of cause of action does not affect the authority of a court to hear and decide a given case, if the court has jurisdiction over its subject matter, over the parties therein, and in an action in rem, over the res (Herrera, 2007). TEST OF SUFFICIENCY OF CAUSE OF ACTION 1. Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Coop., Inc. v. David, 468 SCRA 63); 2. The sufficiency of the statement of cause of action must appear on the face of the complaint and its existence is only determined by the allegations of the complaint (Viewmaster Construction Corp. v. Roxas, 335 SCRA 540). NOTE: The truth or falsity of the allegations is beside the point because the allegations in the complaint are hypothetically admitted. Thus a motion to dismiss on the ground of failure to state a cause of action, hypothetically admits the matters alleged in the complaint.

NOTE: The rule is “there is no right of action where there is no cause of action” (Ibid.).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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

24

CIVIL PROCEDURE SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS

Misjoinder of causes of action

Splitting of cause of action

There is a misjoinder when two or more causes of action were joined in one complaint when they should not be so joined. This is not a ground for dismissal of an action. A misjoined cause of action may be severed and proceeded with separately by filing a motion in relation thereto (Sec. 6, Rule 2). There is no sanction against non-joinder of separate causes of action. Non-joinder of causes of action should be joined.

It is the act of instituting two or more suits on the basis of the same cause of action (Sec. 4, Rule 2). It is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. The rule against splitting of a cause of action aims to avoid multiplicity of suits, conflicting decisions and unnecessary vexation and harassment of defendants. It applies not only to complaints but also to counterclaims and cross-claims.

Q: P sued A and B in one complaint in the RTC-Manila, the cause of action against A being an overdue promissory note for P300,000 and that against B being an alleged balance of P300,00 on the purchase of goods sold on credit. Does the RTC-Manila have jurisdiction over the case? (2002 Bar Question)

Effect of splitting a cause of action If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others (Sec. 4, Rule 2).

A: No, the RTC-Manila has no jurisdiction over the case. The joinder of the causes of action against A and B is not proper. For a joinder of causes of action against several defendants to be proper, the joinder must comply with the rules on joinder of the parties under Sec. 6 of Rule 3. This rule requires that the causes of action joined should arise out of the same transactions and there exists a question of law or facts common to both. These requirements are not met under the facts.

Remedies against splitting cause of action File a motion to dismiss, on the ground of litis pendentia or if the first action has already been finally terminated, on the ground of res judicata. NOTE: Litis pendentia and forum shopping have similar elements, so it is best for the counsel to move for the dismissal based on forum shopping under Sec. 5, Rule 7 and show that the party or his counsel willfully and deliberately resorted to forum shopping because the effect is a dismissal with prejudice in addition to the sanction for direct contempt as well as a cause for administrative sanctions.

Since the causes of action cannot be joined, each action must be the subject of a separate action. The totality rule has no application under the facts of the case. The amount of each claim falls within the jurisdiction of the MTC. Q: Can there be a valid judgment in case of misjoined causes of action?

JOINDER AND MISJOINDER OF CAUSES OF ACTION Joinder of causes of action

A: Yes, while parties to an action may assert in one pleading, in alternative or otherwise, as many causes of action as they may have against the opposing party, such joinder of causes of action is subject to a condition, inter alia, that the joinder shall not include special civil actions governed by special rules. Nevertheless, misjoinder of causes of action is not a ground for dismissal. Indeed, the courts have the power, acting upon the motion of a party to the case or sua sponte, to order the severance of the misjoined cause of action to be proceeded with separately. However, if there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action. It should be emphasized that the foregoing rule only applies if the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the same. If the court trying the case has no jurisdiction over a misjoined cause of action, then such misjoined cause of action has to be severed, any adjudication rendered by the court with respect to the same would be a nullity (Ada v. Baylon, G.R. No. 182435, August 13, 2012).

It is the assertion of as many causes of action a party may have against another in one pleading alone (Sec. 5, Rule 2). Requisites of joinder of causes of action 1. The party shall comply with the rules on joinder of parties;(Sec. 6, Rule 3) a. Right to relief arises out of the same transaction or series of transaction b. There is common question of law of law or fact 2. The joinder shall not include special civil actions governed by special rules; 3. Where causes of action pertain to different venues, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies therein 4. Where claims in all causes of action are for recovery of money, the aggregate amount claimed shall be the test for jurisdiction (Sec. 5, Rule 2). NOTE: A joinder of causes of action is only permissive, not compulsory; hence, a party may desire to file a single suit for each of his claims (Riano, 2011).

25

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Splitting of cause of action v. Joinder of causes of action Splitting of Cause of Action

Joinder of Causes of Action

It is the practice of dividing one cause of action into different parts and making each part the subject of a separate complaint (Bachrach v. Icaringal, 68 SCRA 287). Prohibited. A party may not institute more than 1 suit for a single cause of action (Sec. 3, Rule 2).

Assertion of as many causes of action as a party may have against another in one pleading alone (Sec. 5, Rule 2).

It causes multiplicity of suits and double vexation on the part of the defendant (Riano, 2011).

3.

Encouraged (no sanction against nonjoinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action) It minimizes multiplicity of suits and inconvenience on the parties.

Joinder of cause of action v. Joinder of parties (1996 Bar Question) Joinder of Cause of Action It refers to the procedural device whereby a party who asserts various claims against the same or several parties, file all his claims against them in a single complaint. It will not necessarily involve a joinder of parties.

Lack of legal capacity to sue v. Lack of legal personality to sue

Joinder of Parties It may be employed when there are various causes of actions that accrue in favor of one or more plaintiffs against one or more defendants i.e. there is plurality of parties.

Lack of Legal Capacity to Sue It refers to plaintiff’s general disability to sue such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications of a party. Ground for a motion to dismiss for lack of legal capacity to sue (Calano v. Cruz, 91 Phil. 247 [1952]).

It may or may not be involved in a joinder of causes of actions (Riano, 2011).

PARTIES TO CIVIL ACTIONS Parties to a civil action 1. 2.

Natural persons; Juridical persons a. The State and its political subdivisions; b. Other corporations, institutions and entities for public interest or purpose, created by law; and c. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member (Art. 44, NCC).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Entities authorized by law a. Corporation by estoppel is precluded from denying its existence and the members thereof can be sued and be held liable as general partners (Sec. 21, Corporation Code); b. A contract of partnership having a capital three thousand pesos or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons (Art. 1772 in relation to Art. 1768, NCC); c. Estate of a deceased person (Limjoco v. Intestate Estate of Fragante, G.R. No. L-770, April 27, 1948); d. A legitimate labor organization may sue and be sued in its registered name (Art. 242[e], Labor Code of the Philippines); e. The Roman Catholic Church may be a party and as to its properties, the archbishop or diocese to which they belong (Versoza v. Hernandez, G.R. No. L-25264, November 22, 1926); f. A dissolved corporation may prosecute and defend suits by or against it provided that the suits: i. Occur within three years after its dissolution; and ii. The suits are in connection with the settlement and closure of its affairs (Sec. 112, Corporation Code).

26

Lack of Legal Personality to Sue The plaintiff is not the real party in interest (Columbia Pictures, Inc. v. CA, G.R. No. 110318, August 28, 1996).

Ground for motion to dismiss for complaint states no cause of action (Casimiro v. Roque, et al., 98 Phil. 880 [195]; Gonzales, et al. v. Alegarbes, 99 Phil. 213 [1956])

CIVIL PROCEDURE Rules with regard to the right of a foreign corporation to bring suit in Philippine courts

e.

1.

f.

If it does business in the Philippines with the required license, it can sue before Philippine courts on any transaction (Agilent Technologies v. Integrated Silicon, G.R. No. 154618, April 14, 2004). If it does business in the Philippines without a license, it cannot sue before the Philippine courts. If it is not doing business in the Philippines, it needs no license to sue before Philippine courts on an isolated transaction or on a cause of action entirely independent of any business transaction. If it is without license to do business and is not doing business in the Philippines is not disqualified from filing and prosecuting an action for unfair competition and may be sued for acts done against a person or persons in the Philippines, or may be sued in Philippine Courts. If it does business in the Philippines without license, a Philippine citizen or entity which has contracted with said corporation may be estopped from challenging the foreign corporation’s corporate personality in a suit brought before Philippine courts (Herrera, 2007).

2. 3.

4.

5.

5.

REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS Kinds of parties in a civil action

GR: Husband and wife shall sue and be sued jointly inasmuch as both are co-administrators of the community property under the system of absolute community of property, as well as the conjugal partnership property (Feria & Noche, 2001).

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

XPNs:

2.

3.

Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse: a. When one spouse becomes the guardian of the other; b. When one spouse is judicially declared an absentee; c. When one spouse is sentenced to a penalty which carries with it civil interdiction; or d. When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

NOTE: If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator.

Rule on spouses as parties

1.

That the spouse granted the power of administration in the marriage settlements has abused that power; and That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

A spouse without just cause abandons the other or fails to comply with his or her obligations to the family with respect to marital, parental or property relations (Arts. 101&108, FC). A spouse of age mortgages, encumbers, alienates or otherwise disposes of his or her exclusive property (Art. 111, FC). The regime of separation of property governs the property relations between spouses (Art. 145, FC).

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

Real party in interest He is the party who stands to be: (BIE) 1. Benefited or 2. Injured by the judgment in the suit, or 3. The party entitled to the avails of the suit (Sec. 2 Rule 3). NOTE: To be a real party-in-interest, the interest must be ‘real,’ which is a present substantial interest as distinguished from a mere expectancy or a future, contingent subordinate or consequential interest (Rayo v. Metrobank, 539 SCRA 571). It is an interest that is material and direct, as distinguished from a mere incidental interest in the question (Samaniego v. Aguila, 334 SCRA 439).

NOTE: In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property (191a).

4. Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: a. That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; b. That the spouse of the petitioner has been judicially declared an absentee; c. That loss of parental authority of the spouse of petitioner has been decreed by the court; d. That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Art. 101;

Indispensable party Those without whom no final determination can be had of an action (Sec. 7, Rule 3). Tests to determine whether a party is an indispensable party 1. 2.

27

Can relief be afforded to the plaintiff without the presence of the other party Can the case be decided on its merits without prejudicing the rights of the other party (Rep. v. Sandiganbayan, G.R. No. 152154, July 15, 2003). UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: The presence of indispensable parties is a condition for the exercise of juridical power and when an indispensable party is not before the court, the action should be dismissed.

Effect of non-joinder of a necessary party (1998 Bar Question) 1.

Necessary party Those who are not indispensable but ought to be parties if complete relief is to be accorded to those already parties or for a complete determination or settlement of the claim subject of the action (Sec. 8, Rule 3).

2.

3.

Indispensable party v. Necessary party Indispensable Parties Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants (Sec.7, Rule 3). Must be joined under any and all conditions because the court cannot proceed without him (Riano, 2011).

No valid judgment if they are not joined. NOTE: The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present (Riano, 2011).

Necessary Parties A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (Sec.8, Rule 3).

Suing a defendant in the alternative Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other (Sec. 13, Rule 3). Action prosecuted in the name of the real party in interest Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3). Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be a real party-in-interest (Sec.3, Rule 3; Riano, 2011).

NOTE: Should be joined whenever possible, however, the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid.).

The case may be determined in court but the judgment therein will not afford a complete relief in favor of the prevailing party

NOTE: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

Rule when the defendant’s name or identity is unknown

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

He may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require. However, when his identity or true name is discovered, the pleading must be amended accordingly (Sec. 14, Rule 3). Indigent Party They are those: 1. Whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and 2. Who do not own real property with a fair market value as stated in the current tax declaration of more than Php 300,000.00 shall be exempt from the payment of legal fees (Sec. 19, Rule 141 as amended by A.M. No. 04-2-04-SC).

The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-compliance with the said order would be a ground for the dismissal of the action (Feria & Noche, 2001).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

He is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family (Sec. 21, Rule 3).

28

CIVIL PROCEDURE any decision of the court; otherwise, he will be deprived of his right to due process (Sepulveda, Sr. v. Pelaez, 450 SCRA 302).

Rule on indigent litigants If the applicant for exemption meets the salary and property requirements under Sec. 19, Rule 141, then the grant of the application is mandatory. However, if the trial court finds that one or both requirements have not been met, then it would set a hearing to enable the applicant to prove that the applicant has “no money or property sufficient and available for food, shelter and basic necessities for himself and his family” as provided in Sec. 21, Rule 3. In that hearing, the adverse party may adduce countervailing evidence to disprove the evidence presented by the applicant; after which the trial court will rule on the application depending on the evidence adduced. In addition, Sec. 21, Rule 3 also provides that the adverse party may later still contest the grant of such authority at any time before judgment is rendered by the trial court, possibly based on newly discovered evidence not obtained at the time the application was heard (Algura v. LGU of Naga, G.R. No. 150135, October 30, 2006).

Requisites of permissive joinder of parties 1. Right to relief arises out of the same transaction or series of transactions (connected with the same subject matter of the suit); 2. There is a question of law or fact common to all the plaintiffs or defendants. NOTE: There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when doubt arises as to the truth or the falsehood of alleged facts (Manila Bay Club Corp. v. CA, et al., G.R. No. 110015).

Rationale of Permissive Joinder of Parties The purpose and aim of the principle is to have controversies and the matters directly related thereto settled once and for all once they are brought to the courts for determination. Litigation is costly both to litigants and to the State, and the objective of procedure is to limit its number or extent. Inconsonance with the above principle, we have the rules against multiplicity of suits, the rule of estoppel by judgment (Sec. 44, Rule 39), and the rule of res judicata (Sec. 45, Rule 39; Fajardo v. Bayano, G.R. No. L8314, March 23, 1956).

Exemption from fees Authority as an indigent party includes an exemption from the payment of: 1. Docket fees and other lawful fees 2. Transcript of stenographic notes (Sec. 21, Rule 3). NOTE: The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless otherwise provided (Sec. 21, Rule 3).

Q: When may the court order the joinder of a necessary party? (1998 Bar Question) A: If the reason given for the non-joinder of the necessary party is found by the court to be unmeritorious, it may order the pleader to join the omitted party if jurisdiction over his person may be obtained. The failure to comply with the order of the court to include a necessary party, without justifiable cause, shall be deemed a waiver of the claim against such party (Sec. 9, Rule 3).

Pro forma party One who is joined as a plaintiff or defendant, not because such party has any real interest in the subject matter or because any relief is demanded, but merely because the technical rules of pleadings require the presence of such party on the record (Samaniego v. Agulia, G.R. No. 125567, June 27, 2000).

MISJOINDER AND NON-JOINDER OF PARTIES

Quasi party

The Rules of court prohibit the dismissal of a suit on the ground of non-joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the proceedings, through motion or on order of the court on its own initiative (Sec. 11, Rule 3; Rep. v. Sandiganbayan, G.R. No. 152154, July 15, 2003). However, when the order of the court to implead an indispensable party goes unheeded, the court may order the dismissal of the case. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when, among others, he does not comply with the order of the court (Sec. 3, Rule 17; Plasabas v. CA, GR No. 166519; Riano, 2011).

Those in whose behalf a class or representative suit is brought. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES Compulsory joinder of parties The joinder of parties becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of indispensable parties (Riano, 2011). NOTE: The presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. It is precisely when an indispensable party is not before the court that the action should be dismissed. Thus, the plaintiff is mandated to implead all the indispensable parties, considering that the absence of one such party renders all subsequent action of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. One who is a party to a case is not bound by

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW CLASS SUIT

EFFECT OF DEATH OF PARTY LITIGANT

Class Suit

Effect of the death of a party upon a pending action (1999 Bar Question)

It is an action where one or some of the parties may sue for the benefit of all if the requisites for said action are complied with (Riano, 2011).

1.

Requisites of class suit

2.

1. 2. 3.

4.

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

3.

Q: On January 4, 1988, a complaint for damages amounting to more than One and a half billion pesos (Php 1.5Billion) was filed in the name and on behalf of the relatives or heirs of the victims of the worst sea disaster in history, the sinking of the vessel Doña Pas caused by its collision with another vessel. The complaint characterized the action as a class suit, prosecuted by 27 named plaintiffs on their behalf and in representation of the approximately 4,000 persons who are all close relatives and legal heirs of the passenger of the Doña Paz. Is this a proper class suit?

NOTE: The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party (Riano, 2011). If there is notice of death, the court should await appointment of legal representative; otherwise, subsequent proceedings are void.

Claims that survive and do not survive Claims that survive 1. Recovery of contractual money /claims( oral or written) 2. Recovery/ protection of property Rights 3. Recovery of real or personal property or interest 4. Enforcement of lien 5. Recovery of damages for an injury to person or property and suits by reason of the alleged tortuous acts of the defendant (Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, 1967). 6. Actions and obligations arising from delicts (Aguas v. Llemos, G.R. No. L18107, August 30, 1962). 7. Ejectment case (Tanhueco v. Aguilar, G.R. No. L-30369, May 29, 1970).

A: No, because the interest of each of the plaintiffs is limited to the damages being claimed by him. NOTE: Even if the parties are numerous, there must be a community of interest for a class suit because the subject matter of the controversy must be of common interest among all of them. If the class suit is not proper, the remedy of the parties is either to bring suit individually or join them all as parties under the rule on permissive joinder of parties.

SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (Sec. 15, Rule 3). NOTE: Persons associated in an entity without juridical personality, however, cannot sue under such name.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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

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Claims that do NOT survive 1. Purely Personale.g. Legal Separation 2. Performance that cannot be purely delegated 3. Claim that cannot be instituted by executor or administrator

CIVIL PROCEDURE NOTE: The criterion for determining whether an action survives the death of a petitioner was elucidated in Bonilla v. Barcena to wit: The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive, the wrong complained [of] affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental (Memoracion Z. Cruz v. Oswaldo Z. Cruz, G.R. No. 173292, September 1, 2010).

VENUE VENUE VERSUS JURISDICTION Venue v. Jurisdiction (2006 Bar Examination)

Purpose of non-survival of claims The reason for the dismissal of the case is that upon the death of the defendant a testate or intestate proceeding shall be instituted in the proper court wherein all his creditors must appear and file their claims which shall be paid proportionately out of the property left by the deceased (1 Moran, 1979). Purpose and importance of substitution of the deceased The purpose behind the rule on substitution of parties is the protection of the right of every party to due process. It is to ensure that the deceased would continue to be properly represented in the suit through the duly appointed legal representative of the estate (Torres v. CA, 278 SCRA 793; Vda. De Salazar v. CA, 250 SCRA 305). Effect of non-compliance with the rules on substitution GR: It renders the proceedings of the trial court infirm because the court acquired no jurisdiction over the person of the legal representative (Brioso v. Rili-Mariano, G.R. No. 132765, January 31, 2003). Non-compliance therewith results in the undeniable violation of the right to due process of those who, though not duly notified of the proceedings, are substantially affected by the decision rendered therein (Vda. De Salazar v. CA, G.R. No. 121510, November 23, 1995).

Venue The place, or geographical area where an action is to be filed and tried (Manila Railroad Company v Attorney General, 20 Phil 523). Can only be objected to before the other party files a responsive pleading (Answer) May be waived by: 1. Failure to object through a motion to dismiss or through an affirmative defense. 2. Stipulation of the parties. Procedural May be stipulated by the parties

Jurisdiction Power of the court to hear and decide a case

Establishes a relation between plaintiff and defendant, or petitioner and respondent. GR: Not a ground for a motu proprio dismissal

Establishes a relation between the court and the subject matter

Can be brought up at any stage of the proceedings Cannot be waived

Substantive Cannot be the subject of the agreement of the parties

It is a ground for a motu proprio dismissal (Riano, 2011).

XPN: In cases subject to summary procedure (Riano, 2011). NOTE: In civil cases, venue is not a matter of jurisdiction (Hrs. of Lopez v. de Castro, 324 SCRA 591, 2000). Venue becomes jurisdictional only in a criminal case. In the latter case, where the information is filed not in the place where the offense was committed, the information may be quashed for lack of jurisdiction over the offense charged (Sec. 3, Rule 117).

XPNs: 1. Even if there is non-compliance with the rules on substitution but the heirs themselves voluntarily appeared, participated in the case and presented evidence in defense of deceased defendant, the action does not deprive the court of jurisdiction (Vda. De Salazar v. CA, G.R. No. 121510, November 23, 1995). 2. In ejectment cases where the counsel fails to inform the court of the death of his client and thereby results to the non-substitution of the deceased by his legal representatives, the action does not deprive the court of jurisdiction. The decision of the court is nevertheless binding upon the successors-in-interest of the deceased. A judgment in an ejectment case may be enforced not only against defendants but also against the members of their family, their relatives, or privies who derived their right of possession from the deceased defendant (Vda. De Salazar v. CA, G.R. No. 121510, November 23, 1995 citing Florendo Jr. v. Coloma, G.R. No. L-60544, May 19, 1984).

Q: Can a complaint be dismissed by the court motu proprio based on improper venue? A: No. Improper venue is not one of the grounds wherein the court may dismiss an action motu proprio (Universal Corp. v. Lim, G.R. No. 154338, October 5, 2007). Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised (Dacuycuy v. IAC 195 SCRA 641). NOTE: An order denying a motion to dismiss is merely interlocutory. The normal remedy is to file an answer and interpose the ground as an affirmative defense, go to trial and appeal from the adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop v. CA, 353 SCRA 89).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW VENUE OF REAL ACTIONS

Defendant does not reside and is not found in the Philippines

The venue is local, hence the venue is the place where the real property involved or, any portion thereof, is situated (Sec. 1, Rule 4).

1.

If the action affects the personal status of the plaintiff – the action may be commenced and tried in the court of the place where the plaintiff resides

2.

If it involves any property of the non-resident defendant – the action may be commenced and tried where the property or any portion thereof is situated (Sec. 3, Rule 4).

VENUE OF PERSONAL ACTIONS Venue of personal actions The venue is transitory; hence the venue is the residence of the plaintiff or defendant, at the option of the plaintiff (Sec. 2, Rule 4). NOTE: The residence of a person must be his personal, actual or physical habitation or his actual residence or abode. It does not mean fixed permanent residence to which when absent, one has the intention of returning. Actual residence may in some cases be the legal residence or domicile, but for purposes of venue, actual residence is the place of abode and not necessarily legal residence or domicile. Actual residence signifies personal residence, i.e., physical presence and actual stay thereat. This physical presence, nonetheless, must be more than temporary and must be with continuity and consistency (Jose Baritua v. CA, et al. G.R. No. 108547, February 3, 1997).

WHEN THE RULES ON VENUE DO NOT APPLY 1.

2.

EFFECTS OF STIPULATIONS ON VENUE

Q: A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando, La Union in the RTC of Quezon City for the collection of a debt of P1 million.X did not file a motion to dismiss for improper venue but filed his answer raising therein improper venue as an affirmative defense. He also filed a counterclaim for Php80, 000.00 against A for attorney’s fees and expenses for litigation. X moved for a preliminary hearing on said affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of jurisdiction. Rule on the affirmative defense of improper venue. (1998 Bar Question)

Stipulations on venue The parties may agree on a specific venue which could be in a place where neither of them resides (Universal Robina Corp. v. Lim, 535 SCRA 95). The parties may stipulate on the venue as long as the agreement is in writing, made before the filing of the action, and exclusive as to the venue [Sec. 4 (b), Rule 4]. NOTE: A stipulation on venue is void and unenforceable when it is contrary to public policy (Sweet Lines v. Teves, G.R. No. 28324, November 19, 1978).

A: There is improper venue. The case is for a sum of money is a personal action. It must be filed in the residence of either the plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernando, La Union (Sec. 2, Rule 4).

When exclusive Venue is exclusive when the stipulation clearly indicates, through qualifying and restrictive words that the parties deliberately exclude causes of actions from the operation of the ordinary permissive rules on venue and that they intended contractually to designate a specific venue to the exclusion of any other court also competent and accessible to the parties under the ordinary rules on venue of actions (Philippine Banking Corp. v. Tensuan, G.R. No. 106920, December 10, 1993).

VENUE OF ACTIONS AGAINST NON-RESIDENTS Venue of action against non-residents Defendant does not reside but is found in the Philippines

1.

Personal actions – shall be commenced and tried in the court of the place where the plaintiff resides

2.

Real actions – shall be commenced and tried in the court of the place where the property is located (Riano, 2011).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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

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CIVIL PROCEDURE Effect of a stipulation on venue agreed upon by parties

COMPLAINT

The mere stipulation on the venue of an action is not enough to preclude parties from bringing the case in other venue. In the absence of restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue. While they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 in the absence of qualifying or restrictive words. If the language is restrictive, the suit may be filed only in the place agreed upon by the parties (Spouses Lantin v. Lantion, G.R. No. 160053, August 28, 2006)

It is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action, with a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable. NOTE: The names and residences of the plaintiff and defendant, if known, must be stated (Sec. 3, Rule 6). The term "ultimate facts" as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiff's cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. A pleading should state the ultimate facts essential to the rights of action or defense asserted, as distinguished from mere conclusion of fact, or conclusion of law. An allegation that a contract is valid, or void, as in the instant case, is a mere conclusion of law (Remitere v. Yulo, G.R. No. L-19751, February 28, 1966).

Q: X, a resident of Angeles City borrowed P300, 000.00 from A, a resident of Pasay City. In the loan agreement, the parties stipulated that “the parties agree to sue and be sued in the City of Manila”. 1. 2.

3.

A: 1.

2.

3.

ANSWER

In case of non-payment of the loan, can A file his complaint to collect the loan from X in Angeles City? Suppose the parties did not stipulate in the loan agreement as to the venue, where A can file his complaint against X? Suppose the parties stipulated in their loan agreement that “venue for all suits arising from this contract shall be the courts in Quezon City,” can A file his complaint against X in Pasay City? (1997 Bar Question)

It is the pleading where the defendant sets forth his affirmative or negative defenses (Sec. 4, Rule 6). It may likewise be the response to a counterclaim or a cross-claim. It may be an answer to the complaint, an answer to a counter-claim, or an answer to a cross-claim (Riano, 2011). DEFENSES 2 kinds of defenses that may be set forth in the answer 1. Negative defenses 2. Affirmative defenses

Yes, because the stipulation in the loan agreement that “the parties agree to sue and be sued in the City of Manila” does not make Manila the “exclusive venue thereof” (Sec. 4, Rule 4). Hence, A can file his complaint in Angeles City where he resides (Sec. 2, Rule 4). If the parties did not stipulate on the venue, A can file his complaint either in Angeles City where he resides or in Pasay City where X resides. Yes, because the wording of the stipulation does not make Quezon City the exclusive venue.

Insufficient denials or denials amounting to an admission 1. 2.

NEGATIVE DEFENSES Negative defenses

PLEADINGS

A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action [Sec. 5 (a), Rule 6].

Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec.1, Rule 6).

Specific denials that must be made under oath

KINDS OF PLEADINGS 1. 2. 3. 4. 5. 6. 7. 8. 9.

General denial- an admission of the material averments in the complaint (Sec. 11, Rule 8). Denial in the form of a negative pregnant (Riano, 2011).

1. 2.

Complaint Answer Counterclaim Cross-claim Reply Third party (fourth-party etc.) complaint (Sec. 2, Rule 6) Counter-claim Counter-cross-claim Complaint-in-intervention

A denial of an actionable document (Sec. 8, Rule 8); A denial of allegation of usury in a complaint to recover usurious interest (Sec. 11, Rule 8)

NOTE: Whenever an action or defense is based or founded upon a written instrument or document, said instrument or document is deemed an actionable document.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NEGATIVE PREGNANT

2 Kinds of Counterclaims (2007 Bar Question)

It is a form of denial which, at the same time, involves an affirmative implication favorable to the opposing party. It is in effect an admission of the averment to which it is directed. It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to (Regalado, 2012). A denial in the form of a negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact, or only the qualification that is intended to be denied (Galofa v. Nee Bon Sing, G.R. No. L-22018, January 17, 1968).

Compulsory Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim (Sec.7, Rule 6). It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Barred if not set up in the action (Sec. 2, Rule 9). Need not be answered; No default Not an initiatory pleading. Need not be accompanied by a certification against forum shopping and certificate to file action by the Lupong Tagapamayapa.

Example: An assertion of a defendant which questions the amount of money involved in a bank account but does not deny its existence, when such is the issue in the case, is said to have admitted the existence of such bank account. The denial of the amount of money deposited is pregnant with an admission of the existence of the bank account (Republic of the Philippines v. Sandiganbayan, G.R. No. 152154, July 15, 2003). AFIRMATIVE DEFENSES Affirmative defenses

It is defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance [Sec. 5(b), Rule 6].

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

Kinds of affirmative defenses 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Fraud Statute of limitations Release Payment Illegality Statute of frauds Estoppel Former recovery Discharge in bankruptcy Any other matter by way of confession and avoidance [Sec. 5(b), Rule 6; Pesane Animas Mongao v. Pryce Properties Corpo., 467 SCRA 201, 214).

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered,; Otherwise, default Initiatory pleading Must be accompanied by a certification against forum shopping and whenever required by law, also a certificate to file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla, G.R. No. 129718, August 17, 1998). Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise, defendant will have to file it in separate proceeding which requires payment of docket fee

NOTE: In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6).

Q: A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando, La Union in the RTC of Quezon City for the collection of a debt of P1 million. X did not file a motion to dismiss for improper venue but filed his answer raising therein improper venue as an affirmative defense. He also filed a counterclaim for P80, 000.00 against A for attorney’s fees and expenses for litigation. X moved for a preliminary hearing on said affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of jurisdiction. Rule on the motion to dismiss the counterclaim on the ground of lack of jurisdiction over the subject matter. (1998 Bar Question)

COUNTERCLAIMS COMPULSORY COUNTERCLAIM;PERMISSIVE COUNTERCLAIM Counterclaim (1999 Bar Examination)

A: The motion to dismiss on the ground of lack of jurisdiction over the subject matter should be denied. The counterclaim for attorney’s fees and expenses of litigation is a compulsory counterclaim because it necessarily arose out of and is connected with the complaint. In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6).

It is any claim which a defending party may have against an opposing party (Sec. 6, Rule 6). It partakes of a complaint by the defendant against the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No. 118192, October 23, 1997).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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

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CIVIL PROCEDURE EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED

Effect if a cross-claim was not set up GR: Barred if not set up (Sec.2, Rule 9).

Effect of the dismissal of a complaint on the counterclaim XPN: If it is not asserted due to oversight, inadvertence, or excusable negligence, it may still be set up with leave of court by amendment of the pleadings (Sec.10, Rule 11).

1. If no motion to dismiss has been filed, any of the grounds for dismissal under Rule 16 may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16). After hearing, when the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. 2. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal shall be limited to the complaint. It shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17). 3. When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up, the dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action (Sec. 3, Rule 17; Riano, 2011).

Counterclaim v. Cross-claim (1999 Bar Examination) A counterclaim is a claim against an opposing party while a cross claim is against a co-party (Sec. 8, Rule 6). Q: A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries. X files an action for damages against A and B. May B file a third-party complaint against A for indemnity? Explain. (1996 Bar Question) A: No, because what B should file is a cross-claim against his co-defendant A. THIRD (FOURTH, ETC.) PARTY COMPLAINTS Third (fourth, etc.) party complaint A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim (Sec.11, Rule 6).

Q: Fe filed a suit for collection of Php 387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon, in his answer, set up counterclaims for Php 100,000 as damages and Php 30,000 as attorney's fees as a result of the baseless filing of the complaint, as well as for Php 250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe. Suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? (2008 Bar Question)

NOTE: Leave of court is necessary in third (fourth, etc.) –party complaint in order to obviate delay in the resolution of the complaint, such as when the third-party defendant cannot be located, or when unnecessary issues may be introduced, or when a new and separate controversy is introduced (Herrera, 2007).

Third-party complaint v. Rules on bringing in new parties Third-party complaint

A: Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the complaint would also bring about the dismissal of his counterclaims but he can file a separate action for his permissive counterclaims. The compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. v. Forbes Park Association, Inc., G.R. No. 133119, August 17, 2000).

It is proper when not one of the third-party defendants therein is a party to the main action (Riano, 2011).

CROSS-CLAIMS Requisites of cross-claim

Rules on bringing in new parties If one or more of the defendants in a counterclaim or crossclaim is already a party to the action, then the other necessary parties may be brought in under the rules on bringing in new parties.

1. A claim by one party against a co-party; 2. It must arise out of the subject matter of the complaint or of the counterclaim; and 3. The cross-claimant is prejudiced by the claim against him by the opposing party (Sec. 8, Rule 6).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Tests to determine whether the third-party complaint is in respect of plaintiff’s claim 1.

2.

3.

3. Legal interest against both; or 4. So situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. 5. Intervention will not unduly delay or prejudice the adjudication of the rights of original parties; 6. Intervenor’s rights may not be fully protected in a separate proceeding (Sec. 1, Rule 19).

Whether it arises out of the same transaction on which the plaintiff’s claim is based, or, although arising out of another or different transaction, is connected with the plaintiff’s claim; Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim (Capayas v. CFI of Albay, 77 Phil 181).

REPLY Necessity of filing a reply GR: No, since even if a party does not file a reply, all the new matters that were alleged in the answer are deemed controverted (Sec. 10, Rule 6).

NOTE: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central Surety & Insurance Co., G.R. No. L-27802, October 26, 1968).

XPNs: 1. Where the answer alleges the defense of usury in which case a reply under oath should be made. Otherwise, the allegation of usurious interest shall be deemed admitted. 2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the document shall be deemed admitted (Sec. 8, Rule 8).

Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full payment, Abby went after UNICAP’s debtor, Ben. Ben is a policy holder of Insular. The court’s sheriff then served a notice of garnishment to Insular over several account receivables due to Ben. Insular refused to comply with the order alleging adverse claims over the garnished amounts. The trial court ordered Insular to release to Abby the said account receivables of Ben under the policies. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. The CA gave due course to the petition and annulled the order of the trial court. Is the CA correct?

PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES ON SUMMARY PROCEDURE Pleadings allowed in small claims cases 1. Statement of Claim (Form 1-SSC) NOTE: It must be accompanied by a certification of nonforum shopping and 2 photocopies of the actionable document/s subject of the claim as well as affidavits of witnesses and other evidence to support the claim. No evidence shall be allowed during the hearing which was not attached to the claim unless good cause is shown for the admission of the evidence (Sec. 5, Rules on Small Claims)

A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a third-party claim. Since the third-party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. The rights of a third-party claimant should be decided in a separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22, 2006).

2. Response 3. Counterclaim a. Compulsory counterclaim: i. Is within the coverage of the Rule (amount not exceeding Php 100,000), exclusive of interest and costs; ii. Arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; iii. Does not require for its adjudication the joinder of third parties; and iv. Is not a subject of another pending action (Sec. 13, A.M. No. 08-8-7-SC).

COMPLAINT-IN-INTERVENTION Complaint-in-Intervention It is a pleading filed for the purpose of asserting a claim against either or all of the original parties (Sec. 3, Rule 19).

b. Permissive counterclaim Counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of the Rule and the prescribed docket and other legal fees are paid (Sec. 13, A.M. No. 08-8-7-SC).

Requisites for an Intervention by a Non-party in an action pending in court (2000 Bar Examination) The requisites for intervention are: 1. Legal interest in the matter in controversy; or 2. Legal interest in the success of either of the parties; or UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CIVIL PROCEDURE Civil cases covered by the rule on small claims

2. 3.

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

When the claims or demand arises from: 1. Money not exceeding Php 100,000 owed under any of following: a. Contract of lease; b. Contract of loan; c. Contract of services; d. Contract of sale; or e. Contract of mortgage. 2. For damages in the amount not exceeding Php 100,000 arising from any of the following: a. Fault or negligence; b. Quasi-contracts; and c. Contracts 3. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this rule pursuant to Sec. 417 of the Local Gov’t Code (Sec. 4, A.M. No. 08-8-7-SC).

PARTS OF A PLEADING 1. Caption 2. Body – sets forth its designation, the allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading. a. paragraphs b. headings c. relief d. date 3. Signature and address 4. Verification (in several cases) 5. Certification against forum shopping

Pleadings allowed in a summary procedure 1. Complaint 2. Compulsory counterclaim NOTE: While in small claims cases, permissive counterclaim is allowed as long as the amount and nature thereof is within the coverage of the Rule in Summary procedure, such is not allowed.

CAPTION

3. Cross-claims pleaded in the answer 4. Answer to these pleadings (Sec. 3, Rules on Summary Procedure).

The caption sets forth: 1. Name of the court 2. Title of the action, 3. Docket number if assigned (Sec. 1, Rule 7).

Civil cases covered by the rules on summary procedure 1.

Civil cases: a. All cases of forcible entry and unlawful detainer, irrespective of amount of damages or unpaid rentals sought to be recovered provided when attorney’s fees are awarded, the same shall not exceed Php 20,000.00; and b. All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed Php 100,000 or Php 200,000 in Metropolitan Manila, exclusive of interest and costs (As amended by A.M. No. 02-11-09-SC effective November 5, 2002).

NOTE: The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated (Ibid.).

SIGNATURE AND ADDRESS Signature and address The complaint must be signed by the plaintiff or counsel representing him indicating his address. This address should not be a post office box (Sec. 3, Rule 7).

Prohibited pleadings, motions and petitions in small claims and summary procedure 1.

Significance of lawyer’s signature

GR: Motion to dismiss the complaint

The signature of counsel constitutes a certificate by him that: 1. He has read the pleading; 2. That to the best of his knowledge, information, and belief there is good ground to support it; and 3. That it is not interposed for delay.

XPN: In cases covered by small claims, a Motion to Dismiss is a prohibited pleading which admits no exception (SC En Banc Resolution dated October 27, 2009 in A.M. No. 08-8-7-SC) while in cases covered by summary procedure, a Motion to Dismiss may be filed only either on the ground of lack of jurisdiction over the subject matter or upon failure to refer the dispute to the Lupon Tagapamayapa as required by the LGC.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Effect of unsigned pleading

16.

An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay (Sec. 3, Rule 7).

17. 18. 19. 20.

Actions of counsel that are subject to disciplinary measures

21.

When counsel: 1. Deliberately files an unsigned pleading 2. Signs a pleading in violation of this Rule 3. Alleges scandalous or indecent matter therein 4. Fails to promptly report to the court a change of his address

Effects of lack of verification 1.

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

2.

How to verify pleadings It is verified by an affidavit. This affidavit declares that the: 1. Affiant has read the pleading; and 2. Allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7)

3.

NOTE: Verification is not necessary in pleadings, except when otherwise specifically required by law or rule (Ibid.).

Significance of verification It is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua v. Torres, 468 SCRA 358; Riano, 2011).

4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

It is an act of a party against whom an adverse judgment has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari (Sps. Carpio v. Rural Bank of Sto. Tomas Batangas, G.R. No. 153171, May 4, 2006).

Petition for relief from judgment; Petition for review from the RTCs to the CA; Petition for review from the CTA and quasi-judicial agencies to the CA; Appeal by certiorari from the CA to the SC; Petition for annulment of judgments or final orders and resolutions; Complaint for injunction; Application for appointment of receiver; Application for support pendente lite; Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions; Petition for certiorari, prohibition, mandamus, quo warranto Complaint for expropriation; Complaint for forcible entry or unlawful detainer; Petition for indirect contempt; Petition for appointment of general guardian; Petition for leave to sell or encumber property of an estate by a guardian;

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence, it produces no legal effect (Sec. 3, Rule 7). It does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, September 2, 2005) and non-compliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471, February 5, 2007). The absence of verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co., Inc. v. NLRC, G.R. No. 112650, May 29, 1997).

Forum shopping (2006 Bar Question)

Pleadings that must be verified (1996 Bar Question) 1. 2. 3.

Petition for the declaration of competency of a ward; Petition for habeas corpus; Petition for change of name; Petition for voluntary judicial dissolution of a corporation; Petition for correction or cancellation of entries in Civil Registry (Regalado, 2012). All other initiatory pleadings, e.g. Complaint

Test to determine forum shopping Whether in the two or more cases pending, there is identity of: 1. Parties 2. Rights or Causes of action 3. Reliefs sought (Huibonhoa v. Concepcion, G.R. No. 153785 August 3, 2006) Nature of the certification against forum shopping It is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief (Sec. 5, Rule 7). NOTE: This rule also applies to special civil actions (Riano, 2011).

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CIVIL PROCEDURE Execution of certification against forum shopping

Belated filing of certification against forum shopping

It must be signed by the principal parties. If, for any reason, the principal party cannot sign the petition, the one signing on his behalf must have been duly authorized. With respect to a corporation, the certification against forum shopping may be signed for and on its behalf, by a specifically authorized lawyer who has personal knowledge of the facts required to be disclosed in such document (Cosco Philippines Inc. v. Kemper Insurance Co., G.R. No. 179488, April 23, 2012).

GR: The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. XPN: In certain exceptional circumstances, the Court has allowed the belated filing of the certification. In Loyola v. CA, et al. (245 SCRA 477 [1995]), the Court considered the filing of the certification one day after the filing of an election protest as substantial compliance with the requirement. In Roadway Express, Inc. v. CA, et al. (264 SCRA 696 [1996]), the Court allowed the filing of the certification 14 days before the dismissal of the petition. In Uy v. LandBank, supra, the Court had dismissed Uy’s petition for lack of verification and certification against non-forum shopping. However, it subsequently reinstated the petition after Uy submitted a motion to admit verification and non-forum shopping certification. In all these cases, there were special circumstances or compelling reasons that justified the relaxation of the rule requiring verification and certification on nonforum shopping.

Undertakings of a party under the certification against forum shopping 1.

2. 3.

That the party has not commenced or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending; That if there is such other pending action or claim, a complete statement of the present status thereof; That if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule 7).

NOTE: Any liberal application of the rule on attachment of certification against forum shopping has to be justified by ample and sufficient reasons that maintain the integrity of, and do not detract from, the mandatory character of the rule (Bank of the Philippine Islands v. CA, G.R. No., 168313, October 6, 2010).

Non-compliance with the rule on certification against forum shopping

Substantial compliance with the filing of certification against forum shopping

It is not curable by mere amendment and shall be a cause for the dismissal of action (Ibid.).

GR: The rule is that the certificate of non-forum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one of them is insufficient.

NOTE: Willful and deliberate forum shopping of the party or his counsel shall be a ground for summary dismissal. This dismissal is with prejudice and shall constitute direct contempt as well as cause for administrative sanctions on the part of counsel (Ibid.).

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

Submission of a false certification It shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions (Ibid.). Non-compliance with the undertakings NOTE: It has the same effect as the submission of false certification. Hence, such failure shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions (Sec. 5, Rule 7).

Consequence of forum shopping If the forum shopping is not considered willful and deliberate, the subsequent case shall be dismissed without prejudice, on the ground of either litis pendentia or res judicata. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice (Chua v. Metropolitan Bank & Trust co. G.R. No. 182311, August 19, 2009).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Period to invoke rule on forum shopping

EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING

GR: It should be raised at the earliest opportunity in a motion to dismiss or a similar pleading (Regalado, 2012).

The signature of counsel constitutes: 1. A certificate by him that he has read the pleading; 2. That to the best of his knowledge, information and belief there is good ground to support it; and 3. That it is not interposed for delay (Sec. 3, Rule 7)

XPNs: It may be invoked in later stages only if the violation arises from or will result in: 1. The loss of jurisdiction over the subject matter; 2. The pendency of another action between the same parties for the same cause; 3. Barring of the action by a prior judgment; or 4. The Statute of Limitations has been crossed (Young v. Keng Seng, G.R. No.143464, March 5, 2003).

ALLEGATIONS IN A PLEADING MANNER OF MAKING ALLEGATIONS Rule in making a pleading

Q: Mayor Miguel of Koronadal City filed an action against RD Corporation for the annulment of the deed of absolute sale over several real properties of Koronadal City with the RTC. He alleges irregularities thereto but the RTC dismissed the petition because the certification against forum shopping was signed by the City Legal Officer of City of Koronadal and not by Mayor Miguel. Is the RTC correct?

Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts (Sec. 1, Rule 8). Ultimate facts They refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient (Ceroferr Realty Corporation v. CA, 376 SCRA 144).

A: Yes. It is the mayor, not the City Legal Officer, who has the authority to file suits for the recovery of funds and property on behalf of the city even without the prior authorization from the Sanggunian. Here, Mayor Miguel had the authority to institute the action against RD Corporation. However, being the proper party to file such suits, Mayor Miguel must necessarily be the one to sign the certification against forum-shopping, and not the City Legal Officer, who, despite being an official of the City, was merely its counsel and not a party to the case (City of Caloocan v. CA, G.R. No. 145004, May 3, 2006).

CONDITION PRECEDENT Condition precedent It refers to matters which must be complied with before a cause of action arises (Riano, 2011). Rule on condition precedent

Rule when the plaintiff is a juridical person When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading. Otherwise it will be a ground for dismissal under Sec. 1[j], Rule 16: that a condition precedent for filing a claim has not been complied with (Riano, 2011).

The certification against forum shopping where the plaintiff is a juridical entity like a corporation, may be executed by properly authorized person. This person may be a lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification, such may be signed by the authorized lawyer (National Steel Corporation v. CA, 388 SCRA 85; Riano, 2011).

FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS

Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of corporation XYZ, signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. Is the certification against forum shopping valid? If not, how may it be cured?

Averments of fraud or mistake

A: No. When the petitioner in a case is a corporation, the certification against forum shopping should be signed by its duly authorized director or representative. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. A proof of said authority must be attached with the certification (PAL v. FASAP, G.R. No. 143088, January 24, 2006).

Averments of malice, intent, knowledge or other conditions of the mind of a person

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8). These particulars would necessarily include the time, place, and specific acts of fraud committed against him (Riano, 2011).

The circumstances constituting such may be averred generally (Sec. 5, Rule 8).

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CIVIL PROCEDURE not be considered a specific denial” (Aquintey v. Tibong, 515 SCRA 414, 433).

Q: The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of law. However, it did not contain any averment of facts showing that defendant’s acts were done in the manner alleged. Does the complaint state a cause of action?

EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS Material averments except as to the amount of unliquidated damages, not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34 (Riano, 2011).

A: No, because it does not state the ultimate facts constituting the plaintiffs cause of action. The allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of law are mere conclusions of fact or conclusions of law (Remitere v. De Yulo 16 SCRA 251).

WHEN A SPECIFIC DENIAL REQUIRES AN OATH

Official document or act

When a specific denial requires an oath

It is sufficient to aver that the document was issued in compliance with law. With respect to an act, it is likewise sufficient to allege that the act was done also in compliance with law (Sec. 9, Rule 8; Riano, 2011).

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

PLEADING AN ACTIONABLE DOCUMENT

NOTE: An answer raising a specific denial based on the above grounds is deemed to be under oath if it contains verification.

Actionable document

Q: A and B entered into a contract to sell whereby A will deliver to B the parcel of land upon payment of the purchase price. Upon full payment, A demanded the delivery of the land. However, before the contract of sale was executed, B died. Hence, A filed an action for specific performance against S, the son of A presenting the contract to sell. S made a specific denial of the actionable document but it was not made under oath. Is S said to have admitted the existence and genuineness of the contract to sell?

It is one which is the basis of an action or a defense. e.g. A promissory note in an action for collection of a sum of money Pleading an actionable 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 (Sec. 7, Rule 8).

A: No, it is not required for S to make a specific denial under oath because he is not a party to the instrument (Sec. 8, Rule 8). It is only when the adverse party is a party to the written instrument when specific denial under oath is required.

NOTE: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L-10232, February 28, 1958). However, the contents of the document annexed are controlling.

NOTE: Denial under oath is also not required when there is an order for inspection issued by the court, i.e. inspection order under Rule 27 of the original document, and such order is refused (Sec. 8, Rule 8). It is not also required when the action is not to recover usurious interest as when usurious interest is being raised as a defense in a collection case.

SPECIFIC DENIAL Forms of denials amounting to negative defenses

Only the requirement of an oath is excused in the 3 instances mentioned (not a party to the instrument, refusal to comply with an inspection order, and suit not based on recovery of usurious interest). Specific denial must still be pleaded. Hence, even if the party made an oath, or when an oath is excused but a general denial is made, then it is still deemed as an admission of the genuineness and due execution of the document.

1. Absolute denial -The defendant specifies each material allegation of fact the truth of which he does not admit and, whenever practicable, sets forth the substance of the matters upon which he relies to support his denial. 2. Partial denial – the defendant does not make a total denial of the material allegations in a specific paragraph. 3. Denial by disavowal of knowledge – the defendant alleges that he “is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint.” NOTE: If such matters are plainly and necessarily within the defendant’s knowledge, a claim of “ignorance of information will

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW EFFECT OF FAILURE TO PLEAD

RELIEF FROM AN ORDER OF DEFAULT

FAILURE TO PLEAD DEFENSES AND OBJECTIONS

Remedies from an order of default

GR: Defenses not pleaded in a motion to dismiss or in the answer are deemed waived.

After notice of order and before judgment

XPNs: These defenses may be raised at any stage of the proceedings even for the first time on appeal: 1. Lack of jurisdiction over the subject matter

If denied – he may move for reconsideration; Grounds: FAME

NOTE: It may however, be barred by laches.

2. 3. 4.

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

If denied -Petition for certiorari under Rule 65

FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND CROSS-CLAIM GR: A compulsory counterclaim or cross-claim not set up in the answer is deemed barred (Sec. 2, Rule 9). XPN: If the compulsory counterclaim or cross-claim is an after-acquired counterclaim, that is, such claim matured after filing of the answer, it may be pleaded by filing an amended answer or a supplemental answer or pleading (Sec. 9, Rule 11). NOTE: Counterclaims or cross-claims omitted through oversight, inadvertence, or excusable neglect or when justice requires may be set up by amendment before judgment. Leave of court is necessary (Sec. 10, Rule 11).

After judgment before judgment becomes final and executory

1. New Trial (Rule 37)

After judgment has become final and executory

1.

Defendant has been wrongly or improvidently declared in default

He may avail of the special civil action of certiorari under Rule 65.

DEFAULT WHEN A DECLARATION OF DEFAULT IS PROPER A party may be declared in default when he fails to answer within the time allowed therefor, and upon motion of the claiming party with notice to the defending party, and proof of such failure (Sec.3, Rule 9).

2. Appeal (Rule 40 or 41)

2.

Petition for Relief from judgment (Rule 38). Annulment of Judgment (Rule 47)

NOTE: The court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records (Balangcad v. Justices of the CA, G.R. No. 83888, February 12, 1992).

EFFECT OF A PARTIAL DEFAULT

NOTE: The court has no authority to motu proprio declare the defendant in default. A motion to declare the defending party must be filed by the claiming party before a declaration of default is made by the court. The rule is clear, Sec. 3 of Rule 9 provides “upon motion of the claiming party” (Riano, 2011).

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 (Sec. 3, Rule 9).

EFFECT OF AN ORDER OF DEFAULT 1. The party declared in default loses his standing in court and prevents him from taking part in the trial [Sec. 3(a), Rule 9]; 2. While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings [Sec. 3 (a), Rule 9]. It is submitted that he may participate in the trial, not as a party but as a witness; and 3. A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000). (1999 Bar Question)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Motion under oath to set aside the order of default on the grounds of FAME and he has meritorious defense

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CIVIL PROCEDURE Q: Gerry sued XYZ Bus Co, and Rico, its bus driver, for injuries Gerry suffered when their bus ran off the road and hit him. Of the two defendants, only XYZ Bus Co. filed an answer, alleging that its bus ran off the road because one of its wheels got caught in an open manhole, causing the bus to swerve without the driver’s fault. Someone had stolen the manhole cover and the road gave no warning of the danger it posed. On Gerry’s motion and over the objection of XYZ Bus Co., the court declared Rico, the bus driver in default. Did the court act correctly? (2011 Bar)

Papers required to be served to the adverse party (PMNOJO) 1. 2. 3. 4. 5. 6.

Pleadings Motions Notices Orders Judgments Other papers (Sec. 5, Rule 13) PAYMENT OF DOCKET FEES

A: No, the court did not act correctly since the court should have tried the case against both defendants upon the bus company’s answer.

Rules regarding payment of docket fees 1.

EXTENT OF RELIEF The judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages (Sec. 3 [d], Rule 9). However, if the court orders submission of evidence, unliquidated damages may be awarded based on such.

2.

ACTIONS WHERE DEFAULT ARE NOT ALLOWED 1. Actions for annulment; 2. Declaration of nullity of marriage and legal separation (Sec. 3[e], Rule 9); and 3. In special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed.

3.

NOTE: A motion to declare defendant in default is a prohibited pleading in Summary Procedure, Small Claims and Environmental Cases.

FILING AND SERVICE OF PLEADINGS 4.

Papers required to be filed with the Court and served upon the parties affected (JuReO-PleWrit-NADOS) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Judgment Resolution Order Pleading subsequent to the complaint Written motion Notice Appearance Demand Offer of judgment or Similar papers (Sec. 4, Rule 13).

FILING VERSUS SERVICE OF PLEADINGS Filing

Papers required to be filed (PAM-NOJA) 1. 2. 3. 4. 5. 6. 7.

In Manchester Development Corporation v. CA, a court acquires jurisdiction only upon payment of the prescribed docket fee. While the payment of prescribed docket fee is a jurisdictional requirement, even its non-payment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. Thus, when insufficient filing fees were initially paid by the plaintiffs and there was no intention to defraud the government, the Manchester rule does not apply (Heirs of Bertuldo Hinog v. Melico,G.R. No. 140954, April 12, 2005 citing Sun Insurance Office, Ltd. v. Asuncion). The same rule applies to permissive counterclaims, third party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee (Sun Insurance Office, Ltd. v. Hon. Maximiano Asuncion, 170 SCRA 274).

It is the act of presenting the pleading or other paper to the clerk of court (Sec. 2, Rule 13).

Pleadings Appearances Motions Notices Orders Judgments All other papers (Sec. 3, Rule 13)

Service It is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court (Sec. 2, Rule 13).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules (Sec.11, Rule 11).

PERIODS OF FILING OF PLEADINGS Periods for Filing an Answer Answer to an original Within 15 days after complaint service of summons, unless a different period is fixed by the court (Sec. 1, Rule 11) Defendant is a foreign Within 15 days after private juridical entity service of summons and has a resident [Sec.6, in relation to agent Sec.5[a], Rule 2, A.M. NO. 00-8-10-SC 200011-21] Defendant is a foreign Within 15 days after private juridical entity service of summons to and has no resident said agent or officer agent but has an agent [Sec.6, in relation to / officer in the Sec.5(b), Rule 2, A.M. Philippines NO. 00-8-10-SC 200011-21] Defendant is a foreign Within 30 days after private juridical entity receipt of summons by and has no resident the home office of the agent nor agent/ foreign private entity officer. (Summons to be served to SEC which will then send a copy by registered mail within 10 days to the home office of the foreign private corporation) Service of summons by Within the time publication specified in the order which shall not be less than 60 days after notice (Sec. 15, Rule 14) Non-resident Not be less than 60 defendant to whom days after notice (Sec. extraterritorial service 15, Rule 14) of summons is made Answer to amended Within 15 days from complaint (Matter of service of amended right) complaint (Sec. 3, Rule 11) Answer to amended Within 10 days counted complaint (Not a from notice of the court matter of right) order admitting the same (Sec. 3, Rule 11) Counterclaim or crossWithin 10 days from claim service (Sec. 4, Rule 11) Third (fourth, etc.) Like an original party complaint defendant – 15, 30, 60 days as the case may be (Sec. 5; Regalado, 2012) Supplemental complaint

MANNER OF FILING 1. By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court; or 2. By sending them through registered mail (Sec. 3, Rule 13). NOTE: Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission.

MODES OF SERVICE 1. Personal service (Sec. 6, Rule 13); 2. Service by registered mail (Sec. 7, Rule 13); or 3. Substituted service (Sec. 8, Rule 13).

PERSONAL SERVICE Personal service is done by: 1. Delivering personally a copy to the party or his counsel; 2. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or 3. Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein if no person found in his office, or if his office is unknown, or if he has no office (Sec. 6, Rule 13). SERVICE BY MAIL Service by mail is done by: 1. By depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered; or 2. Ordinary mail if no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule 13). NOTE: Service and filing by mail may be done only when personal service and filing is not practicable.

SUBSTITUTED SERVICE If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13).

Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 7, Rule 11)

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CIVIL PROCEDURE SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS

Proof of service

Judgments, service of judgments, final orders or resolutions is done by: 1. Personal service; 2. Registered mail; or 3. Publication, if party is summoned by publication and has failed to appear in the action (Sec. 9, Rule 13)

1.

GR: Whenever practicable, the service and filing shall be done personally.

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

XPN: With respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally (Sec. 11, Rule 13).

NOTE: The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee (Sec. 13, Rule 13).

NOTE: A violation of this rule may be cause to consider the paper as not filed (Ibid.).

Notice of lis pendens

2.

NOTE: No substituted service is allowed with regard to judgments, final orders or resolutions.

PRIORITIES IN MODES OF SERVICE AND FILING

3.

In an action affecting title or right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action.

The explanation must be satisfactory and acceptable to the court. Otherwise, the court has the discretion to consider the pleading, etc., as not having been filed (Solar Team Enterprises, Inc. v. Judge Ricafort, 35 Phil. 404).

WHEN SERVICE IS DEEMED COMPLETE

NOTE: Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names (Sec.14, Rule 13).

1. Personal service – upon actual delivery. 2. Service by ordinary mail – upon expiration of 10 days after mailing, unless the court otherwise provides. 3. Service by registered mail – upon actual receipt by the addressee, or 5 days from the date he received the first notice of the postmaster, whichever date is earlier (Sec. 10, Rule 13). 4. Substituted service – at the time of such delivery (Sec. 8, Rule 13).

AMENDMENT Amendment is made by: 1. Adding or striking out an allegation or the name of any party; or 2. Correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect (Sec. 1, Rule 10).

PROOF OF FILING AND SERVICE Proof of filing

AMENDMENT AS A MATTER OF RIGHT GR: Filing is proven by its existence in the record of the case.

Amendment is considered as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within 10 days after it is served (Sec. 2, Rule 10).

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

NOTE: A motion to dismiss is not a responsive pleading and its filing does not preclude the exercise of the plaintiff’s right to amend his complaint (Paeste Jaurigue, 94 Phil 179; Riano, 2009).

AMENDMENTS BY LEAVE OF COURT Substantial amendments Substantial amendments may be made only upon leave of court (Sec. 3, Rule 10).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW (Asset Privatization Trust v. CA, G.R. No. 121171, December 29, 1998).

Amendments by leave of court (1994 Bar Question) 1. If the amendment is substantial (Sec. 3, Rule 10) 2. A responsive pleading had already been served (Siasoco v. CA, G.R. No. 132753. February 15, 1999)

Amended pleading v. Supplemental pleading Amended Pleading Refers to the facts existing at the time of filing of original pleading

NOTE: Plaintiff may amend his complaint even if the same was dismissed on motion of the defendant provided that the dismissal order is not yet final (Arranz v. Manila Surety and Fidelity Co., Inc., L-128441, June 30, 1960).

Supersedes the original

When refusal of leave of court to amend is allowed

May be amended without leave of court before a responsive pleading is filed. It has retroactive application.

1. The motion is made to delay the action; or 2. The cause of action or defense is substantially altered (Guiang v.Nadayag, 214 SCRA 355, 1992). NOTE: Amendment that confers jurisdiction over the court is allowed provided no responsive pleading has yet been filed. In such case, the court will just receive the amended pleading and will not act since no discretion is involved, it being an amendment as a matter of right. However, once a responsive pleading has already been filed, the amendment can no longer be allowed since the court will need to exercise its discretion and will already be acting without jurisdiction (Riano, 2011).

Amendment must be appropriately marked.

FORMAL AMENDMENT A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party (Sec. 4, Rule 10).

1.

2.

Instances when an amendment may be made to conform to or authorize presentation of evidence

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

EFFECT OF AMENDED PLEADING Effect of amended pleading An amended pleading supersedes the pleading it amends. However, admissions in the superseded pleading can still be received in evidence against the pleader. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived (Sec. 8, Rule 10).

DIFFERENCE FROM SUPPLEMENTAL PLEADINGS Supplemental pleading It is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented (Sec. 6; Riano, 2011). NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the original complaint. Otherwise, the court should not admit the supplemental complaint

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

It is to bring into the records new facts, which will enlarge or change the kind of relief to which the plaintiff is entitled. It is meant to supply deficiencies in aid of the original pleading, not to entirely substitute the latter (Herrera, 2007).

NOTE: Filing an answer to a supplemental complaint is not mandatory because of the use of the word “may” in Sec. 7, Rule 11. This is bolstered by the express provision of the Rules that the answer to the original pleading shall serve as the answer to the supplemental pleading if no new or supplemental answer is filed. The Court cannot declare the respondents in default simply because the latter opted not to file their answer to the supplemental petition (Chan v. Chan, G.R. No. 150746, October 15, 2008).

When issues not raised by the pleadings are tried with the express or implied consent of the parties. NOTE: Failure to amend does not affect the result of the trial of said issue.

2.

It sets forth transactions, occurrences or events which have happenedsince the date of the pleading sought to be supplemented. There is no such requirement in supplemental pleadings (Herrera, 2007).

Purposes of supplemental pleading

AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE

1.

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

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CIVIL PROCEDURE Effect of amended pleading on the admissions in the original pleading

Summons on private juridical entity In such case, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel (Sec. 11, Rule 14).

They cease to be judicial admissions. Thus, they are to be considered as extrajudicial admissions and may be proved by the party relying thereon by formal offer in evidence of such original pleading (Ching v. CA, G.R. No. 110844, April 27, 2000).

The enumeration is exclusive. Thus, service of summons upon other persons is not valid.

SUMMONS (RULE 14)

Summons on foreign private juridical entity registered in the Philippines

NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM AND QUASI IN REM

Provided it has transacted business in the Philippines, in which case, service may be made on its: 1. Resident agent designated in accordance with law for that purpose, or, 2. If there be no such agent, on the government official designated by law to that effect, or 3. On any of its officers or agents within the Philippines (Sec. 12, Rule 14).

Nature of summons It is the writ by which the defendant is notified of the action brought against him (Gomez v. CA, G.R. No. 127692, March 10, 2004). An important part of that notice is a direction to the defendant that he must answer the complaint within a specified period, and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2, Rule 14; Riano, 2005).

Summons on foreign private juridical entity not registered in the Philippines

NOTE: When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service (Sec. 4, Rule 14).

If a summons is returned without being served on any or all of the defendants or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons (Sec. 5, Rule 14).

If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: 1. By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; 2. By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by-registered mail at the last known address of the defendant; 3. By facsimile or any recognized electronic means that could generate proof of service; or 4. By such other means as the court may in its discretion direct (A.M. No. 11-3-6-SC dated March 15, 2011).

Purposes of summons

Summons on entities without juridical personality

1.

When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought (Sec. 8, Rule 14).

If summons is returned without being served, the server shall also serve a copy of the return on the plaintiff’s counsel stating the reasons for the failure of service, within 5 days therefrom (Sec. 5, Rule 14).

Alias summons

2.

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

Service of summons on public corporations When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct (Sec. 13, Rule 14).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW VOLUNTARY APPEARANCE

Reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service

Effect of voluntary appearance GR: The defendant’s voluntary appearance shall be equivalent to service of summons and the consequent submission of one’s person to the jurisdiction of the court (Sec. 20, Rule 14).

To the sheriff, “reasonable time” means 15 to 30 days because at the end of the month, it is a practice for the branch clerk to require the sheriff to submit a return of the summons assigned to the sheriff for service (Manotoc v. CA, G.R. No. 130974, August 16, 2006).

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

Person of suitable age and discretion to be left with summons

XPN: The inclusion in a motion to dismiss of other grounds (affirmative defenses, not affirmative relief) aside from/in addition to lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons (supra).

Form of voluntary appearance

Substituted service of pleadings Substituted service of summons

Voluntary appearance may be in form of: 1. Voluntary appearance of attorney; 2. A motion, by answer, or simple manifestation (Flores v. Surbito); 3. A telegraphic motion for postponement (Punzalan v. Papica, February 29, 1960); 4. Filing a motion for dissolution of attachment; 5. Failure to question the invalid service of summons (Navale v. CA, GR 109957, February 20, 1996);and 6. Filing a motion for extension of time to file an answer PERSONAL SERVICE Personal service of summons is proper only if the suit is one strictly in personam. The service of summons must be made by service in person on the defendant. This is effected by handing a copy of the summons to the defendant in person, or if he refuses to receive it, by tendering the copy of the summons to him (Sec. 6, Rule 14; Riano, 2011). SUBSTITUTED SERVICE

other

papers

Substituted service of pleadings and other papers

Substituted service of summons

Purpose is to provide a copy of the pleading or other papers to the defendant in order for him to be informed

Purpose is to acquire jurisdiction over the person of the defendant

Availed of only when there is failure to effect service personally or by mail. This failure occurs when the office and residence of the party or counsel are unknown

Only if service in person cannot be made promptly can the process server resort to substituted service

Effected by delivering the copy to the clerk of court, with proof of faliure of both personal service and service by mail

Effected by leaving copies of the summons at the defendant’s residence to a person of suitable age and discretion residing therein or by leaving copies at the defendant’s office or regular place of busines with some competent person in charge thereof.

Requirements of substituted service of summons 1. The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service; 2. The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service; 3. If the substituted service will be effected at defendant’s house or residence, it should be left with a person of “suitable age and discretion then residing therein” and must have the “relation of confidence” to the defendant; 4. If the substituted service will be done at defendant’s office or regular place of business, then it should be served on a competent person in charge of the place (Manotoc v. CA, G.R. No. 130974, August 16, 2006).

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v.

CIVIL PROCEDURE NOTE: If the action is in personam, this mode of service will not be available. There is no extraterritorial service of summons in an action in personam. Hence, extraterritorial service upon a nonresident in an action for injunction which is in personam is not proper (Kawasaki Port Service Corp. vs. Amores, 199SCRA 230; Banco Do Brasil vs. CA, 333 SCRA 545).

CONSTRUCTIVE SERVICE (BY PUBLICATION) Constructive service (by publication) is available GR: As a general rule, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam.

Instances when extra-territorial service of summons is allowed

XPN: Summons by publication is available in an action in personam in the following situations: 1. 2. 3. 4.

Allowed only in cases of extra-territorial service under any of the following situations: 1. The action affects the personal status of the plaintiff 2. The action relates to, or the subject of which is the property within the Philippines on which the defendant has or claims a lien or interest, actual or contingent 3. The action in which the relief demanded consists, wholly or in part, excludes the defendant from any interest therein 4. When the property of the defendant has been attached in the Philippines

The identity of the defendant is unknown; The whereabouts of the defendants are unknown; The defendant a resident of the Philippines but is temporarily out of the country. The defendant does not reside and is not found in the Philippines but the suit can be properly maintained against him in the Philippines, it being a rem or quasi in rem

NOTE: Those enumerated from 1 to 3 applies to any action, which necessarily includes personal action (Riano, 2011).

Manner of service of summons in cases of extra-territorial service

Summons by publication may be made only with leave of court.

1. With leave of court served outside the Philippines by personal service; 2. With leave of court served by publication in a newspaper of general circulation, copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or 3. Any other manner the court may deem sufficient (Sec. 15, Rule 14).

Service of summons by mail It can be done as a complementary to service of summons by publication but it does not mean that service by registered mail alone would suffice (Regalado, 2012). SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN

NOTE: In the case of Carriaga v. Malaya, 143 SCRA 441, summonses were sent by registered mail to defendants who were residing abroad. The Court upheld the validity of the service of summons and stress that the third mode of extraterritorial service was substantially complied with in this case.

The rule in Sec. 14, Rule 14 authorizes summons by publication in any action and the rule obviously does not distinguish whether the action is in personam, in rem, or quasi in rem. The tenor of the rule authorizes summons by publication whatever the action may be as long as the identity of the defendant is unknown or his whereabouts are unknown (Santos v. PNOC Exploration, Corporation, 566 SCRA 272).

SERVICE UPON PRISONERS AND MINORS Service of summons upon prisoners Service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose (Sec. 9, Rule 14).

SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES

Service of summons upon minors

If he has residence or place of business in the Philippines, and because he cannot be served within a reasonable time because of his absence in the Philippines, this absence would now trigger the application of the rule on substituted service of summons (Montalban v. Maximo, 22 SCRA 1070).

Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother (Sec. 10, Rule 14).

EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED Requisites of extra-territorial service of summons 1. 2. 3.

The defendant is nonresident; He is not found in the Philippines; and The action against him is either in rem or quasi in rem.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW PROOF OF SERVICE

claim, third-party complaint, or complaint-inintervention, answer or reply (Sec. 2, Rule 6).

Proof of service It shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec 18, Rule 14).

CONTENTS AND FORMS OF MOTIONS Contents of a motion

NOTE: Absence in the sheriff’s return of a statement about the impossibility of personal service is not conclusive proof that the service is invalid. The plaintiff may submit proof of prior attempts at personal service during the hearing of any incident assailing the validity of the substituted service. Also, the impossibility of service may be established by evidence (Herrera, 2007).

1. The relief sought to be obtained; 2. The ground upon which it is based; and 3. If required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers (Sec. 3, Rule 15).

Proof of service by publication

Form of motion

1. Affidavit of the printer, his foreman or principal clerk, business or advertising manager, to which affidavit a copy of the publication shall be attached; and 2. Affidavit showing the deposit of a copy of the summons and order for publication in the post office (Sec. 19, Rule 14).

It must be in writing except those made in open court or in the course of hearing or trial (Sec. 2, Rule 15). Motion for judgment GR: Not allowed.

MOTIONS

XPNs: Motion for: 1. Judgment on the pleadings; 2. Summary judgment; or 3. Judgment on demurrer to evidence.

MOTIONS IN GENERAL Motion

NOTICE OF HEARING AND HEARING OF MOTIONS

It is an application for relief other than by a pleading (Sec. 1, Rule 15).

3-Day Notice Rule

Kinds of motions

GR: Service of the copy of motions should be made in such a manner as shall ensure its receipt at least 3 days before the hearing (Sec. 4, Rule 15).

1. Motion ex parte –One which does not require that the parties be heard and which the court may act upon without prejudicing the rights of the other party (Riano, 2011). 2. Litigated motion –One which requires parties to be heard before a ruling on the motion is made by a court 3. Pro forma motion – one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marimina Development Corporation v. Flojo, 251 SCRA 87).

XPNs: 1. Ex parte motions 2. Urgent motions 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties 4. Motions for summary judgment which must be served at least 10 days before its hearing (Regalado, 2012). 5. Non-litigated motions Contents of notice of hearing

MOTIONS VERSUS PLEADINGS Motion A motion is an application for relief other than a pleading (Sec. 1, Rule 15).

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

Pleading It is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a complaint, counterclaim, cross-

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Hearing of motions Every written motion shall be set for hearing by the applicant except motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15).

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CIVIL PROCEDURE OMNIBUS MOTION RULE

Filing a motion without the required affidavits

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

Non- compliance with the requirements of the Rules would reduce the motion to a mere pro- forma motion. A pro forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceeding (Marikina Development Corporation v. Flojo, 251 SCRA 87).

XPNs: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Prescription (Sec. 1, Rule 9)

Note: A pro- forma motion shall not toll the reglementary period of appeal (Sec. 2, Rule 37).

Grounds which make the MR pro forma

LITIGATED AND EX-PARTE MOTIONS

1. 2.

Litigated motion It is a motion which affects the substantial rights of the parties and is one made with notice to the adverse party to give an opportunity to oppose before a ruling on the motion is made by the court. A hearing is required (Sec. 4, Rule 15). Examples are Motion to dismiss; a motion for judgment on the pleadings and a summary judgment

3. 4. 5.

It was a second MR; or It did not comply with the rule that a motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence; or It failed to substantiate the alleged errors; or It merely alleged that the decision in question was contrary to law; or The adverse party was not given due notice thereof (Riano, 2011). MOTIONS FOR BILL OF PARTICULARS

Non-compliance with service of motion and notice of hearing

3 options available to the defendant upon receipt of the complaint

The motion will be considered as a mere scrap of paper which the court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders the motions fatally defective (Vette Industrial Sales Co., Inc. v. Cheng, G.R. Nos. 170232-170301, December 5, 2006).

1. 2. 3.

Filing of a motion for bill of particulars Filing of a motion to dismiss Filing of an answer to the complaint (Riano, 2011)

Bill of particulars It is a more definite statement consisting of amplification or more particularized outline of a pleading, and being in the nature of a more specific allegation of the facts recited in the pleading (Sec. 3, Rule 12; Herrera, 2007).

Ex-parte motion It is one which does not require that the parties be heard and which the court may act upon without prejudging the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 2, Rule 15; Riano, 2011).

Purpose of a bill of particulars Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed on the ground that the complaint is vague or definite (Galeon v. Galeon, G.R. No. L-30380, February 28, 1973).

It is taken for granted at the instance and for the benefit of one party, and without notice to or contestation by any party adversely affected (Regalado, 2012).

NOTE: The purpose of the motion is not to enable the movant to prepare for trial. Where the movant is to enable him to prepare for trial, the appropriate remedy is to avail of the discovery procedures from Rules 23 to 29 and even of a pretrial under Rule 18 (Riano, 2011).

NOTE: They are usually permissible in procedural matters and also in situations and under circumstances of emergency; and an exception to a rule requiring notice is sometimes made where notice of the resulting delay might tend to defeat the objective of the motion (Sarmiento v. Zaratan, G.R No. 167471, February 5, 2007). An example is a motion to set the case for a pre-trial

Motion for a bill of particulars; when available (2003 Bar Examination)

PRO-FORMA MOTIONS Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within 10 days from service thereof (Sec. 1, Rule 12).

It is that which does not comply with the rules on motion and is considered as one filed merely to delay the proceedings (Marikina Development Corp., v. Flojo, G.R. No. 110801, December 8, 1995). Such motion, if filed, is not entitled to judicial cognizance, and does not stop the running of the period for filing the requisite pleading (Cruz v. CA, 388 SCRA 72).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Instances when a bill of particulars is allowed

COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE

1. When the allegations are indefinite and uncertain that the nature cannot be understood therefrom; 2. When the allegations are so vague that they do not appear therefrom in what capacity a party sues or issued; 3. When the allegations are uncertain as to time, place, quantity, title, person, or any other matter required to be pleaded with certainty; 4. When the allegations are faulty in duplication, setting out two grounds for a single claim; 5. When denials are so indefinite and uncertain that it cannot be understood what is denied and what is admitted; 6. Particulars of details of computation of bank account were allowed; technicalities are frowned upon; or 7. Conclusions of law – deceit, machination, false pretenses, misrepresentations and threats are conclusions of law and mere allegations thereof without a statement of the facts to which such terms have references are not sufficient (Herrera, 2007)

Motion granted If the motion is granted, either in whole or in part, it must be effected within 10 days from notice of the order, unless a different period is fixed by the court (Sec. 3, Rule 12). Non-compliance with the order of a bill of particulars 1.

2. 3.

If the order is not obeyed or in case of insufficient compliance therewith, the court: a. May order the striking out of the pleading or the portion thereof to which the order is directed; or b. Make such order as it may deem just (Sec. 4, Rule 12) If plaintiff is disobedient, his compliant will be stricken off and dismissed (Sec. 3, Rule 17) If defendant is disobedient, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Sec. 4, Rule 17; Sec. 3, Rule 9).

When bill of particulars is improper It is improper on matters: 1. Specified with particularity; 2. Within party’s knowledge; 3. Irrelevant to allegations of complaint; or 4. Which are more properly ascertainable by discovery (Herrera, 2007)

Q: Within the period for filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing, stating that the allegations of the complaint were sufficiently made.

Filing of bill of particulars

1.

It may be filed either through a separate or an amended pleading (Sec. 3, Rule 12).

2.

Who can avail of motion for bill of particulars Both parties can avail of the Motion for Bill of Particulars. It is a motion that applies to any pleading which in the perception of the movant contains ambiguous allegations (Riano, 2011).

A: 1. No. Sec. 2, Rule 12 authorizes the court to either deny or grant said motion outright or allow the parties an opportunity to be heard. The court is not mandated to conduct a hearing.

Requirements of bill of particulars

2. Yes. Sec. 4, Rule 12 authorizes the court to order the striking out of the pleading affected, hence the dismissal of the complaint. To the same end is the provision of Sec. 3, Rule 17 when the plaintiff fails to comply for no justifiable cause with any order of the court or with the Rules.

Aside from the requirements for a motion as set forth in Rule 15, the motion shall point out: 1. The defects complained of 2. The paragraphs wherein they are contained 3. The details desired (Sec 1, Rule 12)

EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING

ACTIONS OF THE COURT

After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event (Sec. 5, Rule12).

Actions of the court regarding the motion for bill of particulars The court may either: 1. Deny it outright 2. Grant it outright 3. Allow the parties the opportunity to be heard (Sec. 2, Rule 12). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? (2008 Bar Question)

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CIVIL PROCEDURE Res judicata as a ground for dismissal is based on two grounds, namely: (1) public policy and necessity, which makes it to the interest of the State that there should be an end to litigation – republicae ut sit litium; and (2) the hardship on the individual of being vexed twice for the same cause – neme debet bis vexari et eadem causa (Fels, Inc. v. Prov. of Batangas, G.R. No. 168557, February 19, 2007).

MOTION TO DISMISS GROUNDS Motion to dismiss GR: A motion must be filed by a party thereto.

7. That the pleading asserting the claim states no cause of action 8. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; 9. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; 10. That a condition precedent for filing the claim has not been complied with (Sec. 1, Rule 16).

XPNs: 1. Those cases where the court may dismiss a case motu proprio (i.e. lack of jurisdiction over the subject matter; litis pendentia; res judicata; and prescription) (Sec. 1, Rule 9); 2. Failure to prosecute (Sec. 3, Rule 17); and 3. Rule on Summary Procedure (Sec. 4, 1991 Revised Rule on Summary Procedure). Types of dismissal of actions

NOTE: The enumeration is exclusive.

1. Motion to dismiss before answer under Rule 16; 2. Motion to dismiss under Rule 17 (Upon notice by plaintiff; upon motion of plaintiff; due to fault of plaintiff); 3. Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; and 4. Dismissal of an appeal.

Averments in the Complaint GR: Averments in the complaint are deemed hypothetically admitted upon the filing of a motion to dismiss grounded on failure to state a cause of action XPNs: A motion to dismiss does not admit the:

Grounds for a motion to dismiss under Rule 16 1. 2. 3. 4.

1. 2. 3. 4.

That the court has no jurisdiction over the person of the defending party; That the court has no jurisdiction over the subject matter of the claim; That venue is improperly laid; That the plaintiff has no legal capacity to sue;

5. 6.

NOTE: The issue of the plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceeding.

5.

7. 8. 9.

That there is another action pending between the same parties for the same cause;

10. 11.

NOTE: Requisites of Litis Pendentia (PRR) a. Identity of the parties or at least such parties representing the same interest in both actions; b. Identity of rights asserted and reliefs prayed for, being founded on the same facts c. Identity with respect to the two preceding particulars, such that any judgment that may be rendered in the pending case would amount to res judicata in the other case (Lim v. Vianzon, G.R. No. 137187, August3, 2006).

12.

Truth of mere epithets of fraud; Allegations of legal conclusions; An erroneous statement of law; Mere inferences or conclusions from facts not stated; Mere conclusions of law; Allegations of fact the falsity of which is subject to judicial notice; Matters of evidence; Surplusage and irrelevant matter; Scandalous matter inserted merely to insult the opposing party; Legally impossible facts ; Facts which appear unfounded by a record incorporated in the pleading, or by a document referred to; General averments contradicted by more specific averments (Tan v. CA, 356 Phil. 555).

When to file Motion to Dismiss GR: It should be filed within the time for but before filing the answer to the complaint or pleading asserting a claim (Sec. 1, Rule 16).

6. That the cause of action is barred by a prior judgment or by the statute of limitations;

XPNs: Even after an answer has been filed, the defendant can still file a motion to dismiss, with leave of court, on the following grounds: 1. Lack of jurisdiction over the subject matter of the claim; 2. Litis pendentia; 3. Res judicata; 4. Prescription of action; or 5. Where evidence that would constitute a ground for dismissal is discovered during the trial.

NOTE: Requisites of res judicata: a. The former judgment must be final b. The court which rendered it has jurisdiction over the subject matter and the parties c. Judgment must be on the merits d. There must be identity of parties, subject matter and causes of action

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW RESOLUTION OF MOTION 3 Courses of Action of the Court

The dismissal of the complaint shall be without prejudice to the prosecution of a counterclaim pleaded in the answer in the same or separate action (Sec. 6, Rule 16).

1. Dismiss the action or claims; 2. Deny the motion; or 3. Order the amendment of the pleading (Sec. 3, Rule 16).

NOTE: Motion to Dismiss is not a Responsive Pleading. It is subject to the Omnibus Motion Rule since it must raise all objections available at the time of the filing thereof.

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

BAR BY DISMISSAL Instances when a complaint can no longer be re-filed after the court grants a motion to dismiss

REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED

1. Cause of action is barred by prior judgment (Res judicata) 2. Bar by the statute of limitations (Prescription); 3. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; and 4. Claim is unenforceable under the statute of frauds.

1. If the dismissal is without prejudice-the plaintiff may refile the complaint. 2. If the dismissal is with prejudice-the plaintiff may file an appeal (Riano, 2011).

NOTE: In the 4 instances mentioned, the remedy would be to appeal the dismissal

REMEDIES OF THE DEFENDANT WHEN THE MOTION IS DENIED

COMPLAINT CAN NO LONGER BE RE-FILED

File an answer within the balance of the period to which he was entitled at the time of serving his motion, but not less than 5days in any event. If the pleading is ordered to be amended, he shall file his answer within the period prescribed, unless the court provides a longer period. If decision is adverse, appeal therefrom and raise as error the denial of the motion to dismiss. If there is grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari or prohibition may lie under Rule 65. If there is unlawful neglect of the performance of an act which the law specifically enjoins, mandamus is the proper remedy (Riano, 2011).

1. Res judicata 2. Prescription 3. Extinguishment of the claim 4. Unenfocrceability under Statute of Frauds

DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER RULE 33 Rule 16 (Motion to Dismiss)

EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS

Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim If denied, defendant answers, or else he may be declared in default

A complaint may be re-filed after it was dismissed on the following grounds and upon compliance with the requirements to remedy the defect: 1. That the court has no jurisdiction over the person of the defending party; 2. That the court has no jurisdiction over the subject matter of the claim; 3. That venue is improperly laid; 4. That the plaintiff has no legal capacity to sue; 5. That there is another action pending between the same parties for the same cause; 6. That the pleading asserting the claim states no cause of action; 7. That a condition precedent for filing the claim has not been complied with

If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case

WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES If no motion to dismiss has been filed, any of the grounds for dismissal provided for in the Rules may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

EXCEPTIONS TO OMNIBUS MOTION RULE 1. Res judicata 2. Prescription 3. Litis pendentia 4. Lack of jurisdiction over the subject matter

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Rule 33 (Demurrer to Evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed only after the plaintiff has completed the presentation of his evidence (Regalado, 2012) If denied, defendant may present evidence Denial is not appealable (interlocutory) If granted, but on appeal the order of dismissal is reversed, the defendant loses his right to present evidence (Riano, 2011).

CIVIL PROCEDURE NOTE: A motion to dismiss generally partakes of the nature of a demurrer which hypothetically admits the truth of the factual allegations made in a complaint (Peltan Dev., Inc. v. CA, G.R. No. 117029, March 19, 1997). However, it is only limited to all material and relevant facts which are well pleaded in the complaint (De Dios v. Bristol Laboratories, G.R. No. L-25530, January 29, 1974).

DISMISSAL OF ACTIONS Dismissal upon notice by plaintiff (Sec. 1, Rule 17) A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.

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

It is a matter of right.

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

GR: A dismissal without prejudice i.e. the complaint can be re-filed XPNs: 1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or 2. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Twodismissal rule) (Sec. 1, Rule 17) 3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera, G.R. No. L-5189, September 21, 1953).

Dismissal due to fault of plaintiff (Sec. 3, Rule 17) 1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. 2. If the plaintiff fails to prosecute his action for an unreasonable length of time (nolle prosequi). 3. If the plaintiff fails to comply with the Rules or any order of the court (Sec. 2, Rule 17). NOTE: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence.

GR:It is a dismissal without prejudice,

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

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

NOTE: The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or motion is filed with the court. Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a matter of right.

Since there is no answer yet filed by the adverse party, no counterclaim recoverable

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

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

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW When notice of dismissal is executory

Suppose Ron’s counterclaim for the unpaid balance is Php 310,000, what will happen to his counterclaims if the court dismisses the complaint after holding a preliminary hearing on Ron’s affirmative defenses? (2008 Bar Question)

It is executory as of the date the notice is filed by the plaintiff and not the date the court issues the order confirming the dismissal because such dismissal by the plaintiff, if filed before an answer or a motion for summary judgment has been served upon him, is a matter of right (Riano, 2011).

A: The dismissal of the complaint does not involve the dismissal of the counterclaims of Ron. The rule on the matter is clear. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer (Sec. 6, Rule 16). The rule does not make a distinction between a compulsory and permissive counterclaim. A similar rule applies under Secs. 2 and 3, Rule 17.

Notice of dismissal as adjudication on the merits It operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim (two dismissal rule) (Sec.1, Rule 17).

PRE-TRIAL Two-dismissal Rule Pre-trial It applies when the plaintiff has: 1. Twice dismissed the actions; 2. Based on or including the same claim; and 3. In a court of competent jurisdiction (Riano, 2011).

It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action (Herrera, 2007).

DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRDPARTY COMPLAINT Dismissal of counterclaim, cross-claim, or third-party complaint

Conduct of a pre-trial

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

After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial (Sec. 1, Rule 18).

Effect of Dismissal of Complaint on Counterclaim

NOTE: If the plaintiff fails to file a motion within the given period, the branch clerk of court shall issue a notice of pretrial (A.M. No. 03-1-09-SC, July 13, 2004).

Particularly, the motion is to be filed within 5 days after the last pleading joining has been served and filed (Administrative Circular No. 3-99, January 15, 1999).

1. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint since it does not carry with it the dismissal of the counterclaim (Sec. 2, Rule 17).

Last Pleading The last permissible pleading that a party can file is the reply to the answer to the last pleading asserting a claim. This claim could be the original complaint, the counterclaim, cross-claim, or third-party complaint.

NOTE: “The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim.”

If an answer is filed and served in response to these claims, the pleading in response to these answers is the reply (Sarmiento v. Juan, 120 SCRA 403) which is to be filed within 10 days from the service of the pleading responded to (Sec. 6, Rule 11).

2. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within 15 days from notice of the plaintiff’s motion to dismiss.

NOTE: Where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial (Pioneer Insurance & Surety Corporation v. Hontanosas, 78 SCRA 439). However, the “last pleading” need not be literally construed as one having been served and filed. For purposes of the pleading, the expiration of the period for filing the last pleading without it having been served and filed is sufficient (Riano, 2011).

Q: Makee filed a suit for collection of Php 387,000 against Ron in the RTC of Manila. Aside from alleging payment as a defense, Ron, in his answer, set up counterclaims for Php 100,000 as damages and P30,000 as attorney’s fees as a result of the baseless filing of the complaint, as well as for the Php 250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Makee. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CIVIL PROCEDURE NATURE AND PURPOSE

If all efforts to settle fail, the trial judge shall endeavor to achieve the other purposes of a pre-trial like, among others, obtaining admissions or stipulations of fact. To obtain admissions, the judge shall ask the parties to submit whatever depositions have been taken under Rule 23, the answers to written interrogatories under Rule 25 and the answers to request for admissions by the adverse party under Rule 26. He may also require the production of documents or things requested by a party under Rule 37 and the results of the physical and mental examination of persons under Rule 28 (A.M. No. 03-1-09-SC, July 13, 2004).

Nature of a Pre-trial It is mandatory (Sec. 2, Rule 18). NOTE: A motion to set the case for pre-trial is an ex parte motion. This means that the motion need not be the subject of a hearing (Riano, 2011).

Duty to file After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial (Sec. 1, Rule 18).

One Day Examination of Witness Rule and Most Important Witness Rule In the pre-trial, the court shall ask the parties to agree on the specific dates for continuous trial, adhere to the case flow chart determined by the court and use the time frame for each stage setting the trial dates. Adherence to the One Day Examination of Witness Rule shall be required where the witness shall be fully examined in 1 day only, subject to the court’s discretion during the trial on whether or not to extend the examination for justifiable reasons.

NOTE: If the plaintiff does not file a motion to set the case for pretrial five days after the last pleading has been served and filed, the Clerk of Court is authorized to give to the parties a notice of pretrial. There will be no delay in the case because the Clerk of Court will take over (A.M. 03-1-09-SC, July 13, 2004).

Pre-trial Conference During the pre-trial, the judge shall be the one to ask questions on issues raised by the parties and all questions or comments by counsel or parties must be directed to the judge. The purpose of this is to avoid hostilities between the parties (A.M. No. 03-109-SC, July 13, 2004).

Where no settlement has been effected, the court shall follow the Most Important Witness Rule, where the court shall determine the most important witnesses and limit the number of such witnesses and require the parties and/or counsels to submit to the branch clerk of court the names, addresses and contact numbers of the witnesses to be summoned by subpoena. Note however, that the court may also refer the case to a trial by commissioner under Rule 32 (A.M. No. 03-109-SC, July 13, 2004).

Purposes of Pre-trial The court shall consider the following purposes: 1. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. Simplification of the issues; 3. Necessity or desirability of amendments to the pleadings; 4. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5. Limitation of the number of witnesses; 6. Advisability of a preliminary reference of issues to a commissioner; 7. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. Advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18).

NOTICE OF PRE-TRIAL Service of notice of pre-trial It shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. 3, Rule 18). NOTE: Sending a notice of pre-trial stating the date, time and place of pre-trial is mandatory. Its absence will render the pre-trial and subsequent proceedings void. This must be so as part of a party’s right to due process. With due notice of the proceedings, the fate of a party adversely affected will not be judged ex parte and he will have the opportunity to confront the opposing party (Agulto v. Tecson, G.R. No. 145276)

Non-compliance with service of notice of pre-trial Effect of failure of the parties to settle the case during Pretrial Proceeding

If no notice of pre-trial is served, all the proceedings at the pre-trial et seq. are null and void. Hence, the absence of the requisite notice of pre-trial to the defendant’s counsel (or to the defendant himself, in case he has no counsel) nullifies the order allowing the plaintiff to present his evidence ex parte (Ibid.).

The judge should not allow the termination of a pre-trial simply because of the manifestation of the parties that they cannot settle the case. Instead, he should expose the parties to the advantages of pre-trial. He must also be mindful that there are important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case (Ramos v. Spouses Lavendia, G.R No. 176706; Riano, 2011).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR

PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE

Appearance of parties at pre-trial

When filed

Both the parties and their counsel must appear (Sec. 4, Rule 18).

The parties shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least 3 days before the date of the pre-trial (Sec. 6, Rule 18).

Failure to appear during pre-trial (1992 Bar Question) Contents of a pre-trial brief Plaintiff’s failure to appear during the pre-trial shall be a cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. Defendant’s nonattendance during the pre-trial shall be a cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof (Sec. 5, Rule 18).

When non-appearance of a party in a pre-trial conference excused

1. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; 2. A summary of admitted facts and proposed stipulation of facts; 3. The issues to be tried or resolved; 4. The documents or exhibits to be presented, stating the purpose thereof; 5. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and 6. The number and names of the witnesses, and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses (Sec. 6, Rule 18).

1. 2.

Legal effect of representations and statements in the Pretrial Brief

NOTE: The plaintiff can appeal from the order of dismissal. Accordingly, it is only when the order of dismissal is without prejudice that the remedy is to re-file the complaint [Sec. 1(g), Rule 41.] The defendant may move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari(Riano, 2011).

If a valid cause is shown therefore; or If a representative shall appear in his behalf fully authorized in writing to: a. enter into an amicable settlement; b. submit to alternative modes of dispute resolution; and c. enter into stipulations or admissions of facts and of documents (Sec. 4, Rule 18)

The parties are bound by the representations and statements in their pre-trial. Hence, such representations and statements are in the nature of judicial admissions in relation to Sec. 4, Rule 129. Effect of Failure to file a Pre-trial Brief

NOTE: The phraseology of the provision suggests that it is not sufficient for the written authority to give to the representative the power to enter into one of the matters mentioned in Sec. 4 of Rule 18, as when the only authority granted is to enter into amicable settlement. The authority must also confer upon the representative the power to enter into alternative modes of dispute resolution and stipulations and admissions of fact. An incomplete authority does not satisfy the requirements of the Rules and should be deemed the equivalent of having no authority at all. Further, the mere presentation of such written authority is not sufficient, but must be complemented by a showing of valid cause for the non-appearance of the party himself (Riano, 2011).

It shall have the same effect as failure to appear at the pretrial (A.M. No. 03-1-09-SC, July 13, 2004). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be a cause for dismissal of the action. If it is the defendant who fails to do so, such failure shall be a cause to allow the plaintiff to present his evidence ex parte. NOTE: The dismissal of the complaint for failure to file pre-trial brief is discretionary on the part of the trial court (Ramos v. Spouses Lavendia, G.R. No. 176706, October 8, 2008).

The authority to submit to ADR, which includes arbitration, is not complied with by a mere special power to compromise since a special power to compromise does not authorize submission to arbitration (Art. 1880, NCC). Moreover, the written authority must be in the form of special power of attorney. Entering into an amicable settlement for a client who is the principal in the attorney-client relationship involves entering into a compromise. Substantive law is explicit: Special power of attorney is necessary to compromise, and to submit questions to arbitration. Procedural rules likewise prohibit an attorney to compromise his client’s litigation without a “special authority” (Ibid.).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Pre-trial Order An order issued by the court upon termination of the pretrial. Under A.M. No. 03-109-SC, the pre-trial order shall be issued within 10 days after termination of the pre-trial. Contents of a Pre-trial Order The order recites in detail the following: 1. The matters taken up in the conference; 2. The actions taken thereon; 3. The amendments allowed to the pleadings; 4. The agreements or admissions made by the parties as to any matters considered.

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CIVIL PROCEDURE NOTE: These admissions embodied in the pre-trial order are binding upon the parties and conclusive upon them.

2. 3. 4. 5.

DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRETRIAL IN CRIMINAL CASE Pre-trial in civil case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18).

The motion to set the case for pre-trial is made after the last pleading has been served and filed (Ibid.).

It considers the possibility of an amicable settlement as an important objective [Sec 2(a), Rule 118]. Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary conference” to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes (A.M. No. 03-1-09SC). Sanctions for nonappearance in a pre-trial are imposed upon the plaintiff and the defendant in a civil case (Sec. 4, Rule 18). It is specifically required to be submitted in a civil case (Sec. 6, Rule 18).

Court-Annexed Mediation Appellate Court Mediation Judicial Dispute Resolution Katarungang Pambarangay Law

State Policy in ADR

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

The state policy in ADR is to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements in resolving their disputes (Sec. 2, RA 9285). Constitutional basis of ADR The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace [Sec. 3(2), Art. XIII, 1987 Constitution]. Alternative Dispute Resolution System It means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof [Sec.3 (a), RA No. 9285]. NOTE: Its purposes are to: 1. Actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes; 2. Achieve speedy and impartial justice; and 3. Unclog court dockets.

The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 18).

Cases in which the ADR law does NOT apply 1. 2. 3. 4. 5. 6. 7. 8.

It is not specifically required in a criminal case.

Alternative Dispute Resolution Act of 2004 (RA 9285) and Special Rules of Court on Alternative Dispute Resolution (A.M. No. 07-11-08-SC)

Labor disputes covered by the LC The civil status of persons The validity of marriage Any ground for legal separation The jurisdiction of courts Future legitime Criminal liability Those which by law cannot be compromised

Other modes of solving disputes aside from an adversarial proceeding before the court 1.

Alternative Dispute Resolution (ADR) a. Arbitration i. Domestic Arbitration ii. Construction Disputes iii. International Commercial Arbitration b. Mediation c. Conciliation d. Early Neutral Evaluation e. Mini-trial

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Different modes of ADR Arbitration

Mediation

Conciliation

Definition

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

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

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

Functions

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

Mediator does not render an award but only arranges the facts to be negotiated so that parties can come to a compromise agreement.

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

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

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

He assists the parties in reaching a mutually agreeable settlement of their dispute through direct negotiations. He actively participates in resolving the dispute, and then gives an opinion. The decision or opinion is not binding on the parties. It is recommendatory in nature. The mediator merely suggests a solution to the dispute.

Arbitration

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

Early Neutral Evaluation It is a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject or the substance of the dispute. Early neutral Evaluator assesses or reviews the issues submitted by the parties and tenders its evaluation which is non-binding.

The assessment is not binding upon the parties.

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

It need not be confirmed by the courts.

Remedy of a party in case of violation of an Arbitration agreement

Form of an Arbitration agreement A party to a pending action filed in violation of the arbitration agreement, whether contained in an arbitration clause or in a submission agreement, may request the court to refer the parties to arbitration in accordance with such agreement (Rule 4.1, A.M. No. 07-11-08-SC).

A contract to arbitrate a controversy thereafter arising between the parties, as well as a submission to arbitrate an existing controversy shall be in writing and subscribed by the party sought to be charged, or by his lawful agent (Sec. 4, RA 876).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CIVIL PROCEDURE When Request to the Court is made

The court may, however, issue an order directing the inclusion in arbitration of those parties who are not bound by the arbitration agreement but who agree to such inclusion provided those originally bound by it do not object to their inclusion (Rule 4.7, Ibid.).

If the arbitration agreement exists (arbitration clause) before the action is filed, the request for referral shall be made not later than the pre-trial conference. After the pretrial conference, the court will only act upon the request for referral if it is made with the agreement of all parties to the case. If there is no existing arbitration agreement at the time the case is filed but the parties subsequently enter into an arbitration agreement (submission agreement), they may request the court to refer their dispute to arbitration at any time during the proceedings (Rule 4.2 Ibid.).

Summons NOT required under the Special ADR Rules The technical rules on service of summons do not apply to the proceedings under the Special ADR Rules. A court acquires authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a copy of the petition and the notice of hearing. The burden of showing that a copy of the petition and the notice of hearing were served on the respondent rests on the petitioner. In instances where the respondent, whether a natural or a juridical person, was not personally served with a copy of the petition and notice of hearing in the proceedings, the method of service resorted to must be such as to reasonably ensure receipt thereof by the respondent to satisfy the requirement of due process (Rule 1.9, Ibid.).

Arbitral award may be made upon issues already submitted before the Court Despite the pendency of the action referred to in Rule 4.1, above, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the action is pending before the court(Rule 4.8,Ibid.). Requirements for referral of a dispute to Arbitration The request for referral shall be in the form of a motion, which shall state that the dispute is covered by an arbitration agreement. Apart from other submissions, the movant shall attach to his motion an authentic copy of the arbitration agreement. The request shall contain a notice of hearing addressed to all parties specifying the date and time when it would be heard. The party making the request shall serve it upon the respondent to give him the opportunity to file a comment or opposition within 15 days from receipt (Rule 4.3, Ibid.).

Remedy of the aggrieved party after the dispute is referred by the Court to Arbitration and in case of denial of the request for arbitration An order referring the dispute to arbitration shall be immediately executory and shall not be subject to a motion for reconsideration, appeal or petition for certiorari. An order denying the request to refer the dispute to arbitration shall not be subject to an appeal, but may be the subject of a motion for reconsideration and/or a petition for certiorari (Rule 4.6, Ibid.).

Grounds for opposition 1. 2. 3.

There is no agreement to refer the dispute to arbitration; and/or The agreement is null and void; and/or The subject-matter of the dispute is not capable of settlement or resolution by arbitration in accordance with Sec. 6 of the ADR Act (Rule 4.4, Ibid.)

Remedy in case of failure or Refusal to comply with the Arbitration agreement The party may petition the court for an order directing that such arbitration proceed in the manner provided for in such agreement (Sec. 6, RA 876).

Instances which will not prevent the court from referring the parties to Arbitration The court shall not decline to refer some or all of the parties to arbitration for any of the following reasons: 1. Not all of the disputes subject of the civil action may be referred to arbitration; 2. Not all of the parties to the civil action are bound by the arbitration agreement and referral to arbitration would result in multiplicity of suits; 3. The issues raised in the civil action could be speedily and efficiently resolved in its entirety by the court rather than in arbitration; 4. Referral to arbitration does not appear to be the most prudent action; or 5. The stay of the action would prejudice the rights of the parties to the civil action who are not bound by the arbitration agreement.

Effect of the Petition filed before commencement of the Arbitration proceeding Despite the pendency of the petition, the arbitral proceedings may nevertheless be commenced and continued until the rendition of an award, while the issue is pending before the court (Rule 3.3, A.M. No. 07-11-08-SC).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Effect of the Petition filed after commencement of the arbitration proceeding

Principle of Separability of the Arbitration Clause The Special ADR Rules recognize the principle of separability of the arbitration clause, which means that said clause shall be treated as an agreement independent of the other terms of the contract of which it forms part. A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause (Rule 2.2, Ibid.).

Judicial recourse to the court shall not prevent the arbitral tribunal from continuing the proceedings and rendering its award. The court shall not enjoin the arbitration proceedings during the pendency of the petition [Rule 3.18(B), Ibid]). Should the ruling of the arbitral tribunal declining its jurisdiction be reversed by the court, the parties shall be free to replace the arbitrators or anyone of them in accordance with the rules that were applicable for the appointment of arbitrator sought to be replaced (Rule 3.12,Ibid.).

Q: Korea Technologies (KOGIES) entered into a contract with PGSMC for the supply and installation of LPG manufacturing plant. The contact was perfected in the Philippines. After the installation of the plant, initial operation could not be conducted due to financial difficulties. PGSMC issued checks for payment but was dishonored. Thus KOGIES threatened to file a criminal case against the latter. Hence, PGSMC unilaterally cancelled their contract. KOGIES filed a Complaint for Specific Performance against PGSMC alleging that it violated Art. 15 of their contact by unilaterally rescinding the contract without resorting to arbitration. The arbitration clause in their contract provides: “The award rendered by the arbitrators shall be final and binding upon both parties concerned.” Is the stipulation valid?

Effect of the Rendition of an Arbitral Award before court decides on the petition from the arbitral tribunal’s preliminary ruling affirming its jurisdiction The petition shall become ipso facto moot and academic and shall be dismissed by the RTC however, the dismissal shall be without prejudice to the right of the aggrieved party to raise the same issue in a timely petition to vacate or set aside the award (Rule 3.21, Ibid.). Order of the court referring the dispute to arbitration appealable

A: Yes. The law of the place where the contract is made governs. Therefore, our laws ought to govern. Nonetheless, Art. 2044 of the Civil Code sanctions the validity of mutually agreed arbitral clause or the finality and binding effect of an arbitral award. Art. 2044 provides, “Any stipulation that the arbitrators’ award or decision shall be final is valid, without prejudice to Arts. 2038, 2039 and 2040.”

An order referring the dispute to arbitration shall be immediately executory and shall not be subject to a motion for reconsideration, appeal or petition for certiorari. However, an order denying the request to refer the dispute to arbitration shall not be subject to an appeal, but may be the subject of a motion for reconsideration and/or a petition for certiorari (Rule 4.6, Ibid.).

Arts. 2038, 2039 and 2040 above cited refer to instances where a compromise or an arbitral award, as applied to Art. 2044, may be voided, rescinded, or annulled, but these would not denigrate the finality of the arbitral award. The arbitration clause has not been shown to be contrary to any law, morals, or public policy. There is no reason why the arbitration clause should not be respected and complied with by both parties. There are no vices of consent shown in this case (Korea Technologies Co., Ltd. v. Lerma, G.R. No. 143581, January 7, 2008).

Principle of competence-competence The Special ADR Rules recognize the principle of competence-competence, which means that the arbitral tribunal may initially rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement or any condition precedent to the filing of a request for arbitration. When a court is asked to rule upon issue/s affecting the competence or jurisdiction of an arbitral tribunal in a dispute brought before it, either before or after the arbitral tribunal is constituted, the court must exercise judicial restraint and defer to the competence or jurisdiction of the arbitral tribunal by allowing the arbitral tribunal the first opportunity to rule upon such issues. Unless the court, pursuant to aprima facie determination, that the arbitration agreement is null and void, inoperative or incapable of being performed, the court must suspend the action before it and refer the parties to arbitration pursuant to the arbitration agreement (Rules 2.2 & Rule 2.4, Ibid.).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Foreign arbitral awards, while mutually stipulated by parties to be final and binding, NOT immediately enforceable. Foreign arbitral awards cannot be implemented immediately. Art. 36 of the UNCITRAL Model Law specifies the grounds for an arbitral award to be recognized by a competent court. It can be gleaned that the concept of a final and binding arbitral award is similar to judgments or awards given by some of our quasi- judicial bodies, like the NLRC, whose final judgments are stipulated to be final and binding, but not immediately executory in the sense that they may still be judicially reviewed, upon the instance of any party. Therefore, the final foreign arbitral awards are similarly situated in that they need first to be confirmed by the RTC. Such arbitration clause does not operate to oust the court of its jurisdiction (Korea Technologies Ltd. v. Lerma, G.R. No. 143581, January 7, 2008).

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CIVIL PROCEDURE Period for filing a Petition for the confirmation, modification or vacation of an award 1.

vacate the same. Otherwise, the CA retains jurisdiction in petitions for review or in petitions for certiorari (Insular Savings Bank v. Far East Bank and Trust Company, G.R. No. 141818, June 22, 2006).

For confirmation – at any time after the lapse of 30 days from receipt by the petitioner of the arbitral award, he may petition the court to confirm that award; NOTE: A petition to confirm the arbitral award may be filed, in opposition to a petition to vacate the arbitral award, at any time after the petition to vacate such arbitral award is filed. The dismissal of the petition to vacate the arbitral award for having been filed beyond the reglementary period shall not result in the dismissal of the petition for the confirmation of such arbitral award.

2.

For correction or modification – not later than 30 days from receipt of the arbitral award, a party may petition the court to correct/modify that award; NOTE: A petition to correct an arbitral award may be included as part of a petition to confirm the arbitral award or as a petition to confirm that award (Rule 11.2, A.M. No. 07-11-08SC).

3.

For vacation – not later than 30 days from receipt of the arbitral award, a party may petition the court to vacate that award.

When to confirm an Arbitral Award At any time within 1 month after the arbitral award is made, any party to the controversy subject of arbitration may file a motion to the court having jurisdiction for an order confirming the award. The court must grant such order unless the award is vacated, modified or corrected. Notice of such motion must be served upon the adverse party or his attorney (Sec. 23, RA 876). NOTE: Unless a ground to vacate an arbitral award under Rule 11.5 above is fully established, the court shall confirm the award. An arbitral award shall enjoy the presumption that it was made and released in due course of arbitration and is subject to confirmation by the court. In resolving the petition or petition in opposition thereto in accordance with these Special ADR Rules, the court shall either confirm or vacate the arbitral award. The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law (Rule 11.9, A.M. No. 07-11-08-SC).

Remedies against Arbitral Awards Under Art.2044, NCC, the validity of any stipulation on the finality of the arbitrators’ award or decision is recognized. However, where the conditions described in Arts. 2038, 2039 and 2040 applicable to both compromises and arbitrations are obtaining, the arbitrators’ award may be annulled or rescinded. Consequently, the decision of the Arbitration Committee is subject to judicial review. The proper recourse of petitioner from the denial of its motion for reconsideration by the Arbitration Committee is to file either a motion to vacate the arbitral award with the RTC, a petition for review with the CA under Rule 43, or a petition for certiorari under Rule 65. The RTC will only have jurisdiction over an arbitral award in cases of motions to

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Grounds for vacating an arbitral award v. the grounds for modifying or correcting an arbitral award Grounds for Vacating an Arbitral Award 1. 2. 3.

4.

5.

6.

7.

The award was procured by corruption, fraud, or other undue means; There was evident partiality or corruption in the arbitrators or any of them; The arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; One or more of the arbitrators was disqualified to act as such and willfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; The arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made (Sec. 24, RA 876). The arbitration agreement did not exist, or is invalid for any ground for revocation of a contract, or is otherwise unenforceable; or A party to arbitration is a minor or a person judicially declared to be incompetent (Rule 11.4A, A.M. No. 07-11-08-SC).

Grounds for Modifying or Correcting an Arbitral Award 1. There was an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in the award; 2. The arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted; 3. The award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioner's report, the defect could have been amended or disregarded by the court; 4. To effect the intent of the award and promote justice between the parties (Sec. 25, RA 876); or 5. Where the arbitrators have omitted to resolve an issue submitted for resolution [Rule 11.4(B), A.M. No. 07-11-08-SC].

NOTE: In deciding the petition to vacate the arbitral award, the court shall disregard any other ground than those enumerated above (Rule 11.4 (A), A.M. No. 07-11-08-SC).

International Commercial Arbitration Commercial Arbitration

c.

A commercial arbitration is that which covers matter arising from all relationships of a commercial nature, whether contractual or not. It includes any trade transaction for the supply or exchange of goods or services, distribution agreements, construction of works, commercial representation or agency, factoring, leasing, consulting, engineering, licensing, investment, financing, banking, insurance, joint venture and other forms of industrial or business cooperation, carriage of goods or passengers by air, sea, rail or road (Sec. 21, RA 9285).

NOTE: If a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and if a party does not have a place of business, reference is to be made to his habitual residence [Art. 1(4), UNCITRAL Model Law].

Q: The arbitration clause in the contract stipulated that the arbitration must be done in Seoul, Korea, in accordance with the Commercial Arbitration Rules of Korea Arbitration Board, is such stipulation contrary to public policy?

International Arbitration Arbitration is international if: 1. The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or 2. One of the following places is situated outside the State in which the parties have their places of business: a. The place of arbitration if determined in, or pursuant to, the arbitration agreement; b. Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

subject-matter of the dispute is most closely connected; or The parties have expressly agreed that the subject-matter of the arbitration relates to more than 1 country [Art. 1(3), UNCITRAL Model Law].

A: The arbitration clause which stipulates that the arbitration must be done in Seoul Korea in accordance with the Commercial Arbitration Rules of the KCAB is not contrary to public policy. The Court has sanctioned the validity of arbitration clauses in a catena of cases. In case a foreign arbitral body is chosen by the parties, the arbitration rules of our domestic arbitration bodies would not be applied. As signatory to the Arbitration Rules of the UNCITRAL Model Law on International Commercial Arbitration of the UNCITRAL in the New York Convention, the Philippines committed itself to be bound by the Model Law. In doing so, we have incorporated the Model Law in

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CIVIL PROCEDURE RA 9285 (ADR Act of 2004). A pertinent feature of RA 9285, applying and incorporating the UNCITRAL Model Law, is Sec. 24 which provides that the RTC does not have jurisdiction over disputes that are properly the subject of arbitration pursuant to an arbitration clause and mandates the referral to arbitration of such cases (Korea Technologies Ltd v. Lerma, G.R. No. 143581, January 7, 2008).

5.

6.

Enforcement of a foreign arbitral award in the Philippines under the Rules of Court on the recognition and enforcement of foreign judgments (Rule 39) (2007 Bar Question)

7.

Foreign arbitral awards are not enforced as foreign court judgments. They may be enforced under Sec. 44 of RA 9285. Under the said law, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention) shall govern the recognition and enforcement of arbitral awards covered by the said Convention. The party relying on the award or applying for its enforcement shall file with the RTC the original or authenticated copy of the award and the arbitration agreement. The applicant shall establish that the country in which foreign arbitration award was made is a party to the New York Convention.

8.

The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; The subject matter of the dispute is not capable of settlement by arbitration under our laws or the recognition or enforcement of the award would be contrary to our public policy. Any other ground raised shall be disregarded by the RTC (Art. 36, UNCITRAL Model Law); or The recognition or enforcement of the award would be contrary to public policy (Rule 12.4, A.M. No. 0711-08-SC).

NOTE: A Philippine court shall not set aside a foreign arbitral award but may refuse its recognition and enforcement on any or all of the grounds above (Rule 13.5, A.M. No. 07-11-08-SC).

Mediation

A foreign arbitral award, when confirmed by a court of a foreign country, shall be recognized and enforced as a foreign arbitral award and not as a judgment of a foreign court. A foreign arbitral award, when confirmed by the RTC, shall be enforced in the same manner as final and executory decisions of courts of law of the Philippines (Sec. 44, RA 9285).

Mediation It is a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute [Sec. 3 (q), RA 9285]. Assistance of a lawyer in mediation proceedings

NOTE: The recognition and enforcement of a foreign arbitral award shall be governed by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Special ADR Rules. The court may, upon grounds of comity and reciprocity, recognize and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention as if it were a Convention Award (Rule 13.4, A.M. No. 07-11-08-SC).

A party may designate a lawyer or any other person to provide assistance in the mediation. A waiver of this right shall be made in writing by the party waiving it. A waiver of participation or legal representation may be rescinded at any time (Sec. 14, RA 9285).

Refusal of recognition and enforcement of a foreign arbitral award in our jurisdiction

Enforcement of a mediated settlement agreement

At the request of the party against whom it is invoked, a foreign arbitral award may be refused recognition or enforcement if that party furnishes proof that: 1. A party to the arbitration agreement was under some incapacity; 2. The said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; 3. The party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; 4. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;

After a successful mediation, 1. The mediated settlement agreement shall be prepared by the parties through the assistance of their respective counsel, if any, and by the mediator. 2. Parties and their respective counsels, if any shall sign the settlement agreement. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them. 3. If the parties so desire, they may deposit such settlement agreement with the appropriate Clerk of Court of the RTC of the place where one of the parties resides. Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court, in which case the court shall proceed summarily to hear the petition, in accordance with such rules of procedure as may be promulgated by the SC.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: The parties may agree in the settlement agreement that the mediator shall become a sole arbitrator for the dispute and shall treat the settlement agreement as an arbitral award which shall be subject to enforcement under RA 876 “Arbitration Law” notwithstanding the provisions of EO 1008 for mediated dispute outside of the CIAC (Sec. 17, RA 9285).

2.

The movant must show in his motion he a. Has an immediate legal interest in the matter in controversy, not merely contingent; b. Has legal interest in the success of either of the parties in the action; c. Has legal interest against both parties; or d. Is so situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or of an officer thereof (Sec. 1, Rule 19);

3.

Intervention will not unduly delay or prejudice the adjudication of the rights of original parties; and Intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. v. CA, G.R. 140058, August 1, 2002).

INTERVENTION It is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court. This person who intervenes is one who is not originally impleaded in the action (First Philippine Holdings Corp. v. Sandiganbayan, G.R. No. 88345, February 1, 1996).

4.

NOTE: Intervention is merely optional and permissive (Mabayo Farms, Inc. v. CA, G.R. No. 140058, August 1, 2002). Hence, the court has the full measure of discretion in permitting or disallowing the same (Yau v. Manila Banking Corporation, G.R. No. 126731, July 11, 2002). In claiming the right to intervene, the intervenor must comply with the requirements laid down by Rule 19 of the Rules of Court (Office of the Ombudsman v. Samaniego, G.R. No. 175573, September 11, 2008).

Intervention is NOT an independent proceeding (2000 Bar Question) It is not an independent proceeding but is ancillary and supplemental to an existing litigation. Its purpose is to enable a stranger to an action to become a party to protect his interest (Santiago Land Development Corporation v. CA, 267 SCRA 79).

Intervention v. Interpleader Intervention An ancillary action Proper when the intervenor has legal interest in the matter of litigation or success of either of the parties, or interest against both or may be adversely affected by distribution/disposition of property in the custody of the court Defendants are already original parties to the pending suit

NOTE: Denial of a motion to intervene does not constitute res judicata. The remedy of the intervenor is to file a separate action.

Interpleader An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action

TIME TO INTERVENE Period to intervene The motion to intervene may be filed any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties (Sec. 2, Rule 19). Procedure for intervention

Defendants are being sued precisely to implead them (Regalado, 2012).

1.

Factors in the approval of a motion to intervene 1.

2.

Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties; and Whether or not the intervenor’s right may be duly protected in a separate proceeding (Albano, 2010).

2. 3.

REQUISITES FOR INTERVENTION 1.

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

NOTE: A change in theory of the defense is not a proper intervention. Intervention should not alter the theory of both parties.

NOTE: A motion is necessary because leave of court is required before a person may be allowed to intervene (Sec. 1, Rule 19).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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

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CIVIL PROCEDURE matter is undisputed, a denial of a motion to intervene is an injustice (Mago v. CA, 303 SCRA 600).

When to file an Answer to a complaint-in-intervention It shall be filed within 15 days from notice of the order admitting the same, unless a different period is fixed by the court (Sec. 4, Rule 19).

SUBPOENA Subpoena

Intervention be allowed after judgment has been rendered by the court (1991 Bar Question)

Itis a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21).

GR: After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant.The motion to intervene must be filed at any time beforerendition of judgmentby the trial court (Sec. 2, Rule 19). Hence, intervention after trial and decision can no longer be permitted (Yau v.Manila Banking Corporation, G.R. No. 126731, July 11, 2002).

NOTE: Subpoena is a Latin term which literally means “under the pain of penalty.”

Subpoena v. Summons Subpoena An order to appear and testify at the hearing or for taking deposition (Albano, 2010)

XPNs: 1. With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13, 1952); 2. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, January 27, 1995);

May be served to a nonparty Needs tender of kilometrage, attendance fee and reasonable cost of production fee (Albano, 2010)

NOTE: Prescription does not lie against the State. The State is not estopped by the inaction or mistakes of its agents.

3.

4.

Where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. CA, G.R. No. 91486, September 10, 2003); or May be allowed during the pendency of the appeal, where the interest of justice so requires (Tahanan Dev. Corp. v. CA, G.R. No. L-55771, November 15, 1982).

Summons Writ notifying of action brought against defendant (CanoGutierrez v Gutierrez, 341 SCRA 670) Served on the defendant Does not need tender of kilometrage and other fees

SUBPOENA DUCES TECUM Aprocess directed to a person requiring him to bring with him any books, documents, or other things under his control (Sec. 1, Rule 21).

REMEDY FOR THE DENIAL OF MOTION TO INTERVENE Mandamusfrom the Order of the court allowing or disallowing intervention

SUBPOENA AD TESTIFICANDUM Subpoena ad testificandum

GR: Not proper. The granting or refusal of a motion to intervene is a matter of judicial discretion, and once exercised, the decision of the court cannot be reviewed or controlled by mandamus, however, erroneous it may be (Otto Gmur, Inc. v. Revilla, 55 Phil. 627; Feria & Noche, 2001).

It is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted by competent authority or for the taking of his deposition (Sec. 1, Rule 21). Issuance of a Subpoena against a witness who refuses to execute a judicial affidavit

XPN: When there is an arbitrary abuse of that discretion, in which case mandamus may issue if there is no other adequate remedy, though the result is that the court will be called upon to review the exercise of a discretionary power (Ibid.).

If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte (Sec. 5, A.M. No. 12-8-8-SC).

NOTE: A court’s power to allow or deny intervention is circumscribed by the basic juridical procedure that only a person with interest in an action or proceeding may be allowed to intervene. A court has no authority to allow a person, who has no interest in an action or proceeding, to intervene (Anonuevo v. Intestate Estate of Jalandoni, 636 SCRA 440). This discretion, however, must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. Thus, where substantial interest of the movant in the subject

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REMEDIAL LAW

Issuance of subpoena

When a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made (Ibid.).

1.

Rationale for service of subpoena

SERVICE OF SUBPOENA

2. 3.

4.

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

The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance (Ibid.). COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT Effect of failure to comply with subpoena GR: The court or judge which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Secs. 8 and 9, Rule 21).

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

XPNs: 1. Viatory right - where the witness resides more than 100 kms. from his residence to the place where he is to testify by the ordinary course of travel, generally, by overland transportation or 2. When the permission of the court in which the detention prisoner’s case is pending was not obtained (Sec. 10, Rule 21).

Contents of subpoena It shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant (Sec. 3, Rule 21).

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

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

Subpoena ad testificandum: 1. That the witness is not bound thereby. 2. That the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (Sec. 4, Rule 21).

It shall be made in the same manner as personal or substituted service of summons (Sec. 6, Rule 21). The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by the Rules. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered (Ibid.).

MODES OF DISCOVERY Discovery It is a device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for the trial (Riano, 2011).

NOTE: Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized, who is not a party and is not less than 18 years of age (Ibid.).

NOTE: As contemplated by the Rules, the device may be used by all the parties to the case (Ibid.).

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CIVIL PROCEDURE NOTE: The modes of discovery are designed to serve as an additional device aside from a pre-trial, to narrow and clarify the basic issues between the parties, to ascertain the facts relative to the issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent the said trials to be carried on in the dark. It is intended to make certain that all issues necessary to the disposition of a case are properly raised (Tinio v. Manzano, 307 SCRA 460).

Purposes of the Rules of Discovery 1.

2.

3.

4.

5.

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

Limitations 1. 2. 3.

Those matters which are privileged; Those under protection order; The modes of discovery must not be conducted in bad faith.

Modes of Discovery Deposition pending action(Rule 23)

Depositions Before Action or Pending Appeal (Rule 24)

Written Interrogatories to adverse parties (Rule 25)

Admission by adverse party (Rule 26)

Production or inspection of documents or things (Rule 27)

Physical and mental examination of persons (Rule 28)

By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. A person who desires to perpetuate his own testimony or that of anotherperson regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document or of the truth of any material and relevant matter of fact. Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to produce and permit the inspection and copying of any designated documents or order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting or photographing the property or any designated relevant object or operation thereon. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician.

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

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REMEDIAL LAW DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Persons before whom Deposition may be taken 1.

If within the Philippines a. Judge; b. Notary public (Sec. 10, Rule 23); or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 14, Rule 23).

2.

If outside the Philippines a. On notice, before a secretary of embassy or legation, consul-general, consul, vice-consul, or consular agent of the Philippines (Sec. 11, Rule 23); b. Before such person or officer as may be appointed by commission or letters rogatory; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 14, Rule 23).

MEANING OF DEPOSITION Deposition A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. Deposition may be: 1. An oral examination 2. Written interrogatories (Sec. 1, Rule 23) When available 1. 2.

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

Issuance of letters rogatory or Commission Rule on necessity of leave of court in taking deposition 1.

2.

They shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate (Sec. 12, Rule 23).

It is necessary a. Before service of an answer but after the jurisdiction has been acquired over the defendant or over the property subject of the action b. If the deposition to be taken is that of a prisoner (Sec. 1, Rule 23). It is not necessary - When an answer has already been served

Commission v. Letters Rogatory Commission Instrument issued by a court of justice or other competent tribunal, directed to a magistrate by his official designation or to an individual by name, authorizing him to take depositions of the witness named therein

Letters Rogatory An instrument sent in the name and by the authority of a judge or court of another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed (Dasmarinas Garments, Inc. v. Reyes, et al, G.R. 108229). Directed to officials of Requests to foreign tribunals the issuing jurisdiction

Effect of substitution of parties It does not affect the right to use depositions previously taken; and when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors-in-interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor (Sec. 5, Rule 23). Deponent as a witness of the party taking his deposition

Taken in accordance with the rules laid down by the court issuing the commission

GR: Depositions may be taken for discovery and not necessarily for use as evidence (Feria & Noche, 2001). XPN: If the deposition or any part thereof is offered in evidence for any purpose (Sec. 8, Rule 23).

NOTE: Letters rogatory may be applied for and issued only after a commission has been returned unexecuted (Dasmarinas Garments, Inc. v. Reyes, et al, G.R. No. 108229).

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

Leave of court is not required when the deposition is to be taken before a secretary of embassy or legation, consul general, consul, vice-consul or consular agent of the Republic of the Philippines and the defendant’s answer has already been served. However, if the deposition is to be taken in a foreign country where the Philippines has no secretary of embassy or legation, consul general, consul, vice-consul or consular agent, it may be taken only before such person or officer as may be appointed by commission or under letters rogatory (Dulay v. Dulay, GR No. 158857, November 11, 2005).

Rebuttal of a deposition At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party (Sec. 9, Rule 23). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The methods of procedure are under the control of foreign tribunal (Dulay v. Dulay, GR No. 158857, November 11, 2005.

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CIVIL PROCEDURE Disqualifications of a deposition officer 1. 2. 3.

4.

8.

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

Objections to be noted by the officer upon the deposition All objections made at the time of the examination to the: 1. Qualifications of the officer taking the deposition; 2. Manner of taking the deposition; 3. Evidence presented; 4. Conduct of any party; or 5. Any other objection to the proceedings (Sec. 17, Rule 23).

Stipulation in writing for the taking of depositions The parties may stipulate in writing as to the person authorized to administer oaths, as to the time and place, but not as to the manner of taking depositions which should be in accordance with the rules (Feria & Noche, 2001).

NOTE: A deposition officer has no authority to rule on the objection (Herrera, 2007). Evidence objected to shall be taken subject to the objection, which will be ruled upon by the court when the deposition is offered in evidence (Feria & Noche, 2001).

Requirement in taking deposition upon oral examination

Option of parties NOT participating in the oral examination

A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action (Sec. 15, Rule 23).

The parties may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim (Sec. 17, Rule 23).

Statement of the notice

Changes which the witness desire to make

It shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs (Sec. 15, Rule 23).

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

NOTE: On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time (Ibid.).

GR: It shall be signed by the witness.

Period for the Court to make orders for the protection of parties and deponents

XPN: 1. Parties by stipulation waive the signing; 2. Witness is ill; 3. Witness cannot be found; 4. Witness refuses to sign (Sec. 19, Rule 23)

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

Note: If the witness does not sign the deposition, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Sec. 29 (f), Rule 23, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part (Sec. 19, Rule 23).

Orders for the protection of parties and deponents 1. 2. 3. 4. 5.

6.

7.

The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression (Sec. 16, Rule 23).

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

Period to furnish a copy of the deposition to any party or to the deponent He shall furnish a copy upon payment of reasonable charges therefor (Sec. 22, Rule 23).

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REMEDIAL LAW Consequence of Failure to attend by the party giving notice

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

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

Rule on notice and service of depositions before action

Consequence of Failure of a party giving notice to serve subpoena

The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons (Sec. 3, Rule 24).

If because of such failure, the witness does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees (Sec. 24, Rule 23).

Contents of the motion for deposition pending appeal

Conduct of deposition upon written interrogatories

The motion shall state: 1. The names and addresses of the persons to be examined 2. The substance of the testimony which he expects to elicit from each 3. The reason for perpetuating their testimony (Sec. 7, Rule 24).

A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within 10 days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within 5 days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within 3 days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition (Sec. 25, Rule 23).

NOTE: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed under Rule 23 (Sec. 7, Rule 24).

USES; SCOPE OF EXAMINATION

NOTE: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also be followed on deposition upon written interrogatories (Secs. 26 & 27, Rule 23).

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

Who shall file a petition for deposition before action under Rule 24 Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Sec. 1, Rule 24).

Uses of depositions

Contents of the petition

1.

The petition shall be entitled in the name of the petitioner and shall show that: 1. The petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; 2. The subject matter of the expected action and his interest therein; 3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; 4. The names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 5. The names and addresses of the persons to be examined and the substance of the testimony which UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

2. 3.

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Contradicting or impeaching the testimony of the deponent as a witness; Any purpose by the adverse party where the deponent is a party; or Any purpose by any party if the court finds that: (DR. USE) a. The witness is dead b. The witness resides more than 100 kms. from the place of trial or hearing, or is out of the Philippines. Unless it appears that his absence was procured by the party offering the deposition c. The witness is unable to testify because of age, sickness, infirmity or imprisonment

CIVIL PROCEDURE d.

e.

The party offering the deposition has been unable to procure the attendance of the witness by subpoena Upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice (Sec. 4, Rule 23)

3.

Dual function of depositions 1. 2.

4.

Rule 23 – method of discovery, with use on trial not necessarily contemplated Rule 24 – a method of presenting testimony

Use of deposition pending appeal Depositions are taken pending appeal with the view to their being used in the event of further proceeding in the court of origin or appellate court (Sec. 7, Rule 24).

5.

NOTE: The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. 6, Rule 24).

Scope of the examination of the deponent

6.

Unless otherwise ordered by the court as provided by Sec. 16 or 18, Rule 23, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the: 1. Existence; 2. Description; 3. Nature; 4. Custody; 5. Condition; 6. Location of any books, documents, or other tangible things; and 7. The identity and location of persons having knowledge of relevant facts (Sec. 2, Rule 23).

WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED Grounds for termination of deposition At any time during the taking of the deposition, on motion or petition of any party or of the deponent, and upon showing that the examination is conducted in: 1. Bad faith; 2. Such manner as unreasonably to annoy, embarrass, or oppress the deponent party (Sec. 18, Rule 23); or 3. When the constitutional privilege against selfincrimination is invoked by deponent or his counsel (Herrera, 2007).

WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE Grounds for termination of deposition Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23).

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

Effect of errors and irregularities in depositions as stated under Sec. 29, Rule 23 1.

2.

As to competency or relevancy of evidence – Objections to the competency of witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground, of the objection is one which might have been obviated or removed if presented at that time. As to oral examination and other particulars – Errors and irregularities occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. As to form of written interrogatories – Objections to the form of written interrogatories submitted under Secs. 25 and 26 are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. As to manner of preparation – Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Secs. 17, 19, 20 and 26 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained (Sec. 29, Rule 23).

As to notice – All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. As to disqualification of officer – Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

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REMEDIAL LAW Protection order v. motion to terminate or limit examination Protection Order (Sec. 16, Rule 23) Provides protection to the party or witness before the taking of deposition. The Motion is filed with the court in which the action is pending.

Motion to Terminate or Limit Examination (Sec. 18, Rule 23) Provides protection during the taking of deposition.

Scope Interrogatories

Motion or petition is filed with the court in which the action is pending or the RTC of the place where the deposition is being taken.

Binding Effect

WRITTEN INTERROGATORIES TO ADVERSE PARTIES

directly. They are instead delivered to the officer before whom the deposition is to be taken (Sec. 26, Rule 23). Direct, cross, redirect, re-cross No fixed time

Binding to anyone who is present during the deposition.

party (Sec. 1, Rule 25).

Only one set of interrogatories 15 days to answer unless extended or reduced by the court Binding only to the parties.

Purpose of interrogatories to parties

Procedure in taking interrogatories

To elicit material and relevant facts from any adverse party (Sec. 1, Rule 25).

The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, it shall be answered by any of its officers competent to testify in its behalf (Sec. 1, Rule 25). The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them.

NOTE: The answers may also be used as admissions of the adverse party (Feria & Noche, 2001).

Interrogatories v. bill of particulars Interrogatories Interrogatories to parties are not directed to a particular pleading. Instead, they seek to disclose all material and relevant facts from a party (Sec. 1, Rule 25). A party may properly seek disclosure of matters of proof which may later be made a part of the records of evidence

Bill of Particulars Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in a pleading. It is therefore directed to a pleading (Sec. 1, Rule 12). A party may properly seek disclosure only of matters which define the issues and become a part of the pleadings

NOTE: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party (Sec. 4, Rule 25).

How to answer interrogatories The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within 15 days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time (Sec. 2, Rule 25). NOTE: The party against whom it is directed may make objections to the interrogatories (Sec. 2, Rule 25).

NOTE: If a motion to a bill of particulars is denied, it will not bar the party to avail of modes of discovery.

Objections to the interrogatories

Depositions upon written interrogatories under Sec. 25, Rule 23 v. Interrogatories to parties under Rule 25

Deponent Procedure

Depositions Upon Written Interrogatories to Parties (Sec. 25, Rule 23) Party or ordinary witness With intervention of the officer authorized by the Court to take deposition Not served upon the adverse party

Objections shall be presented to the court within 10 days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories (Sec. 3, Rule 25).

Interrogatories to Parties (Rule 25)

Party only

Necessity of leave of court before a party may be served with written interrogatories

No intervention. Written interrogatories are directed to the party himself

It is necessary before answer has been served because, at that time, the issues are not yet joined and the disputed facts are not yet clear. However, it is not necessary after answer has been served, for the first set of interrogatories.

Served directly upon the adverse

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CIVIL PROCEDURE Scope and use of interrogatories Interrogatories may relate to any matters that can be inquired into under Sec. 2 of Rule 23, and the answers may be used for the same purposes provided in Sec. 4 of the same Rule (Sec. 5, Rule 25).

b.

CONSEQUENCES OF REFUSAL TO ANSWER Consequences of refusal to answer c. 1.

If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.

d.

If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees.

EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. XPN: When allowed by the court and there is good cause shown and the same is necessary to prevent a failure of justice (Sec. 6, Rule 25).

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees (Sec. 1, Rule 29). 2.

3.

REQUEST FOR ADMISSION Admissions to be requested from the adverse party 1.

If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (Sec. 2, Rule 29).

2.

Genuineness of any material and relevant document described in and exhibited with the request; or Truth of any material and relevant matter of fact set forth in the request (Sec. 1, Rule 26).

NOTE: The request for admission must be served directly upon the party; otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein on account of failure to answer the request for admission (Briboneria v. CA, G.R. No. 101682, December 14, 1992).

If any party or an officer or managing agent of a party refuses to obey an order made under Sec. 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: a.

facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; 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; In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. 3, Rule 29).

The answer to a request for admission properly served which was signed and sworn to by the counsel of the party so requested is sufficient compliance with this rule, especially in the light of counsel’s authority under Secs. 21 and 23, Rule 138 (Nestle Philippines, Inc. v. CA, G.R. No. 102404, February 1, 2002).

When request for admission is made At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter (Sec. 1, Rule 26).

An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated

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REMEDIAL LAW IMPLIED ADMISSION BY ADVERSE PARTY

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

GR: Each of the matters of which an admission is requested shall be deemed admitted.

Court order under this mode of discovery

XPN: When the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. 2, Rule 26).

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

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

Limitations on the request for production or inspection of documents or things 1. 2.

EFFECT OF ADMISSION

3.

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

Effect of admission Production or inspection of documents or things under Rule 27 v. Subpoena duces tecum

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

Production or Inspection of Documents or Things Essentially a mode of discovery. Limited to the parties to the action.

Submission to objections to any request for admission They shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable [Sec. 2(b), Rule 26].

Issued only upon motion with notice to the adverse party.

Withdrawal of Admission

Subpoena Duces Tecum

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

The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. 4, Rule 26).

NOTE: This mode of discovery does not authorize the opposing party or the clerk of court or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily (Tanda v. Aldaya, GR No. L13423, November 23, 1959).

EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION

Procedure to avail of the production or inspection of documents or things 1.

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

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A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same (Sec. 1, Rule 27). The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just (Sec. 1, Rule 27).

CIVIL PROCEDURE PHYSICAL AND MENTAL EXAMINATION OF PERSONS

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY

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

It may be ordered in an action in which the physical or mental condition of a party is in controversy (Sec. 1, Rule 28). Procedure to avail physical and mental examination of persons 1.

2.

3.

4.

A motion must be filed showing good cause for the examination, with notice to the other parties as well aside from the party to be examined (Sec. 2, Rule 28). The motion shall specify the time, place, manner, conditions and scope of the examination and by the person/s by whom it is made (Sec. 2, Rule 28). The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions (Sec. 3, Rule 28). The party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition (Sec. 3, Rule 28).

Effect if the party examined requests and obtains a report on the results of the examination 1.

2.

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

NOTE: If a party refuses to deliver the report upon request to the person causing the examination to be made, the court may require its delivery on such terms as are just. If the physician refuses or fails to make a report, the court may exclude his testimony (Sec. 3, Rule 28).

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

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REMEDIAL LAW TRIAL

Rule on Notice of trial

Trial

Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least 5 days before such date (Sec.1, Rule 30).

It is a judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments (Riano, 2011).

Cases where the clerk of court gives preference in scheduling of cases

Should there be no amicable settlement or a compromise forged between the parties, the case will be set for trial (Riano, 2011).

In calendaring cases, the clerk of court shall give preference to: 1. Habeas corpus cases; 2. Election cases; 3. Special civil actions; and 4. Those so required by law to be preferred (Sec. 1, Rule 20).

Necessity of Trial (1996 Bar Question) GR: Trial is necessary when an issue exists. Decisions should not be made without trial. XPN: There is no need for trial in the following cases: 1. Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34); 2. Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35); 3. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18; Art. 2028, NCC); 4. Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, Rule 7); 5. Where the parties agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts (Sec. 6, Rule 30) 6. Where the civil case falls under the operation of the Rules on Summary Procedure (Rule 17); 7. When the case falls under the Rule on Small Claims.

ADJOURNMENTS AND POSTPONEMENTS The court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require. However, the court has no power to adjourn a trial for a period longer than 1 month from each adjournment, nor more than 3 months in all except when authorized in writing by the Court Administrator (Sec. 2, Rule 30). REQUISITES OF MOTION TO POSTPONE TRIAL; FOR ABSENCE OF EVIDENCE; FOR ILLNESS OF PARTY OR COUNSEL For absence of evidence 1. A motion for postponement must be filed; 2. The motion must be supported by an affidavit or sworn certification showing: a. The evidence is material or relevant; and b. That due diligence has been used to procure it (Sec. 3, Rule 30). NOTE: If the adverse party admits the facts sought to be given in evidence, the trial shall not be postponed even if he objects or reserves the right to their admissibility.

Trial v. Hearing Trial Reception of evidence and other processes.

The period for the introduction of evidence by both parties.

Hearing Not confined to trial and presentation of evidence but embraces several stages of litigation, including pre-trial and determination of granting or denying a motion (Trocio v. Labayo, 53 SCRA 97). Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard.

For illness of party or counsel 1. A motion for postponement must be filed; 2. The motion must be supported by an affidavit or sworn certification showing: a. The presence of the party or counsel at the trial is indispensable; and b. That the character of his illness is such as to render his non-attendance excusable (Sec. 4, Rule 30).

AGREED STATEMENT OF FACTS Effect when there is an 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.

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CIVIL PROCEDURE If the parties agree only on some facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 6, Rule 30).

Reverse order of trial Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place. Since the defendant admits the plaintiff’s claim but seeks to avoid liability based on his affirmative defense he shall proceed first to prove his exemption (Yu v. Mapayo, 44 SCRA 163, G.R. No. L-29742, 1992).

Stipulations of facts in civil cases v. Stipulation of facts incriminal cases Civil Cases May be signed by the counsel alone who has a special power of attorney. May be made verbally or in writing.

Criminal Cases Must be signed both by the counsel and the accused.

CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Consolidation v. Severance

It must always be in writing.

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

ORDER OF TRIAL; REVERSAL OF ORDER Procedure in Trial Subject to the provisions of Sec. 2, Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

Severance Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried (Sec. 2, Rule 31).

Requisites for consolidation Plaintiff shall adduce evidence in support of his cause of action/complaint

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

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

Ways of consolidating cases Recasting the Cases Reshaping of the cases by amending the pleading, dismissing some cases and retaining only one case. There must be joinder of causes of action and of parties.

Third party defendant if any shall adduce evidence of his defense, counterclaim, cross-claim, and fourthparty complaint Fourth party, and so forth, if any, shall adduce evidence material facts pleaded by them

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

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

Test-Case Method By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. The cases retain their original docket numbers.

Rule on consolidation of cases

Parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case

GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial court and save unnecessary costs and expenses.

Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings

XPN: Consolidation becomes a matter of duty when: 1. Two or more cases are pending before the same judge; or 2. If cases are filed with the different branches of the same RTC and one of such case has not been partially tried (Raymundo v. Felipe, G.R. No. L-30887, December 24, 1971).

NOTE: If several defendants or third party defendants and so forth having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence (Sec. 5, Rule 30).

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REMEDIAL LAW Suspension of civil actions

Clerk of court cannot rule on objections or on the admissibility of evidence.

1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).

Commissioner can rule on objections or on admissibility of evidence.

Cases where there is mandatory trial by Commissioner 1. 2. 3.

Q: Doris filed a complaint for ejectment in the MTC on the ground of non-payment of rentals against Minda. After 2 days, Minda filed in the RTC a complaint against Doris for specific performance to enforce the option to purchase the parcel of land subject of the ejectment case. What is the effect of Minda's action on Doris' complaint? Explain (2000 Bar Question)

4.

Expropriation (Rule 67); Partition (Rule 69); Settlement of estate of a deceased person in case of contested claims; and Submission of accounting by executors or administrator. REFERENCE BY CONSENT OR ORDERED ON MOTION

Referral of a case to a Commissioner A: There is no effect. The ejectment case involves possession de facto only. The action to enforce the option to purchase will not suspend the action of ejectment for non-payment of rentals (Wilmon Auto Supply Corp. v. CA, G.R. No. 97637, April 10, 1992).

By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec. 1, Rule 32).

DELEGATION OF RECEPTION OF EVIDENCE

Cases where there is a valid referral to a Commissioner even without the consent of the parties

GR: The judge shall personally receive and resolve the evidence to be adduced by the parties.

1.

XPN: The reception of evidence may be delegated to the Clerk of Court, who is a member of the bar, under the following conditions: 1. In default hearings; 2. Ex parte hearings; or 3. In any case where the parties agree in writing (Sec. 9, Rule 30).

2. 3.

4.

NOTE: Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits; and he shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing (Ibid.).

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

Powers of a commissioner 1.

TRIAL BY COMMISSIONERS

2.

Commissioner

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

A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered.

3. 4. 5.

Delegation to clerk of court under Rule 30 v. Trial by commissioner under Rule 32

Effect of failure of parties to appear before a commissioner

Delegation to Clerk of Court Delegation is made during trial.

Clerk of court must be a lawyer.

The commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment (Sec.6, Rule 32).

Trial by Commissioner Commissioner can be appointed even after the case has become final and executory. Commissioner need not be a lawyer.

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CIVIL PROCEDURE COMMISSIONER’S REPORT; NOTICE TO PARTIES AND HEARING ON THE REPORT

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

Commissioner’s Report Motion for Demurrer Denied

Upon completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. He shall attach in his report all exhibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him (Sec. 9, Rule 32).

Denial is interlocutory, hence, not appealable. Sec. 1, Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based), will not apply.

NOTE: The commissioner’s report is not binding upon the court which is free to adopt, modify, or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions (Sec. 11, Rule 32; Baltazar v. Limpin, 49 Phil. 39).

Motion for Demurrer Granted but Reversed on Appeal Order of the court is an adjudication on the merits. Hence, the requirement in Sec. 1, Rule 36 should be complied with.

Motion to dismiss v. Demurrer to evidence Motion to Dismiss (Rule 16)

Rule on Notice of Filing of the Report Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed 10 days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner (Sec.10, Rule 32).

When to file

Grounds

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

If denied

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

If granted

Before filing of answer

The 10 grounds enumerated in Rule 16 The defendant may file his responsive pleading. The complaint may be refiled depending on the ground of dismissal.

Demurrer to Evidence (Rule 33) After the plaintiff rests its case or after the completion of the presentation of evidence That upon the facts and the law, the plaintiff has shown no right to relief The defendant may present his evidence. The complaint may NOT be filed. The remedy of the plaintiff is to appeal from the dismissal.

(Riano, 2011) Q: ABS Co. is the operator of several buses. One of the buses owned by ABS Co. rammed upon a dump truck causing the instantaneous death of Nilo, one of the passengers of the ill-fated bus. Consequently, Nestor, son of Nilo, filed a complaint against ABS Co. for damages. After Nestor had rested his case, ABS Co. filed a demurrer to evidence, contending that Nestor's evidence is insufficient because it did not show (1) that ABS Co. was negligent and (2) that such negligence was the proximate cause of the collision. Should the court grant or deny defendant's demurrer to evidence? Reason briefly. (2004 Bar Question)

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

A: No, the court should not grant defendant’s demurrer to evidence. Under the Rules of Court, after the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Here, Nestor has shown that he is entitled to the relief he is asking for. ABS Co. is a common carrier. Under Art.1756 of the Civil Code, in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to

Dismissal based on insufficiency of 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

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REMEDIAL LAW have acted negligently, unless they prove that they observed extraordinary diligence. Proof that the defendant was negligent and that such negligence was the proximate cause of the collision is not required. Thus, without proof that ABS Co. has exercised extraordinary diligence, the presumption of negligence stands.

on the right to present evidence. The provision of the Rules governing demurrer to evidence does not apply to an election case (Gementiza v. COMELEC, 353 SCRA 724). The Rules, under the express dictum in Sec. 4 of Rule 1 “shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceeding” (Riano, 2011).

GROUND EFFECT OF GRANT The only ground for demurrer to evidence is upon showing that upon the facts and the law, the plaintiff has shown no right to relief.

Effects of granting the demurrer to evidence 1. The case shall be dismissed.

EFFECT OF DENIAL 1.

2.

3.

NOTE: The plaintiff may file an appeal and if that appeal was granted (reversed the order of dismissal), the defendant loses his right to present evidence (Sec.1, Rule 33; Republic v. Tuvera, G.R. No. 148246, February 16, 2007).

The defendant shall have the right to present his evidence (Sec. 1, Rule 33). This means that the denial of the demurrer to evidence does not deprive the defendant the opportunity to adduce evidence in his behalf The court shall set the date for the reception of the defendant’s evidence-in-chief. It should not proceed to grant the relief demanded by the plaintiff (Northwest Airlines, Inc. v.CA, 284 SCRA 408). An order denying a demurrer to evidence is not appealable because it is interlocutory.

2. Upon appeal, the appellate court reversing the order granting the demurrer should not remand the case to the trial court. Instead, it should render judgment based on the evidence submitted by the plaintiff (Radiowealth Finance Corporation v. Del Rosario, 335 SCRA 288). WAIVER OF RIGHT TO PRESENT EVIDENCE Waiver of right to present evidence

NOTE: It can be subject to petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority (Katigbak v. Sandiganbayan, 405 SCRA 558).

4.

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

A party who files a demurrer to evidence that is subsequently denied in an election case cannot insist

DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE Demurrer to evidence in a civil case v. Demurrer to evidence in a criminal case (2007 Bar Question)

How filed

Leave of court

If granted

Civil Case 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 (Sec. 1, Rule 33). Not required The plaintiff may appeal from the order of dismissal of the case (Sec. 1, Rule 33) The defendant may proceed to adduce his evidence

If denied

If the plaintiff appeals from the order of dismissal

If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer.

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Criminal Case The court may dismiss the action on the ground of insufficiency of evidence (1) On its own initiativeafter giving the prosecution the opportunity to be heard or (2) Upon demurrer to evidence filed by the accused with or without leave of court(Sec. 23, Rule 119) With or Without (Sec. 23, Rule 119) The plaintiff cannot make an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy The defendant may adduce his evidence only if the demurrer is filed with leave of court. If there was no leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence (Sec. 23, Rule 119) If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appealable because double jeopardy sets in.

CIVIL PROCEDURE JUDGMENTS AND FINAL ORDERS Judgment

6.

It is the final ruling by a court of competent jurisdiction regarding the rights or other matters submitted to it in an action or proceeding (Macahilig v. Heirs of Garcia M. Magalit, 344 SCRA 838).

7.

It is the court’s official and final consideration and determination of the respective rights and obligations of the parties (46 AM Jur 2d, Judgments SS1).

8.

NOTE: “Judgment” is normally synonymous with “decision” (Tung Chin Hui v. Rodriguez, 340 SCRA 765).

9.

Judgment may be understood in 2 senses: 1. Judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case. It has also the effect of ending the litigation, and an aggrieved party may then appeal from the judgment.

10.

2. Judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal, or it has already been resolved by a highest possible tribunal. In this sense, the judgment is commonly referred to as one that is final and executory (Riano, 2011).

11.

Action of Courts act upon facts and issues not pleaded by the parties

12.

It is vital to keep in mind that in the process of rendering judgment or in resolving controversies, courts can only consider facts and issued pleaded by the parties. Courts, as well as magistrates presiding over them are not omniscient. They can only act on the facts and issues presented before their own personal knowledge for evidence. Nor may they take notice of matters except those expressly provided as subjects of mandatory judicial notice (Social Justice Society v. Atienza, G.R. No. 156052, February 13, 2008).

13.

Kinds of judgment 1.

2.

3.

4. 5.

Judgment upon compromise – It is one conferred on the basis of a compromise agreement entered into between the parties. Judgment by confession – It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. Judgment upon the merits – It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. Clarificatory judgment – It is rendered to clarify an ambiguous judgment or one difficult to comply with. Judgment nunc pro tunc (Now for then) – A judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to

14.

15.

16.

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make the record speak the truth, without any changes in substance or any material respect. Judgment sin perjuicio – Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. This is not allowed. Judgment by default (Sec. 3, Rule 9) – Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence. Judgment on the pleadings (Rule 34) – Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. Summary judgment (Rule 35) – One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Several judgment (Sec. 4, Rule 36) – It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. Separate judgment (Sec. 5, Rule 36) – It is one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of said claim. Special judgment (Sec. 11, Rule 39) – One which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Payment of money; and b. Sale of real and personal property. Judgment for specific acts(Sec. 10, Rule 39) – Applicable in cases of: a. Conveyance, delivery of deeds, or other specific acts, vesting title; b. Sale of real or personal property; c. Delivery or restitution of real property; d. Removal of improvements on property subject of execution; or e. Delivery of personal property. Judgment on demurrer to evidence(Rule 33) – A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. Conditional judgment – It is one the effectivity of which depends upon the occurrence or nonoccurrence of an event. Final judgment – One which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Several judgments v. Separate Judgments Several Judgment Proper where the liability of each party is clearly separable and distinct from his co-parties such that the claims against each of them could have been the subject of a separate suit, and the judgment for or against one of them will not necessarily affect the other.

JUDGMENT WITHOUT TRIAL Instances when there can be a Judgment without a trial

Separate Judgment Proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The action shall proceed as to the remaining claims.

1.

2.

3.

4. NOTE: A several judgment is not proper in actions against solidary debtors.

Judgment on Compromise 5.

Judgment on compromise is a judgment on the merits. It has the effect of res judicata and is immediately executory and not appealable. But it may be set aside on grounds provided under Art. 2038, NCC, e.g. mistake, fraud, violence, intimidation, undue influence or falsity of documents (Aromin v. Floresca, G.R. No. 160994, July 27, 2006).

6. 7.

Q: In a complaint for recovery of real property, Ryan averred, among others, that he is the owner of the said property by virtue of a deed of sale executed by Joseph in his favor. Copy of the deed of sale was appended to the complaint as Annex "A" thereof. In his unverified answer, Joseph denied the allegation concerning the sale of the property in question, as well as the appended deed of sale, for lack of knowledge or information sufficient to form a belief as to the truth thereof. Is it proper for the court to render judgment without trial? Explain. (2005 Bar Question)

Judgment upon compromise v. Judgment by confession Judgment Upon Compromise The provisions and terms are settled and agreed upon by the parties to the action, and which is entered in the record with the consent of the court.

Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34); Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35); Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18; Art. 2028, NCC); Where the parties agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts (Sec. 6, Rule 30); Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par.; Sec. 5, Rule 7); Where the civil case falls under the operation of the Rules on Summary Procedure (Rule 17); When the case falls under the Rule on Small Claims.

Judgment By Confession An affirmative and voluntary act of the defendant himself. The court exercises a certain amount of supervision over the entry of judgment.

A: Yes, a judgment on the pleadings can be rendered by the court without need of a trial. Defendant cannot deny the sale of the property for lack of knowledge or information sufficient to form a belief as to the truth thereof. The answer amounts to an admission. The defendant must aver or state positively how it is that he is ignorant of the facts alleged. Moreover, the genuineness and due execution of the deed of sale can only be denied by the defendant under oath and failure to do so is an admission of the deed. Hence, a judgment on the pleadings can be rendered by the court without need of a trial.

Kinds of Judgment by confession 1. Judgment by cognovit actionem - a written confession of an action by the defendant, subscribed but not sealed, and irrevocably authorizing any attorney of any court of record to confess judgment and issue execution usually for the sum named. It is given in order to save expense and differs from a warrant of attorney, which is given to an expressly designated attorney before the commencement of any action and is under seal. 2. Confession relicta verificatione – After pleading and before trial, the defendant both confessed the plaintiff’s cause of action and withdrew or abandoned his plea or other allegations, whereupon judgment was entered.

CONTENTS OF A JUDGMENT Parts of a judgment 1. Ratio decidendi – The body of judgment

NOTE: Warrants of attorney to confess judgment are not authorized nor contemplated by our law. We are further of the opinion that provisions in notes authorizing attorneys to appear and confess judgments against makers should not be recognized in this jurisdiction by implication and should only be considered as valid when given express legislative sanction (PNB v. Manila Oil Refining & By-Products Company, Inc, G.R. No. L-18103, June 8, 1922).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

2. Fallo – The dispositive portion of the judgment. It is also the part of judgment that is subject to execution because this is the judgment of the court itself, i.e. if the petition is granted or denied and the relief granted.

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CIVIL PROCEDURE Resolution of a conflict between the parts of a decision

so ordered." Is the order of dismissal valid? May plaintiff properly take an appeal? (2004 Bar Question)

GR: If there is a conflict between the ratio decidendi and the fallo, the fallo should prevail because it is the final order while the ratio decidendi is merely a statement ordering nothing.

A: The order or decision is void because it neither stated the findings of fact and law as required by Sec. 14, Art. VIII of the Constitution and Sec. 1, Rule 36 of the Rules of Court nor adopts by reference the factual findings by the lower court. Being void, appeal is not available. The proper remedy is certiorari under Rule 65.

XPN: If there is a mere mistake in the fallo and the the ratio decidendi is so clear that it states a conclusion, the latter should prevail (Poland Industrial Limited v. National Development Company, 467 SCRA 500).

Memorandum decision

Difference between a judgment and an opinion of the court (2006 Bar Question)

Decisions which adopt by reference the findings of facts and conclusions of law of inferior tribunals. In this jurisdiction, it has been held that memorandum decisions do not transgress the constitutional requirement in Art. VIII, Sec. 14, on clearly and distinctly stating the facts and the law on which the decision is based. Nonetheless, it would be more prudent for a memorandum decision not to be simply limited to the dispositive portion but to: 1. State the nature of the case; 2. Summarize the facts with references to the record; and 3. Contain a statement of the applicable laws and jurisprudence and the tribunal’s assessments and conclusions on the case. This practice would better enable a court to make an appropriate consideration of whether the dispositive portion of the judgment sought to be enforced is consistent with the findings of facts and conclusions of law made by the tribunal that rendered the decision (Oil and Natural Gas Commission v. CA, G.R. No. 114323, September 28, 1999).

The judgment or fallo is the final disposition of the court which is reflected in the dispositive portion of the decision while the opinion of the court is contained in the body of the decision that serves as a guide or enlightenment to determine the ratio decidendi of the decision. Obiter dictum It is an opinion expressed by a court, which is not necessary to the decision of the case before it. It is neither enforceable as a relief nor a source of a judicially actionable claim. Requisites of a valid judgment 1. 2. 3. 4. 5.

The court or tribunal must be clothed with authority to hear and determine the matter before it. The court must have jurisdiction over the parties and the subject matter. The parties must have been given an opportunity to adduce evidence in their behalf. The evidence must have been considered by the tribunal in deciding the case. The judgment must be in writing, personally and directly prepared by the judge.

Interlocutory Order (2006 Bar Question) It is an order which decides some point or matter between the commencement and end of the suit but is not the final decision on the whole controversy. It leaves something to be done by the court before the case is finally decided on the merits.

NOTE: A verbal judgment is, in contemplation of law, not in esse, therefore, ineffective (Corus v. Sandiganbayan, 442 SCRA 294)

6.

Remedy to question an improvident interlocutory order File a petition for certiorari under Rule 65 not under Rule 45. A petition for review under Rule 45 is the proper mode of redress to question only final judgments.

The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court (Sec. 1, Rule 36).

NOTE: One cannot appeal an interlocutory order.

NOTE: This requirement refers to decisions and final orders on the merits not to those resolving incidental matters(PabloGualberto v. Gualberto, 461 SCRA 450.

JUDGMENT ON THE PLEADINGS Grounds for judgment on the pleadings (1999 Bar Question)

Q: After plaintiff, in an ordinary civil action before the RTC, has completed presentation of his evidence, defendant without prior leave of court moved for dismissal of plaintiff's complaint for insufficiency of plaintiff's evidence. After due hearing of the motion and the opposition thereto, the court issued an order, reading as follows: "The Court hereby grants defendant's motion to dismiss and accordingly orders the dismissal of plaintiff's complaint, with the costs taxed against him. It is

1.

2.

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The answer fails to tender an issue because of: a. General denial of the material allegations of the complaint; b. Insufficient denial of the material allegations of the complaint. The answer admits material allegations of the adverse party’s pleadings (Sec. 1, Rule 34).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Instances when judgment on the pleadings is NOT applicable 1. 2. 3.

Generally available only to the plaintiff, unless the defendant presents a counterclaim.

Actions for declaration of nullity of marriage, annulment of marriage or for legal separation Unliquidated damages Insufficiency of fact – amendment is the remedy

Motion for judgment on the pleadings v. Motion to dismiss

Effect when the plaintiff moves for judgment on the pleadings and defendant interposes no objection

Motion for Judgment on the Pleadings Filed by the plaintiff if the answer raises no issue.

The latter is deemed to have admitted the truth of the allegations of the complaint, so that there is no longer any necessity for the plaintiff to submit evidence of his claims (Phil. Advertising counselors, Inc. v. Revilla, G.R. No. L31869, August 8, 1973).

Filed by a defendant to a complaint, counterclaim, crossclaim or third-party complaint.

SUMMARY JUDGMENTS When proper It is proper where, upon motion filed after the issues had been joined and on the basis of the pleadings and papers filed, the court finds that there is no genuine issue as to any material fact except as to the amount of damages (Ley Construction & Dev. Corp. v. Union Bank of the Phil., G.R. No. 133801, June 27, 2000). NOTE: A claimant may at any time after the pleading in answer thereto has been served, and the defendant may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Secs. 1 and 2, Rule 35).

A: Yes. The trial court has the discretion to grant a motion for judgment on the pleadings filed by a party if there is no controverted matter in the case after the answer is filed. The instant case is unusual because it was Sunbanun, and not the claimant Go, who moved for a judgment on the pleadings during the pre-trial. Sunbanun, in moving for a judgment on the pleadings without offering proof as to the truth of her own allegations and without giving Go the opportunity to introduce evidence, is deemed to have admitted the material and relevant averments of the complaint, and to rest her motion for judgment based on the pleadings of the parties (Sunbanun v. Go, G.R. No. 163280, February 2, 2010).

Requisites of summary judgment

1.

The motion shall be served at least 10 days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least 3 days before the hearing. NOTE: The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. The matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions(Galicia v. Polo, L49668, Nov. 14, 1989; Carcon Devt. Corp. v. CA, GR 88218, December 17, 1989).

Judgment on the pleadings v. Judgment by default Judgment by Default The defendant did not file an answer.

2.

Except for the amount of damages, there must be no genuine issue as to any material fact. NOTE:There is genuine issue when an issue of fact is presented which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim(Monterey Foods Corp. v. Eserjose, G.R. No. 153126, September 11, 2003).

Evidence is received.

Decision is based on the evidence presented.

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Motion to Dismiss

NOTE: If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for judgment on the pleadings.

Q: Sunbanun, owner of a residential house, entered into a lease agreement with Go, which the latter subleased. 3 months before the expiration of the lease agreement, Sunbanun, alleging that Go violated the agreement because the latter subleases the premises, said that she is terminating the lease. Thereafter, Go filed an action for damages against Sunbanun. At the pre-trial, Sunbanun moved for the case to be submitted for judgment on the pleadings considering that the only disagreement between the parties was the correct interpretation of the lease contract. Go did not object to the motion. The trial court rendered judgment in favor of Go. Is judgment on the pleadings proper?

Judgment on the Pleadings The defendant answered, but did not tender an issue or admitted the material allegations in the complaint. Evidence is not received as the same is based on the pleadings alone. Decision is based on the allegations in the pleadings.

Available to plaintiff.

3.

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The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law.

CIVIL PROCEDURE Important features of Rule 35

Bases of summary judgment

1. There is no limitation as to the type of action in which the remedy is available (claim, counterclaim, cross claim, declaratory relief); 2. The remedy is available to both parties alike; and 3. The summary judgment procedure has been coupled with deposition-discovery procedure (Feria & Noche, 2001).

1. 2. 3. 4.

Q: Garcia, et al. filed a complaint for quieting of title with writ of preliminary injunction with the RTC against Eland Philippines, Inc. The latter found out that the lot was the subject of a land registration proceeding that had already been decided by the same court. Eland thus filed a motion to dismiss. The motion was denied and the trial court enjoined Eland to file its answer. Thereafter, Garcia et. al. moved to declare Eland in default which was granted and the former were allowed to present evidence ex parte. After the many motions initiated by Eland were denied, Garcia et. al. moved for summary judgment. The motion was granted and the trial court decided in Garcia’s et. al favor. Is summary judgment proper?

Affidavits made on personal knowledge; Depositions of the adverse party or a third party under Rule 23; Admissions of the adverse party under Rule 26; and Answers to interrogatories under Rule 25. All intended to show that: a. There is no genuine issue as to any material fact, except damages which must always be proved; and b. The movant is entitled to a judgment as a matter of law.

Burden of demonstrating the absence of genuine issue of fact The party who moves for summary judgment has the burden of demonstrating clearly that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial (Riano, 2011). WHEN THE CASE IS NOT FULLY ADJUDICATED

A: No. Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact.

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

Eland is already the registered owner of the parcel of land in question, pursuant to a decree of registration based on the ruling of the same court that granted the summary judgment. By granting the summary judgment, the trial court has in effect annulled its former ruling based on a claim of possession and ownership of the same land for more than 30 years without the benefit of a full-blown trial. The fact that Garcia et al. seek to nullify the original certificate of title issued to Eland on the claim that the former were in possession of the same land for a number of years, is already a clear indicium that a genuine issue of a material fact exists (Eland Philippines, Inc. v. Azucena Garcia et. al, G.R. No. 173289, February 17, 2010).

Note: A partial summary judgment is not a final or appealable judgment (Province of Pangasinan v. CA, 220 SCRA 726).

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

Q: After Geoff has served and filed his answer to John's complaint for damages, John served and filed a motion for a summary judgment in his favor upon all of his claims. Geoff served and filed his opposition to the motion. After due hearing, the court issued an order (1) stating that the court has found no genuine issue as to any material fact and thus concluded that John is entitled to judgment in his favor as a matter of law except as to the amount of damages recoverable, and (2) accordingly ordering that John shall have judgment summarily against Geoff for such amount as may be found due John for damages, to be ascertained by trial on October 7, 2004, at 8:30 in the morning. May Geoff properly take an appeal from said order? Or, may Geoff properly challenge said order thru a special civil action for certiorari? (2004 Bar Question)

FOR THE DEFENDANT A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. 2, Rule 35).

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REMEDIAL LAW A: The plaintiff may not properly take an appeal from said order because it is an interlocutory order, not a final and appealable order. It does not dispose of the action or proceeding. Partial summary judgments are interlocutory. There is still something to be done, which is the trial for the adjudication of damages, but the defendant may properly challenge said order thru a special civil action for certiorari under Rule 65 on the ground of abuse of discretion amounting to lack or excess of jurisdiction.

RENDITION OF JUDGMENTS AND FINAL ORDERS Rendition of Judgment Rendition of judgment is the filing of the same with the clerk of court. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court; and before its filing,it does not yet constitute the real judgment of the court(Ago v. CA, 6 SCRA 530).

AFFIDAVITS AND ATTACHMENTS Promulgation Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5, Rule 35).

It is the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel (Herrera, 2007). NOTE: In civil cases, a judgment is rendered, while in criminal cases and election cases, a judgment is rendered and promulgated

Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt (Sec. 6, Rule 35).

Q: In an election contest between Mr. Palma and Mr. Monsod, the COMELEC en banc unanimously resolved the dispute in favor of Monsod. COMELEC Commissioner Garci participated at the deliberation of the said resolution. However, when the resolution on the said dispute was promulgated by COMELEC en banc, Commissioner Garci was no longer a member of the COMELEC en banc. Mr. Palma contends that the decision of the COMELEC en banc was null and void because Commissioner Garci, who took part in the resolution of the case, was no longer connected with COMELEC. Is Mr. Palma correct?

JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS

A: No. A decision becomes binding only after it is validly promulgated. Consequently, if at the time of the promulgation of a decision or resolution, a member of the collegiate court who had earlier signed or registered his vote has vacated his office, his vote is automatically withdrawn or cancelled. The Resolution, in this case, remains valid because it is still supported by a majority of the COMELEC en banc (Benwaren v. COMELEC, G.R. No. 169393, April 7, 2006).

Summary judgment v. Judgment on the pleadings (1989 Bar Question) Judgment on the Pleadings (Rule 34) Based solely on the pleadings. Generally available only to the plaintiff, unless the defendant presents a counterclaim. The answer fails to tender an issue or there is an admission of material allegations. 3-day notice for motion required On the merits

Summary Judgment (Rule 35) Based on the pleadings, depositions, admissions and affidavits. Available to both plaintiff and defendant.

Preparation of a judgment A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court (Sec. 1, Rule 36).

There is no genuine issue between the parties, i.e. there may be issues but these are irrelevant. 10-day notice required.

No requirement to state in its decision all the facts found in the records

May be interlocutory (i.e. partial summary judgments) or on the merits.

While it is required that decisions, no matter how concisely written, be distinctly and clearly set forth the facts and the law upon which they are based (Naguiat v. NLRC, 269 SCRA 564), the rule however, does not require that the court shall state in its decision all the facts found in the records (People v. Derpo, 168 SCRA 447). A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis is distinctly and clearly set forth, the judgment is valid (Chan v. CA, 457 SCRA 502).

NOTE: Even if the answer does not tender an issue, and therefore a judgment on the pleadings is not proper, a summary judgment may still be rendered if the issues tendered are not genuine, are shams, fictitious, contrived up, set-up in bad faith, patently unsubstantial (Vergara v. Suelto, G.R. No. L-74766, December 21, 1987).

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CIVIL PROCEDURE NOTE: A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is specially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal (Miguel v. JCT Group, Inc., 453 SCRA 529).

When decision is binding on the parties A judgment or order whether final or interlocutory does not bind the parties until and unless notice thereof is duly served on them by any of the modes prescribed by law. This is so even if the order or judgment has in fact been orally pronounced in the presence of the parties or a draft thereof drawn up and signed and/or copy thereof somehow read or acquired by any party.

Resolutions disposing of motion to dismiss It is not only judgments which must distinctly and clearly state the facts and the law upon which they are based. Under Sec. 3 of Rule 16, it is required that the resolutions disposing of motion to dismiss shall state clearly and distinctly the reasons therefore (Riano, 2011).

Law of the case It is the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court(Azuela v. CA, G.R. No. 122880, April 12, 2006, citing Tigno v. Aquino, G.R. No. 129416, November 25, 2004).

Rendition of a judgment based on issues not raised GR: A judgment must conform to the pleading and the theory of the action under which the case was tried. A judgment going outside the issues and purporting to adjudicate something on which the parties were not heard is invalid. Therefore where a court enters a judgment or awards relief beyond the prayer of the complaint or the scope of its allegations the excessive relief is not merely irregular but is void for want of jurisdiction, and is open to collateral attack.

NOTE: This rule does not apply to resolutions rendered in connection with the case wherein no rationale has been expounded on the merits of that action.

Principle of stare decisis et non quieta movere

XPN: Such issues were tried with the express or implied consent of the parties.

It holds that a point of law, once established by the SC, will generally be followed by the same court and by all courts of lower rank in subsequent cases involving a similar legal issue. This proceeds from the legal principle that, in the absence of powerful countervailing considerations, like cases ought to be decided alike.

Person to decide a case GR: A case once raffled to a branch belongs to that branch unless re-raffled or otherwise transferred to another branch in accordance with the established procedure. When the Presiding Judge of that branch to which a case has been raffled or assigned is transferred to another station, he leaves behind all the cases he tried with the branch to which they belong. He does not take these cases with him even if he tried them and the same were submitted to him for decision. The judge who takes over this branch inherits all these cases and assumes full responsibility for them. He may decide them as they are his cases.

NOTE: It is founded on the necessity for securing certainty and stability in the law and does not require identity of or privity of parties.

ENTRY OF JUDGMENT AND FINAL ORDER Entry of judgment It refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment and after the same has become final and executory. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executory (Sec. 2, Rule 36).

XPN: Any of the parties moves that his case be decided by the judge who substantially heard the evidence and before whom the case was submitted for decision (Valentin v. Sta. Maria, G.R. No. L-30158, January 17, 1974). NOTE: A decision penned by a judge after his retirement cannot be validly promulgated and cannot acquire a binding effect. In like manner, a decision penned by a judge during his incumbency cannot be validly promulgated after his retirement (Nazareno v. CA, G.R. No. 111610, February 27, 2002).

NOTE: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments (Sec. 2, Rule 36).

Judgment may be penned by a judge who did not hear the evidence

There are some proceedings the filing of which is reckoned from the date of the entry of judgment: 1. The execution of a judgment by motion is within 5 years from the entry of the judgment (Sec. 6, Rule 39); 2. The filing of a petition for relief must be filed not more than 60 days from knowledge of the judgment and not more than 6 months from the entry of the judgment or final order (Sec. 3, Rule 38).

It is not necessary that the judge who heard the evidence be the same judge who shall pen the decision. The judge who originally tried the case may die, resign, be disabled or transferred to another. In such an eventuality, another judge has to continue and finish the trial.

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REMEDIAL LAW Finality of judgment 1.

2.

XPNs: It may be attacked collaterally on the following grounds: 1. Lack of jurisdiction; or 2. The irregularity of its entry is apparent from the face of the record.

Upon lapse of the reglementary period to appeal, with no appeal perfected within such period, the decision becomes final and executor (Sec. 1, Rule 39; Banco de Brasil v. CA, G.R. Nos. 121576-78, June 16, 2000), and Upon lapse of the reglementary period to file an MR, decision rendered by the SC becomes final and executory.

Effect of void judgments (Doctrine of Total Nullity) A void judgment is in legal effect no judgment. By it no rights are divested, no rights can be obtained. Being worthless in itself, all proceeding founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void.

Court to amend a judgment after the same has become executory GR: No, when a judgment is final and executory, it becomes immutable and unalterable (Rule of immutability).

Q: Jayson, a career service officer, was illegally dismissed from his position. Thus, Jayson filed a complaint for illegal dismissal with the Career Executive Service Board (CESB). While the said complaint was pending before the CESB, Jayson filed a petition for quo warranto with the CA praying that he be reinstated to his former post. The CESB rendered a decision finding that Jayson was illegally dismissed. The CA found that Jayson resigned and was not illegally dismissed. Both decisions became final for failure to appeal the same. Are the two decisions immutable and unalterable in view of their finality?

XPNs: Courts may amend a judgment even if it has become executory in the following instances: 1. To correct clerical errors or to make nunc pro tunc entries (Philippine Economic Zone Authority v. Borreta, G.R. No. 142669, March 15, 2006); NOTE: A clerical error is one which does not involve an exercise of judicial functions.

2.

To clarify an ambiguity which is borne out by and justifiable in the context of the decision;

A: No, neither decision is immutable nor unalterable. As a rule, a decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be made by the court that rendered it or by the highest court in the land. In this case, however, to hold that both decisions are immutable and unalterable would cause confusion and uncertainty (Collantes v. CA, G.R. No. 169604, March 6, 2007).

NOTE: The remedy is to file a motion for clarificatory judgment.

3. 4.

Judgments for support, which can always be amended from time to time; Void judgment.

Amended or clarified judgment v. Supplemental decision Amended or Clarified Judgment It is an entirely new decision and supersedes the original judgment. Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues.

Effect of a judgment or final order of a tribunal of a foreign country having jurisdiction to render the judgment or final order (2007 Bar Question)

Supplemental Decision Does not take the place of or extinguish the original judgment. Serves to bolster or add to the original judgment.

1. 2.

Grounds in assailing the judgment or final order of a foreign country (2007 Bar Question)

Effect of amendment of judgment

1. 2. 3. 4. 5.

The date of the amendment should be considered as the date of the decision for the computation of the period to perfect the appeal. Collateral attack on a Judgment GR: The validity of a judgment or order of a court cannot be collaterally attacked.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

If the judgment is on a specific thing, the judgment is conclusive upon the title to the thing; If the judgment is against a person, the judgment is presumptive evidence of a right as between the parties and their successor in interest by a subsequent title.

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Evidence of want of jurisdiction; Want of notice to the party; Collusion; Fraud; or Clear mistake of fact or law.

CIVIL PROCEDURE POST JUDGMENT REMEDIES 1. Before aggrieved remedies: a. b. c.

a judgment becomes final and executory, the party or losing party may avail of the following Motion for Reconsideration; Motion for New Trial; and Appeal.

2. After the judgment becomes executory, the aggrieved party or losing party may avail of the following: a. Petition for relief from judgment; b. Action to annul judgment; c. Certiorari; and d. Collateral attack of a judgment. MOTION FOR NEW TRIAL AND MOTION FOR RECONSIDERATION GROUNDS; WHEN TO FILE Motion for New Trial v. Motion for Reconsideration MOTION FOR NEW TRIAL (MNT) 1.

Grounds

2.

1.

2. Requisites 3. a. b.

MOTION FOR RECONSIDERATION (MR)

Extrinsic fraud, accident, mistake or excusable 1. The damages awarded are excessive; negligence (FAME) which ordinary prudence could 2. The evidence is insufficient to satisfy the not have guarded against and by reason of which decision or final order; or the rights of the aggrieved party were impaired; or 3. The decision or final order is contrary to law Newly discovered evidence, which could not with (Sec. 1, Rule 37). reasonable diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). They shall be in writing, stating the ground or 1. They shall be in writing, stating the ground or grounds therefore, a written notice of which shall grounds therefore, a written notice of which be served by the movant on the adverse party (Sec. shall be served by the movant on the adverse 2, Rule 37). party (Sec. 2, Rule 37). Affidavit of merit setting forth the particular facts 2. Must point out specifically the conclusion of claimed to constitute a meritorious cause of action judgment; in case the ground relied upon is FAME; 3. Express reference to testimonial or In case of newly discovered evidence: documentary evidence or to provisions of law. Affidavit of new witnesses; and Duly authenticated documents to be introduced.

NOTE: The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere scrap of paper and will not toll the reglementary period for appeal.

Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Sec. 1, Rule 37).The filing of a timely motion interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41). When to file NOTE:No motion for extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed (Sec. 2, Rule 40).

Second motion may be allowed so long as based on grounds not existing or available at the time the first motion was made (Sec. 5, Rule 37).

GR:Single motion rule No party shall be allowed a second motion for reconsideration of a judgment or final order (Sec. 5, Rule 37). XPN: The SC may allow a second MR in the higher interest of justice by the Court en banc upon a vote of at least 2/3 of its actual membership.

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REMEDIAL LAW There is reconsideration “in the higher interest of justice” when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

When to file Resolution Rule under Summary Procedure and Small Claims

In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc (Sec. 3, Rule 15, A.M. No. 10-4-20-SC). If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37). Both must be resolved within 30 days from the time it is submitted for resolution Both are prohibited motions under Summary Procedure and Small Claims

Motion for New Trial

Motion for New Trial v. Motion for Reopening of the Trial

It is a motion for the trial court to set aside the judgment or final order and grant a new trial (Riano, 2011).

MOTION FOR NEW TRIAL A motion must be filed Proper only after promulgation of judgment

Requisites of newly discovered evidence (Berry Rule) 1. The evidence was discovered after trial; 2. Such evidence could not have been discovered and produced at the trial with reasonable diligence; and 3. Such evidence is material, not merely cumulative, corroborative or impeaching, and is of such weight that if admitted would probably change the judgment(CIR v. A. Soriano Corporation, GR No. 113703, January 31, 1997).

Based upon specific grounds mentioned in Sec. 37 in civil cases and Sec. 121 in criminal cases

NOTE: These requisites originated in the case of Berry v. State of Georgia.

Newly discovered evidence need NOT be newly created evidence

Motion for reconsideration (MR)

Newly discovered evidence need not be newly created evidence. It may and does commonly refer to evidence already in existence prior or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant (Tumang v. CA, G.R. Nos. 82346-47, April 17, 1989).

A motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order, and not the motion for reconsideration of an interlocutory order (Riano, 2011). Purpose of an MR

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

The purpose of an MR is precisely to request the court or the quasi- judicial body to take a second look at its earlier judgment and correct any errors it may have committed therein (Reyes v. Pearl Bank Securities, GR No. 171435, July 30, 2008).

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

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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

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CIVIL PROCEDURE When partial reconsideration allowed

Application of fresh period rule

If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37).

It applies to: 1. Rule 40 – MTC to RTC 2. Rule 41 – Appeals from RTC 3. Rule 42 – Petition for Review from RTC to CA 4. Rule 43 – Appeals from quasi-judicial agencies to CA 5. Rule 45 – Appeals by certiorari to the SC

DENIAL OF THE MOTION; EFFECT

MR as a requirement for filing a petition for certiorari under Rule 65

The order denying an MNT or MR is not appealable, the remedy being an appeal from the judgment or final order (Sec. 9, Rule 37). The movant has a fresh period of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. It is no longer assailable by certiorari(Sec. 9, Rule 37, A.M. No. 07-7-12-SC).

GR: MR is a condition sine qua non for filing a petition for certiorari under Rule 65. NOTE: Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by reexamination of the legal and factual circumstances of the case.

XPNs:

GRANT OF THE MOTION; EFFECT Effect if a MR is granted

1.

The court may amend such judgment or final order accordingly (Sec. 3, Rule 37). The amended judgment is in the nature of a new judgment which supersedes the original judgment, and is not a mere supplemental decision (Esquivel v. Alegre, 172 SCRA 315).

2.

3.

Effect if the MNT is granted 4.

If the motion for new trial is granted in accordance with the provisions of the rules, the original judgment shall be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6, Rule 37).

5. 6.

7.

Effect of an order reversing the grant of a new trial

8.

Legally speaking, the effect of the order withdrawing the grant of new trial is that the original judgment shall be deemed as having been repromulgated. In other words, since the original judgment had already been vacated, the reconsideration of the grant of new trial does not in turn vacate the said grant, although the original judgment is given a new life (Pineda v. CA, GR No. L-38196 July 22, 1975).

9.

Where the order is a patent nullity, as where the court a quo has no jurisdiction; Where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; Where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; Where, under the circumstances, a motion for reconsideration would be useless; Where petitioner was deprived of due process and there is extreme urgency for relief; Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; Where the proceedings in the lower court are a nullity for lack of due process; Where the proceeding were ex parte or in which the petitioner had no opportunity to object; and Where the issue raised is one purely of law or where public interest is involved (Rep. of the Phils. v. Bayao, G.R. No. 179492, June 5, 2013). APPEALS IN GENERAL

Appeal It is the elevation by an aggrieved party of any decision, order or award of a lower body to a higher body, by means of a document which includes the assignment of errors, memorandum of arguments in support thereof, and the reliefs prayed for (Technogas Philippines Manufacturing Corporation v. Clave, 08635-SP, May 31, 1979).

REMEDY WHEN MOTION IS DENIED, FRESH 15 DAY RULE Fresh Period Rule or Neypes Rule 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, counted from the receipt of the order dismissing a motion for new trial or motion for reconsideration (Neypes v. CA, G.R. No. 141524, September 14, 2005).

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REMEDIAL LAW Constitutional right to appeal

Final order

It is not a constitutional or a natural right (Canton v. City of Cebu, G.R No. 152898, February 12, 2007). The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law (Stolt- Nielsen v. NLRC, GR No. 147623, December 13, 2005).

One that puts an end to the particular matter resolved, leaving thereafter no substantial proceedings to be had in connection therewith, except its execution (Bairan v. Tan Siu Lay, L-19460, December 28, 1966).

Basic guidelines regarding appeal

The conclusion of the law upon the matters contained in the record, or the application of the law to the pleadings and to the facts, as found by the court or admitted by the parties, or deemed to exist upon default in a course of judicial proceedings (Gotamco v. Chan Seng, 46 Phil 550).

1.

Judgment

GR: No trial de novo (starting from the beginning) shall be made. The appellate courts must decide the case on the basis of the record. XPNs: a. When the proceedings were not duly recorded as when there was absence of a qualified stenographer [Sec. 22(d), BO 129; Rule 21(d), Interim Rules]; b. Instances when the CA may act as a trial court.

2. 3. 4. 5.

6.

7. 8.

9.

MATTERS NOT APPEALABLE 1. 2. 3. 4.

There can be no new parties; There can be no change of theory (Naval v. CA, 483 SCRA 102); There can be no new matters (Ondap v. Aubga, 88 SCRA 610); There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao v. Shell, 97 SCRA 407); The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. of Orion v. Concha, 50 Phil. 679); Appeal by guarantor does not inure to the principal (Luzon Metal v. Manila Underwriter, 29 SCRA 184); In ejectment cases, the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin v. Bataclan, 135 SCRA 342); The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21, Interim Rules).

5. 6.

7.

8.

REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1, Rule 41). Practically, it would be the petition for certiorari under Rule 65 that would be availed of under most circumstances. The most potent remedy against those judgments and orders from which appeal cannot be taken is to allege and prove that the same were issued without jurisdiction, with grave abuse of discretion or in excess of jurisdiction, all amounting to lack of jurisdiction.

JUDGMENT AND FINAL ORDERS SUBJECT TO APPEAL Judgment and final orders subject to appeal An appeal may be taken only from judgments or final orders that completely dispose of the case, or of a particular matter therein when declared by the Rules of Court to be appealable (Sec.1, Rule 41). Interlocutory order It is an order which does not dispose the case but leave something to be done by the trial court on the merits of the case.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Order denying a petition for relief or any similar motion seeking relief from judgment; Interlocutory order; Order disallowing or dismissing an appeal; 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; Order of execution; 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 Order dismissing an action without prejudice, e.g. motion to dismiss on improper venue (Sec. 1 as Rule 41 amended by A.M. No. 07-7-12-SC). A judgment based on compromise is not appealable and is immediately executory.

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CIVIL PROCEDURE MODES OF APPEAL

2.

Different Modes of Appeal 1.

3. 4.

Ordinary appeal under Rule 40 – from MTC to RTC 5. a. b.

2.

Notice on appeal – 15 day period Record on appeal – 30 day period

NOTE: Exceptions provided by jurisprudence:

NOTE: Questions of fact or mixed questions of fact and law

1.

Ordinary Appeal under Rule 41 – from RTC in the exercise of its original jurisdiction to CA

2.

a. b.

Notice on appeal – 15 day period Record on appeal – 30 day period 3.

NOTE: Questions of fact or of law or mixed question of fact and law that has been raised in the court below and is within the issues framed by the parties

3.

Petition for review under Rule 42 – RTC in its appellate jurisdiction to CA

4.

NOTE: Questions of fact, of law, or mixed questions of fact and law

4.

Petition for review under Rule 43 – Quasi-judicial bodies to CA

The court is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, as it finds that the consideration is necessary in arriving at a complete and just resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice (Asian Terminals, Inc. v. NLRC, 541 SCRA 105, 2007).

Appeal by certiorari under Rule 45 a. RTC to SC (Sec. 2c, Rule 41) – questions of law b. CA to SC (Sec. 1, Rule 45) - questions of law c. Sandiganbayan to SC (Sec. 1, Rule 45) - questions of law d. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45 as amended by AM No. 07- 7-12- SC) questions of law e. Appeals from a judgment or final order in a petition for a writ of amparoto the SC (AM No. 07-9-12- SC) – questions of fact and law f. Appeals from a judgment or final order in a petition for a writ of Habeas Data(AM No. 08-116-SC) - questions of fact and law g. Appeals from judgment or final order in a petition for writ of Kalikasan(AM No. 09-6-8-SC) - questions of fact and law

Issues allowed to be raised for the first time on appeal 1. 2. 3.

Lack of jurisdiction; Where the lower court committed plain error; Where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy. PERIOD OF APPEAL

Period of appeal via notice of appeal under Rule 40, 41, 42, 43, and 45

ISSUES TO BE RAISED ON APPEAL

A party-litigant may either file his notice of appeal within 15 days from receipt of court’s decision orfile it within 15 days from receipt of the final order denying his motion for new trial or motion for reconsideration.

Issues considered on appeal GR: The appellate court shall consider no error unless stated in the assignment of errors (Sec. 8, Rule 51).

NOTE: Appeal in habeas corpus cases shall be taken within 48 hours from receipt of the court’s decision or final order denying motion for reconsideration or new trial.

XPNs: However the court may consider an error not raised on appeal provided the same falls within any of the following categories: 1.

The fact that appellant’s brief did not raise the lack of jurisdiction of the trial court should not prevent the CA from taking up the issue of lack of jurisdiction (Dy v. NLRC 145 SCRA 211; Bar 1993). SC is clothed with ample authority to review rulings even if they are not assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a just decision of the case (Dumo v. Espinas, GR Np. 141962, January 25, 2006). Though petitioners did not raise in issue the appellate court’s reversal of the award of damages in their favor, the Court has the discretion to pass upon this matter and determine whether or not there is sufficient justification for the award of damages (Sps. Romulo v. Sps. Layug, GR No. 151217, September 8, 2006). The CA is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a complete and just resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice (Asian Terminals v. NLRC, 541 SCRA 105).

Basis of the Court’s power to rule on issues NOT raised on appeal

NOTE: Questions of fact, of law, or mixed questions of fact and law

5.

It is an error that affects the validity of the judgment appealed from; It is an error which affects the proceedings; It is an error closely related to or dependent on an assigned error and properly argued in the brief; or It is a plain and clerical error (Ibid.)

It is an error that affects the jurisdiction over the subject matter;

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REMEDIAL LAW Function of notice of appeal

Rationale for allowing multiple appeals

The function of the notice of appeal is merely to notify the trial court that the appellant is availing of the right to appeal, and not to seek the court’s permission that he be allowed to pose an appeal (Crisologo v. Daray, AM No. RTJ07-2036, August 30, 2006). It does not require the approval of the court.

Allowance of multiple appeals enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Roman Catholic Archbishop Churchof Manila v. CA, G.R. No. 111324, July 5, 1996). Fresh Period Rule or Neypes Rule

Appeal by record on appeal Under the “Fresh Period Rule,” a party litigant may file his notice of appeal within 15 days from receipt of the order denying his motion for new trial or reconsideration (Neypes v. CA, G.R. No. 141524, September 14, 2005).

The period is 30 days from receipt of court’s decision or the final order denying his motion for new trial or motion for reconsideration. Notice of appeal v. Record on appeal NOTICE OF APPEAL Normally, appeal is made by filing a notice of appeal with the court which rendered the judgment or final order appealed from Deemed perfected as to him upon the filing of the notice of appeal.

RECORD ON APPEAL Required only in Special Proceedings and other cases of multiple or separate appeals

Period of appeal is 15 days

Period of record on appeal is 30 days

The court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time of the appeal of the other parties

The court loses jurisdiction only over the subject matter thereof upon approval of the records on appeal filled in due time and the expiration of the time to appeal of the other parties.

Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period. This is intended to make the appeal period uniform. Rationale behind the Fresh Period Rule Pursuant to its sole prerogative to amend the procedural rules, the SC deems it necessary to change the afore-stated rule in order to standardize the appeal periods provided in the Rules of Court, to be counted from receipt of the order denying the motion for new trial and motion for reconsideration (whether full or partial or any final order or resolution) and to afford litigants fair opportunity to appeal their cases.

Deemed perfected upon the approval of record on appeal (Riano, 2009)

NOTE: The determinative issue is whether the fresh period rule announced in Neypes could retroactively apply in cases where the period for appeal had lapsed prior to 14 September 2005 when Neypes was promulgated. That question may be answered with the guidance of the general rule that procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage, there being no vested rights in the rules of procedure (Fil-Estate Properties, Inc. v. Homena-Valencia, G.R. No. 173942, June 25, 2008).

Extending the period of appeal

Instances when record on appeal is required

The period of appeal may be extended under the sound discretion of the court. However, the mere filing of the motion for extension of time to perfect the appeal does not suspend the running of the reglementary period.

A record on appeal is required in the following cases: 1. In special proceedings and in other cases of multiple or separate appeals (Sec. 3, Rule 40);

NOTE: If the extension of the period to appeal is granted, and the notice thereof is served after the expiration of the period to appeal, the extension must be computed from the date of notice. If no action is taken on the motion for extension, or if it is denied after the lapse of the period to appeal, the right to appeal is lost.

NOTE: Not all special proceedings require record on appeal. It is necessary only in special proceedings where there are multiple appeals, such as settlement of estate (De Leon, 2013).

2.

3.

4.

5.

In a judgment for recovery of property or partition with accounting (Roman Catholic Archbishop of Manila v. CA, G.R. No. 111324, July 5, 1996); In a foreclosure of mortgage (Roman Catholic Archbishop of Manila v. CA, G.R. No. 111324, July 5, 1996); and In a judgment for or against one or more of several defendants, leaving the action to proceed against the others (Sec. 4, Rule 36); In an action for partition of property with accounting (Ibid.). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Instances where extension of time is allowed Under Rule 42: The court may grant an additional period of 15 days provided the extension is sought: 1. Upon proper motion; and 2. Upon payment of the full amount of the docket and other lawful fees before the expiration of the reglementary period. 3. No further extension shall be granted except for the most compelling reason and in no case to exceed 15) days

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CIVIL PROCEDURE Under Rule 45: The SC may for justifiable reason grant an extension of 30 days only within which to file the petition provided: 1. There is a motion for extension of time duly filed and served; 2. There is full payment of the docket and other lawful fees and the deposit for costs; and 3. The motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2, Rule 45).

1.

Effect: The court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties 2.

Effect of Judgment on those who failed to appeal 1.

2.

Appeal by notice of appeal – perfected as to the party upon filing of the notice of appeal in due time with the court that rendered the judgment or final order appealed from and upon payment of the appellate court docket fee.

As to affirmative relief – an appellee who has himself not appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court

Appeal by record on appeal – perfected as to the party with respect to the subject matter thereof upon the approval of the record on appeal filed in due time and upon payment of the appellate court docket fee. Effect: The court loses jurisdiction only over the subject matter upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties

As to reversal of judgment GR: Binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal

3.

XPN: Where the rights of the parties appealing are so interwoven and dependent on each other as to be inseparable, in which case a reversal as to one operates as a reversal to all.

Appeal by petition for review – upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. Effect: RTC loses jurisdiction over the case upon the perfection of the appeal and the expiration of the time to appeal of the other parties (Sec. 4, Rule 40 in relation to Sec. 9, Rule 41).

NOTE: Even if the appeal was filed out of time, the court still has jurisdiction to admit and give due course to it, provided there are justifiable reasons.

NOTE: In all cases, prior to the transmittal of the original record or record on appeal to the appellate court, the trial court may, motuproprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees on time. The court may also exercise its residual powers.

PERFECTION OF APPEAL Perfection of an appeal as a jurisdictional requirement

Effect of non- payment of appellate docket fees

GR: Perfection of appeal within the reglementary period is jurisdictional.

GR: Payment of docket fee is jurisdictional. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory (Regalado v. Go, GR No. 167988, February 6, 2007).

XPN: When there has been FAME, resort to Petition for relief from judgment under Rule 38 (Habaluyas v. Japson, 142 SCRA 208, 1986). Effect of perfected appeal

XPNs: 1. The failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal; 2. Such power should be used in the exercise of the court’s sound discretion (Rep. v. Sps. Luriz, G.R. No. 158992, January 26, 2007).

GR: Judgment is not vacated by appeal, but is merely stayed and may be affirmed, modified or reversed or findings of facts or conclusions of law may be adopted by reference. XPN: Not applicable to civil cases under the Rules on Summary Procedure which provides that the decision of the RTC in civil cases governed by said Rule, including forcible entry and unlawful detainer cases, shall be immediately executory without prejudice to a further appeal that maybe taken therefrom. Also, under Rule 43, an appeal from quasijudicial bodies shall not stay the judgment unless the CA directs otherwise.

Duty of the clerk of court of lower court upon perfection of appeal Within 30 days after perfection of all the appeals it shall be the duty of the clerk of court of the lower court: 1. To verify the correctness of the original record or the record on appeal and to make a certification of its correctness; 2. To verify the completeness of the records that will be transmitted to the appellate court;

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REMEDIAL LAW 3. If found to be incomplete, to take such measures as may be required to complete the records;
 4. To transmit the records to the appellate court.
If the efforts to complete the records fail, the clerk of court shall indicate in his letter of transmittal the exhibits or transcripts not included in the records and the reasons for their non-transmittal, and the steps taken or that could be taken to have them available; and
 5. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court (Sec. 10, Rule 41).

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Procedure of appeal from decisions of the MTC to the RTC

Appeal decision of MTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment. Copies of the notice, and record on appeal when required, shall be served on the adverse party.

NOTE: Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu proprio or on motion dismiss the appeal for having been taken out of time (Sec. 13, Rule 41).

The MTC clerk transmits record to the RTC within 15 days from perfection of appeal.

Residual jurisdiction of the court It refers to the authority of the trial court to issue orders for the protection and preservation of the rights of the parties. The concept of residual jurisdiction is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA, 458 SCRA 454).

Parties are given notice that the records have been received by the RTC. 1. Within 15 days from notice of appeal – appellant submits memorandum to the RTC. 2. Within 15 days from receipt of appellant’s memorandum – appellee files his memorandum.

Residual jurisdiction/powers exercised by the trial court 1.

2.

Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal; Approve compromise agreements by parties after judgment has been rendered;

Dismissal of case without trial or without jurisdiction 1.

NOTE: There is no rule that forbids litigants to settle amicably even if there is a judgment already.

3. 4. 5.

Permit appeals of indigent litigants; Order execution pending appeal in accordance with Sec. 2, Rule 39; and Allow withdrawal of appeal.

NOTE: Provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Sec. 9, Rule 41).

2.

Duration of the exercise of residual powers 1.

2.

Ordinary Appeal – until the records are transmitted to the appellate court

Duty of the clerk of court of RTC upon receipt of the complete record

Petition for review- until the CA gives due course to the petition.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

If the lower court dismissed the case without trial on the merits, RTC may: a. Affirm- In such case, it is a declaration of the merits of the dismissal; b. Affirm and the ground of dismissal is lack of jurisdiction over the subject matter – The action of the RTC is a mere affirmation of the dismissal. The RTC shall try the case on the merits as if the case was originally filed with it; c. Reverse – it shall remand the case for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings and additional evidence (Sec. 8, Rule 40).

The clerk of court of the RTC shall notify the parties of such fact [Sec. 7 (a), Rule 40].

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CIVIL PROCEDURE Duties of the parties to whom notice was given by the clerk of court

Subject of an appeal under Rule 41 GR: An appeal may be taken from:

1.

2.

Within 15 days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal Within 15 days from receipt of the appellant’s memorandum, the appellee may file his memorandum [Sec. 7 (b), Rule 40].

1. A judgment or final order that completely disposes of the case or 2. A particular matter therein when declared by the Rules to be appealable (Sec.1, Rule 41). XPNs: No appeal may be taken from: 1. An order denying a petition for relief or any similar motion seeking relief from judgment; 2. An interlocutory order; 3. An order disallowing or dismissing an appeal; 4. 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; 5. An order of execution; 6. 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 7. An order dismissing an action without prejudice.

When case is considered submitted for Decision Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed [Sec. 7 (c), Rule 40]. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC 3 Modes of Appeal from the decisions of the RTC 1.

NOTE: In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided under Rule 65 (Ibid.).

Rule 41: Ordinary appeal or appeal by writ of error – This presupposes that the RTC rendered the judgment or final order in the civil action or special proceeding in the exercise of its original jurisdiction and appeal is taken to the CA on questions of fact or mixed questions of fact and law. The appeal is taken by notice of appeal or by record on appeal. This requires the filing of brief which contains the assignment of error.

Title of the case when appealed to the CA under Rule 41 In all cases appealed to the CA under Rule 41, the title of the case shall remain as it was in the court of origin but the party appealing the case shall be referred to as the appellant and the adverse party appellee (Sec. 1, Rule 44). Contents of appellant’s brief

NOTE: Rule 41 refers to appeals from RTC exercising original jurisdiction. An appeal on pure questions of law cannot be taken to the CA and such improper appeal will be dismissed pursuant to Sec. 2, Rule 50 (Regalado, 2012).

2.

Rule 42: Petition for review – The questioned judgment or final order was rendered by RTC in the exercise of its appellate jurisdiction over a judgment or final order in a civil action or special proceeding originally commenced in and decided by a lower court. The appeal is taken by a petition for review filed with CA on questions of facts, of law or on mixed questions of fact and law.

3.

Rule 45: Petition for review on certiorari – Taken to the SC only on questions of law from a judgment or final order rendered in a civil action or special proceeding by RTC in the exercise of its original jurisdiction. The appeal is taken by filing a petition for review on certiorari with SC (Regalado, 2009).

The appellant’s brief shall contain, in the order herein indicated, the following: 1. A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; 2. An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; 3. Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record; 4. Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record;

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 5. 6.

7. 8.

A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; Under the heading "Argument," the appellant’s arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the judgment or final order appealed from (Sec. 13, Rule 44).

Brief v. Memorandum Brief Ordinary appeals

Filed within 45 days; for appellant’s or appellant’s brief if appellant’s reply brief is filed within 20 days

Contents Rules

NOTE: It shall be the duty of the appellant to file with the court, within 45 days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellee (Sec. 7, Rule 44).

by

Application of Rule 42 (1998, 1990, 2009 Bar Question) Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the former in the exercise of its appellate jurisdiction.

Contents of Appellee’s Brief The appellee’s brief shall contain, in the order herein indicated, the following: 1. A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; 2. Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading "CounterStatement of Facts," he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and 3. Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found (Sec. 14, Rule 44).

Q: The RTC affirmed the appealed decision of the MTC. You are the counsel of the defeated party and he tells you to appeal the RTC's decision. 1. What mode of appeal will you adopt? 2. Within what time and in what court should you file your appeal? (1998 Bar Question) A: 1. 2.

The mode of appeal is by petition for review under Rule 42 of the Rules of Court. The period of appeal is within 15 days from notice of the decision subject of the appeal or of the denial of a motion for new trial or reconsideration filed in due time to the CA.

Filing an appeal under Rule 42 1.

2.

NOTE: Within 45 days from receipt of appellant’s brief, the appellee shall file with the court 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant (Sec. 8, Rule 44).

3.

Purpose of an appellant’s/ appellee’s brief To present to the court in a concise form the points and question in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion/decision (De Liano v. CA, G.R. No. 142316, November 22, 2001).

4.

NOTE: Extensions of time for the filing of briefs will not be allowed except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended (Sec. 12, Rule 44).

5.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

specified

Memorandum Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases Filed within 30 days from receipt of the notice issued by the clerk of court that all the evidence, oral and documentary, is already attached to the record (Sec. 10, Rule 44). Shorter, briefer, only one issue involved – No subject index or assignment of errors, just facts and law applicable

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A party aggrieved by the decision of RTC in the exercise of its appellate jurisdiction, may file a verified petition for review with the CA; At the same time paying to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of Php500.00 for costs, and furnishing the RTC and the adverse party with a copy of the petition; The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s MNT or MR filed in due time after judgment; Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days (Sec. 1, Rule 42).

CIVIL PROCEDURE Contents of the Petition for Review

Doctrine of Residual Jurisdiction applicable to appeals under Rule 42

The petition shall be filed in 7 legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall: 1. State the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; 2. Indicate the specific material dates showing that it was filed on time; 3. Set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; 4. Must be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. 5. There must be a certification against forum shopping (Sec. 2, Rule 42).

Yes, provided that such residual jurisdiction/ power is exercised before the CA gives due course to the petition (Sec. 8, Rule 42). Effect of an appeal of the judgment or final order under Rule 42 Except in civil cases decided under the Rule on Summary Procedure, the appeal, as a rule, shall stay the judgment or final order; unless the CA, the law or the rules shall provide otherwise. Grounds for the CA to dismiss an appeal 1.

2. 3.

Effect of failure to comply with the requirements

4.

The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof (Sec. 3, Rule 42).

5.

6.

Petition for review NOT a matter of right 7.

It is not a matter of right but discretionary on the CA. It may only be given due course if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed or dismiss the petition if it finds that it is patently without merit, or prosecuted manifestly for delay, or the questions raised therein are too unsubstantial to require consideration (Sec. 4, Rule 42).

8.

9.

Actions the CA may take in acting upon the petition

NOTE: The grounds are discretionary upon the appellate court. The very wording of the rule uses the word “may” instead of “shall”. This indicates that it is only directory and not mandatory (Mercury Drug Corporation v. De Leon, G.R. No. 165622, October 17, 2008).

The CA may require the respondent to file a comment on the petition, not a motion to dismiss, within 10 days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration (Sec. 4, Rule 42).

When case deemed submitted for decision

If the petition is given due course, the CA may set the case for oral argument or require the parties to submit memoranda within a period of 15 days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself (Sec. 9, Rule 42).

Contents of comment on the petition 1. 2. 3.

Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules; Failure to file the notice of appeal or the record on appeal within the period prescribed by the Rules; Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 Rule 40 and Sec. 4 of Rule 41; Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec. 4 of Rule 44 Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the Rules; Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Sec.13, paragraphs (a), (c), (d) and (f) of Rule 44; Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and The fact that the order or judgment appealed from is not appealable (Sec. 1, Rule 50; En Banc Resolution, February 17, 1998).

State whether or not he accepts the statement of matters involved in the petition; Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and State the reasons why the petition should be denied or dismissed (Sec. 5, Rule 42).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Q: Can a case decided by the RTC in the exercise of its appellate jurisdiction be appealed by way of a petition for review on certiorari under Rule 45?

Instances where the CA may act as a trial court (2008 Bar Question) 1.

A: No, where a case is decided by the RTC in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, of law or mixed questions of fact and law, the appeal shall be brought to the CA by filing a petition for review under Rule 42 (Quezon City v. ABS-CBN Broadcasting Corporation, G.R. No. 166408, October 6, 2008).

2.

3.

Appeals from quasi-judicial bodies NOT included under Rule 45

4. 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 court enumerated in Sec. 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies are now required to be brought to the CA on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies (Fabian v. Desierto, G.R. No. 129742, September 16, 1998).

5.

6. 7.

NOTE: The mode of appeal under Rule 45 is applicable to criminal cases, except in those where the penalty imposed is death, reclusion perpetua or life imprisonment (Sec. 9, Rule 45).

8.

APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA

Appeal under Rule 45 NOT a matter of right

Review by SC on the findings of fact of the CA

Appeal under Rule 45 is not a matter of right, but of sound judicial discretion with the exception of cases where the penalty of death, or reclusion perpetua where the an appeal is a matter of right leaving the reviewing court without any discretion (People v. Flores, G.R. No. 170565, January 31, 2006).

GR: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. The SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law (Natividad v. MTRCB, GR No. 161422, December 13, 2007).

The following reasons may be considered in allowing the petition: 1. When the court below has decided a question of substance not yet determined by the SC; 2. When the court below decided a question of substance in a way that is probably not in accord with the law or with the applicable decisions of the SC; 3. When the court below has departed from the accepted and usual course of judicial proceedings or so far sanctioned such a departure by a lower court, as to call for the exercise of the power of supervision of the SC (Sec. 6, Rule 45).

XPNs: 1. The conclusion of the CA is grounded entirely on speculations, surmises and conjectures; 2. The inference made is manifestly mistaken, absurd or impossible; 3. There is grave abuse of discretion; 4. The judgment is based on misapprehension of facts; 5. The findings of facts are conflicting; 6. The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; 7. The findings are contrary to those of the trial court; 8. The findings of facts are conclusions without citation of specific evidence on which they are based; 9. The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record; or 11. Those filed under Writs of amparo, habeas data, or kalikasan.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

In annulment of judgment under Secs. 5 and 6, Rule 47. Should the CA find prima facie merit in the petition, the same shall be given due course and summons shall be served on the respondent, after which trial will follow, where the procedure in ordinary civil cases shall be observed. When a motion for new trial is granted by the CA, the procedure in the new trial shall be the same as that granted by a RTC (Sec. 4, Rule 53). A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102). In petition for writs of amparo and habeas data, a hearing can be conducted. Under Sec. 12, Rule 124 of the Rules of Criminal Procedure, the CA has the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues which fall within its original and appellate jurisdiction. The CA can grant a new trial based on the ground of newly-discovered evidence (Sec. 14, Rule 124). The CA under Sec. 6, Rule 46, whenever necessary to resolve factual issues, may conduct hearing thereon or delegate the reception of the evidence of such issues to any of its members or to an appropriate agency or office. Human Security Act.

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CIVIL PROCEDURE Instances when an appeal by Certiorari under Rule 45 may apply

Contents of the verified petition for review on certiorari The petition shall be filed in 18 copies, with the original copy intended for the court being indicated as such by the petitioner and shall: 1. State the full name of the appealing party as the petitioner and the adverse party as the respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; 2. Indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of denial thereof was received; 3. Set forth concisely a statement of the matters involved, and the reasons and arguments relied on for the allowance of the petition; 4. Be accompanied by a clearly legible duplicate original, or a certified copy of the judgment or final order or resolution certified by the clerk of court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; 5. Contain a sworn certification against forum shopping (Sec. 4, Rule 45).

Appeal by certiorari to the SC or petition for review on certiorari applies in the following cases: 1. Appeal from a judgment or final order of the RTC in cases where only questions of law are raised or are involved and the case is one decided by the said court in the exercise of its original jurisdiction (Sec. 2(c), Rule 41); 2. Appeal from the judgment, final order or resolutions of the CA where the petition shall raise only questions of law (Sec. 1, Rule 45); 3. Appeal from the judgment, final order or resolutions of the Sandiganbayan where the petition shall raise only questions of law (Sec. 1, Rule 45); 4. Appeals from the decision or ruling of the CTA en banc (Sec. 11, RA 9282; Sec. 1, Rule 45 as amended by AM No, 07-7-12-SC); 5. Appeals from a judgment or final order in a petition for writ of amparo to the SC which may raise questions of fact, questions of law or of both fact and law (Sec. 19, AM No. 08-1-16-SC, Rule on the writ of amparo, October 24, 2007); 6. Appeal from judgment or final order in a petition for the writ of habeas data. The appeal may raise questions of fact or law or both [AM No. 08-1-16-SC, Rule on the writ of Habeas data (Sec. 19) February 2, 2008]. 7. Appeal from judgment or final order in a petition for the writ of kalikasan where the appeal may raise questions of fact or law or both (AM No. 09-6-8-SC, Rules of Procedure for Environmental Cases, Part III, Rule 7).

NOTE: The petition for review on certiorari may include an application for a writ of preliminary injunction or other provisional remedies. The petitioner may also seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency (Sec. 1, Rule 45 as amended by A.M. No. 07-7-12-SC effective December 27, 2007).

Petition for Review on Certiorari under Rule 45 v. Certiorari under Rule 65

Only questions of law under Rule 45

PETITION FOR REVIEW ON CERTIORARI (RULE 45)

The SC is not a trier of facts, and is not to review or calibrate the evidence on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the CA, are conclusive on the SC(Boston Bank of the Philippines v. Manalo, GR No. 158149, February 9, 2006; Frondarina v. Malazarte, GR No. 148423, December 6, 2006).

Mode of appeal which seeks to review final judgments and orders (Sec. 2, Rule 41).

Question of law vis-à-vis Question of fact Rule 45 is but a continuation of the appellate process over the original case. Raises questions of law

A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain given set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact obtains when the doubt or difference arises as to the truth or falsehood of facts or when the query invites the calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole, and the probability of the situation (Irene Marcos-Araneta, et al. v. CA, G.R. No. 154096, August 22, 2008).

It shall be filed within 15 days from notice of judgment or final order appealed from.

Stays the judgment sought to be appealed

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SPECIAL CIVIL ACTION ON CERTIORARI (RULE 65) Special civil action; an original action (Rule 65). It may be directed against an interlocutory order or matters where no appeal may be taken from (Sec.1, Rule 41). Rule 65 is not part of the appellate process but an independent action. Raises questions of jurisdiction It shall be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed or from denial of an MR or MNT. Does not stay the judgment or order subject of the petition unless enjoined or restrained.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Sec. 4 [a], Rule 45). Filed with the SC (Sec. 1, Rule 45).

Appeal to the SC by Petition for review on certiorari

The tribunal, board, officer exercising judicial or quasi-judicial functions is impleaded as respondent (Sec. 5 Rule 65).

A party adversely affected by a decision or ruling of the CTA en banc may appeal therefrom by filing with the SC a verified petition for review on certiorari within 15 days from receipt of a copy of the decision or resolution, as provided in Rule 45 of the Rules of Court. If such party has filed a MR or for new trial, the period herein fixed shall run from the party’s receipt of a copy of the resolution denying the motion for reconsideration or for new trial (Sec. 1, Rule 16, A.M. No. 05-11-07-CTA).

Filed with the RTC (Section 21, BP 129); With the CA (Sec. 9, BP 129);

Effect of Appeal With the SC (Sec. 5 [1] Article VIII, 1987 Constitution).

The MNT or MR filed before the Court shall be deemed abandoned if, during its pendency, the movant shall appeal to the SC (Sec. 1, Ibid.).

Motu Proprio denial of the Petition for Review by the SC 1. 2. 3.

Q: Melissa filed with the BIR a complaint for refund of taxes paid, but it was not acted upon. So, she filed a similar complaint with the CTA raffled to one of its divisions. Melissa's complaint was dismissed. Thus, she filed with the CA a petition for certiorari under Rule 65. Does the CA have jurisdiction over Melissa's petition? (2006 Bar Question)

The appeal is without merit; Prosecuted manifestly for delay; or That the questions raised therein are too unsubstantial to require consideration (Sec. 5, Rule 45)

Availment of both remedies under Rule 45 and 65

A: No. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. On the other hand, a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 of the Rules.

GR: A party cannot file a petition both under Rules 45 and 65 of the Rules of Court because said procedural rules pertain to different remedies and have distinct applications. The remedy of appeal under Rule 45 and an original action for certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. Thus, a party should not join both petitions in one pleading (NAMAPRI – SPFL v. CA, GR. Nos. 148839-49, November 2, 2006).

NOTE: RA 9282 expanded the jurisdiction of the CTA and elevated the same to the level of a collegiate court equivalent to the rank of the CA. Hence, the CA no longer has jurisdiction to review the decisions of the CTA en banc.

XPN: The SC may set aside technicality for justifiable reasons as when the petition before the Court is clearly meritorious and filed on time both under Rule 45 and 65. In accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice, The Court may treat the petition as having been filed under Rule 45 (International Corporate Bank, Inc. v. CA, GR 129910, September 5, 2006).

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA, COMELEC, CSC A judgment, resolution or final order of the COMELEC and the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice of the judgment or final order (Sec. 2, Rule 64). On the other hand, judgments, final orders or resolutions of the CSC may be taken to the CA under Rule 43 of the Rules of Court (Sec. 1, 3 Rule 43).

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA Filing an Appeal from a decision of the CTA

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN

An appeal from a decision or resolution of the CTA in Division on an MNT or MR shall be taken to the CTA En Banc by petition for review as provided in Rule 43 of the Rules of Court (Sec. 4, Rule 8, A.M. No. 05-11-07-CTA).

Jurisdiction of CA to review the decisions in criminal and administrative cases of the Ombudsman In administrative disciplinary cases, the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43. Where the findings of the ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the SC under Rule 65 (Enemecio v. Office of the Ombudsman, 419 SCRA 82).

NOTE: The petition for review of a decision or resolution of the Court in Division must be preceded by the filing of a timely MR or new trial with the Division before appealing to CTA En Banc in its exercise of appellate jurisdiction (Sec. 1. Ibid.).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CIVIL PROCEDURE In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65.

Where to appeal from judgments and final orders of quasi- judicial bodies

Remedy of a Party aggrieved by the Decision of the Sandiganbayan

Appeals from judgment and final orders of quasi- judicial bodies/agencies enumerated in Rule 43 are now required to be brought to the CA under the requirements and conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).

Decisions and final orders of the Sandiganbayan shall be appealable to the SC by way of certiorari under Rule 45 raising pure questions of law (Sec. 1, Rule 45).

Issues raised on appeal REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC

The appeal under Rule 43 may raise issues involving questions of fact, of law or mixed questions of fact and law (Sec.3, Rule 43).

The remedy is to promptly move for the reconsideration of the decision and if denied, to timely file a special civil action of certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes v. NLRC, G.R. No. 130866, September 16, 1998).

NOTE: Rule 43 is not applicable where the petition contains an allegation that the challenged resolution is patently illegal and was issued with grave abuse of discretion and beyond respondent’s jurisdiction. The appropriate remedy is Rule 65 on certiorari.

Effect of appeal on the award, judgment, final order or resolution

NOTE: Those judgments and final orders or resolutions of the Employees Compensation Commission should be brought to the CA through a petition for review under Rule 43.

The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem just (Sec. 12, Rule 43).

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI- JUDICIAL AGENCIES

Remedy of a party aggrieved by the decision of a quasijudicial agency

Quasi-judicial agency It is an organ of the government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making.

The aggrieved party must file a verified petition for review under Rule 43 in 7 legible copies within 15 days from: 1. Notice of the award, judgment, final order or resolution; or 2. Date of publication, if publication is required by law for its effectivity; or 3. Denial of petitioner’s MNT or MR (Sec. 4, Rule 43).

Agencies enumerated under Rule 43 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Civil Service Commission; Central Board of Assessment Appeals; Securities and Exchange Commission; Office of the President; Land Registration Authority; Social Security Commission; Civil Aeronautics Board; Bureau of Patents, Trademarks and Technology Transfer; National Electrification Administration; Energy Regulatory Board; National Telecommunications Commission; Department of Agrarian Reform under RA 6657; GSIS; Employee Compensation Commission; Agricultural Inventions Board; Insurance Commission; Philippine Atomic Energy Commission; Board of Investments; Construction Industry Arbitration Commission; and Voluntary Arbitrators authorized by law (Sec. 1 Rule 43).

NOTE: The appeal may involve questions of fact, of law, or mixed questions of fact and law (Sec. 3, Ibid.). Contents of comment to the petition The comment shall: 1. Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and 2. State the reasons why the petition should be denied or dismissed (Sec. 9 Rule 43). NOTE: It shall be filed within 10 days from notice in 7 legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers.

Extension of time to file Petition for Review Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant additional period of 15 days only within which to file a petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days (Sec. 4, Rule 43).

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REMEDIAL LAW Appeal from RTC as appellate court under Rule 42 v. Appeal from quasi-judicial agencies under Rule 43 RTC as Appellate Court (Rule 42) Decision is stayed by an appeal.

Factual findings not conclusive to CA.

Filed within the time to appeal.

Appeal from Quasi-judicial agencies (Rule 43)

Legal Remedy GR: Decision is immediately executory. It is not stayed by an appeal XPN: CA shall direct otherwise upon such terms as it may deem just Factual findings are conclusive upon CA if supported by substantial evidence.

Filed within 60 days from knowledge of the judgment and within 6 months from entry of judgment Equitable Remedy

The order of denial is not appealable. The remedy is to appeal from the judgment or final order on the merits.

The order of denial is not appealable; the remedy is appropriate special civil action under Rule 65

Motion need verified.

Petition must be verified.

not

be

NOTE: A party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another(Sec. 9, Rule 38; Francisco v. Puno, 108 SCRA 427).

RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS Relief from judgment, orders and other proceedings

Who may avail

It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable neglect (Sec. 1, Rule 38; Quelnan v. VHF Philippines, G.R. No. 138500, September 16, 2005). It is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy (Trust International Paper Corp. v. Pelaez, 499 SCRA 552).

A petition for relief from judgment together with an MNTand MR are remedies available only to parties in the proceedings where the assailed judgment is rendered. A person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment (Alaban v. CA, G.R. No. 156201, September 23, 2005, 470 SCRA 697).

Motion for new trial/reconsideration v. Petition for Relief from judgment (1990 Bar Question)

1.

Motion for New Trial / Reconsideration (Rule 37) Available before judgment becomes final and executory. Applies to judgments or final orders only.

Proceedings after an answer is filed

Petition for Relief from Judgment (Rule 38)

2.

Available after judgment has become final and executory. Applies to judgments, final orders and other proceedings:

Grounds for motion for new trial: 1. Fraud, accident, mistake or excusable negligence; (FAME) 2. Newly discovered evidence (Sec. 1) Grounds for motion for reconsideration: 1. The damages awarded are excessive; 2. That the evidence is insufficient to justify the decision or final order, or 3. That the decision or final order is contrary to law (Sec. 1).

After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed. If the allegations are true, the court shall set aside the judgment, final order or proceeding complained of upon such terms as may be just. Thereafter, the case shall stand as if such judgment, final order or proceedings had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for new trial or reconsideration had been granted by it (Sec. 6, Rule 38).

NOTE: Failure to file an answer to the petition for relief does not constitute default, even without such answer, the court will still have to hear the petition and determine its merits (Regalado, 2012).

Preliminary Injunction available pending the resolution of the Petition for Relief

Grounds:(FAME) Fraud, accident, mistake or excusable negligence.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The court may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties upon the filing of a bond in favor of the adverse party (Sec. 5, Rule 38). NOTE: The bond is conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition (Ibid.).

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CIVIL PROCEDURE Lien acquired over the property is NOT discharged by a subsequent issuance of a writ of preliminary injunction

Q: May a defendant who has been declared in default right away avail of a petition for relief from the judgment subsequently rendered in the case? (2007 Bar Question)

Where a writ of execution was already issued and levy was made before the petition for relief was filed, the lien that may have been acquired over the property is not discharged by the subsequent issuance of a writ of preliminary injunction. Therefore, if the petition is denied, the court has the power to reinstate the writ of execution (Ayson v. Ayson, 101 Phil. 1223).

A: No. The remedy of petition for relief from judgment is available only when the judgment or order in question is already final and executory, i.e., no longer appealable. It is an equitable remedy allowed only in exceptional cases from final judgments or orders where no other remedy is available (Palmares et. al. v. Jimenez et al., 90 Phil. 773). It will not be entertained when the proper remedy is appeal or certiorari (Fajardo v. Bayona et al., 98 Phil. 659).

Execution of the judgment may proceed even if the Order denying the Petition for Relief is pending appeal

CONTENTS OF THE PETITION Unless a writ of preliminary injunction has been issued, execution of the judgment shall proceed even if the order denying the petition for relief is pending on appeal. Said writ may be sought either in the trial or appellate courts (Service wide Specialists, Inc. v. Sheriff of Manila, at. al., G.R. No. 74586, October 17, 1986).

Form and contents of Petition for Relief 1. 2. 3.

Order granting Petition for Relief is interlocutory and nonappealable An order granting petition for relief is interlocutory and non-appealable (Regalado, 2012).

Affidavit of Merit It recites the nature and character of FAME on which the motion is based. It serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition.

GROUNDS FOR AVAILING THE REMEDY 1.

2.

A judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence (Sec. 1, Rule 38); or The petitioner has been prevented from taking an appeal by fraud, accident, mistake, or excusable negligence (Sec. 2, Rule 38).

NOTE: The absence of an affidavit of merits is a fatal defect and warrants denial of the petition (Fernandez v. Tan Tiong Tick, L15877, April 28, 1961), unless the facts required to be set out in the affidavit of merits also appear in the verified petition (Fabar, Inc. v. Rodelas, L-46394, October 26, 1977).

NOTE: 1. If the petition is filed because of the first ground, the petition shall be filed in such court and in the same case (not in another or higher court). The petition shall pray that the judgment, order or proceeding be set aside (Sec. 1, Rule 38). 2. If the petition is filed under the second ground, the petition shall likewise be filed in such court and in the same case (not in another or higher court) but the prayer this time is that the appeal be given due course (Sec. 2, Rule 38).

Issuance by the Court of the Order to Answer When the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within 15 days from the receipt thereof (Sec. 4, Rule 38). NOTE: The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits (Ibid.).

TIME TO FILE PETITION When to file 1.

2.

The petition for relief must be verified; It must be supported by affidavit showing FAME relied upon; and The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense (Sec.3, Rule 38).

ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Within 60 days after the petitioner acquired knowledge of the order, judgment or proceedings and not from the date he actually read the same (Perez v. Araneta, 103 Phil. 1141).

Annulment of Judgment It is a remedy in law independent of the case where the judgment sought to be annulled was rendered.

Not more than 6 months from entry of such judgment, order or other proceeding (Sec. 3, Rule 38).

Like a petition for relief, an action for annulment of a judgment is a recourse equitable in character, allowed only in exceptional cases where there is no available adequate remedy (Ramos v. Combong, G.R. No. 144273, October 20, 2005).

NOTE: These two periods must concur and are also not extendible and never interrupted (Quijano v. Tameta, L-16473, April 20, 1961). These periods cannot be subject to a condition or a contingency as they are devised to meet a condition or a contingency (Vda. De Salvatierra v. Garlitos, 103 Phil. 157).

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REMEDIAL LAW NOTE: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an ordinary civil action (Secs. 1 &10, Rule 47).

Contents of the Petition 1.

Purpose

2.

To have the final and executory judgment set aside so that there will be renewal of litigation. 3. Who may file 4. An action for annulment can be filed by one who was not a party to the action in which the assailed judgment was rendered. It is a remedy in law independent of the case where the judgment sought to be annulled is promulgated (Villanueva v. Nite, 496 SCRA 459).

Verified petition alleging a. The facts and the law relied upon for annulment b. As well as those supporting the petitioner’s good and substantial cause of action or defense, as the case may be; A certified true copy of the judgment or final order or resolution intended for the court and indicated as such by the petitioner; Affidavits of witnesses or documents supporting the cause of action or defense; Sworn certification against forum shopping (Sec. 4, Rule 47).

NOTE: The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the reception of the evidence may be referred to a member of the court or a judge of a RTC (Sec.6, Rule 47).

A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic Da’wah Council v. CA, G.R. No. 80892, September 29, 1989).

GROUNDS FOR ANNULMENT Grounds for the Annulment of judgment of the RTC (1998 Bar Question) 1.

When available

Lack of jurisdiction over the subject matter and over the person – May be barred by estoppels by laches, which is that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or to seek or enforce a right at a proper time. Denial of due process (Alaban v. CA, G.R. No. 156021, September 23, 2005).

The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47).

2.

NOTE: If the petitioner fails to avail of those other remedies without sufficient justification, he cannot resort to the action for annulment provided in the Rules, otherwise he would benefit from his own inaction or negligence (Regalado, 2012).

NOTE: Extrinsic fraud or collateral fraud – not a valid ground if it was availed of, or could have been availed of in a motion for new trial or petition for relief.

Where filed

Extrinsic Fraud

Judgments of RTC Filed with the CA Basis – It has exclusive original jurisdiction over said action under Rule 47 CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition.

Judgments of MTC Filed with the RTC Basis – RTC as a court of general jurisdiction under Sec. 19 (6), BP 129 RTC has no such discretion. It is required to consider it as an ordinary civil action.

Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23, 2005). Extrinsic Fraud v. Intrinsic Fraud Extrinsic or Collateral Fraud It is the kind of fraud that prevents the aggrieved party from having a trial or presenting his case to the court, or is used to procure the judgment without fair submission of the controversy (Magno v. CA, et. al., L-28486, September 10, 1981).

Annulment of Judgments of quasi-judicial bodies Annulment of judgment does not apply to judgments rendered by quasi-judicial bodies. It does not apply also to decisions or orders of the Ombudsman in administrative cases whose decisions or orders may be appealed to the CA under Rule 43 (Macalalag v. Ombudsman, G.R. No. 147995, March 5, 2004). The silence of BP 129 on the jurisdiction of the CA to annul judgments or final orders and resolutions of quasi-judicial bodies like the DARAB indicates its lack of such authority. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

108

Intrinsic Fraud It refers to the acts of a party at the trial that prevents a fair and just determination of the case, and that could have been litigated and determined at the trial or adjudication of the case, such as falsification, false testimony and does not constitute a ground for new trial (Tarca v. Carretero, 99 Phil. 419).

CIVIL PROCEDURE PERIOD TO FILE ACTION

Effect of annulment on the ground of extrinsic fraud

Period to file action 1. 2.

Where the annulment was based on extrinsic fraud committed by the offending party, the court may, on motion order the trial court to try the case as if a timely motion for new trial had been granted therein (Sec. 7, Rule 47).

If based on extrinsic fraud, the action must be filed within 4 years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppel (Sec. 3, Rule 47).

Prescriptive period for refiling of the original action deemed suspended

Estoppel v. Laches Estoppel It is that failure to do something that should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or enforce a right at a proper time

The prescriptive period for the refiling of the original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, it shall not be deemed suspended if the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47).

Laches It is such inexcusable delay in the assertion of rights or a failure to prosecute a claim, within a reasonable and proper period, which warrants the presumption that the party has waived his right (Regalado, 2009).

NOTE: For purposes of computing the prescriptive period within which the same original action may be refiled as authorized by the Rules, the prescriptive period provided by law for such type of action must first be considered. From that period shall be deducted the length of time which transpired from the date when the action was originally filed in the trial court up to the finality of the judgment which eventually annulled the questioned judgment of that trial court. The resulting balance of the prescriptive period may then be availed of the by aggrieved party for the refilling of the same action (Regalado, 2012).

EFFECTS OF JUDGMENTS OF ANNULMENT Effect of a Judgment of Annulment 1.

Reliefs available in a judgment of Annulment

If based on lack of jurisdiction - It shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refilling of the original action in the proper court (Sec.7, Rule 47).

The judgment of annulment may include the award of damages and attorney’s fees. The court may also issue orders of restitution or other reliefs as justice and equity may warrant under the circumstances (Sec. 9, Rule 47). COLLATERAL ATTACK OF JUDGMENTS

NOTE: The prescriptive period for the refiling of the action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. But shall not however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47).

2.

Collateral attack on judgment It is made in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face is null and void, as where it is patent that the court which rendered such judgment has no jurisdiction (Co v. CA, 196 SCRA 705).

If based on extrinsic fraud- The court, upon motion, may order the trial court to try the case as if a motion for new trial was granted (Sec. 9, Rule 47).

Direct attack on judgment A direct attack of a judgment is an independent action must be filed to challenge the validity of judgment whose nullity is not patent on its face.

Remedy in case of annulment on the ground of lack of jurisdiction

Distinction between a direct attack and a collateral attack

In case of lack of jurisdiction over the subject matter of the case, the aggrieved party may refile the action in the proper court. Where however, the reason for such annulment was because of lack of jurisdiction over the defendant, the action may be refiled in the same original court provided it has jurisdiction over the subject-matter and is the court of proper venue or no issue on venue is raised (Regalado, 2012).

A Direct attack is made through an action or proceeding the main object of which is to annul, set aside or enjoin the enforcement of such judgment if not yet carried into effect; or if the property has been disposed of, the aggrieved party may sue for recovery. A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action (Co v. CA, 196 SCRA 705).

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REMEDIAL LAW EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

now MAA General Insurance Inc., GR No. 167976, January 20, 2010).

Execution is a process provided by law for the enforcement of a final judgment. It is fruit and end of suit (Cagayan de Oro Coliseum v. CA, 320 SCRA 731; Ayov. Violago-Isani, 308 SCRA 543).

How issued Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court (Buaya v. Stronghold Insurance Co. Inc. 342 SCRA 576).

DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION Final Judgment

Execution shall issue upon motion. Even in judgments which are immediately executory, there must be a motion to that effect and a hearing called for that purpose. A decision which is immediately executory does not mean dispensing with 3-day notice required by Sec, 10(c) of Rule 39 in the implementation of a writ of execution. A sheriff who enforces the writ without the required notice is running afoul with rules (Calaunan v. Madolaria, A.M. No. P-10-2810 February 8, 2011).

The term “final” is used in two senses depending on whether it is used on the issue of appeal ability or on the issue of binding effect (Regalado, 2012). 1. For the purposes of appeal, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. v. Singson, 454 SCRA 612). 2. For the purposes of Binding effect, the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (PCGG v. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is commonly referred to as one that is final and executory.

Refusal of the Court to issue a writ of execution GR: Execution of judgment is a matter of right on the part of the winning party. The court cannot refuse execution. XPNs: 1. When execution is sought more than 5 years from its entry without the judgment having been revived 2. When the judgment has already been executed by the voluntary compliance thereof by the parties (Cunanan v. CA, G.R. No. L-25511, September 28, 1968) 3. When the judgment has been novated by the parties (Dormitorio v. Fernandez, G.R. No. L-25897, August 21, 1976)

Final judgments for purposes of appeal v. Final judgments for purposes of execution Final Judgments for purposes of appeal

Final Judgments for purposes of execution

Dispose of, adjudicate, or determine the right of the parties. Still subject to appeal

Becomes final and executory by operation of law. After lapse of period to appeal and no appeal was perfected, no further action can be had. Execution of judgment a matter of right.

Execution of judgment is not a matter of right.

NOTE: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law (Art. 2028, NCC).

4. 5.

WHEN EXECUTION SHALL ISSUE

6.

AS A MATTER OF RIGHT 7.

Execution as a matter of right

8.

Execution will issue as a matter of right when: 1. The judgment has become final and executor (Sec. 1, Rule 39); 2. Judgment debtor has renounced or waived his right to appeal; 3. The period for appeal has lapsed without an appeal having been filed; 4. Having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin (Florendo v. Paramount Insurance Corp, UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. 5, Rule 38 When the judgment sought to be executed is conditional or incomplete (Co Unjieng v. HijosMabalacat Sugar Co., G.R. No. L-32644, October 4, 1930; Del Rosario v. Villegas, G.R. No. L-25726, November 22, 1926) When facts and circumstances transpire which would render execution inequitable or unjust (Bacharach Corp. v. CA, G.R. No. 128349, September 25, 1998) When execution is sought against property exempt from execution under Sec. 13, Rule 39; On equitable grounds, as when there has been change in the situation of the parties which makes execution inequitable (Luna v. IAC, GR No. 68374, June 18, 1985).

Remedy if a Motion for Execution is denied The remedy is mandamus. The issuance of writ of execution is a ministerial duty of court under Sec. 1 of Rule 39, compellable by writ of mandamus (Greater Metropolitan Manila Solid Waste Management Committee v. Jancom

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CIVIL PROCEDURE Environmental Corporation, G.R. No. 163663, June 30, 2006).

5.

AS A MATTER OF DISCRETION

6.

Discretionary execution

7.

It constitutes an exception to the rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. The execution of a judgment under this concept is addressed to the discretionary power of the court and cannot be insisted upon. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing (Sec. 2, Rule 39).

8.

Where to file an application for discretionary execution

NOTE: “Good reasons” have been held to consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. Circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment (Florendo v. Paramount Insurance Corp., G.R. No. 167976, January 20, 2010).

Requisites for discretionary execution 1. 2. 3. 4.

There must be a motion filed by the prevailing party with notice to the adverse party; There must be a hearing of the motion for discretionary execution; There must be good reasons to justify the discretionary execution; and The good reasons must be stated in a special order (Sec. 2, Rule 39).

3.

4.

5.

2. 3. 4.

The motion for discretionary execution shall be filed with the trial court: a. While it has jurisdiction over the case and b. While it is in possession of either the original record or the record on appeal; or

2.

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court (Bangkok Republic Company Limited v. Lee, G.R. No. 159806, January 20, 2006).

Remedy when the judgment is reversed or annulled The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39).

Execution pending appeal; and While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal; When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; and When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court); and Execution of several, separate or partial judgment (Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010).

Q: In a complaint filed by Granger for rescission and damages, the RTC ruled against JP Latex, defendant. On Aug. 5, 2006, Granger moved for the execution pending appeal of the decision. Upon receipt of the decision, JP Latex filed an MR. The RTC granted the execution “pending appeal” without acting on the motion for reconsideration. Is the order of the trial court correct? A: No. Discretionary execution is allowed only when the period to appeal has commenced but before the trial court loses jurisdiction over the case. The period to appeal where a motion for reconsideration has been filed commences only upon the receipt of the order disposing of the MR. The pendency of a MR, therefore, prevents the running of the period to appeal.

Instances when judgment may issue before judgment has become executory and before the appeal was perfected 1.

1.

NOTE: In either instance, and whether it is a regular judgment or a special judgment such as several, separate or partial judgment, the same procedure and the requirement of a special order stating good reasons for discretionary execution shall be observed (Regalado, 2012).

Instances when execution is discretionary 1. 2.

Where the defendants are exhausting their income and have no other property aside from the proceeds of a property subject of the action; Where the judgment debtor is in imminent danger of insolvency or is actually insolvent; Where the prevailing party is of advanced age and in a precarious state of health, and the obligation in the judgment is non-transmissible; and Where the case involved escrow deposits and the prevailing party posts sufficient bond to answer for damages in case of reversal of the judgment (Regalado, 2012).

The MR filed by JP Latex had not been acted upon by the RTC before it ruled on the motion for execution “pending appeal.” The pendency of the MR has prevented the period to appeal from even commencing. The period within which a party may move for an execution pending appeal of the RTC’s decision has not yet started. Thus, where there is pending MR, an order of execution pending appeal is improper and premature (JP Latex Technology, Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, March 16, 2009).

Where the lapse of time would make the ultimate judgment ineffective, as where the debtors were withdrawing their business and assets from the country; Where the appeal is clearly dilatory; Where the judgment is for support and the beneficiary is in need thereof; Where the articles subject of the case would deteriorate;

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REMEDIAL LAW Staying the discretionary execution It may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom execution is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety (Sec. 3 Rule 39).

HOW JUDGMENT IS EXECUTED

Judgment is executed by motion within 5 years from date of its entry

Execution is a matter of right after expiration of the period to appeal and no appeal is perfected.

Discretionary execution upon good reasons stated in a special order after due hearing.

If the winning party does not move for execution within 5 years but before 10 years from the date of entry of judgment, the same can only be revived by means of new action / petition.

Sheriff executes writ of execution

Losing party is made to indemnify thru: 1. Payment with interest; 2. Levy and sale of personal property; 3. Levy and sale of real property; 4. Delivery of personal and/or real property.

5 and 10 year periods do not apply to judgment for: 1. Support (Canonizado v. Benitez, 127 SCRA 610) 2. Special proceedings (Rodil v. Benedicto, 95 SCRA 137)

EXECUTION BY MOTION OR BY INDEPENDENT ACTION Modes of execution of final and executory judgment or order and revived Judgment 1.

2.

Motion is indispensable even if judgment is immediately executory

Execution by motion - if the enforcement of the judgment is sought within 5 years from the date of its entry; and Execution by independent action- if the five year period has elapsed and before it is barred by statute of limitations (Sec. 6, Rule 39).

There must be a motion to that effect and a hearing called for the purpose (Lou v. Siapno, 335 SCRA 181). Execution by motion after the lapse of 5 years GR: Execution of a judgment can no longer be effected by filing a motion, after 5 years. The remedy would be to file an independent action for the revival of the judgment. When a writ of execution is issued by motion after 5 years from the date of entry of judgment, such motion is considered null and void (Tag Fibers, Inc. v. NLRC, 344 SCRA 29; Terry v. People, 314 SCRA 669)

NOTE: The date of finality of judgment or final order shall be deemed to be the date of its entry. Entry of judgment means the ministerial recording of a court's final decision, usually by noting it in a judgment book or civil docket (Black’s Law Dictionary, 8thed.). However, if the judgment is based upon a compromise which is immediately final and executory, prescription runs from the date of its rendition and not from date of entry (Jacinto v. IAC, GR No. 66478, August 28, 1988). If an amendatory and clarificatory judgment was rendered, it is from the date of the entry thereof that the 10-year period is reckoned (Sta. Romana v. Lacson, L27754, April 8, 1981).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

XPNs: However, the court in certain instances allowed execution of the judgment by mere motion despite the lapse of the 5 year period where:

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CIVIL PROCEDURE 1.

The delay in the execution of the judgment was through causes attributable to the judgment debtor; or

XPNs: There are judgments which by express provision of law are not stayed by appeal: 1. Those judgments which by express provision of the rules are immediately executory and are not stayed by appeal (Sec. 4, Rule 39), such as judgment for injunction, receivership, accounting and support unless the court rules otherwise or the appellate court on appeal suspends, modifies, restores or grants the same. Judgments appealed under Rule 43 not stayed unless ordered by the Court 2. Those judgments that have become the object of discretionary execution (Sec. 2, Rule 39).

NOTE: Any interruption or delay occasioned by the debtor will extend the time within which the writ may be issued without scire facias (Republic v. CA, l-43179, June 27, 1985).

2.

When delay is incurred for his benefit.

Dormant Judgment A dormant judgment is one which has not been enforced by motion within 5 years after its entry and is thus reduced to a mere right of action in favor of judgment-obligee. It may be enforced by filing an action for revival of judgment and enforcing the decision therein (Salvante v. Cruz, 88 Phil. 236).

Defenses available in an action for enforcement 1. 2. 3.

Prescription; Satisfaction of claim; and Counterclaims.

Revival of Judgment

Issuance of Execution in case of death of a party

The enforcement by action of a judgment, upon which no motion was filed for its execution within 5 years from the time of finality of judgment. This presupposes that the same can no longer be enforced by mere motion (Riano, 2011).

1.

Death of an obligee – execution will issue in any case, upon application of his executor, administrator, or successor-in-interest;

2.

Death of an obligor a. Death before levy: i. Action for recovery of real or personal property or any lien – execution shall issue against his executor or administrator or successor in interest. ii. Action for a sum of money – execution will NOT issue. The judgment obligee should file a claim against the estate of the judgment obligor under Rule 86 b. Death after levy: - Execution will issue against his executor, administrator, or successor-in-interest because the property is already separated from the estate of the deceased and is deemed in custodia legis.

NOTE: An action to revive judgment is a personal one and not a quasi in rem (Donelly v. CFI Manila, l-31209, April 11, 1972). After 5 years and within 10 years from entry of judgment, such judgment becomes a mere right of action and if unsatisfied, the prevailing party can file an action for revival of judgment (PNB v, Perez,, L-20412, February 28, 1966).

Nature of a revived judgment A revived judgment is deemed a new judgment separate and distinct from the original judgment (Riano, 2011, citing PNB v Bondoc, 14 SCRA 770). Judgments or final orders that are immediately final and executory

ISSUANCE AND CONTENT OF A WRIT OF EXECUTION 1. 2. 3. 4.

Judgments in summary judicial proceedings in the family law (Art. 247, FC) Compromise Judgments Judgments for direct contempt (Sec. 2, Rule 71) Judgments in cases covered by the Rule of Procedure for Small Claims Cases (Sec. 23, A.M. No. 08-8-7-SC)

Writ of execution It is a judicial writ issued to an officer authorizing him to execute the judgment of the court. Lifetime of a writ of execution

Staying the period to execute judgment The writ is enforceable within 5 years from the entry of judgment (Sec. 6, Rule 39).

The period to execute the judgment may be stayed by: 1. Agreement of the parties 2. Injunction 3. Taking an appeal or writ of error

Contents of a writ of execution The writ of execution is issued in the name of the Philippines and shall state: 1. The name of the court which granted the motion; 2. The case number; 3. The dispositive portion of the judgment or order subject of the execution; and

Effect of an appeal to the execution of the judgment GR: An appeal perfected in due time stays the execution of a judgment.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 4.

vague and wrong interpretation of judgment (Socorro v. Ortiz; Molina v. De la Riva, 8 Phil 571; JM Tuazon & Co. Inc. v. Estabillo, L20610, January 10, 1975).

Shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: a. If the execution be against the property of 
the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; b. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property; c. If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; d. If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and e. In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movants (Sec.8, Rule 39).

Grounds to quash the writ of execution 1. 2. 3. 4. 5. 6. 7.

EXECUTION OF JUDGMENTS FOR MONEY 3 Ways to enforce a judgment for money 1. 2. 3.

1.

2.

Effect when the writ of execution does not conform to the judgment If the writ of execution is different from the judgment or exceeds the terms of the judgment, it is a nullity and may be quashed on motion (Romero et al. v. CA, G.R. No. L29659, July 30, 1971). 3.

Cases where a writ of possession may be issued

4.

Land registration proceedings (in rem); Extrajudicial foreclosure of a real estate mortgage; Judicial foreclosure of mortgage, (quasi in rem) provided that the mortgagor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened and Execution sale (Mabale v. Apalisok, L-46942, February 6, 1979).

NOTE: An order granting the issuance of a writ of execution of a final judgment is not appealable, except when order varies in term,

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Immediate payment on demand Satisfaction by levy Garnishment of debts and credits

Steps in executing a judgment for money

NOTE: The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation.

1. 2. 3.

When the writ of execution varies the judgment; When there has been a change in the situation of the parties making the execution inequitable or unjust; When execution is sought to be enforced against a property exempt from execution; When it appears that the controversy has never been submitted to the judgment of the court; When the terms of the judgment are not clear enough and there remains room for interpretation thereof; When it appears that the writ of execution has been improvidently issued; When it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority (Reburiano v. CA, 301 SCRA 342).

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The officer shall demand from the obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of payment acceptable to him; If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees; The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or con troll of third parties. This is called garnishment (Sec. 9, Rule 39).

CIVIL PROCEDURE Discretion to choose which property to levy The judgment obligor shall have discretion to choose which property to levy. Therefore, the sheriff cannot and should not be the one to determine which property to levy if the judgment obligor cannot immediately pay because it is the judgment obligor who is given the option to choose which property or part thereof may be levied upon to satisfy the judgment (Leachon v. Pascua, A.M. No. P-11-2972, September 28, 2011).

3. 4.

judgment oblige within 10 working days from service of notice on garnishee. The lawful fees shall be directly paid to the court. If the amount is insufficient, the garnishee shall make a report as to the amount he holds for the judgment creditor (Sec. 9, Rule 39).

Distinction between attachment and garnishment (1999 Bar Question) Attachment refers to corporeal property in the possession of the judgment debtor. Garnishment refers to money, stocks, credits and other incorporeal property which belong to the judgment debtor but is in the possession or under the control of a third person.

Right to Choose may be waived by the judgment obligor If the judgment obligor does not exercise the option, he waives such right, and the sheriff shall levy first on personal property, then on real property. The sheriff shall only sell property sufficient to satisfy the judgment and other lawful fees (Villarin v. Munasque, 568 SCRA 483).

Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently received information that a bank holds a substantial deposit belonging to the judgment obligor. If the bank denies holding the deposit in the name of the judgment obligor but your client's informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit? (2008 Bar Question)

Levy It is the act by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the execution sale.

A: A motion may be filed for a court order requiring the proper bank officer to appear in court for examination under oath as to such bank deposit, and subsequently move for a court order authorizing the filing of an action against such bank for the recovery of the judgment obligor’s deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest within 120 days from notice of the order (Secs. 37 and 43, Rule 39).

Garnishment It is the act of appropriation by the sheriff of the of debtor’s property in the hands of third persons. This is proper if the property involved is money, stocks, other incorporeal property (Regalado, 2012). Garnishment is a specie of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation. A writ of attachment is substantially a writ of execution except that it emanates at the beginning, instead of at the termination, of a suit. It places the attached properties in custodia legis, obtaining pendente lite a lien until the judgment of the proper tribunal on the plaintiff’s claim is established, when the lien becomes effective as of the date of the levy.

Implementation of Judgment if the obligee is absent at the time of payment When the judgment obligee is not present at the time the judgment obligor makes the payment, the sheriff is authorized to receive it. However, the money received must be remitted to the clerk of court within the same day or, if not practicable, deposited in a fiduciary account with the nearest government depository bank. Sheriffs are not permitted to retain the money in their possession beyond the day when the payment was made or to deliver the money collected directly to the judgment oblige (Peña, Jr. v. Regalado II; A.M. No. P-10-2772, February 16, 2010).

NOTE: The garnishee or the third person who is in the possession of the property of the judgment debtor is deemed a forced intervenor. Jurisprudence: It is a settled rule that upon service of the writ of garnishment, the garnishee becomes a “virtual party” or “forced intervenor” to the case and the trial court thereby acquires jurisdiction to bind the garnishee to comply (BPI v Carlito Lee G.R. No. 190144, August 1, 2012).

EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Specific Acts

Procedure in garnishment 1. 1.

2.

A notice is served upon the third person or garnishee having in possession or control of the credits in favor of the judgment obligor; The garnishee shall make a written report to the court within 5 days from service of notice of garnishment stating whether or not the judgment obligor has sufficient funds to satisfy the judgment. If sufficient, the garnishee shall deliver the amount in cash or certified check shall be delivered directly to the

2. 3. 4. 5.

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Conveyance, delivery of deeds, or other specific acts vesting title; Sale of real or personal property; Delivery or restitution of real property; Removal of improvements on property subject of execution; and Judgments for the delivery of personal property (Sec. 10, Rule 39).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Remedy when a party refuses to comply with the judgment

Contempt in case of refusal to comply with the judgment of the court

1.

GR: No. The judgment debtor cannot be cited in contempt of court. Generally, contempt is not a remedy to enforce a judgment.

2. 3.

Vacate the property – The sheriff must oust the party. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. Deliver – The sheriff will take possession and deliver it to the wining party Comply – The court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it.

XPNs: 1. Refusal to perform a particular act or special judgments under Sec. 11 where he may be cited in contempt. 2. In case of the provisional remedy of support pendente lite under Rule 61, the judgment debtor may still be cited for contempt even if the decision is not a special judgment and requires the latter to pay money.

Execution of Judgments for the following specific acts if the judgment debtor refuses/fails to comply

Judgments for Specific Act (Sec. 10) Conveyance, delivery of deeds, or other specific acts, vesting title.

Sale of real and personal property Delivery or restitution of real property

Removal of improvements on property subject of execution Delivery of personal property

NOTE: A judgment of specific acts may be performed by other person if the party refuses to comply with the judgment and the act by such other person shall have the same effect as if performed by the party himself. In such case, the disobedient party incurs no liability for contempt (Regalado, 2012).

Manner of Execution

Court can appoint some other person at the cost of the disobedient party and the act when so done shall have the same effect as if done by the required party. Sell such property and apply the proceeds in conformity with the judgment. If the party refuses to deliver, a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a habere facias possesionem and authorizes the sheriff to break open the premises where there is no occupant therein.

EXECUTION OF SPECIAL JUDGMENTS Special Judgment One which requires the performance of any act, other than the payment of money or the sale or delivery of real or personal property, which a party must personally do because his personal qualifications and circumstances have been taken into consideration (Sec. 11, Rule 39; Regalado, 2010). Effect of failure to comply with special judgments Failure to comply with special judgment under Sec. 11 is punishable by imprisonment (Sec. 11, Rule 39). How executed When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment (Sec. 11, Rule 39).

If party refuses to vacate property, remedy is not contempt. The sheriff must oust the party. But if demolition is involved, there must be a special order. The officer may destroy, demolish or remove the improvements upon special order of the court, issued upon motion of the judgment obligee. The officer shall take possession and deliver to the party entitled thereto.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

EFFECT OF LEVY ON THIRD PERSON Effect of levy on execution to third persons It creates a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing (Sec. 12, Rule 39).

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CIVIL PROCEDURE Encumbered property may be levied For purposes of the levy, a property is deemed to belong to the judgment debtor if he holds a beneficial interest in such property that he can sell or otherwise dispose of for value. In a contract of mortgage, the debtor retains beneficial interest over the property notwithstanding the encumbrance, since the mortgage only serves to secure the fulfillment of the principal obligation. Indeed, even if the debtor defaults, this fact does not operate to vest in the creditor the ownership of the property; the creditor must still resort to foreclosure proceedings. Thus, a mortgaged property may still be levied upon by the sheriff to satisfy the judgment debtor’s obligations (Golden Sun Finance Corporation v. Albano, A.M. No. P-11-2888, July 27, 2011).

8.

9.

10. 11. 12.

13. Remedies available to a third-party claimant in levy of real property 1. 2. 3. 4.

NOTE: No article or species of property mentioned above shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon (Sec. 13, Rule 39).

Summary hearing before the court which authorized the execution; Terceria or third party claim filed with the sheriff; Action for damages on the bond posted by judgment creditors; or Independent reivindicatory action(Sec. 16, Rule 39)

Other properties exempt from execution outside the Rules of Court 1. 2.

Property mortgaged to DBP (Sec. 26, CA 458); Property taken over by Alien Property Administration (Sec. 9[f], US Trading with the Enemy Act); 3. Savings of national prisoners deposited with the Postal Savings Bank (Act 2489); 4. Backpay of pre-war civilian employees (RA 304); 5. Philippine Government backpay to guerillas (RA 897); 6. Produce, work animals, and farm implements of agricultural lessees, subject to limitations (Sec. 21, RA 6389); 7. Benefits from private retirement systems of companies and establishments, with limitations (RA 4917); 8. Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance (Art 1708, NCC); 9. Benefit payments from the SSS (Sec. 16, RA 1161 as amended by PDs 24, 65, and 177); 10. Copyrights and other rights in intellectual property under the former copyright law (PD 49 of Sec 239.3, RA 8293); and 11. Bonds issued under RA1000 (NASSCO v. CIR L-17874 31, August 1963; Regalado, 2012).

NOTE: The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others. Availment of the terceria is not a condition sine qua non to the institution of “separate action.” (Imani v. Metropolitan Bank & Trust Company, November 17, 2010) The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if there is a bond filed by the winning party. If there is no bond, the sale cannot proceed. However, the judgment obligee can claim damages against a thirdparty claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the same or separate action.

PROPERTIES EXEMPT FROM EXECUTION Properties exempt from execution 1.

2. 3.

4. 5.

6. 7.

surveyors, clergymen, teachers, and other professionals, not exceeding Php 300,000 in value; 1 fishing boat and accessories not exceeding the total value of Php 100,000 owned by a fisherman and by the lawful use of which he earns his livelihood; So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for the support of his family; Lettered gravestones; Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and Properties specially exempted by law.

The judgment obligor’s family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; Ordinary tools and implements personally used by him in his trade, employment or livelihood; 3 horses, cows, or carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; His necessary clothing and articles for ordinary personal use, excluding jewelry; Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding Php 100,000; Provisions for individual or family use sufficient for 4 months; The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers,

PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS When to file a Third-Party claim At any time, so long as the sheriff has the possession of the property levied upon, or before the property is sold under execution (Sec. 14, Rule 57).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Requisites for a claim by a third person 1. 2. 3.

4.

IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN

The property is levied; The claimant is a person other than the judgment obligor or his agent; Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title; and Serves the same upon the officer making the levy and the judgment oblige (Sec. 16, Rule 39).

Certain remedies available to a third person not party to the action but whose property is the subject of execution: 1.

Terceria – By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. The sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.

2.

Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching v. CA, 423 SCRA 356).

3.

Intervention– This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).

4.

Accion Reivindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

Procedure for a third-party claim The third-party should make an affidavit of his title thereto, or right of possession thereof, and should serve such affidavit upon the sheriff and a copy thereof to the judgment oblige (Sec. 16, Rule 39). This remedy of the claiming party is also called “terceria” (Riano, 2011). Duty of the officer if the property sought to be levied on is claimed by another person and proper proof of ownership or possession is served such officer If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond (Sec. 16, Rule 39). 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 (Ibid.).

RULES ON REDEMPTION Availability of the right of redemption

When the writ of execution is issued in the Name of the Republic of the Philippines

There is no right of redemption as to personal properties for the sale is absolute. Such right is available only to real properties (Sec. 27, Rule 39).

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 (Ibid.).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

NOTE: The period of redemption is not suspended by an action to annul the foreclosure sale. The periods for redemption are not extendible; but the parties may agree on a longer period, in such case, it would be a conventional redemption.

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CIVIL PROCEDURE Person/party to redeem the real property sold

Requirements for the redemptioner or judgment obligor to redeem the real property

Real property sold, or any part thereof sold separately, may be redeemed by the following persons: 1. Judgment obligor, or his successor in interest in the whole or any part of the property; 2. Redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold (Sec 27[b], Rule 39).

The judgment obligor, or redemptioner, may redeem the property from the purchaser at any time within 1 year from the date of the registration of the certificate of sale by paying the purchaser: 1. The amount of his purchase; 2. Amount of any assessments or taxes which the purchaser may have paid after purchase; 3. If the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien; and 4. With 1 percent per month interest up to the time of redemption (Sec. 28, Rule 39).

NOTE: There is no right of redemption in judicial foreclosure of mortgage under Rule 68. The right of redemption exists only in execution sales and extrajudicial foreclosures where there is always a right of redemption (Santos v. Register of Deeds, G.R. No.L-26752).

Judgment Obligor v. Redemptioner JUDGMENT OBLIGOR Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors)

Within 1 year from the date of registration of the certificate of sale.

Once he redeems, no further redemption is allowed. The person to whom redemption was made must execute and deliver to the judgment obligor a certificated of redemption.

Rights of a judgment debtor

REDEMPTIONER Does not only refer to judgment obligor. He may be a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner (Sec. 27, Rule 39).

1. 2. 3. 4. 5.

To remain in possession of the property until the expiration of period of redemption; To collect rents and profits until the expiration of period of redemption (Sec. 32, Rule 39); To use the property in the same manner it was previously used; To make necessary repairs; and Use it in the ordinary course of husbandry (Sec. 31 Rule 39).

Purchaser entitled to possession and conveyance of the property sold on Execution The purchaser is entitled to possession and conveyance of the property if no redemption is made within 1 year from the date of the registration of the certificate of sale (Sec. 33, Rule 39).

1.

Within 1 year from the date of registration of the certificate of sale if he is the first redemptioner, or 2. Within 60 days from the last redemption, if he be a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption (Sec. 28, Rule 39) Further redemption is allowed, even after lapse of 1 year, as long as each redemption is made within 60 days after the last.

Instances when the purchaser may recover the purchase price from the judgment obligor 1.

2.

If the purchaser or his successor-in-interest fails to recover possession of the property sold on execution sale; or Is evicted due to: a. Irregularities in the proceedings concerning the sale; b. Reversal or setting aside of judgment; c. The fact that the property was exempt from execution; or d. If a third person has vindicated his claim to the property (Sec. 34, Rule 39).

Remedy of a purchaser of real property sold on execution in instances when purchaser may recover the purchase price 1. 2. 3.

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Bring an action against the judgment creditor; File a motion for revival of judgment in his name against the judgment debtor; or Bring an action to recover possession of property (Sec. 34, Rule 39).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED

EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other judicial entity has property of such judgment obligor or is indebted to him (Sec. 37, Rule 39).

Effect when the judgment was returned unsatisfied (2008 Bar Question) 1.

2.

3.

4.

5.

6.

7.

The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 36, Rule 39); The judgment creditor may cause examination of the debtors of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Sec. 37, Rule 39); If the court finds, after examination, that there is property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment (Sec. 37, Rule 39); If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs, it may order payment in fixed monthly installments (Sec. 40, Rule 39); The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Sec. 41, Rule 39); If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest (Sec. 42, Rule 39); and If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property, or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt (Sec. 43, Rule 39).

NOTE: A party or other person may be compelled, by an order of subpoena, to appear before the court or commissioner to testify as provided in Secs.36 & 37. Failure to obey may be punished by contempt. If examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers must be under oath.

EFFECTS OF JUDGMENT OR FINAL ORDERS Effects of judgment or final orders 1. 2.

3.

4.

Q: Anna, a Manila resident, sued Betsie resident of Malolos, Bulacan, in the RTC Manila for a sum of money. The trial court rendered judgment holding Anna liable for the entire amount prayed for in the complaint. After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, Anna filed a motion for an order requiring Betsie to appear before it and be examined regarding his property and income. How should the court resolve the motion? (2002 Bar Question)

5.

A: The RTC Manila should deny the motion. Betsie resides in Malolos, Bulacan. When a writ of execution is returned unsatisfied, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it. However, no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (Sec. 36, Rule 39).

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If judgment or final order is on a specific thing, the same is conclusive upon the title to thing. If judgment or final order is in respect to the probate of a will, or the administration of the estate of a deceased person, the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death. If judgment or final order is in respect to the personal, political or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the condition, status or relationship. In other cases, if the judgment be with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, the judgment or final order is conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and the same capacity, relationship. In any other litigation between the same parties or their successors in interest, that only is deemed to be adjudged in a former judgment or final order which appear upon its face to have been adjudged, or which was actually and necessarily included therein or necessary thereto (Sec.47, Rule 39).

CIVIL PROCEDURE Refusal to issue writ of execution after judgment has become final

Requisites of Res Judicata 1. 2. 3. 4.

GR: Trial court has ministerial duty to order execution of final and executory judgments. It cannot refuse execution and is compellable by mandamus. XPNs: (Same as grounds to Quash writ of execution) 1. Change in the situation of the parties which makes the execution inequitable or unjust; 2. Writ of execution varies judgment; 3. Controversy was never submitted to the judgment of the court; 4. Execution is sought against property exempt from execution; 5. Terms of the judgment are not clear and leaves room for interpretation; 6. Writ of execution is improvidently issued; 7. Writ of execution is defective in substance; 8. Writ of execution is issued against the wrong party; 9. Judgment debtor has been paid or otherwise satisfied; and 10. Writ of execution was issued without authority.

2 Aspects of Res Judicata 1. "Bar by prior judgment," or "estoppel by verdict"- Itis the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action (Sps. Rasdas v. Estenor, G.R. No. 157605, December 13, 2005). - Any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether the claim or demand, purpose or subject matter of the two suits is the same or not (Prudential Bank v. Mauricio, G.R. No. 183350, January 18, 2012).

NOTE: In the above exceptions, the proper remedy is petition for certiorari under Rule 65.

Instances when execution of final and executory judgment is allowed 1. 2. 3. 4.

Former judgment or order must be final and executory Court has jurisdiction over subject matter and parties Former judgment or order was on merits Identity of parties, subject matter, and cause of action between first and second action (TEST: determine identity if cause of action) (Felsinc v Province of Batangas, GR No 168557, February 19, 2007).

2. "Conclusiveness of judgment" or the rule of auter action pendant – It ordains that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. It has the effect of preclusion of issues only (Sps. Rasdas v. Estenor, G.R. No. 157605, December 13, 2005).

Upon filing of a petition for relief from judgment; Attack against a judgment which is void for lack of jurisdiction, or obtained through fraud; On equitable grounds; and In cases falling under the 10 exceptions above.

Modifying final and executory judgments

ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS

GR: Final and executory judgments cannot be amended or modified. Any amendment which substantially affects a final and executory judgment is null and void for lack of jurisdiction.

Effect of a Foreign Order 1.

XPN: Judgment may be modified as to: 1. Clerical errors or mistakes - errors not as a result of exercise of judicial functions 2. To clarify ambiguity; or 3. To enter nunc pro tunc orders – to make a present record of an order which the court rendered at a previous terms but, by inadvertence has not been entered. 4. In judgments for support, which can always be amended from time to time, in light of the circumstances of the parties (Regalado, 2012).

2.

Against a specific thing – conclusive upon title to the thing. Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title (Sec. 48, Rule 39).

NOTE: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud, or clear mistake of law or fact.

Enforcement of a Judgment of a foreign court (2007 Bar Question) Judgment of foreign courts may only be enforced in the Philippines through an action validly heard in a RTC. Thus, it is actually the judgment of the Philippine court enforcing the foreign judgment that shall be executed.

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REMEDIAL LAW PROVISIONAL REMEDIES (RULE 57-61)

Provisional Remedies v. Special Proceedings

Provisional remedies They are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case. (1996 Bar Question) Provisional remedies under the Rules of Court (AIR2S) 1. 2. 3. 4. 5.

Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support (Rule 61)

The provisional remedies in civil actions may be availed of in connection with the civil aspect of a criminal case, insofar as there are applicable (Sec. 1, Rule 127).

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

Temporary Protection Order [TPO] (RA 9262, AntiViolence Against Women and Their Children; Rule on Writ of Amparo) Witness Protection Order [WPO] (RA 6981; Rule on the Writ of Amparo) Inspection Order [IO] (AM 07-9-12, Rule on Writ of Amparo) Production Order [PO] (AM 07-9-12, Rule on Writ of Amparo) Administration of Common Property (AM 02-11-12, Rule on Provisional Orders) Inspection, Examination of Accounts and Freeze Order (RA 9372, Human Security Act) Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money Laundering Act) Seizure and Sequestration of Accounts and Assets (RA 9372, Human Security Act) Restriction of Travel (RA 9372, Human Security Act) Stay Order (AM 00-8-10, Rules of Procedure on Corporate Rehabilitation) Hold Departure Order (Criminal cases under Circular 39-97 and Family cases under AM 02-11-12) Temporary Visitation Rights (AM 02-11-12, Rule on Provisional Orders) Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary Commitment of Children) Temporary Custody of Child(AM 01-1-19 and AM 0211-12) Spousal and Child Support (AM 02-11-12, Rule on Provisional Orders)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Special Civil Actions

Temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending They are writs and processes which presuppose the existence of a main action.

Basically ordinary civil proceedings; what makes them special are the distinct peculiarities inherent in their very nature not found in ordinary civil actions They are actions in themselves, but possessing special matters that required special procedures(De Fiesta v. Llorente, 25 Phil. 544).

COMMON REQUIREMENTS 1.

Affidavits are required to support the issuance of these remedies, except preliminary injunction and receivership.

2.

A bond is required to answer for damages by reason of the improvident issuance of the writ except onsupportpendetelite, inspection of accounts and freeze order (Human Security Act), inspection and production orders (Rule on the writ of amparo), seizure and sequestration of accounts and assets (Human Security Act), restriction of travel (Human Security Act) and hold departure order (Circular 39-97 and AM 01-11-12). Recovery of damages from the bond is governed by Sec. 20, Rule 57.

Other provisional remedies 1.

Provisional Remedies

NATURE OF PROVISIONAL REMEDIES Nature of provisional remedies Provisional remedies are temporary, auxiliary and ancillary remedies available to a litigant for the protection of his rights while the main action is pending. They are writs and processes which are not the main actions and they presuppose the existence of a main action. They are temporary measures availed of during the pendency of the action and ancillary because they are mere incidents and are dependent upon the result of the main action (Regalado, 2012). They are interim, ancillary and provisional. NOTE: Injunction can be a main action if it seeks to permanently enjoin the defendant through a final injunction (not preliminary) issued by the court and contained in the judgment (PEZA v. Carantes, et al., G.R. No. 181274, June 23, 2010).

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PROVISIONAL REMEDIES Purpose of provisional remedies 1. 2. 3. 4.

To preserve or protect their rights or interests while the main action is pending; To secure the judgment; To preserve the status quo; or To preserve the subject matter of the action. JURISDICTION OVER PROVISIONAL REMEDIES

Jurisdiction over provisional remedies GR: Applications must be filed with the court having jurisdiction over the pending principal action. Even an inferior court may grant such remedy. However, where the main action is for support, the provisional remedy of support may not be granted by a Municipal Trial Court because the main action is within the jurisdiction of the Family Court (Riano, 2012). XPN: In criminal actions, as long as the civil aspect is tried together with it, the RTC or MTC having jurisdiction may also issue the remedy of support pendente lite (e.g. Art 345 (3) RPC, in crimes against chastity, “in every case to support the offspring…”). When available 1. 2. 3.

Attachment, injunction and support – may be availed of before final judgment Replevin – may be availed of the answer Receivership – may be availed at any stage of the action and even after final judgment.

WHEN TO APPLY AND IN WHAT PRINCIPAL ACTIONS AVAILABLE PROVISIONAL REMEDY

WHEN TO APPLY

IN WHAT PRINCIPAL ACTION/S

Preliminary Attachment (Rule 57)

At the commencement of the action 1. or at any time before entry of 2. judgment

Preliminary Injunction (Rule 58)

At any stage of the action prior to the judgment or final order At any stage of the proceedings and even up to the stage after the judgment has become final and executory as means of enforcing judgment

Receivership (Rule 59)

Recovery of liquidated sum of money Recovery of possession of property fraudulently taken, detained or converted

unjustly

or

Action for injunction, whether or not coupled with othe prayers 1. Receivership action 2. Real action involving title to or possession of realty 3. Foreclosure of mortgage 4. Dissolution of corporation

Replevin (Rule 60)

At the commencement of the action 1. 2. or at any time before answer

Support Pendente Lite (Rule 61)

At the commencement of the prior 1. action or proceeding or at any time 2. prior to judgment or final order

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Recovery of possession of personal property Recovery of personal property subject of chattel mortgage as a preliminary step to extrajudicial foreclosure Support, whether as the main case or as one of several causes of action Criminal actions where the civil liability includes support of the offspring as a consequence of the crime i.e.. rape, seduction UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW PRELIMINARY ATTACHMENT (RULE 57)

Kinds of Attachment

Preliminary attachment

Preliminary Attachment

It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment that might be secured in the said action by the attaching creditor against the defendant (Sofia Torres v. Satsatin, G.R. No. 166759, November 25, 2009). It is strictly construed against the applicant (Wee v. Tankiansee, G.R. No. 171124, February 13, 2008).

NOTE This is the regular form of attachment which refers to corporeal property in the possession of the party (Regalado, 2012).

NOTE: There is no separate action called preliminary attachment. It is not a distinct proceeding and is availed of within a principal action because it is a mere provisional remedy. The grant of remedy is addressed to the discretion of the court (Riano, 2009)

Nature of proceeding

Levy on execution

It is a proceeding in rem; it is against the particular property, enforceable against the whole world (Binan Steel Corporation v. Court of Appeals, October 15, 2002, 391 SCRA 90).

When availed of and is granted in an action purely in personam, it converts the action to one that is quasi in rem. This transformation of the nature of the action dispenses with the need for acquiring jurisdiction over the person of the defendant. Since attachment is directed against the property of the defendant, the court may validly proceed with the action as long as jurisdiction over the property is acquired (4 Am. Jur., 556-557).

Purposes of preliminary attachment

2.

It is the act of taking possession and control by the sheriff or proper officer of sufficient property of the losing party to satisfythe decision, order, or award. A sale not preceded by a valid levy is void and the purchaser acquires no title. It is the levy of money, goods, or chattels, and/or an interest thereon, belonging or owing to a losing party in the possession or control of a third party.

NOTE: Jurisdiction over the person of the defendant is not required as long as the court acquires jurisdiction over the res (Biaco v. Countryside Rural Bank, 515 SCRA 106).

1.

It is one issued at the commencement of the action or at any time before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. The court takes custody of the property of the party against whom the attachment is directed.

To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying said judgment; or To enable the court to acquire jurisdiction over the action in those instances where personal service of summons on the creditor cannot be effected (Mabunag v. Gallimore, 81 Phil 354).

Garnishment

The proceeding by garnishment is a specie of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation. By means of the citation the stranger becomes a forced intervenor; and the court, having acquired jurisdiction over him by means of the citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is creditor in the main litigation (Domingo Bautista v. Jose Ma. Barredo G.R. No. L-20653 ,April 30, 1965). NOTE Garnishment does not involve the actual seizure of the property which remains in the hands of the garnishee. It refers to money, stocks, credits and other incorporeal property which belong to the party but are in the possession or under control of a third person. Garnishment does not lie against the funds of the regular departments or offices of the Government, but funds of public corporations are not exempt from garnishment (PNB v. Palaban, et. al., L-33112, June 15, 1978; Regalado p. 691-694).

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PROVISIONAL REMEDIES GROUNDS FOR THE ISSUANCE OF WRIT OF ATTACHMENT

c.

Grounds for the Issuance of the Writ of Attachment (DERp-FCN)

d.

1.

2.

3.

4.

Depart- Actions 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 which intent to defraud his creditors;

2. Attachment bond - a bond executed to the adverse party in an amount to be fixed by the judge, not exceeding the plaintiff’s claim, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto (Sec. 3 and 4, Rule 57).

Embezzlement- Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty;

NOTE: A hearing on a motion or application for preliminary attachment is not generally necessary unless otherwise directed by the trial court (Toledo v. Burgos, 168 SCRA 513). This is because an order of attachment may also be issued ex parte. Failure to allege matters required under Sec. 3, Rule 57 renders the writ totally defective as the judge issuing the writ acts in excess of jurisdiction (K.O Glass Construction Co., Inc. v. Valenzuela, et al., L48756, September 11, 1982; Regalado, 2012).

Recover possession- Actions to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

When to apply for preliminary attachment 1. 2.

Fraud- Actions 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

6.

At the commencement of the action; or At any time before entry of judgment (Sec. 1, Rule 57)

NOTE: The application may be incorporated in the verified complaint alleging all the grounds, and complying with all the requisites for the grant of the application.

NOTE: Includes both kinds of fraud, i.e.., fraud in contracting the obligation and fraud in the performance thereof (Regalado, 2012).

5.

There is no sufficient security for the claim sought to be enforced The amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims

ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT; AFFIDAVIT AND BOND = Stages in the issuance of a writ of attachment (OWI)

Defraud creditors- Actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors;

1. 2.

Actions against non-resident not found in the Philippines, or person upon whom summons may be served by publication (Sec. 1 Rule 57).

3.

The court issues the order granting the application; The writ of attachment is issued pursuant to the order granting the writ; and The writ is implemented

NOTE: For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be obtained. However, to validly implement the writ, it is required that the court acquire jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Thus, any order issued by the court will not bind the defendant (Mangila v. CA, G.R. No. 125027, August 12, 2002; Regalado 2008).

Who may apply for a preliminary attachment Any party can avail of preliminary attachment as long as any of the grounds therefor exists. He may be: 1. The defendant on his counterclaim 2. A co-party on his cross-claim, and 3. A third-party plaintiff on his third-party claim (Sec. 1, Rule 57; Regalado, 2012).

Issuance of order of attachment The writ of preliminary attachment may be issued: 1. Ex parte and even before summons is served upon the defendant.

REQUISITES Requisites for the issuance of an order of writ of preliminary attachment

NOTE: An ex parte issuance of the writ is intended to preempt any possible disposition of property by the adverse property to the detriment of the attaching creditor and thus defeat the very purpose of attachment (Mindanao Savings & Loan Association, Inc. v. CA, 172 SCRA 480).

1. An affidavit executed by the applicant, or of some other person who personally knows the facts showing that: a. A sufficient cause of action exists b. The case must be any of those where preliminary attachment is proper

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REMEDIAL LAW The application for preliminary attachment ex parte may be denied because the fundamental requisites under Rule 57, Section 1 did not exist, and not because ex parte applications are per se illegal (Davao Light & Power Co., Inc v. CA, G.R. No. 93262 December 29, 1991).

2.

A: No, the motion should be denied. The fact that the writ of preliminary attachment was served ahead of the summons did not affect the jurisdiction of the court over his person. It makes the writ unenforceable, however, all that is required is to re-serve the writ.

Upon motion and notice of hearing, by the court in which the action is pending and may even be issued by the CA or the SC (Sec. 2, Rule 57);

NOTE: Where the writ of preliminary attachment had already been implemented, the subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service (Torres v. Satsatin, G.R. No. 166759, November 25, 2009).

NOTE: A hearing on a motion or application for preliminary attachment is not generally necessary unless otherwise directed by the trial court (Toledo v. Burgos, 168 SCRA 513).

Q: Katy filed an action against Tyrone for collection of the sum of P1 Million in the Regional Trial Court, with an exparte application for a writ of preliminary attachment. Upon posting of an attachment bond, the court granted the application and issued a writ of preliminary attachment.

Contents of the order of attachment It 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 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.

Apprehensive that Tyrone might withdraw his savings deposit with the bank, the sheriff immediately served a notice of garnishment on the bank to implement the writ of preliminary attachment. The following day, the sheriff proceeded to Tyrone's house and served him the summons, with copies of the complaint containing the application for writ of preliminary attachment, Katy's affidavit, order of attachment, writ of preliminary attachment and attachment bond

NOTE: Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.

RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS

Within 15 days from service of the summons, Tyrone filed a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds: (i) the court did not acquire jurisdiction over his person because the writ was served ahead of the summons; (ii) the writ was improperly implemented; and (iii) said writ was improvidently issued because the obligation in question was already fully paid. Resolve the motion with reasons. (2005 Bar Question)

Prior or contemporaneous service of summons An order of attachment may be granted ex parte. Its grant or denial rests upon the sound discretion of the court. Enforcement of the writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party. Jurisdiction must first be acquired through valid service of summons first before a preliminary attachment may be enforced.

A: The motion to dismiss and to dissolve the writ of preliminary attachment should be denied. 1.

NOTE: Writ of preliminary attachment may be granted and issued even before summons is served upon the defendant. However, the writ may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co., Inc. v. CA, G.R. No. 93262, December 29, 1991).

2.

Q: Alfred filed an action against Banjo for collection of sum of money with an ex-parte application for a writ of preliminary attachment which was granted by the trial court. A notice of garnishment was served by the sheriff upon the bank and summons was subsequently served upon Banjo. Banjo then filed a motion to dissolve the writ of preliminary attachment on the ground that the court did not acquire jurisdiction over his person as the writ was served ahead of the summons. Should the motion be granted? (2005 Bar Question)

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3.

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The fact that the writ of attachment was served ahead of the summons did not affect the jurisdiction of the court over his person. It makes the writ, unenforceable (Sec. 5, Rule 57). However, all that is needed to be done is to re-serve the writ (Onate v. Abrogar, GR. No. 197393, February 23, 1985). The writ was improperly implemented. Serving a notice of garnishment, particularly before summons is served, is not proper. It should be a copy of the writ of attachment that should be served on the defendant, and a notice that the bank deposits are attached pursuant to the writ (Sec. 7[d], Rule 57). The writ was improvidently issued if indeed it can be shown that the obligation was already fully paid. The writ is only ancillary to the main action (Sec. 13, Rule 57).

PROVISIONAL REMEDIES The alleged payment of the account cannot serve as a ground for resolving the improvident issuance of the writ, because this matter delves into the merits of the case, and requires full-blown trial. Payment, however, serves as a ground for a motion to dismiss.

NOTE: Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof (Ibid.).

Instances when prior or contemporaneous service of summons does not find application (PeSTa-NRQ)

2. Personal property capable of manual delivery - Sheriff taking into custody and safely keeping it after issuing the corresponding receipt therefor.

1. 2. 3. 4. 5.

Summons could not be served personally or despite diligent efforts Summons could not be served by substituted service despite diligent efforts The defendant is a resident of the Philippines temporarily absent there from The defendant is a non-resident of the Philippines The action is one in rem or quasi in rem

3. Stocks, shares or interest in stocks or shares of any corporation or company - By leaving with the president or managing agent thereof, a copy of the writ and a notice stating that the stock or interest of the party against whom the attachment is issued, is attached in pursuance of such writ; 4. Debts and credits, bank deposits, financial interests, royalties, commission and other personal property not capable of manual delivery - By leaving copy of the writ and notice of attachment with person owing or having custody over the property

MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON Duty of Sheriff

5. Interest in the estate of a decedent – By serving copy of writ and notice of attachment upon the: a. Executor or administrator of estate or other personal representative of the decedent; b. Clerk of Court where estate is being settled; and c. Heir, devisee, or legatee

The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs.

6. Property in custodia legis - A copy of writ shall be filed with the proper court or quasi-judicial agency and notice of the attachment serves upon the custodian of such property (Sec. 7, Rule 57). Salary subject of attachment

No levy on attachment pursuant to the writ shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines (Sec. 5, Rule 57).

It can only be attached at the end of the month or on the payday provided by contract or law, as, prior thereto, the same do not constitute money “due” to the debtor from his employer. Furthermore, if the employer is the Government, before payday, such funds are public funds and are exempt from attachment or execution (Garcia v. Castillo, 43 Phil 364; (Regalado, 2012).

Manner of attaching real and personal property

Wages due to a laborer

Real and personal property shall be attached by the sheriff executing the writ in the following manner:

GR: The laborer's wage shall not be subject to execution or attachment (Art. 1708, NCC).

1. Real property, growing crops thereon, or interest therein a. By filing with the Registry of Deeds a copy of the order; b. Together with a description of the property attached; c. A notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached; and d. By leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province (Sec. 7a, Rule 57).

XPN: For debts incurred for food, shelter, clothing and medical attendance (Gaa v. CA, G.R. No. L-44169 December 3, 1985). NOTE: Art. 1708 used the word “wage" and not "salary" in relation to "laborer" when it declared what are to be exempted from attachment and execution. The term “wages” as distinguished from "salary", applies to the compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month, or season, while "salary" denotes a higher degree of employment, or a superior grade of services, and implies a position

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REMEDIAL LAW of office: by contrast, the term wages " indicates considerable pay for a lower and less responsible character of employment, while "salary" is suggestive of a larger and more important service (35 Am. Jur. 496).

Preference between duly registered attachment by levy and prior sale of property A levy on execution duly registered takes preference over a prior unregistered sale; and that even if the prior sale is subsequently registered before the sale in execution but after the levy was duly made, the validity of the execution sale should be maintained, because it retroacts to the date of the levy; otherwise, the preference created by the levy would be meaningless and illusory (Defensor v. Brillo, 98 Phil. 427, February 21, 1956).

Government funds 1. If government enters into commercial business, it abandons its sovereign capacity and is to be treated like any other corporation. Consequently, its funds may be subject to a duly issued writ of garnishment or writ of execution.

Remedies available if the property is being claimed by third person (TII)

2. If intended for a public purpose, public funds of a municipality are not subject to levy or execution and such funds cannot be disbursed without a lawful appropriation or statutory authority as required by law. Even when the immunity of state is relaxed, the power of the court ends when judgment is rendered and state is at liberty to determine whether or not to appropriate funds for the satisfaction of the judgment (Malong v. PNR, et. al., L-49930, August 7, 1985; PNB v. CIR L032667, January 31, 1978; Regalado, 2012).

1.

GR: The sheriff is not bound to keep the property.

Q: In a case, the property of an incompetent under guardianship was in custodia legis. Can it be attached? Explain. (1999 Bar Question)

XPN: The sheriff is bound to keep the property when the attaching party, on demand of the sheriff, files a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property levied upon.

A: Yes. In such case, a copy of the writ of attachment shall be filed with the proper court and the notice of the attachment shall be served upon the custodian of such property.

NOTE: The timing of the filing of the third-party claim is important because the timing determines the remedies that a third party is allowed to file. A third party claimant under Section 16 of Rule 39 may vindicate his claim to the property in a separate action since intervention is no longer allowed upon rendition of judgment. A third party claimant under Section 14 of Rule 57, on the other hand, may vindicate his claim to the property by intervention because he has a legal interest in the matter in litigation (Fort Bonifacio Development Corporation v. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008).

Principle of Seniority of Liens Where property attached by the judgment creditor had previously been mortgaged the judgment creditor’s lien is inferior to that of the mortgagee, which must first be satisfied in the event of foreclosure. In reality, what was attached by the judgment creditor was merely the judgment debtor’s right or equity of redemption (Top Rate International Services Inc. v. IAC, G.R. No. 67496, July 7, 1986).

2. 3.

Preference between duly registered attachment by levy and lis pendens Preference is given to a duly registered attachment over a subsequent notice of lis pendens, even if the beneficiary of the notice acquired the subject property before registration of the attachment. Such notice does not establish a lien or an encumbrance on the property affected. As the name suggests, a notice of lis pendens with respect to a disputed property is intended merely to inform third persons that any of their transactions in connection therewith -- if entered into subsequent to the notation -- would be subject to the result of the suit (Du v. Stronghold Insurance Co. Inc., G.R. No.156580, June 14, 2004).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A terceria or third party claim - The third person whose property was levied on must make an affidavit if his title thereto, or right to the possession thereof stating the grounds of such right and title and serves such affidavit upon the sheriff while the latter has possession of the attached property and a copy thereof upon the attaching property.

Independent action to recover his property; or Motion for intervention – available only before judgment is rendered (Ong v. Tating, G.R. No. L-61042, April 15, 1987).

Q: Andrei's real property is being attached by the sheriff in a civil action for damages against Bernard. Andrei claims that he is not a party to the case; that his property is not involved in said case; and that he is the sole registered owner of said property. Under the Rules of Court, what must Andrei do to prevent the sheriff from attaching his property? (2000 Bar Question) A: If the real property has been attached, the remedy is to file a third-party claim. The third-party claimant should make an affidavit of his title to the property attached stating the grounds of his title thereto and serve such affidavit upon the sheriff while the latter has possession of the attached property and a copy thereof upon the attaching party. The third-party claimant may also intervene or file a separate action to vindicate his claim to the

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PROVISIONAL REMEDIES property involved and secure the necessary reliefs such as preliminary injunction which will not be considered as interference with a court of coordinate jurisdiction.

2.

NOTE: The sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment.

2 ways of discharging the attachment

The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. 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 120 days from the date of the filing of the bond.

1.

To file a counter-bond in accordance with Sec 12 of Rule 57.

2.

To quash the attachment on the ground that it was irregularly or improvidently issued, as provided for in Section 13 of the same rule (Torres et al. v. Satsatin, G.R. No. 166759, November 25, 2009).

These grounds for the dissolution of an attachment are fixed in Rule 57 of the Rules of Court and the power of the Court to dissolve an attachment is circumscribed by the grounds specified therein (Vicente B. Chuidian v. Sandiganbayan, G.R. No. 139941. January 19, 2001).

The claimant or any third person is not prevented from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

NOTE: A discharge of attachment must be made only after hearing. An ex parte discharge or suspension of the attachment is a disfavor to the orderly administration of justice and nullifies the underlying role and purpose of preliminary attachment in preserving the rights of parties as an ancillary remedy (Peroxide Philippines Corp., v. CA, et. al GR No. 92813, July 21, 19991; Regalado, 2012).

When the writ of attachment 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 is sued for damages as a result of the attachment, 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 the funds to be appropriated for the purpose (Sec. 14, Rule 57).

Discharge of Order of Attachment that has already been issued

Sale of property covered by a writ of preliminary attachment before entry of judgment

The party whose property has been ordered attached may file a motion to quash the order by filing a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess.

GR: Property may not be sold. A writ of preliminary attachment is a provisional remedy and its issuance does not have the effect of a final judgment over the property attached. XPN: An attached property may be sold after levy on attachment and before entry of judgment whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the attached property is perishable or that the interests of all the parties to the action will be subserved by the sale of the attached property (Sec. 11, Rule 57; China Banking Corporation v. Asian Corporation and Development Corporation, GR No. 158271, April 8, 2008; Riano, 2009).

If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith (Sec. 13, Rule 57).

DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND Discharge of attachment and the counter-bond

Discharge of attachment already enforced

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given.

The party whose property has been attached may file a motion to discharge the attachment wholly or in part on the security given. This motion shall be with notice and hearing. After notice and hearing, the court shall discharge the attachment if the movant makes a cash deposit or files a counter-bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment, exclusive of costs (Sec. 12, Rule 57, Riano, 2009).

How to prevent the attachment 1.

the value of the property to be attached as stated by the applicant, exclusive of costs (Sec. 2, Rule 57). By raising the defense that the property covered is exempt from execution (Ibid).

By making a deposit or giving a bond in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant’s demand or

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: Should the counter-bond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching party may apply for a new order of attachment.

Q: After his properties were attached, defendant Porfirio filed a sufficient counter-bond. The trial court discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted attachment. In the end, the trial court rendered a judgment in Porfirio's favor by ordering the plaintiff to pay damages because the latter was not entitled to the attachment. Porfirio moved to charge the plaintiff's attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the counter-bond had relieved the plaintiff's attachment bond from all liability for damages. Should Porifio’s motion be granted?

Counter-bonds Counter-bonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment (Security Pacific Assurance Corporation v. Tria- Infante, 468 SSCRA 526). NOTE: The mere posting of the counter-bond does not automatically discharge the writ of attachment. It is only after the hearing and after judge has ordered the discharge of attachment that the same is properly discharged (Security Pacific Assurance Corporation v. Tria- Infante, 468 SSCRA 526; Riano, 2009).

A: Yes, Porfirio’s motion to charge plaintiff’s attachment bond is proper and can be granted. It is not correct to contend that Porfirio’s filing of a counter-bond constitutes a waiver of his right to proceed against the attachment bond for the damages he suffered from the unwarranted attachment. It is a condition inter alia of the applicant’s attachment bond that he will pay all the costs which may be adjudged to the adverse party and all damages which the latter may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto (DM Wenceslao and Associates, Inc. v. Readycon Trading and Construction Corp., G.R. No. 156104, June 29, 2004).

Effects if the judgment was rendered in favor of the party against whom attachment was issued 1.

2.

The order of attachment will be discharged and all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer’s hands, shall be delivered to the party against whom attachment was issued (Sec. 19, Rule 57). The whole sum deposited must be refunded to him or his assignee if the party against whom attachment had been issued has deposited money instead of giving counter-bond (Sec. 18, Rule 57).

Award of damages Damages may be awarded on account of improper, irregular or excessive attachment.

Q: Roy obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied on Ronald's property, but it was discharged upon the posting by Ronald of a counter-bond in the same amount of P1 million. After trial, the court rendered judgment finding that Roy had no cause of action against Ronald and that he had sued out the writ of attachment maliciously. Accordingly, the court dismissed the complaint and ordered Roy and its surety to pay jointly to Ronald P1.5 million as actual damages, P0.5 million as moral damages and P0.5 million as exemplary damages. Evaluate the soundness of the judgment from the point of view of procedure. (2002 Bar Question)

Application for damages The application for damages must be filed: 1. Before the trial, or 2. Before appeal is perfected, or 3. Before the judgment becomes executory. NOTE: There must be notice to the attaching party and his surety of sureties (Sec. 20 Rule 57; Riano, 2009).

When property is wrongfully attached Where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the attachment plaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the attachment was not merely wrongful but also malicious, the attachment defendant may recover moral damages and exemplary damages as well (Spouses Yu v. Ngo Yet Te, GR No. 155868, February 6, 2007).

A: The judgment against the surety is not sound if due notice was not given to him of the application for damages. Moreover, the judgment against the surety cannot exceed the amount of its counter-bond of Php 1 million. Duty of the surety or sureties on counter-bond when the judgment becomes executory

NOTE: Damages may be claimed even by the losing party where the attachment caused him damage where the attachment was improper, irregular or excessive. An improper, irregular or excessive attachment is not validated by the fact that the attaching party prevailed in the main action (1999 Bar Question).

When the judgment has become executory, the surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counterbond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action (Sec. 17, Rule 57).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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PROVISIONAL REMEDIES SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED

Nature of preliminary injunction It is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain from (prohibitory) or to perform (mandatory) particular acts during the pendency of an action. It is merely a temporary remedy subject to the final disposition of principal action (Dungog v.Court of Appeals, 408 SCRA 267; Riano, 2009).

Satisfaction of judgment If judgment is in favor of the attaching party and execution has issued thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose, in the following manners: 1. Payment to judgment creditor of all sales of perishable or other property 2. If any balance remains, selling property as may be necessary to satisfy the judgment 3. Collecting from all persons having possession of credits belonging to the judgment debtor and paying the proceeds to judgment creditor (Sec. 15, Rule 57). 4. Ordinary execution (Sec. 16, Rule 57).

NOTE: The action for injunction is distinct from the ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. Under the present state of the law, the main action of injunction seeks a judgment embodying a final injunction which is distinct from, and should not be confused with the provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be heard (Urbanes v. CA, G.R. No. 117964, March 28, 2001).

NOTE: If it remains unsatisfied, recovery may be had on the counter-bond upon demand and notice and hearing to surety (Sec. 17, Rule 57).

Purpose of preliminary injunction When the property attached is not sufficient to satisfy the judgment

The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated (Medina v. Greenfield Development Corporation, G.R. No. 140228, November 19, 2004).

Any balance shall remain due; the sheriff must proceed to collect such balance as upon ordinary execution. When there is excess after applying the proceeds thereof

Its sole aim is to preserve the status quo until the merits of the case can be heard fully (Cortez-Estrada v. Samut, G.R. No. 154407, February 14, 2005).

Upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment (Sec. 16, Rule 57).

NOTE: Status quo is the last actual, peaceable and uncontested status which precedes a controversy. It is the situation existing at the time of the filing of the case (Riano, 2009; Preysler Jr. v. Court of Appeals, G.R. No. 158141, July 11, 2006).

When the party against whom attachment had been issued deposited money instead of giving counter-bond Where the party against whom attachment had been issued has deposited money instead of giving counterbond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment, the balance shall be refunded to the depositor or his assignee (Sec. 18, Rule 57).

Quantum of evidence required in a preliminary injunction

PRELIMINARY INJUNCTION (RULE 58)

NOTE: Findings of the trial court granting or denying a petition for a writ of preliminary injunction based on the evidence on record are merely provisional until after the trial on the merits of the case shall have been concluded (Sps. Nisce v. Equitable-PCI bank, G.R. No. 167434, February 19, 2007).

Mere prima facie evidence is needed to establish the applicant’s rights or interests in the subject matter of the main action because the applicant is required to show only that he has an ostensible right to the final relief prayed for in his complaint (Republic v. Evangelista, 466 SCRA 544).

DEFINITIONS AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER; STATUS QUO ANTE ORDER

Temporary Restraining Order Preliminary injunction It is an interlocutory order issued as a restraint to the defendant to preserve the status quo on the ground of irreparable injury and is granted to a party until the hearing of the application for preliminary injunction.

It is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts (Preliminary prohibitory injunction) or to require the performance of a particular act or acts (Preliminary mandatory injunction) (Sec. 1, Rule 58).

NOTE: The grant, denial or lifting of restraining order does not in any way preempt the court’s power to decide the issue in the main case (DFA and BSP v. Falcon and BCA Int’l Corp., G.R. No. 176657, September 1, 2010).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Preliminary Injunction v. TRO Preliminary Injunction Effective during the pendency of the action unless earlier dissolved NOTE: The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within 6 months from the issuance of the writ (Sec. 5, Rule 58 as amended by A.M. No. 07-712-SC).

Restrains or requires the performance of particular acts. Notice and hearing always required (Sec. 5, Rule 58).

Can be issued to compel the performance of an act

TRO v. Status Quo Order TRO Summary hearing

Temporary Restraining Order Duration (non-extendible): (Sec. 5, Rule 58) 1. If issued by RTC/MTC – 20 days from notice to person restrained 2. If issued by CA – 60 days from notice 3. If issued by SC – until lifted

Prevents the doing of an act

Requires the posting of a bond, unless exempted by court (Garcia v. Mojica, 314 SCRA 207)

NOTE: Prohibition against the renewal applies only if the same is sought under and by reason of the same ground for which it was originally issued (Regalado, 2005)

REQUISITES Requisites of writ of preliminary injunction or temporary restraining order

Maintain status quo ante

1.

GR: Notice and hearing required

2.

XPN: To prevent urgent/irreparable injury, TRO may be issued by an Executive Judge or Presiding Judge for 72 hours and a summary hearing be subsequently conducted within such period Cannot be issued to compel the performance of an act

3.

4. 5.

Who may grant preliminary injunction 1. 2. 3. 4. 5.

Status Quo Order Issued motu proprio on equitable considerations. More in the nature of a cease and desist order since it neither directs the doing or undoing of acts Does not require the posting of a bond

6.

Supreme Court in its original and appellate jurisdiction Court of Appeals or Trial Court in cases pending before it. Sandiganbayan Court of Tax Appeals (Sec.2, Rule 58).

Status Quo Order It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a TRO. (2006 Bar Question)

Verified application stating the grounds for its issuance (Sec. 4, Rule 58); Applicant must establish that he has a right to relief, a right in esse or a right to be protected and the act against which the injunction is directed is violative of such right; Applicant must establish that there is a need to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to the applicant; Applicant must post a bond, unless exempted by the court. This bond is executed in favor of the person enjoined to answer for all damages which the latter may sustain by reason of injunction or restraining order if the court should finally decide that the applicant was not entitled to the writ or order; GR: Contemporaneous service of summons; XPNs: a. Summons could not be served personally or by substituted service; b. Adverse party is a resident but is temporarily absent from the Philippines; c. Adverse party is a non-resident; 7. The plaintiff praying for the writ must further establish that he has a present and unmistakable right to be protected and there is a special and paramount necessity for the writ to prevent serious damage (Riano, 2012).

Q: May the RTC issue an injunction without the posting of a bond? (2006 Bar Question) A: Yes, if the injunction issued is a final injunction. Generally, however, a preliminary injunction may not be issued without the posting of a bond, unless exempted by the trial court or otherwise provided for by law.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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PROVISIONAL REMEDIES KINDS OF INJUNCTION

Mandatory injunction v. Mandamus

Preliminary Injunction v. Final Injunction Preliminary Injunction (Sec. 1, Rule 58) An order granted at any stage of the action prior to the judgment or final order therein.

Mandatory Injunction Provisional remedy, Rule 58 Directed to a party litigant to perform an act to restore the last peaceable uncontested status preceding the controversy.

Final Injunction (Sec. 9, Rule 58) Is one issued in the judgment in the case permanently restraining the defendant or making the preliminary injunction permanent.

Mandamus Special Civil Action, Rule 65 Seeking a judgment commanding a tribunal, corporation, board, officer or person to perform a ministerial duty required to be performed by law (Sec. 3, Rule 65; Riano, 2009).

Preliminary Injunction v. Main Action for Injunction Injunction against acts already consummated Preliminary Injunction (Ancillary Remedy) Provisional remedy; It is not a cause of action itself but merely an adjunct to a main suit Seeks to preserve the status quo until the merits can be heard

Main Action for Injunction Independent/Primary Action

GR: No, because injunction contemplates acts being committed or about to be committed (Romulo v. Yñiguez, G.R. No. 71908, February 4, 1986). XPN: If such acts complained of are continuing in nature and were in derogation of plaintiff’s rights at the outset, preliminary mandatory injunction may be availed of to restore the parties to the status quo (Regalado, 2012).

Perpetually restraining or commanding the performance of an act after trial

Requisites of mandatory injunction Kinds of Preliminary Injunction Preliminary Prohibitory Injunction Requires a person to refrain from a particular act The act has not yet been performed

1. 2. 3.

Preliminary Mandatory Injunction Requires a person to perform a particular act

4.

The act has already been performed and this act has violated the rights of another (Riano, 2012).

Instances when mandatory injunction does not lie 1.

Prohibitory Injunction v. Prohibition Prohibitory Injunction Provisional remedy, Rule 58

Prohibition Special Civil Action, Rule 65

Directed against a party litigant in the action

Directed against a court, tribunal or person exercising judicial powers Prohibition may be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction (Regalado, 2005).

It does not involve the jurisdiction of the court

Material and substantial invasion of right; Clear and unmistakable right of complainant; Urgent and paramount necessity for the writ to prevent serious damages (Bautista v. Barcelona, G.R. No. 11885, March 29, 1957). The effect would not be to create a new relation between the parties (Alvaro v. Zapata, G.R. No. L56025, November 25, 1982; Regalado p. 720-721).

2. 3.

4.

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To compel cohabitation (Arroyo v. Vasquez, G.R. No. L17014, August 11, 1921). Cancellation of attachment (Levy Hermanos v. Lacson, G.R. No. L-47506, December 14, 1940). Release imported goods pending hearing before the Commissioner of Customs (Commissioner of Customs v. Cloribel, G.R. No. L-19796, January 31, 1967) To take property out of the possession or control of one party and place it into that of another whose title has not clearly been established (Pio v. Marcos, G.R. No. L-27980, April 30, 1974).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW WHEN WRIT MAY BE ISSUED

because the addresses could not be ascertained despite diligent inquiry. On the day of the raffle date requested by Mr. G both counsels where present however, the counsel of Mr. G opposed the said raffle for the reason that the other defendants where not duly notified.

Issuance of writ of preliminary injunction A preliminary injunction or TRO may be granted only when: 1. The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and 2. 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 (Sec. 4, Rule 58). 3. When an application for a writ of preliminary injunction or a TRO is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

When the case reached the Supreme Court, Mr. G contends that under §4(c), Rule 58, a case may be raffled only after notice to and in the presence of the adverse party. These requisites according to him are mandatory. Furthermore, he maintains that the latter part of the rule, which allows service of summons to be dispensed with in case the adverse party cannot be located despite diligent efforts, should not be isolated from other related provisions. Decide the case A: Mr. G's argument is incorrect. Under par. 2 § 4 Rule 58, the required prior or contemporaneous service of summons may be dispensed with in the following instances: (a) when the summons cannot be served personally or by substituted service despite diligent efforts, (b) when the adverse party is a resident of the Philippines temporarily absent therefrom, or (c) when such party is nonresident. In such event, the notice of raffle and the presence of the adverse party must also be dispensed with. The requirement of notice of the raffle to the party whose whereabouts are unknown does not apply because the case will have to be raffled first before the court can act on the motion for leave to serve summons by application (Gonzalo R. Gonzales v. State Properties Corporation G.R. No. 140765 January 25, 2001).

However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. 4.

The application for a TRO shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within 24 hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

Ex parte writ of preliminary injunction No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. The reason is that a preliminary injunction may cause grave and irreparable injury to the party enjoined.

Contemporaneous service of summons in Preliminary Injunction

NOTE: 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 may issue ex parte a TRO.

GR: The enforcement of the writ of preliminary injunction must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the preliminary injunction and the bond upon the adverse party.

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 72 hours from issuance but he shall immediately comply with the provisions as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid 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 20 days, including the original seventy-two hours provided herein.

XPNs: Where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summon shall not apply(Sec. 4(c), Rule 58). Q: S.P. Corporation filed a complaint for Recovery of Property with application for temporary restraining order and/or preliminary injunction against the heirs of Mr. B. The case was then raffled to Branch 253 of RTC of Las Piñas. Mr. G, one of the heirs of Mr. B, filed an Omnibus Motion praying for another raffle of the case be held because the they were not able to receive any notice of raffle to which S.P. Corporation didn't oppose. S.P. Corporation then filed a Motion for Service of Summons by Publication on all the heirs of Mr. B except Mr. G UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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. Trial Court cannot issue a writ of preliminary injunction based solely on the applicant’s evidence. The trial court commits grave abuse of discretion when it issues such writ prior to the termination of the presentation of evidence by the party against

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PROVISIONAL REMEDIES whom the injunction shall be issued. The order to show cause why the injunction should not be granted as stated in Sec. 5, Rule 58 of the Rules of Court is precisely directed to such party, not on the injunction’s applicant (Lee v. CA, G.R. No. 147191, July 27, 2006).

10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga v. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438) 11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953, People of the Philippines v. Grey, G.R. No. 180109, July 26, 2010).

Instances when a writ of preliminary injunction may be issued 1. 2. 3. 4.

5. 6. 7.

8. 9.

In petitions for relief from judgment entered through FAME In petitions for certiorari, prohibition, and mandamus; In actions for annulment of judgments obtained through fraud In actions for annulment of judgment which are not patent nullity (i.e..want of jurisdiction, lack of due process of law) (BancoEspanol v. Palanca, 37 Phil. 921). To restrain continued breach of valid negative obligation To enjoin repeated trespass on land To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such To restrain voting of disputed shares of stocks To restrain sheriff from selling property on execution not belonging to judgment debtor

Second application for preliminary injunction A second application for injunction, which rests in the sound discretion of the court, will ordinarily be denied unless it is based on facts unknown at the time of the first application (Reyes v. Court of Appeals and Sun Life Insurance Office, Ltd., G.R. No. 87647, May 21, 1990). Actions where preliminary injunction will not lie 1.

Issuance of writ of injunction to enjoin criminal prosecution GR: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4, RA 8975; PD 1818) XPNs: a. Extreme urgency b. Matter involves a constitutional issue c. Grave injustice and irreparable injury will arise d. Supreme Court may issue the writ of preliminary injunction NOTE: Only the SC may issue injunction against the government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit, or compel acts pursuant to the implementation and completion of infrastructure projects(Sec 3, RA 8975).

XPNs: 1. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L19272, January 25, 1967, 19 SCRA 95). 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607). 3. When there is a pre-judicial question which is subjudice (De Leon v. Mabanag, 70 Phil. 202). 4. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62) 5. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389) 6. When double jeopardy is clearly apparent (Sangalang v. People and Avendia, 109 Phil. 1140) 7. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616) 8. Where there is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960) 9. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Rañoa v. Alvendia, CA-G.R. No. 30720R, October 8, 1962; Cf. Guingona, et al. v. City Fiscal, L60033, April 4, 1984, 128 SCRA 577)

2. 3. 4.

5. 6.

7. 8.

Act/s perpetrated outside the inferior courts’ territorial jurisdiction Against judgments of coordinate courts and quasijudicial bodies of equal rank Issuance will effectively dispose of the main case without trial and/or due process (Boncodin v. Nat’l Power Corporation Employees Consolidated Union, G.R. No. 162716, September 27, 2006). Labor disputes In issuance of licenses, concessions as to disposition, exploitation, utilization, exploration and/or development of natural resources (Sec. 1, P.D. 605) Implementation of Comprehensive Agrarian Reform Program, collection of taxes, criminal prosecutions GR: Mandatory foreclosure of a mortgage by a government financial institution (Sec. 2, P.D. 385)

XPN: After hearing, it is established that 20% of outstanding arrearages is paid after the filing of the foreclosure proceedings 9.

GR: Act/s sought to be enjoined already consummated XPN: Acts which are continuing in nature and were in derogation of plaintiff’s rights at the outset, preliminary mandatory injunction may be availed of to

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REMEDIAL LAW restore the parties to the status quo (Dayrit v. De Los Santos, 18 Phil 275). 10. GR: To transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto (Almeida v. CA and Sy, G.R. No. 159124, January 17, 2005).

Requisites of preliminary injunction whether mandatory or prohibitory injunction 1. 2.

XPN: Forcible entry and unlawful detainer cases – preliminary mandatory injunction may be issued (Sec. 15, Rule 70)

3. 4.

11. Generally, injunction will not be granted to take property out of the possession of one party and place it in another whose title not clearly established; 12. When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil. 941). 13. To prevent directors from discharging their offices and restoring former directors; 14. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. 15. Generally, injunction does not lie to restrain the enforcement of a law alleged to be unconstitutional except if it will result in injury to rights in private property (J.M Tuazon v. Co. et. al.,G.R. No. L-18128 December 26, 1961). 16. GR: Restrain collection of taxes (Valley Trading v. CFI of Isabela, G.R. No. L-49529, March 31, 1989)

The applicant must have a clear and unmistakable right, that is a right in esse; There is a material and substantial invasion of such right; There is an urgent need for the writ to prevent irreparable injury to the applicant; and No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury (Marquez v. Sanchez, G.R. No. 141849, February 13, 2007).

GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER Dissolution of writ of preliminary injunction or restraining order The party enjoined may file a motion to dissolve the injunction or TRO with notice and hearing of the motion upon showing by affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated for such damages as he may suffer. The movant must also file a bond conditioned upon the payment of all damages which the applicant may suffer by the dissolution of the injunction or restraining order (Sec. 6, Rule 58).

XPN: There are special circumstances that bear the existence of irreparable injury (Churchill & Tait v. Ratterty, G.R. No. L-10572, December 21, 1915).

Grounds for objections or dissolution of injunction or restraining order

GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION 1. Ground for the issuance of preliminary injunction 2. 1.

2.

3.

That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually; That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

3. 4.

NOTE: Filing of verified motion and bond as well as hearing is required

That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual (Sec. 3, Rule 58).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Insufficiency of application for injunction or restraining order Issuance or continuance of injunction or restraining order causes irreparable injury while applicant may be fully compensated for damages by bond Extent of injunction or restraining order is too great Effect: modification (Sec 6, Rule 58) Insufficiency or defective bond (Sec. 7, Rule 58).

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PROVISIONAL REMEDIES DURATION OF TRO Duration of TRO issued by the courts When available If great or irreparable injury would result to the applicant before the matter can be heard on notice, the court may issue ex parte a TRO, effective only for 20 days from service on the party sought to be enjoined

Executive Judge / Presiding Judge If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury: · 1.

2.

CA or any of its Members

SC or any of its Members

Effective for 60 days from service on the party sought to be enjoined

Effective until further orders (Sec. 5)

TRO effective only for 72 hours from issuance. Its effectivity may be extended after conducting a summary hearing within the 72 hour period until the application for preliminary injunction can be heard (2006 Bar Question)

Q: An application for a writ of preliminary injunction with a prayer for a TRO is included in a complaint and filed in a multi-sala RTC consisting of Branches 1, 2, 3, and 4. Being urgent in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the application aforesaid, immediately raffled the case in the presence of the judges of Branches 2, 3 and 4. The case was raffled to Branch 4 and the judge thereof immediately issued a TRO. Is the temporary restraining order valid? (2001 Bar Question)

4. 5.

NOTE: The law further provides that any TRO or preliminary injunction issued in violation of Sec. 3 is void and of no force and effect(Sec. 4, Ibid.).

A: No. It is only the Executive Judge who can issue immediately a TRO effective for 72 hours from issuance. No other judge has the right or power to issue a TRO ex parte. The judge to whom the case is assigned will then conduct a summary hearing to determine whether the TRO shall be extended, but in no case beyond 20 days including the original 72-hour period.

XPNs: The prohibition does not apply when: 1. Issued by the Supreme Court; 2. The matter is of extreme urgency; 3. Involves a constitutional issue; and 4. Grave injustice and irreparable injury will arise unless a temporary restraining order is issued. In this case, the applicant shall file a bond in an amount to fixed by court and which shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought (Sec. 3, Ibid.).

IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE PROJECTS
 Preliminary injunction or TRO in cases government infrastructure projects

project; Termination or rescission of any such contract/project; and The undertaking or authorization of any other lawful activity necessary for such contract/project (Sec. 3, RA 8975).

involving

RECEIVERSHIP Receivership

GR: No court shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: 1. Acquisition, clearance and development of the rightof-way and/or site or location of any national government project; 2. Bidding or awarding of contract/ project of the national government as defined under Sec. 2 hereof; 3. Commencement prosecution, execution, implementation, operation of any such contract or

It is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: Receivership, like injunction may also be a principal action as the one referred to in Sec. 4 of Rule 39. Rule 59 is a receivership that is ancillary to a main action (Riano, 2012).

Grounds for appointment of a receiver 1.

Purpose of Receivership

2.

To protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of executing has been returned unsatisfied (Sec. 1, Rule 59).

3. 4.

5.

Its object is the prevention of imminent danger to the property. If the action does not require such protection or preservation, the remedy is not receivership (Erlinda Chavez v. Court of Appeals, January 20,2010).

6. 7.

NOTE: The receivership under rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation (Riano, 2012).

Instances when receivership will not lie

1.

When to file receivership 1. 2.

At any stage of the proceedings Even after finality of judgment. CASES WHEN RECEIVER MAY BE APPOINTED

2.

Receiver He is a person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court (Mallari v. CA,G.R. No. L-33127, July 15, 1981). A receiver is not a representative party under Rule 3 but a real party in interest, but he cannot file a case without the consent of the receivership court.

3.

Such contract will constitute his personal undertakings and obligations (Pacific Merchandising Corp. v. Consolacion Insurance & Surety Co., G.R. No. L-30204, October 29, 1976).

The appointment of a receiver is necessary since the court is not provided with adequate machinery and resources for dealing with the situation presented by the appointment of a receiver and all the details connected therewith (Velasco v. Gochuico, G.R. No.L10173, February1, 1916).

Liability of a person who refuses or neglects to deliver property to the receiver

Who may appoint a receiver

May be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect (Sec. 7, Rule 59).

Court where action is pending Court of Appeals Supreme Court or a member thereof (Sec. 1, Rule 59)

NOTE: During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of the latter court (Sec.1, Rule 59).

REQUISITES 1.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Receivership cannot be effected on a property in custodia legis (LizarragaHnos. v. Abada, 40 Phil 124). But a receiver can be appointed where a property in custody of an administrator or executor is in danger of imminent loss or injury (Dolor v. Sindian, G.R. No. L27631, April 30, 1971). Where the action is merely to obtain a money judgment on unpaid credits and not to enforce a lien upon specific property or funds in the possession of the defendant, the appointment of receiver is improper (Bonaplata v. Ambler et. al.; 2 Phil 392; Regalado, 2012). In actions involving possession of or title to real property, the appointment of receiver may be made only if there is clear necessity to protect the applicant from grave or irremediable damages

Effect of a contract executed by a receiver without court approval

NOTE: A party to an action may not be appointed as a receiver unless consented to by all parties.

1. 2. 3.

The property or fund is in danger of being lost, removed or materially injured; The mortgaged property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgaged debt; There is stipulation in the contract of mortgage; After judgment, to preserve the property during the pendency of an appeal, or to dispose according to judgment; To aid execution when execution has been returned unsatisfied; Judgment obligor refuses to apply his property in satisfaction of the judgment; or When it appears that the appointment of a receiver is the most convenient and feasible means of preserving administering, or disposing of the property (Sec.1, Rule 59).

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Party applying for receivership has an existing interest in the property in litigation

PROVISIONAL REMEDIES 2.

3. 4. 5.

Verified application filed at any stage of the proceedings even after final judgment, prior to the satisfaction of judgment (Sec. 1, Rule 59) Posting of bond (Sec. 2, Rule 59) That the property or funds is in danger of being lost, wasted or dissipated (Sec. 1, Rule 59) Receiver must be sworn to perform his duties faithfully (Sec. 4, Rule 58)

TERMINATION OF RECEIVERSHIP Grounds for the discharge of receiver 1.

Posting of counter-bond by adverse party (Sec. 3, Rule 59)

NOTE: Where counter-bond is insufficient or defective, receiver may be re-appointed (Sec. 5, Rule 59)

REQUIREMENTS BEFORE ISSUANCE OF AN ORDER

2.

The applicant must file: 1. A bond executed in favor of the party against whom the application is presented, 2. In an amount fixed by court, to pay damages in case receivership is procured without sufficient cause.

3.

NOTE: The court may require an additional bond for further security (Sec. 2, Rule 59).

Remedy against a person who refuses or neglects to deliver the property subject to receivership

GENERAL POWERS OF A RECEIVER

He may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party entitled thereto as a consequence of such refusal or neglect (Sec. 7, Rule 59).

4. 5.

1. 2.

Bring and defend actions in his own name; Take and keep possession of the property in controversy 3. Receive rents 4. Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of which he is a receiver 5. Compound for and compromise debts collected 6. Make Transfers 7. Pay outstanding debts 8. Divide money and other property that shall remain among the persons legally entitled to receive the same 9. Do such acts respecting the property as the court may authorize 10. Invest funds in his hands only by order of the court upon the written consent of all the parties (Sec. 6, Rule 59).

Termination of Receivership Receivership may be terminated: 1. By the court motu propio or on motion by either party 2. Based on the following grounds: a. Necessity for receiver no longer exists b. Receiver asserts ownership over the property (Martinez v. Graño, G.R. No. L-25437, August 14, 1926) 3. After due notice and hearing to all interested party (Sec. 8, Rule 59). Q: Paula filed a complaint against Jolly for the foreclosure of a mortgage of a furniture factory with a large number of machinery and equipment. During the pendency of the foreclosure suit, Paula learned from reliable sources that Jolly was quietly and gradually disposing of some of his machinery and equipment to a businessman friend who was also engaged in furniture manufacturing such that from confirmed reports Paula gathered, the machinery and equipment left with Jolly were no longer sufficient to answer for the latter's mortgage indebtedness. In the meantime, judgment was rendered by the court in favor of Paula but the same is not yet final. Knowing what Jolly has been doing, if you were Paula's lawyer, what action would you take to preserve whatever remaining machinery and equipment are left with Jolly? Why? (2001 Bar Question)

TWO KINDS OF BONDS 2 kinds of bonds in receivership 1. 2.

Appointment of receiver was made without sufficient cause (Sec. 3, Rule 59) Insufficient or defective applicant’s bond (Sec. 5, Rule 59) Insufficient or defective receiver’s bond (Sec. 5, Rule 59) Receiver no longer necessary (Sec. 8, Rule 59)

Applicant’s Bond (Sec. 2, Rule 59) Receiver’s Bond –The receiver before entering upon his duties shall be sworn to perform them faithfully and shall file a bond to the effect that he will faithfully discharge his duties in the action and obey the orders of the court (Sec. 4, Rule 59).

NOTE:A counter-bond may be filed by the adverse party executed to the applicant, in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment in which case, the application may be denied, or the receiver discharged, when the adverse party files a bond (Sec. 3, Rule 59).

A: Paula’s lawyer should file a verified application for the appointment by the court of one or more receivers. Receivership is proper in an action by the mortgagee for the foreclosure of a mortgage when it appears that the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt.

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REMEDIAL LAW REPLEVIN

Property of GOCCs cannot be reached

Replevin Sheriff takes possession of the property subject of the replevin and hold the same for a period of 5 days after which said property will be delivered to the party who obtained the writ. Bond to be posted is double the value of the property sought to be recovered

It is an action whereby the owner or person entitled to repossession of goods or chattels may recover those goods or chattels from one who has wrongfully distrained or taken or who wrongfully detains such goods or chattels (Black’s 6th).Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession (Riano, 2012). Replevin v. Preliminary Attachment Replevin Recovery of possession of personal property is the principal relief and damages are incidental This is available before defendant files an answer Available only where defendant is in actual or constructive possession of personal property involved Extends only to personal property capable of manual delivery Used to recover personal property even if not being concealed, removed or disposed GR:Cannot be availed of when property is in custodia legis (under attachment) or seized under search warrant XPNs: 1. When the seizure is illegal (Bagalihog v. Fernandez,G.R. No. 92270, June 27, 1991); and 2. Where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims (Chua v. CA, G. R. No. 79021, May 17, 1993) The property either belong to the plaintiff or one over which the plaintiff has a right of possession.

Preliminary Attachment Available even if recovery of personal property is only an incidental relief

Properties of GOCCs may be reached if utilized in its proprietary function. Sheriff does not take possession of the property attached except constructively placing it under custodia legis.

Bond amount is fixed by court and does not exceed the claim or value of the property to be attached (Regalado, 2005; Riano, 2009)

NOTE: These remedies cannot be availed of in the same case.

Q: To be able to secure financial accommodations from Makati Leasing, Wearever discounted and assigned several receivables under a Receivable Purchase Agreement. To secure the collection of the receivables assigned, private respondent executed a chattel mortgage over certain machineries which were bolted to the ground. Upon default Makati Leasing move for extrajudicial foreclosure of the mortgage properties and filed an action for replevin which was granted by the court. Can the machineries bolted to the ground be a subject of replevin?

Available from commencement but before entry of judgment May be resorted to even if personal property is in the custody of a third person Extends to all kinds of property whether real, personal or incorporeal Recover property being concealed, removed or disposed

A: Machineries bolted to the ground are real properties that may not be the subject to replevin (Makati Leasing and Finance Corporation v. Wearever Textile Mills Inc. GR No L58469, May 16, 1983). WHEN MAY WRIT BE ISSUED

Can be availed of even if property is in custodia legis

The writ of Replevin may only be obtained when the defendant in the action has not yet filed his answer to the complaint where it is necessary to: 1. Protect plaintiff’s right of possession to property 2. Prevent defendant from destroying, damaging or disposing of the property NOTE: Under the Resolution of the Supreme Court en banc dated January 11, 1983, a writ of replevin like the one issued in the present case may be served anywhere in the Philippines (Fernandez v. International Corporate Bank now Union Bank of the Philippines, GR No 131283, October 7, 1999).

REQUISITES Requisites in applying for Replevin

1. 2.

The property does not belong to the plaintiff but to the defendant.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

140

The application for the writ must be filed at the commencement of the action or at anytime before the defendant answers (Sec. 1 Rule 60); The application must contain an affidavit where the applicant particularly describes the property that he is the owner of the property or that he is entitled to the possession thereof;

PROVISIONAL REMEDIES NOTE: The affidavit must contain the following: a. Applicant is the owner of the property claimed, particular description of such, entitlement to possession b. Property is wrongfully detained, alleging cause of detention according to applicant’s knowledge, information and belief c. Property has not been taken for tax assessment or fine, or seized by writ of execution, preliminary attachment, in custodia legis, if so seized, that is exempt or should be released from custody d. Actual market value of the property (Sec. 2, Rule 60).

3.

building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. 3. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same (Sec. 4, Rule 60). Delivery to applicant

The applicant must give a bond, executed to the adverse party and double the value of the property (Sec. 2, Rule 60).

The sheriff shall retain the property for 5 days. Within such period, the adverse party may object to the sufficiency of the applicant’s bond or surety or he may file a redelivery bond. After 5 days and the adverse party failed to object or the redelivery bond is insufficient, the sheriff shall deliver the property to the applicant (Sec. 5, Rule 60).

Q: For failure to pay four successive installments from May 15, 2002 to August 15, 2002, respondent, through counsel, sent to petitioners a demand letter dated August 29, 2002. The demand letter was left unheeded so respondent filed on October 4, 2002 an action for replevin and Damages before the Manila Regional Trial Court. However, the vehicle was never recovered and delivered to respondent despite issuance of writ of replevin. The petitioners allege that they were deprived of use and enjoyment of the mortgaged car despite the non-recovery and non-delivery of car to respondents and that the trial court erred in granting the alternative prayer for sum of money which amounted to double recovery. Are the petitioners’ arguments tenable?

Return of the property to defendant 1. 2. 3.

He seasonably posts a redelivery bond (Ibid.) Plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond Property is not delivered to the plaintiff for any reason (Sec. 6, Rule 60)

Remedies of a third person whose property is taken by virtue of a replevin

A: Since there was no seizure that transpired, respondents were not deprived of use and enjoyment of the mortgaged vehicle, the trial court rightfully granted the alternative prayer for sum of money which is equivalent to the remedy of exacting fulfillment of the obligation. Certainly, there was no double recovery or unjust enrichment to speak of (Spouses Agner v. BPI Family Savings Bank, Inc., G.R. No. 182963, June 3, 2013).

1. 2.

3.

AFFIDAVIT AND BOND; REDELIVERY BOND


Third party shall file and serve affidavit upon sheriff and applicant stating his entitlement to possession Sheriff shall return the property to third person unless applicant files a bond (same amount as the value of the property) approved by court to indemnify the third person Claim for damages upon said bond must be filed within 120 days from date of filing of the bond

Prior or contemporaneous service of summons

Redelivery Bond

Although the writ of replevin may be issued ex parte, it cannot be implemented or enforced if not preceded or accompanied by a service of summons.

Bond, which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant (Sec. 2, Rule 60).

SUPPORT PENDENTE LITE(RULE 61) Support Pendente Lite

NOTE: It is required that the redelivery bond be filed within the period of 5 days after the taking of the property (Yang v. Valdez, 177 SCRA 141).

It is an amount of support provisionally fixed by court in favor of a person or persons entitled thereto during the pendency of an action for support.

SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY

Where filed

Duty of the sheriff

1.

Sheriff must serve a copy of the writ on the adverse party, together with a copy of the application, affidavit and bond 1. He must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. 2. If the property or any part thereof be concealed in a

2.

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Family Court-Proceedings for legal separation or annulment of marriage and for declaration of nullity of marriage RTC and MTC- Support in criminal cases

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW When applied

Remedy of the party who was compelled to give support

1.

When the judgment or final order of the court finds that the person who has been providing support is not liable therefor, the court shall: 1. Order the recipient to return to the former the amounts already paid with legal interest from the dates of actual payment(Restitution) 2. The person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.

2.

At the commencement of the proper action or proceeding, or At any time prior to the judgment or final order (Sec. 1, Rule 62).

Q: Before the RTC, A was charged with rape of his 16year old daughter. During the pendency of the case, the daughter gave birth to a child allegedly as a consequence of the rape. Thereafter, she asked the accused to support the child, and when he refused, the former filed petition for support pendente lite. The accused, however, insists that he cannot be made to give such support arguing that there is as yet no finding as to his guilt. Would you agree with the trial court if it denied the application for support pendente lite? Explain. (2001 Bar Question) A: No. The provisional remedy of support pendente lite may be granted by the RTC in the criminal action for rape. In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime (Sec. 6 of Rule 61). Hearing Afterthe comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than 3 days thereafter.Order of support pendete lite If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support (Sec. 4 , Rule 61). If the application is denied, the principal case shall be tried and decided as early as possible. Enforcement of order If the adverse party fails to comply with an order granting support,the court shall, motu proprio or upon motion: 1. issue an order of execution against him 2. liable for contempt (Sec. 5, Rule 61).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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PROVISIONAL REMEDIES Summary of provisional remedies Preliminary Injunction (Rule 58)

Receivership (Rule 59)

Replevin (Rule 60)

Support (Rule 61)

Particular act(s)

Personal and real property

Money or other forms of support

SC, CA, RTC, Family Court, MeTC, MTC , MCTC and MTCC

SC, CA, RTC, Family Court, MeTC, MTC , MCTC and MTCC

SC, CA, RTC, Family Court, MeTC, MTC , MCTC and MTCC

Personal property capable of manual delivery RTC, Family Court, MeTC, MTC , MCTC and MTCC

Who may grant it

Courts where action is pending, the CA or the SC (Sec. 2)

Only the Court where the action is pending; Lower court, CA or SC provided action is pending in the same court which issues the injunction (Sec. 2)

When available

At any stage of the action but before entry of final judgment (Sec. 1)

At any stage of the action but before judgment or final order (Sec. 1)

How applied for

File affidavits and applicant’s bond (Sec. 3)

File verified application and applicant’s bond; if application is included in the initiatory pleading, the adverse party should be served with summons together with a copy of the initiatory pleading and the applicant’s affidavit and bond (Sec. 4)

Court where action is pending, the CA or the SC, or a member thereof, even if action is pending in the lower court. Appellate court may allow application for receivership to be decided by the court of origin (Sec. 1) At any stage of the proceeding ; after judgment; anytime prior to satisfaction of judgment; on appeal ( Sec. 1) File verified application and applicant’s bond; application may also be included in initiatory pleading in actions for foreclosure of mortgage (Secs. 1 and 2)

Subject Matter Jurisdiction

Preliminary Attachment (Rule 57) Personal and real property

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Only the court where action is pending.

GR:Family Court XPN: In criminal actions, as long as the civil aspect is tried together with it , the RTC or MTC having jurisdiction may also issue this remedy.(e.g Art. 345 (3) RPC, in crimes against chastity, “In every case to support the offspring...”) Court of origin and appellate court(Ramos v. CA, GR No. L-31897, June 30, 1972).

At the commencement of the action but before answer is filed (Sec. 1)

At the commencement of the action or at any time prior to the judgment or final order (Sec. 1)

File affidavits and applicant’s bond (Sec. 2)

File verified application; bond not required (Sec. 1)

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW

Purpose(s)

Grounds

Preliminary Preliminary Receivership (Rule Replevin (Rule Attachment (Rule Injunction (Rule 58) 59) 60) 57) 1. To seize the 1. To require a party To place the property To recover property of the or a court, agency subject of an action possession of adverse party in or a person to or proceeding under personal advance for the refrain from the control of a third property(1999 satisfaction of doing a particular party for its Bar Question). judgment that act or to require preservation may be the performance andadministration recovered in of a particular act litis pendentia and to cases falling protect the rights of under (Sec.1, all the parties under Rule 57) 2. To prevent future the direction of the 2. To enable the injury and court. court to acquire maintain the jurisdiction over status quo(Kencht the action by v. CA, G.R. No. the actual or 97962, November constructive 17, 1993). seizure of the property in those instances where personal service of summons on the creditor cannot be effected (Quasha v. Juan, G.R. No. L54158, November 19, 1982). 1. GR: In an action 2. That the 1. When the Applicant is: for the recovery applicant is applicant has an 1. The owner of a specified entitled to the interest in the of the amount or relief demanded property or fund property damages against which consists in subject of the claimed; or a party who is restraining the proceeding and about to depart commission or such property is 2. Entitled to from the continuance of in danger of being the Philippines with the act lost, removed or possession intent to complained of, or materially injured thereof but defraud his in requiring the unless a receiver the property creditors performance of is appointed is wrongfully an act for a detained by XPNs: limited period or 2. In foreclosure of the adverse Moral and perpetually mortgage, when party (Sec. 2) exemplary the property is in 3. Commission, danger of being 2. In an action for continuance or wasted or money or non-performance dissipated or property of the act during materially injured embezzled or the litigation and that its value fraudulently would probably is probably misapplied or work injustice to insufficient to converted to his the applicant; or discharge the own use by a mortgage debt or public officer, or 4. Party, court, that it has been by any other agency or a agreed upon by person in a person is doing, the parties fiduciary threatening, or is

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

144

Support (Rule 61)

To compel adverse party to provide support while the action is pending in court.

When equity and justice require, having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support

PROVISIONAL REMEDIES capacity, or for a willful violation of duty 3.

In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person

4.

In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation or in its performance

5.

In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors;

6.

In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication

attempting to do, 3. or is procuring or suffering to be done, some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual (Sec. 3)

After judgment, to preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution when execution has been returned unsatisfied of the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; or

4.

When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation (Sec. 1)

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW

Whether principal or ancillary

Effectivity

Requirement of Hearing

Bond Requirement

Immediately Executory

Preliminary Attachment (Rule 57) Ancillary remedy

Preliminary Injunction (Rule 58)

Receivership (Rule 59)

Replevin (Rule 60)

Support (Rule 61)

Ancillary to: 1. Action for support; or 2. In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing During the pendency of the case

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

During the pendency of the case unless earlier discharged or quashed by the court

During the pendency of the case unless earlier discharged or quashed by the court

Until discharged by the court

During the pendency of the case unless the defendant files a redelivery bond

Not required; may be issued ex parte (2001 Bar Question)

GR: Required

Required

Not required ; may be issued ex parte

Required – Within 3 days after comment is filed or after expiration of period of filing

Bond executed to the adverse party in double the value of the property, for the return of the property to the adverse party if such return be adjudged and for the payment to the adverse party of such sum as he may recover from the applicant in the action (Sec. 2) No

No bond required.

XPN: Great or irreparable injury would result / extreme urgency and applicant will suffer grave injustice and irreparable injury (Sec. 5) Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages that he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59) Bond requirements for receivership: 1. Filed by the applicant; and 2. Filed by the receiver.

No

Yes

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Yes

146

Yes

PROVISIONAL REMEDIES Preliminary Attachment (Rule 57)

Discharge of Remedy

By counter bond: Party against whom the provisional remedy is availed of may move for the discharge of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action. Cash deposit may be made in lieu of the counter-bond (Sec. 12)

Counter-Bond

1.

2.

3. Other grounds for discharge

4.

Preliminary Injunction (Rule 58) Not applicable.

Receivership (Rule 59)

Filing of counter- Amount of bond made only counter-bond to be upon showing that fixed by the court the issuance or (Sec. 3) continuance thereof would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer; counter-bond alone will not suffice to discharge the injunction (Sec. 6) 1. Insufficiency 1. Appointment of the was obtained application without (Sec. 6) sufficient cause

Improper or irregular issuance or enforcement or insufficiency of bond. (Sec. 13) Judgment rendered 2. against attaching creditor (Sec. 19) Property attached is exempt from execution (Sec. 2 and 5) Attachment is excessive, but the discharge shall be limited to the excess (Sec. 13).

Other grounds 2. (e.g. applicant’s bond is insufficient/ defective), upon affidavits of the party or person enjoined

147

Bond posted by the applicant / receiver is insufficient (Sec. 3)

Replevin (Rule 60)

Amount of counter-bond should be double the value of the property (Sec. 5)

1.

Plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond; or

2.

Property is not delivered to the plaintiff for any reason (Sec. 6)

Support Pendente Lite (Rule 64)

Not applicable.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW

Damages in Case Applicant is not Entitled Thereto or For Irregularity of the Procurement of the Provisional Remedy

Preliminary Preliminary Receivership Replevin Support Pendente Attachment (Rule Injunction (Rule 59) (Rule 60) Lite (Rule 64) 57) (Rule 58) Requisites: When the 1. Owner of the property attached must file before trial or before perfection of appeal judgment or final or before judgment becomes executory an application for damages; order finds that 2. Party who availed of the provisional remedy and his surety must be notified, showing the person who right to damages and amount thereof; and has been 3. Such damages may be awarded only after proper hearing and shall be included in the providing judgment of the main case. support is not liable therefor, If the judgment of the appellate court is favorable to the party against whom provisional the court shall remedy was effected: order the recipient to Application must be filed with the appellate court before the judgment of the appellate return the court becomes executory. Appellate court may allow application to be heard and decided amounts already by the trial court. received with interest from the If bond or deposit given by the party availing of the provisional remedy be insufficient or date of actual fail to satisfy the award: payment, Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; without Sec. 9, Rule 59; Sec. 10, Rule 60). prejudice to the . right of the NOTE: Any award of damages for the wrongful issuance of a provisional remedy should be recovered recipient to in the same case. The recovery of damages cannot be had in a separate action. obtain reimbursement in a separate action from the person legally obliged to give support. If the recipient fails to reimburse the amount, the person who provided the same may seek reimbursement in a separate action from the person legally obliged to give such support (Sec. 7) SPECIAL CIVIL ACTION

Civil actions commenced by complaint and petition

NATURE OF SPECIAL CIVIL ACTIONS

PETITION Declaratory Relief (Rule 63) Review of adjudications of COMELEC and COA (Rule 64) Certiorari, prohibition and mandamus (Rule 65)

Special Civil Action Since a civil action in general is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3[a], Rule 1, Rules of Court), a special civil action is generally brought or filed for the same purpose.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

148

COMPLAINT Interpleader (Rule 62) Expropriation (Rule 67) Foreclosure of real estate mortgage (Rule 68)

Quo warranto (Rule 66)

Partition (Rule 69)

Contempt (Rule 71)

Forcible entry and Unlawful Detainer (Rule 70)

PROVISIONAL REMEDIES ORDINARY CIVIL ACTIONS v. SPECIAL CIVIL ACTIONS ORDINARY ACTION SPECIAL CIVIL ACTION Cause of Action It is based on a cause of Not all special civil actions action (Sec. 1, Rule 2, are based on a cause of Rules of Court). action, i.e. declaratory relief (Rule 63) and interpleader (Rule 62). Declaratory relief – action is brought before there is breach. Interpleader – plaintiff files a complaint even if he has sustained no actual transgression of his rights (Riano, 2012). Venue Determined by either The venue of special civil the residences of the actions is governed by the parties where the general rules on venue, action is personal or by except as otherwise location of the property indicated in the particular where the action is real rule for said special civil (Riano, 2012). action. Thus, actions for certiorari, prohibition and mandamus should be commenced in the proper Regional Trial Court, but the same may, in proper cases, be commenced in the Supreme Court or Court of Appeals (Sec. 4, Rule 65); and special rule of venue is provided for quo warranto proceedings (Sec. 7, Rule 66) (Regalado, 2005). Jurisdiction May be filed initially in There are special civil either the Municipal actions which can only be Trial Court or Regional filed in a Municipal Trial Trial Court depending Court like the actions for upon the jurisdictional forcible entry and amount or nature of unlawful detainer. There the action involved are also special civil (Riano, 2012). actions which cannot be commenced in the Municipal Trial Court foremost of which are the petitions for certiorari, prohibition and mandamus (Riano, 2012). Motion to Dismiss By virtue of Sec. 3 of Rule 1, the provisions of Rule 16 on motion to dismiss are applicable in special civil action (National Power Corporation v. Valera, L15295, November 30, 1961; Regalado, 2012).

149

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW JURISDICTION AND VENUE

Interpleader ( Rule 62)

Jurisdiction MTC – where the value of the claim or the personal property does not exceed P300,000 or P400,000 in Metro Manila or where the value of the real property does not exceed P20,000 or P50,000 in Metro Manila.

Venue Where the plaintiff or any of the principal plaintiff resides or where the defendant or any of the principal defendants resides at the option of the plaintiff(Sec. 2, Rule 4).

RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC [Judiciary Act of 1980; BP Blg 129 (sec 19(2), Sec 33(3)as amended by RA 7691]

NOTE: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Who May File A person who claims no interest whatever in the subject matter or an interest which in whole or in part is not disputed by the claimants having claims upon the same subject matter (Sec 1, Rule 62).

RTC

Where the petitioner or 1. the respondent resides NOTE: It would be error to file at the election of the the petition with the SC which petitioner (Section 2, has no original jurisdiction to Rule 4).

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.

2.

All persons who have or claim any interest which could be affected by the declaration.

3.

A person may file an action for reformation of an instrument, to quiet title or to consolidate ownership under Art. 1607 of the Civil Code under this Rule (similar remedies)

entertain a petition for declaratory relief (Tano v. Socrates, G.R. No. 110249, August 14, 1997).

Declaratory Relief ( Rule 63)

NOTE: The rights of persons not made parties to the action do not stand to be prejudiced by the declaration (Sec. 2). Since their rights are not to be prejudiced by their noninclusion, the failure to implead such person does not therefore, affect the jurisdiction of the court over the petition (Baguio Citizen’s Action, Inc. v. The City Council, G.R. No. L-27247, April 20, 1983).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

150

When To File Within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending claimants. Otherwise, it may be barred by laches or undue delay. This is because after judgment is obtained against the plaintiff by one claimant, he is already liable to the latter(Wackwack Golf & Country Club v Won, GR L-23851 March 26, 1976). The petition must be filed before there is a breach of contract or violation of the statute or ordinance (Sec 1, Rule 63).

PROVISIONAL REMEDIES Supreme Court on certiorari Supreme Court under Rule 65

Review of Judgments of COMELEC AND COA (Rule 64 in relation to Rule 65)

1. 2. 3. 4.

RTC, 1. CA SC, Sandiganbayan, COMELEC in aid of their appellate jurisdiction (A.M. No. 07-7-12-SC). 2.

3.

Certiorari, Prohibition, Mandamus (Rule 65)

4.

RTC, if it is directed against a municipal trial court, a corporation, a board, an officer or a person. CA or with the SB, whether or not the same is in aid of the court’s appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or the Rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of MTC /RTC, it shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction (Sec. 4, Rule 65).

151

The party aggrieved by a judgment or final order or resolution of the Commission on Elections and the Commission on Audit

Within 30 days from notice of the judgment or final order or resolution sought to be reviewed.

The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial. A person aggrieved by any Within 60 days from tribunal, board or officer notice of the exercising judicial or judgment, order or quasi-judicial functions resolution. In case a which has acted without motion for or in excess of its or his reconsideration or jurisdiction, or with grave new trial is timely abuse of discretion filed, whether such amounting to lack or motion is required or excess of jurisdiction (Sec. not, the petition shall 1, Rule 65). be filed within 60 days counted from the notice of the denial of the motion (Sec. 4, Rule 65 as amended by A.M. No. 07-7-12-SC).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Jurisdiction RTC, CA, SC, (Sec. 7, Rule 66) SB in aid of its appellate jurisdiction (PD 1606, 4 as amended by RA No 8249, 4)

Quo warranto

Venue With the SC, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides. When the Solicitor General commences the action, it may be brought in the RTC of the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66).

Who May File The government through the Solicitor General or a Public Prosecutor. It may also be filed by a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another (Secs. 2,3 and 5, Rule 66).

When To File Within 1 year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose.

Government or any of its instrumentalities (Riano, 2009)

At anytime before the actual taking and entering into possession of the real property

Mortgagee

At any time after the mortgagor defaults in the payment of his debt

A person having the right to compel the partition of real estate(Sec 1, Rule 69).

It can be made anytime and the right to demand partition does not prescribe. Prescription does not run in favor of coowner or co-heir against his co-owner or co-heirs as long as there is a recognition of the co-ownership expressly or impliedly (Art. 494, NCC)

NOTE: Subject to the principle of Hierarchy of Courts

Expropriation (Rule 67)

Foreclosure of REM (Rule 68)

RTC (incapable of pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000).

RTC (incapable of pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000).

Land: where the property is located Personal property: the place where the plaintiff or defendant resides, at the election of the plaintiff (Sec. 2, Rule 4). Where the land or any part thereof is located (Sec. 2, Rule 4).

RTC 1. (incapable of pecuniary estimation) (Bar 2000 as cited in Riano, 2009) 2.

Real property – where the property is located Personal property – the place where the plaintiff or defendant resides at the election of the plaintiff (Sec. 13, Rule 69).

Partition (Rule 69)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Action for damages must be commenced within 1 year after the entry of the judgment establishing the petitioner's right to the office in question (Sec. 11, Rule 66).

But a co-owner may acquire ownership by prescription where there exists a clear repudiation of the coownership and the co-owners are apprised of the claim of adverse and exclusive ownership (Heirs of Flores Restar v. Heirs of Cichon, 475 SCRA 731).

152

PROVISIONAL REMEDIES Jurisdiction MTC, MTCCs, MCTC MeTC; covered by Rule on Summary Procedure (Sec 3, RA 7691)

Venue Where the property is located because it is a real action (Riano, 2009)

Who May File A person deprived of the possession of any land or building by force, intimidation, threat, strategy or stealth (Sec. 1, Rule 70).

When To File Within 1 year from the date of entry or taking of possession by force, intimidation, threat, strategy, or stealth. NOTE: In Vda. De Prieto v. Reyes (G.R. No. L21470, June 23, 1965), the SC ruled that to deprive the lawful possessor of the benefit of the summary action under Rule 70 simply because the stealthy intruder manages to conceal the trespass for more than a year would be to reward clandestine usurpation even if it is unlawful.

Forcible Entry (Rule 70)

MTC, MTCCs, MCTC Metropolitan Trial Courts; covered by Rule on Summary Procedure (Sec 3, RA 7691).

Where the property is located because it is a real action (Riano,2009)

Unlawful Detainer (Rule 70)

A lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person (Sec. 1, Rule 70).

GR: Within 1 year from the date of the last demand to vacate in case of nonpayment of rent or non-compliance with the conditions of the lease. In case of several demands, the one-year period is counted from the last demand. In case of tacit renewal of the lease, the 1 year period is counted from the date of the notice to quit. In case of occupancy on mere tolerance or under a temporary permit, the one-year period is counted from the date of the revocation of the permit. XPN: When the subsequent demands were merely in the nature of reminders of the original demand, in which case the one year period is counted from the first demand (Desbarats v. Laureano, G.R. No. L21875, September 27, 1966).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Jurisdiction MTC, RTC, CA, SC

Venue Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. 5, Rule 70)

Contempt (Rule 71)

Special civil actions within the jurisdiction of the inferior courts 1.

2. 3.

Who May File Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or other formal charge requiring respondent to show cause why he should not be punished for contempt (Sec. 4, Rule 70).

Interpleader v. intervention INTERPLEADER It is a special civil action, independent and original

Interpleader, provided the amount involved is within its jurisdiction (Makati Development Corp. v.Tanjuatco, et al., L-26443, March 25, 1969) Ejectment Suits (Sec. 88, R.A 296; Rule 70) Contempt (Secs. 1 and 4, Rule 71; Regalado, 2010)

Commenced by the filing of a complaint, it being an original action

INTERPLEADER (RULE 62) Interpleader

Filed by a person who has no interest in the subject matter of the action or if he has an interest, the same is not disputed by the claimants (Riano, 2012).

It is a special civil remedy whereby a party who has property in his possession or an obligation to perform, either wholly or partially, but who claims no interest in the subject, or whose interest, in whole or in part, is not disputed by others, goes to court and asks that conflicting claimants to the property or obligation be required to litigate among themselves in order to determine finally who is entitled to the same (Sec. 1, Rule 62). NOTE: The remedy is afforded not to protect a person against double liability but to protect him against double vexation in respect of one liability (Beltran v. People’s Homesite & Housing Corp., L-25138, August 28, 1969; Regalado, 2012).

The defendants who are brought are being sued precisely to implead them (Regalado, 2012).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

When To File At any time after the contemptuous act has been committed.

154

INTERVENTION It is not an original action but merely ancillary and depends upon the existence of a previous pending action Commenced by a motion to intervene filed in a pending case attaching thereto the pleading-in-intervention Filed by a person who has a legal interest in any of the following: a. The subject matter of the litigation b. The success of either of the parties c. The success of both of the parties d. He may be adversely affected by the disposition or distribution of property in the judgment. If a complaint-inintervention is filed, the defendants are already parties to an existing suit not because of the intervention but because of the original suit (Riano, 2009).

PROVISIONAL REMEDIES REQUISITES FOR INTERPLEADER 1. 2. 3. 4.

Filing of Answer

The plaintiff claims no interest in the subject matter or his claim thereto is not disputed; There must be at least two or more conflicting claimants; The parties to be interpleaded must make effective claims; and The subject matter must be one and the same (Sec. 1, Rule 62).

Each claimant shall file his answer setting forth his claim within 15 days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules (Sec. 5, Rule 62). NOTE: If any claimant fails to plead within the time fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter (Sec. 5, Rule 62).

NOTE: If there are no conflicting claims among the defendants, the complaint for interpleader may be dismissed for lack of cause of action (Sec. 5, Rule 62).

Other pleadings allowed in an interpleader (C2TR) 1. 2. 3. 4.

WHEN TO FILE When filed An action for interpleader must be filed within a reasonable time after the dispute has arisen, otherwise it may be barred by laches (Regalado, 2008.; Wack Wack Golf & Country Club Inc. v. Lee Won, et al., L-23851, March 26, 1976).

Counterclaim; Cross-claims; Third-party complaints; and Responsive pleadings thereto, as provided by these Rules (par. 2, Sec. 5, Rule 62).

NOTE: The second paragraph was added to Section 5 to expressly authorize the additional pleadings and claims enumerated therein, in the interest of a complete adjudication of the controversy and its incidents (Arreza v. Diaz, G.R. No. 133113, August 30, 2001).

Who may file

DECLARATORY RELIEF AND SIMILAR REMEDIES (RULE 63)

It is filed by the person against whom the conflicting claims are made (Sec. 1, Rule 62, Rules of Court).

2 types of action covered by Rule 63 1. 2.

The person who files the complaint shall pay the docket fees and other lawful fees and shall bear the costs and other litigation expenses even if he has no interest in the subject matter of the action, unless the court shall order otherwise (Sec. 7, Rule 62; Riano, 2009). NOTE: The costs, expenses, and attorney’s fees incurred by plaintiff in the action is recoverable from the defendant who loses in the action and is found by the court to have caused the unnecessary litigation (Menzi& Co. v. Bastida, 63 Phil 16).

Petition for declaratory relief; and Similar remedies: a. Action for reformation of an instrument; b. Action to quiet title; and c. Action to consolidate ownership under Art. 1607 NCC (Riano, 2009)

NOTE: In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore, choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. With respect to actions described as “similar remedies,” the court cannot refuse to render a judgment thereon (Riano, 2012).

Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order (Sec. 3, Rule 62).

Declaratory Relief Grounds to file a motion to dismiss 1.

2.

It is a special civil action brought by a person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation, before breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder (Sec. 1, Rule 63).

Impropriety of the interpleader action (not a failure to state a cause of action under Rule 16 because the meaning of a cause of action in ordinary civil actions cannot apply to an interpleader (Riano, 2009); Other appropriate grounds specified in Rule 16 (Sec. 4, Rule 62).

Effect of filing a motion to dismiss The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial (Sec. 4, Rule 62).

Purpose of an action for Declaratory Relief To seek for a judicial interpretation of an instrument or for a judicial declaration of a person’s rights under statute and not to ask for affirmative reliefs or any other relief beyond the purpose of the petition as declared under the rules (Riano, 2009)

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: Declaratory judgments are to be distinguished from those which are advisory incharacter, since they are res judicata and binding upon the parties and those in privity with them, and from decisions of abstract or moot questions since they must involve a real controversy(16 Am. Jur. Declaratory Judgments).

WHO MAY FILE THE ACTION Any person: (IAC)

1. Interested under a deed, will, contract or other written instrument (Sec. 1, Rule 63);

Declaratory Relief v. Ordinary Action Declaratory Relief No writ of execution -Since the objective of the petition is merely an interpretation of a deed or a contract, hence, there is nothing to execute (Riano, 2012). No breach or violation (Sec 1 Rule 63, Rules of Court) Judgment stands by itself (Albano, 2010) There is additional ground for MTD – Rule 63, Sec 5. (The court may refuse to exercise the power to declare rights and to construe instruments where a decision would not terminate the uncertainty or controversy or where declaration is not necessary and proper under the circumstances)

2. Whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation (Sec. 1, Rule 63); and 3. The other parties are all persons who have or claim any interest which would be affected by the declaration (Sec. 2, Rule 63).

Ordinary Action Writ of execution is available (Riano, 2012).

NOTE: Notice shall be sent to the Solicitor general if subject matter involves the validity of a statute, EO or regulation, or any governmental regulation, or the constitutionality of a local government ordinance.

There is breach or violation of right (Riano, 2012). Judgment involves executory or coercive relief Motion to dismiss – Rules 16 and 17

In any action involving the validity of a local government ordinance notice shall be sent to the prosecutor or lawyer of the local government unit.

REQUISITES OF ACTION FOR DECLARATORY RELIEF Requisites of a valid declaratory relief 1.

2.

3.

Subject matters in a petition for Declaratory Relief (DWCSEOG) 1. 2. 3. 4. 5. 6. 7.

4.

Deed; Will; Contract or other written instrument; Statute; Executive Order or Regulation; Ordinance; or Any other Governmental Regulations (Sec. 1, Rule 63).

5.

6.

NOTE: The enumeration of subject matter is exclusive, subject to clear and unambiguous contract or statute (Riano, 2012).

Justiciable controversy

Where filed

A justiciable controversy involves a definite and concrete dispute touching on the legal relations of parties who are pitted against each other due to their demanding and conflicting legal interests. And a dispute is ripe for adjudication when the act being challenged has had direct adverse effect on the person challenging it and admits of specific relief through a decree that is conclusive in character (Guingona v. Court of Appeals, G.R. No. 125532. July 10, 1998).

GR: The appropriate RTC (Sec. 1, Rule 63), even if only questions of law are involved (Bank of Olangapo, Inc. v. Comm. Of Land Registration, et al., L-47988, February 20, 1981; Regalado, 2012). XPN: If the petition has far-reaching implications and it raises questions that should be resolved, it may be treated as one for prohibition or for mandamus, in such case, it should be filed in the proper court (Regalado, 2012).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The subject-matter of the controversy must be a deed, will, contract, or other written instrument, statute, executive order or regulation or ordinance; The terms of said documents and validity thereof are doubtful and require judicial construction (Santos v. Aquino, et. al, 94 Phil 65). There must have been no breach of the document in question (Teodoro v. Mirasol, 99 Phil. 150; Reparations Commission v. Northern Line, Inc. L-24835, July 31, 1970). Otherwise an ordinary civil action is the remedy There must be an actual justiciable controversy or ripening seeds of one between persons whose interests are adverse The issue must be ripe for judicial determination (Tolentino v. Board of Accountancy, et. al., 90 Phil. 83), as for example, where all administrative remedies have been exhausted; and Adequate relief is not available through other means or other forms of action or proceedings (Ollada v. Central Bank, L-1357, May 31, 1962; Regalado, 2012).

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PROVISIONAL REMEDIES “To be ripe for judicial determination” or to constitute the “ripening seeds” of a controversy

regulation, ordinance, or any other governmental regulation should take place (Sec. 6, Rule 63).

It means that under the facts of the case, there is threatened litigation in the immediate future, which litigation is imminent and inevitable unless prevented by the declaratory relief sought (Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951).

NOTE: The law does not require that there shall be an actual pending case. It is sufficient that there is a breach of law, an actionable violation, to bar a complaint for declaratory relief (Borja v. Villadolid, G.R. No. L-1897, November 28, 1949).

Third-party complaint declaratory relief

When an action for declaratory relief NOT available

not

proper

in

actions

for

A third-party complaint is supposed to seek contribution, indemnity, subrogation or other relief from the third party defendant in respect to the claim of the plaintiff against him, and hence it is improper when the main case is for declaratory relief which purpose is mere interpretation and construction (Comm. of Customs, et al. v. Cloribel, et al. L21036, June 30, 1977). A compulsory counterclaim may be set up (Visayan Packing Corp. v. Reparations Commission, G.R. No. L-20577, May 31, 1987).

1. 2. 3.

To obtain judicial declaration of citizenship; Actions to resolve political questions; Those determinative of the issues rather than a construction of definite status, rights and relations; 4. Terms of assailed ordinances are not ambiguous or of doubtful meaning; 5. In a petition to seek relief from a moot and academic question; 6. Where the contract or statute on which action is based has been breached; 7. When the petition is based on the happening of a contingent event; 8. When the petitioner is not the real party in interest; and 9. Where the administrative remedies have not yet been exhausted. 10. If the decision does not terminate uncertainty or controversy (Albano, 2010) 11. Petition for declaratory relief not proper to assail judgment. 12. Action to ask the court to declare filiation and consequently hereditary rights (Riano, 2012).

PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES 1. 2. 3.

Action for Reformation of an Instrument authorized under Arts. 1359 to 1369; Action to Quiet Title authorized by Arts. 476 to 481 of NCC; and Action to Consolidate Ownership under Art. 1607 NCC (Regalado, 2012)

NOTE: These 3 remedies are considered similar to declaratory relief because they also result in the adjudication of the legal rights of the litigants, often without the need of execution to carry judgment into effect (Regalado, 2012).

WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION

REFORMATION OF AN INSTRUMENT Reformation of Instrument

Except in actions falling under similar remedies, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case: 1. Where a decision would not terminate the uncertainty or controversy which gave rise to the action, or; 2. In any case where the declaration or construction is not necessary and proper under the circumstances (Sec. 5, Rule 63).

It is not an action brought to reform a contract but to reform the instrument evidencing the contract. It presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties. The contract is to be reformed because despite the meeting of minds of the parties as to the object and cause of the contract, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, inequitable conduct or accident. The action is brought so the true intention of the parties may be expressed in the instrument (Art. 135, NCC; Riano, 2009).

NOTE: Where the relief sought would be determinative of issues rather than a construction of definite stated rights, status, and other relations commonly expressed in written instruments, the case is not one for declaratory judgment. Considering that in a proceeding for declaratory judgment the relief which may be sought is limited only to a declaration of rights and not a determination or trial of issues, a declaratory relief proceeding is unavailable where a judgment may be made only after a judicial investigation of the issues (Kawasaki Port Services Corp., et. al. v. Amores, et. al., GR No. 58340, July 16, 1991).

When to reform instrument 1.

2. CONVERSION TO ORDINARY ACTION Conversion to ordinary action

The instrument may be reformed if it does not express the true intention of the parties because of lack of skill of the person drafting the instrument (Art. 1363, NCC). If the parties agree upon the mortgage or pledge of property, but the instrument states that the property is sold absolutely or with a right of repurchase, reformation of the instrument is proper (Art. 1365, NCC).

If before the final termination of the case, a breach or violation of an instrument, or a statute, executive order or

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REMEDIAL LAW Remedy if the consent of a party to a contract has been procured by fraud, inequitable conduct, or accident

Possession of the property NOT required The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, NCC).

Where the consent of a party to a contract has been procured by fraud, inequitable conduct or accident, and an instrument was executed by the parties in accordance with the contract, what is defective is the contract itself because of vitiation of consent. The remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, NCC).

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT (RULE 64)

NOTE: Reformation of the instrument CANNOT be brought to reform any of the following: 1. Simple donation inter vivos wherein no condition is imposed; 2. Wills; or 3. When the agreement is void (Art. 1666, NCC).

Application of Rule 65 under Rule 64 Constitutional basis for the application of Rule 65 under Rule 64 Sec. 7, Art. IX-A of the Constitution reads, “unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.” The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45. To implement the above constitutional provision, the SC promulgated Rule 64 (Aratuc v. COMELEC, 88 SCRA 251; Dario v. Mison, 176 SCRA 84; Riano, 2012).

CONSOLIDATION OF OWNERSHIP The purpose of consolidation of ownership The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz v. Leis, 327 SCRA 570).

NOTE: The petition for certiorari shall be filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed (Sec. 3, Rule 64). Fresh Period Rule is inapplicable. The 30-day period has express reference to the judgment or a final order of the commission concerned (Sec. 3, Rule 64).

NOTE: The concept of consolidation of ownership under Art. 1607 of Civil Code, has its origin in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619, NCC) or conventional redemption (Art. 1601, NCC). Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. The period of redemption may be fixed by the parties in which case the period cannot exceed 10 years from the date of the contract. In the absence of any agreement, the redemption period shall be 4 years from the date of the contract (Art. 1606, NCC). When the redemption is not made within the period agreed upon, in case the subject matter of the sale is a real property, Art. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard.

Mode of Review A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided (Sec. 2, Rule 64). NOTE: The mode of review under Rule 64 is totally different from the mode applicable to the judgment, final order or resolution of the Civil Service Commission (which is also a Constitutional Commission under Art. XI.). Appeal shall be taken by filing a verified petition for review to the Court of Appeals under Rule 43 (Riano, 2012).

QUIETING OF TITLE TO REAL PROPERTY

Effect of filing of a Motion for New Trial or Reconsideration under Rule 64

Quieting of Title This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, NCC).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. NOTE: If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial (Sec. 3, Rule 64).

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PROVISIONAL REMEDIES Order of Comment

deem just (Sec. 8, Rule 64)

If the SC finds the petition sufficient, respondents will be ordered to file a verified comment within 10 days from notice of such order (Sec. 6, Rule 64).

The COMELEC and COA shall be public respondents who are impleaded in the action

Outright Dismissal of petition (DUR) 1. 2. 3.

It was filed manifestly for delay; or The questions raised are too unsubstantial to warrant further proceedings (Sec. 6, Rule 64) Failure of the petitioner to comply with any of the requirements under Sec. 5 Rule 64 shall be sufficient ground for the dismissal of the petition.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed The court is in the exercise of its appellate jurisdiction and power of review Petition for certiorari is to be filed before the SC

Effect of Filing The filing of a petition for certiorari shall NOT stay the execution of the judgment or final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just (Sec.8, Rule 64).

Submission of decision Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so (Sec. 9, Rule 64). DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF COMELEC AND COA ANDAPPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS AND OFFICERS

Petition is based on questions of law Mode of review Involves review of judgments, final orders or resolutions of COMELEC and COA

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed Does not stay the execution unless SC shall direct otherwise upon such terms as it may

The court is in the exercise of its appellate jurisdiction and power of review Petition for certiorari is to be filed with the CA, SB, RTC. If the petition relates to an actor omission of a quasijudicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only with the Court of Appeals.

NOTE: To prevent the execution of the judgment, Rule 65 may be availed of suppletorily and the petitioner may obtain TRO or a writ of preliminary injunction because the mere filing of the petition does not interrupt the course of the principal case (Sec. 7, Rule 65; Riano, 2012).

Rule 64 for COMELEC and COA

The appellant and the appellee are the original parties to the action, and the lower court or quasijudicial agency is not impleaded Motion for reconsideration is not required

Review of judgment, final orders or resolutions of other tribunals, persons and officer Petition is based on questions of law Mode of review Involves the review of the judgment final orders or resolutions of any tribunal board or officer exercising judicial or quasi-judicial functions. Filed within 60 days from notice of judgment, final order or resolution sought to be reviewed Stays the judgment or order appealed from

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If MR is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days.

In election cases involving an act or omission of a municipal or regional trial court, the petition shall be filed exclusively with the COMELEC (Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC). If MR is denied, the aggrieved party will have another 60 days within which to file the petition counted from the notice of denial.

Fresh period rule is not applicable.

Fresh period applicable.

Rule

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

is

REMEDIAL LAW CERTIORARI, PROHIBITION AND MANDAMUS (RULE 65) DEFINITIONS AND DISTINCTIONS

Definitiion

Against whom

Ground

Purpose

Nature

Scope

CERTIORARI Certiorari is an extraordinary writ annulling or modifying the proceedings of a tribunal, board or officer exercising judicial or quasi-judicial functions when such tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 1, Rule 65).

Directed against an entity or person exercising judicial or quasijudicial function.

Entity or person is alleged to have acted without jurisdiction; in excess of jurisdiction; or with grave abuse of discretion

Purpose is to annul or nullify a proceeding. This remedy is corrective – to correct usurpation of jurisdiction(Se.c 1, Rule 65).

Extends to discretionary acts.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

PROHIBITION Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasijudicial or ministerial functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65). Directed against an entity or person exercising judicial, quasijudicial or ministerial function. Entity or person is alleged to have acted: without jurisdiction; in excess of jurisdiction; or with grave abuse of discretion Purpose is to have respondent desist from further proceeding. This remedy is preventive and negative – to restrain or prevent usurpation of jurisdiction(Sec. 2, Rule 65). Extends to discretionary and ministerial acts.

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MANDAMUS Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: a. When he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; or b. When one unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65).

Directed against an entity or person exercising ministerial function.

Entity or person is alleged to have unlawfully neglected a ministerial duty; or excluded another from a right or office.

Purpose is for respondent to: 1. Do the act required; and 2. To pay damage. This remedy is affirmative or positive (if the performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office)(Sec. 3, Rule 65). Only for ministerial acts.

PROVISIONAL REMEDIES Distinction among Rule 45, Rule 64 and Rule 65 Appeal by Certiorari(Rule 45)

Subject Matter

Mode

Scope

GR: Petition is based only on questions of law. XPNs: questions of facts may be allowed in cases of : 1. writ of habeas data, 2. Writ of amparo, 3. Writ of kalikasan It is a mode of appeal. Involves the review of judgment final orders resolutions of the Sandiganbayan, CTA, RTC other courts on the merits

the or CA, or

Review of Judgments, Final Orders or Resolutions of COMELEC and COA (Rule 64) Petition is based questions of law.

on

It is a mode of review but the petition used is Rule 65. Involves review of judgments, final orders or resolutions of COMELEC and COA.

Petition for Certiorari(Rule 65)

Petition is based on questions of jurisdiction, that is, whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion.

It is a mode of review. May be directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy.

NOTE: CSC judgments, final orders or resolutions are governed by Rule 43

Period

Effect of Filing

Parties

Filing of Motion for New Trial or Motion for Reconsideration

Jurisdiction

Court which has jurisdiction

Filed within 15 days from notice of judgment, final order or resolution appealed from. Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded. Motion for reconsideration is not required.

The court is in the exercise of its appellate jurisdiction and power of review. SC

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed. Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just. The COMELEC and COA shall be public respondents who are impleaded in the action.

Filed not later than 60 days from notice of judgment, order or resolution appealed from.

The filing of Motion for New Trial or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed.

Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03SC) Court exercises original jurisdiction.

The court is in the exercise of its appellate jurisdiction and power of review. SC

Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action.

RTC, CA, Sandiganbayan or COMELEC

Instances when the petitions for certiorari, mandamus and prohibition are NOT available 1.

2. 3. 4.

Rule on Summary Procedure as to interlocutory order issued by the lower court [Sec. 19(g), Rules on Summary Procedure]; Writ of Amparo against any interlocutory order [Sec. 11(l), Rule on Writ of Amparo] Petition for writ of Habeas data against any interlocutory order [Sec. 13(l), A.M. No. 08-1-16] Small claims cases against interlocutory order issued by the lower court [Sec. 14(g) of A.M. No. 08-8-7-SC]

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REMEDIAL LAW CERTIORARI v. APPEAL BY CERTIORARI Rule 65 (certiorari) A special civil action that is an original and independent action and not a mode of appeal. May be directed against an interlocutory order or matters where no appeal may be taken from GR: Involves questions of jurisdiction XPN: When it is necessary to delve into factual issues in order to resolve allegations of grave abuse of discretion as a ground (Balba v. Peak Development, INC., et. al, GR 148288, August 12, 2005; Regalado, 2012). Directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy Filed not later than 60 days from notice of judgment, order or resolution sought to be assailed. Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action As a general rule motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC). Court exercises original jurisdiction Filed with the RTC, CA, Sandiganbayan or COMELEC

Rule 45 (appeal by certiorari) Mode of Appeal Seeks to review final judgments or final orders GR: Involves question of law XPNs: In Writ of Amparo, Habeas Data and Writ of Kalikasan, it may involve both questions of law and facts.

Involves the review of the judgment, final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded Motion for reconsideration is not required

The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC

PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION

Definition

Nature

Purpose

Prohibition Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasi-judicial or ministerial functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65).

Special civil action To prevent an encroachment, excess, usurpation or assumption of jurisdiction;

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Mandamus Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: 1. When he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; or 2. When one unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65). Special civil action To compel the performance of a ministerial and legal duty;

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Injunction Main action for injunction seeks to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant. Preliminary injunction is a provisional remedy to preserve the status quo and prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of an action.

Ordinary civil action For the defendant either to refrain from an act or to perform not necessarily a legal and ministerial duty;

PROVISIONAL REMEDIES

Against whom Scope

Prohibition May be directed against entities exercising judicial or quasi-judicial, or ministerial functions Extends to discretionary and ministerial functions

Mandamus May be directed against judicial and non-judicial entities

Injunction Directed against a party

Extends only to ministerial functions

Always the main action

Always the main action

May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

Does not necessarily extend to ministerial, discretionary or legal functions; May be the main action or just a provisional remedy May be brought in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

How filed

Court which has jurisdiction

REQUISITES

WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS PROPER

Requisites of a valid certiorari Certiorari 1. 2.

3.

The petition is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; Such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and There is neither appeal nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be capricious, arbitrary and whimsical exercise of power for it to prosper (Sec. 1 Rule 65; Aggabao v. Comelec, 499 SCRA 400, January 26, 2005; Riano, 2009).

Certiorari It is a writ issued by a superior court to an inferior court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. NOTE: It is commenced by a verified petition accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping (Sec. 1, Rule 65).

Requisites of a valid prohibition 1. 2. 3.

4.

Nature

There must be a controversy; Respondent is exercising judicial, quasi-judicial functions or ministerial functions; Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; and There must be no appeal or other plain, speedy and adequate remedy (Sec. 2, Rule 65).

It is a special civil action. It is not a mode of appeal. It is an original and independent from principal action which resulted in the rendition of the judgment or order complained of (Rule 65; Abedes v. Court of Appeals, 536 SCRA 268; Camutin v. Sps. Patente, GR No. 181642, January 29, 2009). NOTE: The filing of a petition for certiorari against the lower court or tribunal or any other public respondent does not interrupt the course of the principal case. It is necessary therefore, to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against the public respondent so the latter may, during the pendency of the petition, be enjoined from further proceeding with the case (Sec. 7, Rule 65).

Requisites of a valid mandamus 1. 2. 3. 4.

5.

There must be a clear legal right or duty; The act to be performed must be within the powers of the respondent to perform; The respondent must be exercising a ministerial duty; The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondent); and There is no appeal or other plain, speedy and adequate remedy in the ordinary course of law (Sec. 3, Rule 65).

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REMEDIAL LAW Purpose of certiorari

2.

Certiorari is a remedy for the correction of errors in jurisdiction, not errors of judgment. Since issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from judgment (New Frontier Sugar Corporation v. RTC of Iloilo, GR No. 165001, January 31, 2007).

3. 4. 5. 6.

Grounds for certiorari That a tribunal, board or officer exercising judicial or quasijudicial functions acted: 1. Without or in excess of jurisdiction 2. In grave abuse of discretion amounting to lack or excess of jurisdiction

Orders were issued either in excess of or without jurisdiction; For certain special considerations as for public policy or public welfare; Order is a patent nullity; Decision in the certiorari case will avoid future litigation; or In criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (Regalado, 2012).

Q: Modes of certiorari. 1. As a mode of appeal from the RTC or the CA to the SC. 2. As a special civil action from the RTC or the CA to the SC. 3. As a mode of review of the decisions of the National Labor Relations Commission and the Constitutional Commissions. (2006 Bar Question)

NOTE: 1. Judicial function – Is where the tribunal or person has the power to determine what the law is, what the rights of the parties are, and undertakes to determine these questions and adjudicate upon the rights of the parties. 2. Without jurisdiction – Is where the respondent does not have the legal power to determine the case. 3. Excess of jurisdiction – Is where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. 4. Grave abuse of discretion – The abuse must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility; or, it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law (Planters Products, Inc. v. Court of Appeals, 193 SCRA 563). 5. Plain, speedy and adequate remedy – Is one which promptly relieves the petitioner from the injurious effects of the judgment and the acts of the lower court or agency (Regalado, 2012).

A: 1.

2.

3.

Question of fact raised in an action for certiorari GR: Only established or admitted facts can be considered (Rubio v. Reyes, G.R. No. 24581, May 27, 1968). XPN: When it is necessary to delve into factual issues in order to resolve allegations of grave abuse of discretion as a ground for the special civil action of certiorari and prohibition (Balba v. Peak Development, INC., et. al., GR 148288, August 12, 2005, Regalado, 2012)

A petition for review on certiorari under Rule 45 of the Rules of Court is a mode of appeal on pure questions of law as a general rule from a judgment or final order or resolution of the CA or the RTC to the SC. A special civil action for certiorari under Rule 65 of the Rules of Court is an original action from the RTC or the CA to the SC against any tribunal, board or officer exercising judicial or quasi-judicial functions raising the issue of lack or excess of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, there being no appeal or any plain, speedy and adequate remedy in the ordinary course of law. The mode of review of the decision of the NLRC is via a special civil action for certiorari under Rule 65, but pursuant to the hierarchy of the courts enunciated in the case of St. Martin’s Funeral Homes v. NLRC (G.R. No. 130866 September 16, 1998), the same should be filed in the CA. The mode of review of the decision of the COMELEC and the Commission on Audit, as provided under Rule 64 of the Rules of Court, is a special civil action for certiorari under Rule 65. Decisions of the Civil Service Commission, however, are reviewable by petition for review filed with the CA under Rule 43 of the Rules of Court.

GR: Where the proper remedy is appeal, the action for certiorari will not be entertained. Certiorari is not a remedy for errors of judgment. Errors of judgment are correctible by appeal; errors of jurisdiction are reviewable by certiorari.

Q: Pagayanan, an employee of the Commission on Audit in the ARMM, was charged by Civil Service Regional Office ( CSRO)No. XII with dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service. CSCRO found Pagayanan guilty. Hence, Pagayanan filed a Motion for Reconsideration but was denied. Thus, she appealed to the CSC but the latter affirmed the findings of CSCRO. Pagayanan filed a motion for reconsideration but was denied. Thus, Pagayanan filed a petition for certiorari under Rule 65 before the CA. CA dismissed the petition for being a wrong mode of appeal. Is a petition under Rule 65 the proper remedy?

XPNs: A petition for certiorari may be allowed despite the availability of the remedy of appeal when: 1. Appeal does not constitute a speedy and adequate remedy;

A: No. Under the Uniform Rules on Administrative Cases in the CSC, a party may elevate a decision of CSC before the Court of Appeals by way of a petition for review under Rule 43. Hence, Pagayanan had 15 days after receipt of the

NOTE: In original actions for certiorari under Rule 65, the finding of facts of the CA is not conclusive or binding upon the SC unlike the general rule in appeals by certiorari under Rule 45 (Medran v. CA, G.R. No. L-1350, March 26, 1949).

Remedies of appeal and certiorari NOT exclusive

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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PROVISIONAL REMEDIES order denying her MR to file a petition for review with the CA. However, Pagayanan filed a petition for certiorari, 22 days after receipt of the order.

Offended Party in a Criminal Case An offended party in a criminal case has sufficient personality to file a special civil action for certiorari, in proper cases, even without the imprimatur of the State. In so doing, the complaint should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the complainant (Perez v. Hagonoy Rural Bank, Inc., G.R. No. 126210, March 9, 2000).

A special civil action for certiorari is not a substitute for a lost or lapsed remedy of appeal. They are mutually exclusive remedies. A special civil action for certiorari under Rule 65 lies only when there is no appeal or plain, speedy and adequate remedy in the ordinary course of law. In this case, Pagayanan failed to provide any justification for her resort to a special civil action for certiorari, when the remedy of appeal by petition for review was clearly available (Pagayanan R. Hadji-Sirad v. Civil Service Commission, G.R. No. 182267, August 28, 2009).

Prohibition Prohibition It is a remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power which they have not been vested by law.

Q: Jericho was declared in default in the RTC for his failure to file an answer to a complaint for a sum of money. Judgment by default was rendered against Jericho. Jericho filed a verified motion to lift the order of default and to set aside the judgment. In his motion, Jericho alleged that, immediately upon receipt of the summons, he saw the plaintiff and confronted him with his receipt evidencing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. Jericho's motion was denied because it was not accompanied by an affidavit of merit. Jericho filed a special civil action for certiorari under Rule 65 challenging the denial order. 1. Is certiorari under Rule 65 the proper remedy? Why? 2. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in denying Jericho's motion to lift the order of default and to set aside the default judgment? Why? (2002 Bar Question) A: 1.

2.

NOTE: It is commenced by a verified petition accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping (Sec. 2, Rule 65).

When issued GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli. XPN: It will lie to prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality (Tan v. COMELEC, G.R. No. 73155, July 11, 1986). NOTE: Prohibition, and not mandamus, is the remedy where a motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, September 30, 1949).

No. Under ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or to file a petition for relief from judgment(Jao Inc. v. CA, G.R. No. 93233, Dec. 19, 1995). A special civil action for certiorari is available only when no appeal or any plain, speedy, and adequate remedy in the ordinary course of law is available.

Function of Writ of Prohibition It is a preventive remedy. Its function is to restrain the doing of some act about to be done. It is not intended to provide a remedy for acts already accomplished. If the thing was already done, the writ of prohibition cannot undo it (Agustin v. De la Fuente, G.R. No. L-2345, August 31, 1949).

Yes. The trial court gravely abused its discretion or acted without or in excess of jurisdiction in denying the defendant’s motion because it was not accompanied by a separate affidavit of merit. In his verified motion to lift the order of default and to set aside the judgment, the defendant alleged that immediately upon receipt of the summons, he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. Since the good defense of the defendant was already incorporated in the verified motion, there was no need for a separate affidavit of merit (Mago v. CA, G.R. No. 115624, February 25, 1999).

Exhaustion of administrative remedy necessary in order for an action for prohibition In order for prohibition to lie against an executive officer, the petitioner must first exhaust all administrative remedies, as prohibition is available only when there are no other plain, speedy and adequate remedies in the ordinary course of law (Cabedo, et al v. Dir. Of Lands, et al. L-12777, May 23, 1961; Regalado, 2012).

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REMEDIAL LAW Prohibition v. Injunction

Exhaustion of administrative remedies

PROHIBITION

INJUNCTION

Directed to court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim (Esquivel v. Ombudsman,GR No 137237, September 17, 2002).

Directed only to the party litigants, without in any manner interfering with the court (Farin v. De Los Angeles, 47519R, August 20, 1971).

GR: Mandamus will not issue when administrative remedies are still available. XPNs: 1. If the party is in estoppel (Vda. de Tan v. Veterans Backpay Commission, G.R. No. L-12944, March 30, 1959). 2. Only questions of law are raised (Madrigal v. Lecaroz, G.R. No. L-46218, October 23, 1990). Discretionary duty

Mandamus

GR: Mandamus is only applicable to a ministerial duty. However, mandamus can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner.

Mandamus It is a writ issued in the name of the State, to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station. NOTE: It is commenced by a verified petition accompanied by a sworn certification of non-forum shopping (Sec. 3, Rule 65).

XPNs: 1. There has been gross abuse of discretion; 2. Manifest injustice; or 3. Palpable excess of authority (Kant Wong v. PCGG, G.R. No. 79484, December 7, 1987).

Grounds for mandamus

Discretionary act v. Ministerial act

1.

Discretionary Act Requires the exercise of judgment.

2.

When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or When any tribunal, corporation, board, officer or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65).

Law imposes a duty and gives a right to decide how or when the duty shall be performed.

NOTE: Generally, mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. To preserve its prerogative character, mandamus is not used for the redress of private wrongs, but only in matters relating to the public (Uy Kiao Eng v. Nixon Lee, GR No. 176831, January 15, 2010).

Q: Albert was appointed Election Registrar of the Municipality of Sevilla supposedly to replace the respondent Election Registrar Richard who was transferred to another municipality without his consent and who refused to accept his aforesaid transfer, as in fact he continued to occupy his aforesaid position and exercise his functions thereto. Albert then filed a petition for mandamus against Richard but the trial court dismissed Albert's petition contending that quo warranto is the proper remedy. Is the court correct in its ruling? Why? (2001 Bar Question)

Q: Roldan was charged with illegal possession of shabubefore the RTC. Although bail was allowable under his indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various reasons, the arraignment of Roldan was postponed 19 times over a period of 2 years. Twice during that period, Roldan’s counsel filed motions to dismiss, invoking the right of the accused to a speedy trial. Both motions were denied by the RTC. Can Roldan file a petition for mandamus? Reason briefly. (2007 Bar Question)

A: Yes. Mandamus will not lie. This remedy applies only where petitioner’s right is founded clearly in law, not when it is doubtful. Richard was transferred without his consent. It is tantamount to removal without cause and is contrary to fundamental guarantee on non-removal except for cause. Considering that Richard continued to occupy the position and exercise his functions therein, the proper remedy is quo warranto and not mandamus. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Ministerial Act So clear and specific as to leave no room for the exercise of discretion in its performance. An act or duty in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of his own judgment upon the propriety or impropriety of act done (Symaco v. Aquino, G.R. No. L-14535, January 30, 1960).

A: Yes. Roldan can file a petition for mandamus, invoking the right to a speedy trial. Mandamus is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. Besides, it has long been established in this jurisdiction that the writ of mandamus is available to the

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PROVISIONAL REMEDIES accused to compel a dismissal of the case. Here, the arraignment of Roldan was postponed 19 times over a period of 2 years. Hence, the petition for mandamus is proper in this case (Symaco v. Aquino, G.R. No. L-14535, January 30, 1960).

Quo Warranto v. Mandamus Quo Warranto Designed to try the right or title to the office, if the right to the office itself is disputed. Petition for quo warranto is directed against the person who actually holds the said office (Burguete v. Mayor, G.R. No. L-6538, May 10, 1954).

Awards of damages in Mandamus Proceedings The CA, in resolving a petition for mandamus, is authorized to award civil damages in the same petition (Vital-Gozon v. CA, G.R. No. 101428, August 3 1992). Q: Can a mayor be compelled by mandamus to issue a business permit? A: A mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is delegated police power hence, discretionary in nature. Section 444(b)(3)(iv) of the Local Government Code of 1991, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus(Rimando v. Naguilian Emission Testing Center, Inc., G.R. No. 198860, July 23, 2012).

2.

Available when one is unlawfully excluded from the use or enjoyment of an office. Complaint for mandamus is against the persons who exclude the plaintiff from the office in question (Riano, 2012).

NOTE: Mandamus may be combined with quo warranto.

Mandamus v. Injunction Mandamus Remedial; To perform positive legal duty. It is a special civil action To set in motion and to compel action (active);Directed against a tribunal, corporation board, or officer Motion to dismiss – Rules 16 and 17

Q: Fotokina filed with the RTC a petition for mandamus to compel the COMELEC to implement a contract it had with the former regarding the automation of the elections. The Office of the Solicitor General (OSG), representing COMELEC Chairman Go, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commissioners filed a manifestation that Chairman Go was not authorized by the COMELEC En Banc to oppose the petition. 1. May the OSG represent Chairman Go before the RTC notwithstanding that his position is contrary to that of the majority? 2. Is a petition for mandamus an appropriate remedy to enforce contractual obligations? (2006 Bar Question) A: 1.

Mandamus Does not lie to try disputed titles but only to enforce legal duties.

Injunction Preventive; To prevent an act to maintain status quo between parties. It is an ordinary civil action To restrain motion or to enforce inaction (conservative);directed against a litigant Additional ground for MTD – Sec. 6, Rule 58

Remedy of Public respondent if no temporary restraining order or writ of preliminary injunction was issued by the court hearing the petition for certiorari, prohibition or mandamus The public respondent shall proceed with the principal case within 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 (Sec. 7 as amended by A.M. No. 07-7-12-SC).

Yes, the OSG can represent Chairman Go before the RTC. The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its tasks, the primordial concern of the OSG is to see to it that the best interest of the government is upheld.

INJUNCTIVE RELIEF When proper The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a TRO or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. (Sec. 7, Rule 65) The public respondent shall proceed with the principal case within 10 days from the filing of a petition for certiorari with a higher court or tribunal, absent a TRO or a Writ of Preliminary Injunction, or upon its expiration (AM 07-7-12-SC, Dec. 12, 2007).

No, the COMELEC cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is concerned (COMELEC v. Quijano-Padilla, G.R. No. 151992, September 18, 2002).

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REMEDIAL LAW Q: In an action for specific performance in the MTC, defendant Sarah filed a motion to dismiss the action based on lack of jurisdiction over the subject matter. Sarah’s motion to dismiss was denied. Sarah filed a petition for certiorari with the RTC. Vince then filed with the MTC a motion to declare Sarah in default. The motion was opposed by Sarah on the ground that his petition for certiorari was still pending. Resolve the motion to declare the defendant in default. (2003 Bar Question)

RELIEFS PETITIONER IS ENTITLED TO 1. 2. 3. 4.

A: The court can declare Sarah in default because she did not obtain a writ of preliminary injunction or a temporary restraining order from the RTC prohibiting the judge from proceeding in the case during the pendency of the petition for certiorari(Diaz v. Diaz, G.R. No. 135885, April 28, 2000).

Annulment Modification of the judgment, order, or resolution or proceeding subject of the petition. It may also include such other Incidental reliefs as law and justice may require (Sec. 1, Rule 65). The court may also award damages in its judgment and the execution of the award for damages or costs shall follow the procedure in Sec. 1 of Rule 39 (Sec. 9, Rule 65). ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES

In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction (Sec.4, Rule 65, as amended by AM No. 07-7-12-SC, December 12, 2007).

EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION Filing of Motion Reconsideration

WHERE AND WHEN TO FILE GR: Petition for certiorari, mandamus and prohibition will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him.

Where to file 1. Supreme Court- Subject to the doctrine of hierarchy of courts and only when compelling reasons exist for not filing the same with the lower courts. 2. Court of Appeals only- If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or rules. 3. Court of Appeals and Sandiganbayan- Whether or not in aid of appellate jurisdiction. 4. Regional Trial Court- If the petition relates to an act or an omission of an MTC, corporation, board, officer or person. 5. COMELEC- In election cases involving an act or an omission of an MTC or RTC

NOTE: It is intended to afford the public respondent an opportunity to correct any actual or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case (Chris Garment Corporation v. Sto. Tomas, GR No 167426, January 12, 2009).

XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari where: 1. the order is a patent nullity, as where the court a quo has no jurisdiction; 2. the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; 3. there is an urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner; 4. the subject matter of the action is perishable; 5. under the circumstances, a motion for reconsideration would be useless; 6. the petitioner was deprived of due process and there is extreme urgency for relief; 7. in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; 8. the proceedings in the lower court are a nullity for lack of due process; 9. the proceedings were ex parte or in which the petitioner had no opportunity to object; and 10. the issue raised is one purely of law or where public interest is involved (Regalado, 2012).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

NOTE: If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the RTC exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals (Sec. 4, as amended by A.M. No. 07-7-12-SC). By virtue of the amendment introduced by A.M. No. 07-7-12-SC to Sec. 4, Rule 65, a petition for certiorari, prohibition or mandamus may not be filed directly with the SC anymore.

When to file The petition shall be filed not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than 60 days counted from the notice of the denial of the motion (Sec. 4, as amended by A.M. No. 07-7-12-SC).

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PROVISIONAL REMEDIES NOTE: Under Sec. 4, Rule 65 of the Rules of Court and as applied in Laguna Metts Corporation, the general rule is that a petition for certiorari must be filed within 60 days from notice of the judgment, order or resolution sought to be assailed. Under exceptional circumstances, however, and subject to the sound discretion of the court, said period may be extended pursuant to Domdom, Labao, abd Mid-Islands Power cases. The exceptions are: 1. To serve substantial justice 2. Safeguard strong public interest (Republic v. St. Vincent de Paul Colleges, Inc. August 22, 2012).

Q: James mortgaged his property to Peter. James failed to pay his obligation and Peter filed an action for foreclosure of mortgage. After trial, the court issued an order granting Peter's prayer for foreclosure of mortgage and ordering James to pay Peter the full amount of the mortgage debt not later than 120 days from date of receipt of the order. James received the order on August 10, 1999. No other proceeding took place thereafter. On December 20, 1999, James tendered the full amount adjudged by the court to Peter but the latter refused to accept it on the ground that the amount was tendered beyond the 120-day period granted by the court. James filed a motion in the same court praying that Peter be directed to receive the amount tendered by him on the ground that the order does not comply with the provisions of Sec. 2, Rule 68 of the Rules of Court which gives James 120 days from entry of judgment, and not from date of receipt of the order. The court denied his motion on the ground that the order had already become final and can no longer be amended to conform with Sec. 2, Rule 68. Aggrieved, James files a petition for certiorari against the court and Peter. Will the petition for certiorari prosper? Explain. (2000 Bar Question)

Effects of filing a petition for certiorari, prohibition or mandamus to the principal case It does not: 1. Interrupt the course of the principal action 2. Affect the running of the reglementary periods involved in the proceedings (Fuentes v. Sandiganbayan, G.R. No. 164664, July 20, 2006). 3. Stay the execution of judgment, unless a TRO or writ of preliminary injunction has been issued. Acquisition of jurisdiction over the person of the respondent in original actions for certiorari, prohibition and mandamus 1.

2.

A: Yes. The court erred in issuing the order. The court should have rendered a judgment which is appealable. Since no appeal was taken, the judgment became final on August 25, 1999 which is the date of the entry of judgment. Hence, James had up to December 24, 1999 within which to pay the amount due. The court gravely abused its discretion amounting to lack or excess of jurisdiction in denying James’ motion praying that Peter be directed to receive the amount tendered.

If the action is filed with the RTC – Follow the rules on ordinary civil actions. Jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court. If the action is filed with the CA or the SC – The court acquires jurisdiction over the respondents with the service on them of its orders indicating its initial action on the petition or by voluntary submission to such jurisdiction

QUO WARRANTO (RULE 66)

EFFECTS OF FILING OF AN UNMERITORIOUS PETITION Quo Warranto

Effect of a Petition for Mandamus which is patently without merit, prosecuted manifestly for delay, or raises questions which are too unsubstantial to require consideration

It is a proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise.

The Court may dismiss the petition. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B.

NOTE: It is commenced by a verified petition brought in the name of the Republic of the Philippines or in the name of the person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another (Sec. 1, Rule 66).

The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari (Sec. 8, as amended by A.M. No. 07-7-12-SC).

Nature and purpose of Quo warranto It literally means “by what authority” and the object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office (Tecson v. Comelec, 424 SCRA 227).

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REMEDIAL LAW DISTINGUISH FROM QUO WARRANTO IN OMNIBUS ELECTION CODE Quo warranto under Rule 66 Issue is legality of the occupancy of the office by virtue of a legal appointment (Riano, 2012). Grounds: usurpation, forfeiture, or illegal association (Sec 1, Rule 66, Rules of Court) Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose. Petitioner is person entitled to office (Riano, 2012). Person adjudged entitled to the office may bring a separate action against the respondent to recover damage. (Sec 11, Rule 66, Rules of Court).

WHEN GOVERNMENT MAY COMMENCE AN ACTION AGAINST INDIVIDUALS An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; and 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (de facto corporation) (Sec. 1, Rule 66).

Quo warranto in Electoral Proceedings Issue is eligibility of the person elected (Riano, 2012).

Grounds: ineligibility or disqualification to hold the office (sec 253, Omnibus Election Code) Petition must be filed within 10 days from the proclamation of the candidate (Riano, 2012).

NOTE: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC acting as Special Commercial Courts (Sec. 5.2, Securities Regulations Code). Quo warranto will only lie against de facto corporations.

WHEN INDIVIDUAL MAY COMMENCE AN ACTION Commencement of action

Petitioner may be any voter even if he is not entitled to the office (Riano, 2012). Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name (Sec. 5, Rule 66). Such person may maintain action without the intervention of the Solicitor General and without need for any leave of court. He must show that he has a clear right to the office allegedly being held by another (Cuevas v. Bacal, 347 SCRA 338).

NOTE: If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election protest (Cesar v. Garrido, G.R. No. 30705, March 25, 1929).

NOTE: The Solicitor General or public prosecutor may commence the action at the instance of another person. In this case, leave of court is necessary (Sec. 3, Rule 66).

Quo Warranto in Elective Office v. Quo Warranto in Appointive Office Elective Office Issue: eligibility of the respondent Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful occupant of the office (Nuval v. Guray, 52 Phil 653 on the resolution of the motion for reconsideration).

Who may commence 1. 2. 3.

Appointive Office Issue: validity of the appointment Court will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office; The Court has to declare who the person entitled to the office is if he is a petitioner (Nuval v. Guray, 52 Phil 653 on the resolution of the motion for reconsideration).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Solicitor General Public Prosecutor Individual claiming to be entitled to the office or position usurped or unlawfully held or exercised by another (Sec. 5 Rule 66)

NOTE: By analogy with provisions of Sec. 5, it has been held that a public utility may bring a quo warranto action against another public utility which has usurped the rights of the former granted under franchise (Cui v. Cui, 60 PHIL 57, April 9, 1934; Regalado, 2012).

Classifications of Quo warranto Proceedings 1.

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Mandatory– brought by the Solicitor General or Public prosecutor when: a. Directed by the President; b. Upon complaint or when he has reason to believe that the cases for quo warranto can be established by proof (Sec. 2, Rule 66)

PROVISIONAL REMEDIES 2.

Discretionary – brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person, provided there must be: a. Leave of court b. At the request and upon the relation of another person c. Indemnity bond (Sec. 3, Rule 66)

reglementary period constitutes more than a sufficient basis for its dismissal (Alejo v. Marquez, 37 SCRA 76), since it is not proper that the title to a public office be subjected to continued uncertainty (Villegas v. De la Cruz, 15 SCRA 720). XPN: If the failure to file the action can be attributed to the acts of a responsible government officer and not of the dismissed employee (Conchita Romualdez-Yap v. CSC, et. al., GR No. 104226, August 12, 1993).

Court which has jurisdiction 1.

It can be brought only in the SC,CA, or in RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides;

NOTE: The periods within which quo warranto action should be brought are a condition precedent to the existence of a cause of action.

NOTE: The petition may be brought in the SB in certain cases but when in aid of its appellate jurisdiction (PD 1606, Sec. 4 as amended by R.A No. 8249, Sec. 4; Riano, 2009).

2.

The pendency of administrative remedies does not operate to suspend the period of one year within which a petition for quo warranto should be filed. While it may be desirable that administrative remedies be first resorted to, no one is compelled or bound to do so, and as said remedies neither are pre-requisite to nor bar the institution of quo warranto proceedings, they should not be allowed to suspend the period of one year. Public interest requires that the right to a public office should be determined as speedily as practicable (Torres v. Quintos, G.R. No. L-3304, April 5, 1951).

When the Solicitor General commences the action, it may be brought in a RTC in the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66).

Q: A group of businessmen formed an association in Cebu City calling itself Cars C. to distribute /sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before a RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue by claiming that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Why? (2001 Bar Question)

The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court (Sec. 8, Rule 66).

Recovery of damages against the usurper of office allowed If the petitioner is adjudged to be entitled to the office, he may sue for damages against the alleged usurper within 1 year from entry of judgment establishing his right to the office in question (Sec. 11, Rule 66).

A: No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a RTC in the City of Manila, as in this case, in the Court of Appeals or in the Supreme Court (Sec. 7 of Rule 66).

JUDGMENT IN QUO WARRANTO ACTION When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of the parties to the action as justice requires (Sec. 9, Rule 66).

Contents of a Petition for Quo warranto The petition shall set forth the following: 1. The name of the person who claim to be entitled thereto; 2. If any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof; 3. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action (Sec. 6, Rule 66). Period within which a person ousted from office must file a petition for quo warranto GR: An action for quo warranto must be commenced within 1 year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose (Sec. 11, Rule 66). The failure to institute the same within the

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REMEDIAL LAW RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE

Requisites of the Exercise of a Valid Expropriation (DCP) 1. 2. 3.

If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law: 1. Take upon himself the execution of the office; 2. May immediately thereafter demand all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates; and 3. May bring an action against the respondent to recover damages sustained by such persons by reason of usurpation (Sec. 10, Rule 66).

Properties that are subject to expropriation All properties can be expropriated, except money and choses in action. NOTE: Choses in action - A right to personal things of which the owner has not the possession, but merely a right of action for their possession (Black’s Law, 2004).

Scope of expropriation

NOTE: A quo warranto proceeding is one of the instances where exhaustion of administrative remedies is not required (Celestial v. Cachopero, G.R. No. 142595, October 15, 2003, Riano, 2009).

Expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines also falls within the ambit of the term "expropriation" (National Power Corporation v. Vda. De Capin, G.R. No. 175176, October 17, 2008).

EXPROPRIATION (RULE 67) Power of eminent domain It is the right of the State to acquire private property for public use upon the payment of just compensation.

Court that has jurisdiction

NOTE: The scope of the power of eminent domain as exercised by the Congress is plenary and is as broad as the police power. Such power however, may also be delegated to local political subdivisions and public utilities (Riano, 2012).

It is filed with RTC because it is an action incapable of pecuniary estimation regardless of the value of the subject property. MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION

Expropriation

The right of eminent domain shall be exercised by the filing of a verified complaint, which shall: 1. State with certainty the right and purpose of expropriation; 2. Describe the real or personal property sought to be expropriated; and 3. Join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. 4. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint (Sec. 1, Rule 67).

It is the procedure for enforcing the right of eminent domain. NOTE: Expropriation is proper only when: 1. The owner refuses to sell or, 2. If the latter agrees, agreement as to the price cannot be reached.

Commencement of Expropriation proceeding It is commenced by a verified complaint stating the right and purpose of expropriation, describing the property sought to be expropriated, and joining as defendants all persons owning or claiming to own any part thereof or interest therein (Sec. 1, Rule 67). NOTE: It is the actual filing of complaint for expropriation which binds the land, and not a mere notice of the intent to expropriate. However, the owner of the land may still dispose of said property, despite the filing of the action, as the grantee would merely be substituted in his place and holds the land subject to the results of the action (Regalado, 2012).

NOTE: Expropriation by the local government requires an authorizing ordinance before it may be accomplished. Under Rule 67 and RA 8974 there is no need for legislative authorization before the Government may proceed with a particular exercise of eminent domain (Riano, 2012).

By reason of expediency, counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Due process of law; Payment of just compensation; and Taking must be for public use.

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PROVISIONAL REMEDIES TWO STAGES IN EVERY ACTION FOR EXPROPRIATION 2 Stages in expropriation proceedings 1. Determination of the authority of the plaintiff to expropriate - This determination includes an inquiry into the propriety of the expropriation – its necessity and the public purpose.

2.

NOTE: The first stage will end in the issuance of an order of expropriation if the court finds for plaintiff or in dismissal of the complaint if it finds otherwise.

3.

2. Determination of just compensation through the courtappointed commissioners (Riano, 2007) Q: The City of Iloilo (petitioner) represented by Mayor Treñas filed a complaint for eminent domain against Javellana seeking to expropriate two parcels of land. Mayor Treñas filed a motion for issuance of writ of possession alleging that it had deposited 10% of the amount of compensation which the court issued. A writ of possession was subsequently issued, and petitioner was able to take physical possession of the properties. After which, the expropriation proceedings remained dormant. 16 years later, Javellana filed an ex parte motion/manifestation, where he alleged that when he sought to withdraw the money, he discovered that no deposit was made. Thus, Javellana filed a complaint for recovery of possession, fixing and recovery of rental and damages. The City of Iloilo argues that Javellana could no longer bring an action for recovery since the subject property was already taken for public use. The trial court in its orders and amended orders maintained that the assailed orders issued by it were interlocutory in character and as such are always subject to modification and revision by the court anytime. Is the order of expropriation final?

Upon compliance with the guidelines abovementioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project (Sec. 4, RA 8974). NOTE: RA 8974 – An act to facilitate the acquisition of right-of-way, site or location for national government infrastructure projects and for other purposes.

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION New system of immediate payment of initial just compensation RA 8974 provides a modification of Sec. 2, Rule 67 where the Government is required to make immediate and direct payment to the property owner upon the filing of the complaint to be entitled to a writ of possession. As a relevant standard for initial compensation, the market value for the property as stated in the tax declaration or the current relevant zonal valuation of the BIR, whichever is higher and the value of the improvements and/or structures using the replacement cost method.

A: An order of condemnation or dismissal is final, resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. Once the first order becomes final and no appeal thereto is taken, the authority to expropriate and its public use can no longer be questioned. Thus, it has become final, and the petitioner’s right to expropriate the property for a public use is no longer subject to review (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, February 12, 2010).

NOTE: The intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects is indeed very clear (MCWD v. J. King and Sons, G.R. No. 175983, April 16, 2009).

System of deposit in Sec. 2, Rule 67 v. RA 8974 Sec. 2, Rule 67 The government is required only to make an initial deposit with an authorized government depositary to be entitled to a writ of possession. The initial deposit is equivalent to the assessed value of the property for the purposes of taxation.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA 8974 Whenever it is necessary to acquire real property for the right-of-way or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines: 1.

property the amount equivalent to the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and the value of the improvements and/or structures; In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of 60 days from the date of the expropriation case, to come up with a zonal valuation for said area; and In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed by the law.

Upon the filing of the complaint, and after due notice to the defendant, and payment to the owner of the

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RA 8974 The government is required to make immediate payment to the property owner upon filing of the complaint to be entitled to a writ of possession. As the relevant standard for initial compensation, the market value of the property as stated in the tax declaration or the current relevant zonal valuation of BIR, whichever is higher and the value of the

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW

Applies to expropriation by Government for purposes other than national infrastructure.

And thereafter, shall be entitled to notice of all proceedings (Sec. 3, Rule 67).

improvements and/or structures using the replacement cost method (Riano, 2012). Applies to expropriation by Government for purposes of national infrastructure projects.

Remedy of defendant if answer omits some defenses If the answer omits some defenses, the remedy, in order to prevent a waiver of those defenses not alleged, is to seek leave to amend the answer within 10 days from the filing thereof (Sec. 3, Rule 67, Riano, 2009).

Requisites in order that plaintiff may be authorized to immediately enter into property under rule 67

Duty of the Court if the defendant waives his defenses or objections

Upon the: 1. filing of complaint, serving notice to defendant and after depositing the assessed value of property for taxation purposes with the authorized government depositary (Sec. 2, Rule 67); and 2. Tender, or payment with legal interest from the taking of possession of the property, of compensation fixed by the judgment and payment of costs by plaintiff (Sec. 10, Rule 67).

If a defendant waives all defenses and objections not so alleged, the court, in the interest of justice, may permit amendments to the answer to be made not later than 10 days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award (Sec. 3, Rule 67).

NOTE: Once the preliminary deposit has been made, the expropriator is entitled to a writ of possession as a matter of right, and the issuance of said writ becomes ministerial on the part of the trial court (Biglang-Awa v. Bacalla, G.R. Nos. 139927-36, November 22, 2000). The defenses by the owner against immediate possession can be considered during trial on the merits (NAPOCOR v. Jocson, 206 SCRA 520; Riano, 2009).

Declaration of Default Defendant cannot be declared in default. Failure to file an answer would not bar the court from rendering judgment on the right to expropriate without prejudice to the defendant’s right to present evidence on just compensation and to share in the distribution of the award (Sec. 3, Rule 67).

Ascertainment of value of the property 1. 2.

Personal property – Provisionally ascertained and fixed by the Court Real property – Assessed value in tax return

ORDER OF EXPROPRIATION

Purposes of preliminary deposit

Order of expropriation

1.

An order of expropriation (or order of condemnation) will be issued declaring that the plaintiff has a lawful right to take the property.

2.

It serves as an advanced payment to the owner of the property should the court decide in favor of the plaintiff. It shall serve as indemnity against any damage which the owner may have sustained (Visayan Refining Company v. Camus, 40 Phil. 550).

It is issued when: 1. The objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or 2. No party appears to defend as required by this Rule (Sec. 4, Rule 67).

NOTE: The preliminary deposit is only necessary if the plaintiff desires entry on the land upon its institution of the action (Regalado, 2012).

DEFENSES AND OBJECTIONS

NOTE: After the rendition of the order of expropriation, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except upon such terms as the court deems just and equitable (Sec. 4, Rule 67).

Defenses and objections 1.

2.

If a defendant has any objection or defense to the taking of his property, a. He shall serve his answer. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, b. Thereafter, he shall be entitled to notice of all proceedings affecting the same If there are no objections, he must file and serve a notice of appearance and manifestation to that effect.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Uncertain ownership The Trial court may decide conflicting claims of ownership in the same case. There is no need for an independent action since the person entitled thereto will be adjudged in the same proceeding. However, the court may order any sum(s) awarded as compensation for the property to be paid to the court for the benefit of the person that will be adjudged as entitled thereto (Sec. 9, Rule 67).

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PROVISIONAL REMEDIES Appeal

Formula for the determination of just compensation

The order of expropriation may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues e.g. issue on the right to expropriate or issue of just compensation.

JC = FMV + CD – CB If CB is more than CD then, JC = FMV JC – Just compensation FMV – Fair market value CD – Consequential damages CB – Consequential benefits

NOTE: An appeal does not delay the right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use (Sec. 11, Rule 67). An appeal from judgment shall not prevent the court from determining the just compensation to be paid (Sec. 4 Rule 67).

NOTE: Sentimental value is not included

Effect of reversal

Consequential Benefit

If on appeal the appellate court determines that the plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff (Sec. 11, Rule 67).

It refers to actual benefits derived by the owner on the remaining portion of his land which are the direct and proximate results of the improvements consequent to the expropriation, and not the general benefits which he receives in common with community (Regalado, 2012). Reckoning point for determining just compensation

ASCERTAINMENT OF JUST COMPENSATION

The value of just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first (Sec. 4, Rule 67).

Just compensation Just compensation is defined as the full and fair equivalent of the property sought to be expropriated. The measure is not the taker’s gain but the owner’s loss. The compensation, to be just, must be fair not only to the owner but also to the taker. Even as undervaluation would deprive the owner of his property without due process, so too would its overvaluation unduly favor him to the prejudice of the public (National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007).

GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint (City of Iloilo v. Hon. Lolita ContrerasBesana, G.R. No. 168967, February 12, 2010). XPNs: 1. Grave injustice to the property owner Air Transportation Office cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the land owners (Heirs of Mateo Pidacan & Romana Eigo v. Air Transportation Office, G.R. No. 162779, June 15, 2007).

How court determine just compensation The trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these items should be disregarded altogether as the basic value of the property should be paid in every case.

2.

The market value of the property is the price that may be agreed upon by parties willing but not compelled to enter into the contract of sale. Not unlikely, a buyer desperate to acquire a piece of property would agree to pay more, and a seller in urgent need of funds would agree to accept less, than what it is actually worth. Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, location, and the tax declarations thereon (National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007).

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The taking did not have color of legal authority To allow NAPOCOR to use the date it constructed the tunnels as the date of valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. It did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. Secondly, the “improvements” introduced by NAPOCOR, the tunnels, in no way contributed to an increase in the value of the land. The trial court rightly computed the valuation of the property as of 1992, when the owners discovered the construction of the huge underground tunnels beneath their lands and NAPOCOR confirmed the same and started negotiations for their purchase but no agreement could be reached (NAPOCOR v. Ibrahim, G.R. No. 168732, June 29, 2007). UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3.

4.

The taking of the property was not initially for expropriation There was no taking of the property in 1985 by Public Estates Authority (PEA) for purposes of expropriation. As shown by the records, PEA filed with the RTC its petition for expropriation on September 22, 2003. The trial court was correct in ordering the Republic, through PEA, upon the filing of its complaint for expropriation, to pay Tan just compensation on the basis of the BIR zonal valuation of the subject property (Tan v. Republic, G.R. No. 170740, May 25, 2007).

supplant or prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of the Rules of Court, the ascertainment of just compensation requires the evaluation of 3 commissioners. APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT Appointment of commissioner Upon the rendition of the order of expropriation, the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court (Sec. 5, Rule 67).

The owner will be given undue increment advantages because of the expropriation The value of the property in question was greatly enhanced between the time when the extension of the street was laid out and the date when the condemnation proceedings were filed. The owners of the land have no right to recover damages for this unearned increment resulting from the construction of the public improvement for which the land was taken. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation, and would discourage the construction of important public improvements (Provincial Gov’t of Rizal v. Caro de Araullo, G.R. No. L36096, August 16, 1933).

NOTE: Objections to the order of appointment must be filed within 10 days from service of the order and shall be resolved within 30 days after all the commissioners received the copies of the objections (Sec. 5, Rule 67).

Mandatory requirement of appointing Commissioner Appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases. Where the principal issue is the determination of just compensation, a hearing before the commissioners is indispensable to allow the parties to present evidence on the issue of just compensation.

NOTE: Under Sec. 19 of the Local Government Code the amount to be paid for the expropriation of the expropriated property shall be determined based on the fair market value at the time of the taking of the property (Riano, 2009).

Effect of non-payment of just compensation

While it is true that the findings of commissioners may be disregarded and the trial court may substitute its own estimate of the value, the latter may only do so for valid reasons, that is, where the commissioners have applied illegal principles to the evidence submitted to them, where they have disregarded a clear preponderance of evidence, or where the amount allowed is either grossly inadequate or excessive (National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007).

Non-payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots. However, in case where the government failed to pay just compensation within 5 years from the finality of judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property (Republic v. Lim, GR No. 161656, June 29, 2005).

Matters taken in determining just compensation by the commissioner

NOTE: If the compensation is not paid when the property is taken, but is postponed to a later date, the interest awarded is actually part of just compensation, which takes into account such delay (Benguet Consolidated v. Republic, GR No. 712412, August 15, 1986).

The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken (Sec. 6, Rule 67; Riano, 2009).

Q: May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor Arsenio Lacson, and as compensation to UST, the City of Manila shall deliver its 5hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees? Explain. (2006 Bar Question) A: Congress may enact a law to expropriate property but it cannot limit just compensation. The determination of just compensation is a judicial function and Congress may not UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

176

PROVISIONAL REMEDIES Commissioner’s Report

FORECLOSURE OF REAL ESTATE MORTGAGE (RULE 68)

As a rule, the commissioners shall make their report within 60 days from the date they were notified of their appointment. This period may be extended in the discretion of the court.

Real Estate Mortgage (REM)

Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire(Sec. 7, Rule 67; Riano, 2009)

Foreclosure of REM

The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations (Sec. 7 Rule 67).

Requisites of a valid foreclosure of REM

An accessory contract executed by a debtor in favor of a creditor as security for principal obligation (Riano, 2012).

It is the remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against the property used to secure said obligation.

1.

2.

3.

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT

A finding of the amount due the plaintiff including interest, cost and other charges approved by the court; Order to defendant to pay said amount within a period of not less than 90 days nor more than 120 days from entry of judgment; and If the defendant defaults, the court should order the sale at public auction of the mortgaged property (Sec. 2, Rule 68).

Court that has jurisdiction over foreclosure of REM

Rights of plaintiff upon judgment and payment

RTC of the province where the land or any part thereof is situated.

After payment of just compensation, as determined in the judgment, the plaintiff shall have the right to: 1. Enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or 2. To retain possession already previously made in accordance with Sec. 2 (Entry of plaintiff upon depositing value with authorized government depositary) (Sec. 10 Rule 67).

NOTE: Foreclosure of REM is incapable of pecuniary estimation because the court in this action would have to resolve the issue of whether or not there is a legal basis for foreclosure (Riano, 2012).

Contents of a complaint for foreclosure of REM The complaint shall contain the following: 1. The date and due execution of the mortgage; 2. The names and residences of the mortgagor and the mortgagee; 3. A description of the mortgaged property; 4. Date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and 5. The names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage (Sec. 1, Rule 68).

When defendant declines to receive the amount tendered If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto (Sec. 10, Rule 67). NOTE: The payment shall involve the amount fixed in the judgment and shall include legal interest from the taking of possession of the property (Ibid.).

Cause of action in a foreclosure suit Generally, non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of some of other conditions therein (Regalado, 2012).

EFFECT OF RECORDING OF JUDGMENT When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose (Sec 13, Rule 67).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Defendants that must be joined 1. 2. 3. 4.

separate action for possession after the redemption period has expired.

The persons obligated to pay the mortgage debt; The persons who own, occupy or control the mortgaged premises; The transferee or grantee of the property; and The second mortgagee or junior encumbrancer, or any person claiming a right or interest in the property subordinate to the mortgage sought to be foreclosed; but if the action is by the junior encumbrancer, the first mortgagee may also be joined as defendant (Regalado, 2012).

However, where the parties in possession claim ownership thereof and, it may be added, if there is some plausibility in their claim, that issue must first be ventilated in a proper hearing of the merits thereof (Regalado, 2012). Right to a notice of sale of mortgagor The mortgagor does not have the right to a notice of sale after his failure to pay the debt because said notice is not litigable and the issuance thereof is ministerial.

Effect if the junior encumbrancer is not impleaded NOTE: The mortgagor is entitled to a notice of hearing of the confirmation of the sale; otherwise, the order is void. Due process requires that said notice be given so that the mortgagor can resist the motion and be informed that his right to redeem is cut-off (Tiglao v. Botones, G.R. No. L-3619, October 29, 1951). The order of confirmation is appealable.

His equity or right of redemption is not affected or barred by the judgment of the court because he is merely a necessary party not an indispensable party (Sunlife Insurance v. Diez, G.R. No. 29027, October 25, 1928). NOTE: The remedy of the senior encumbrancer is to file an independent proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time.

Effect of order of confirmation It shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec. 3, Rule 68). It is said that title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of the sale (Binalgan Estate v. Gatuslao 74, Phil 128, Riano, 2009)

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE Judgment on foreclosure for payment or sale It is the judgment of the court ordering the debtor to pay within a period not less than 90 days nor more than 120 days from the entry of judgment after ascertaining the amount due to the plaintiff (Sec. 2, Rule 68).

Remedy if the mortgagor refuses to vacate The purchaser may ask for a writ of possession.

NOTE: The judgment of the court is considered a final adjudication of the case and hence, is subject to challenge by the aggrieved party by appeal or by other post judgment remedies (Riano, 2012).

DISPOSITION OF PROCEEDS OF SALE 1.

Foreclosure sale When the defendant fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under executions (Sec. 3, Rule 68).

2.

3.

SALE OF MORTGAGED PROPERTY; EFFECT

DEFICIENCY JUDGMENT

Sale of mortgaged property

Deficiency judgment

If the mortgagor fails to pay the sum due within the period (90-120 days) stated by the court in its judgment, upon motion of the mortgagee, the court shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution (Sec. 3, Rule 68).

It is the judgment rendered by the court holding the defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt.

Effect of sale of mortgaged property The purchaser in a foreclosure sale is entitled to a writ of possession and that, upon an ex parte motion of the purchaser, it is ministerial upon the court to issue writ of possession in his favor. He is not required to bring a UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, a When there is any balance or residue after paying off the mortgage debt due, the same shall be paid to junior encumbrances in the order of their priority. If there be any further balance after paying them or If there be no junior encumbrances, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4, Rule 68).

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PROVISIONAL REMEDIES Recovery of deficiency

1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property within 1 year after the sale (or registration of the sale). However, under Sec. 47 of the General Banking Law of 2000, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming sale. The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing.

If there is a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any balance for which, by the record of the case, he may be personally liable to the plaintiff. Execution may issue immediately if the balance is all due at the time of the rendition of the judgment. If not due, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment (Sec. 6, Rule 68; Riano, 2009).

2. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene, but it cannot be enforced against Gretchen, the owner of the mortgaged property, who did not assume personal liability of the loan.

Liability of a 3rd party mortgagor in case of deficiency judgment If such third person did not assume personal liability for the payment of the debt, the extent of recovery in the judgment of foreclosure shall be limited to the purchase price at the foreclosure sale and no deficiency judgment can be recovered against said person (Phil. Trust Co. v. Tan Suisa, 52 Phil 852; Regalado, 2012).

Judicial foreclosure versus extrajudicial foreclosure Modes of foreclosure 1. 2.

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

Judicial foreclosure (Rule 68) Extrajudicial foreclosure (Act. 3135 as amended by Act 4188)

Judicial Foreclosure v. Extrajudicial Foreclosure Instances when court cannot render deficiency judgment 1. 2.

3. 4.

Judicial Foreclosure Requires court intervention

Case is covered by the Recto Law (Art. 1484, NCC); Mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines, unless there is attachment; Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and Mortgagee is a third person but not solidarily liable with the debtor.

There is only an equity of redemption except when the mortgagee is a bank Governed by Rule 68

Extrajudicial Foreclosure No court intervention necessary Right of redemption exists

Governed by Act 3135

NOTE: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case, he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding (Movido v. RFC, G.R. No. L-11990, May 29, 1959).

Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen as defendants. The court rendered judgment directing Arlene to pay the outstanding account of P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay the judgment debt within the period specified in the decision. At the foreclosure sale, the land was sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the sale was registered with the Registy of Deeds on January 5, 2002.

EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Equity of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within a period of not less than 90 nor more than 120 days from the entry of judgment or even after the foreclosure sale but prior to confirmation Governed by Rule 68

On January 10, 2003, GAP filed an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the land. It also filed a deficiency claim for P800,000 against Arlene and Gretchen. The deficiency claim was opposed by Arlene and Gretchen. 1. Resolve the motion for the issuance of a writ of possession. 2. Resolve the deficiency claim of the bank. (2003 Bar Question)

Right of Redemption Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure sale Governed by Secs. 29-31, Rule 39

NOTE: In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. However, Sec. 47 of the General Banking Act provides that in case of extrajudicial foreclosure, juridical persons shall have

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REMEDIAL LAW the right to redeem the property until, but not after, the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure, whichever is earlier. The pendency of the action stops the running of the right of redemption. Said right continues after perfection of an appeal until the decision of the appeal (Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, August 21, 1987).

5.

which it is intended (Art. 495, NCC) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled (Art. 1094, NCC). WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS

PARTITION (RULE 69) Who may file Partition The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The defendants are all the co-owners.

It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property. NOTE: It is commenced by a complaint (Sec. 1, Rule 69).

Nature of action NOTE: All the co-owners are indispensable parties (Riano, 2012).

Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Tubiano v. Riazo, 335 SCRA 531).

Non-inclusion of a co-owner in an action for partition 1.

This action shall both fall under the coverage of the Rules of Summary Procedure irrespective of the amount of damages or unpaid rental sought to be recovered (Sec. 3, Rule 70).

2.

NOTE: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it (Sec. 12, Rule 69).

Jurisdiction over partition The action is cognizable by the RTC since it is considered incapable of pecuniary estimation. NOTE: However, since the action affects interest in real property, jurisdiction shall be determined by inquiring into the assessed value of the property [Sec. 19 (2), B.P. 129, as amended by RA 7691]. Hence an action for partition may be filed in the MTC, if the assessed value is not more than Php 20,000 or Php 50,000. If the subject matter is personal property, where the value is not more than Php 300,000 or Php 400,000 (Heirs of Valeriano Concha, Sr. v. Lumocso, G.R. No. 158121, December 12, 2007).

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION The plaintiff shall state in his complaint the following: 1. The nature and extent of his title, 2. An adequate description of the real estate of which partition is demanded, and 3. Shall join as defendants all other persons interested in the property (Sec. 1, Rule 69). 4. He must also include a demand for the accounting of the rents, profits and other income from the property which he may be entitled to.

Requisites of a valid partition 1. 2.

3.

Right to compel the partition Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69).

These cannot be demanded in another action because they are parts of the cause of action for partition. They will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action (Riano, 2012).

Instances when a co-owner may not demand partition (ADL-SU)

1. 2. 3. 4.

NOTE: When the allegations of the complaint allege that the plaintiff asserts exclusive ownership of the party sought to be partitioned, the nature of the action is not one for partition. It is an action for recovery of property (De la Cruz v. Court of Appeals, 412 SCRA 282; Riano, 2009).

There is an agreement among the co-owners to keep the property undivided for a certain period of time but not exceeding ten years (Art. 494, NCC) When partition is prohibited by the donor or testator for a period not exceeding 20 years (Art. 494; Art. 1083, NCC) When partition is prohibited by law (Art. 494, NCC); When property is not subject to physical division and to do so would render it unserviceable for the use for UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Before judgment – Not a ground for a motion to dismiss. The remedy is to file a motion to include the party. After judgment – Makes the judgment therein void because co-owners are indispensable parties.

TWO STAGES IN EVERY ACTION FOR PARTITION 1. 2.

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Propriety of partition - whether co-ownership exists; and How to actually partition the property and accounting.

PROVISIONAL REMEDIES NOTE: When it is made to appear to the commissioners that the real state, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amount as the commissioners deem equitable (Sec. 5 Rule 69).

ORDER OF PARTITION AND PARTITION BY AGREEMENT Modes of partition 1. 2.

By agreement of the parties; or By judicial proceedings under Rule 69 (order of partition) (Art. 494 NCC, Figuracion-Gerilla v. Vda. De Figuracion, GR No. 154322, August 22, 2006; Riano, 2009).

If the interested parties ask for the property be sold instead of being assigned the Court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine (Ibid.).

NOTE: Nothing in this Rule shall be construed to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action (Sec. 12, Rule 69). If the co-owners cannot agree on the partition of the property, the only recourse is the filing of an action for partition (Riano, 2012).

Duties of the commissioners in an action for partition (RAS) 1.

Make a full and accurate report to the court of all their proceedings as to the partition; or The assignment of real estate to one of the parties; or The sale of the same.

Order of Partition

2. 3.

It is an order that directs the parties or co-owners to partition the property

Commissioner’s Report

NOTE: The primary issue to be determined in an action for partition is whether or not the plaintiff has the right to partition (Riano, 2012).

The interested parties are allowed 10days within which to file objections to the findings of the report (Sec. 6,Rule 69).It is not binding until the count has accepted it and rendered judgment thereon.

When court can issue the order of partition Court not bound by the report of the commissioner During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition.

The court may, upon hearing, accept the report and render judgment in accordance with the same; recommit the same to the commissioners for further report of the facts; accept or reject the report in part; or render judgment that shall effectuate a fair and just partition of the real estate (Sec. 7, Rule 69). NOTE: The rule mandates that a hearing must be conducted before a rendition of a judgment.

NOTE: After the order of partition the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec. 2, Rule 69).

JUDGMENT AND ITS EFFECTS Contents of Judgment and its effects 1.

PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS, COMMISSIONER’S REPORT; COURTACTION UPON COMMISSIONER’S REPORT Appointment of Commissioners

2.

If co-owners are unable to agree upon the partition of the property, the next stage in the action is the appointment of commissioners (Riano, 2012). If parties cannot agree, the court shall appoint not more than 3 commissioners of competent and disinterested persons to make partition. They shall make full and accurate report to the court of all their proceedings as to the partition for the parties (Sec. 3 Rule 69).

3.

The appointment of commissioners is mandatory unless there is an extrajudicial partition between the parties. They have the power to effect the partition but not to inquire into question of ownership or possession.

If actual partition of property is made, the judgment shall state definitely: a. The metes and bounds and adequate description; and b. The particular portion of the real estate assigned to each party If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment, and of the assignment of the real estate to the party making the payment. If the property is sold and the sale confirmed by the court, the judgment shall state: a. the name of the purchaser or purchasers; b. A definite description of the parcels of real estate sold to each purchaser.

NOTE: A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action (Sec. 11 Rule 69).

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REMEDIAL LAW Stages in an action for partition could be the subject of appeal

Requisites of forcible entry (PFISTS-1) 1.

1. 2. 3.

Order determining the propriety of the partition Judgment as to the fruits and income of the property Judgment of partition (Riano, 2012).

2. 3.

NOTE: The mode of appeal is record on appeal. This is one of the instances when the rules allow multiple appeals. A judgment declaring the existence of co-ownership is immediately appealable. Judgment directing an accounting is appealable regardless of whether the accounting is the principal relief sought or a mere incident, and becomes final and executory within the reglementary period (Miranda v. CA, G.R. No. L- 33007, June 18, 1976).

Questions to be resolved in an action for forcible entry (AOR) 1. 2.

Stages in an action for partition could be the subject of appeal 3. 1. 2. 3.

A person is deprived of possession of any land or building by force, intimidation, threat, strategy, or stealth(FISTS); and Action is brought within 1 year from the unlawful deprivation (Sec. 1, Rule 70).

Order determining the propriety of the partition Judgment as to the fruits and income of the property Judgment of partition (Riano, 2012).

Who has actual possession over the real property; Was the possessor ousted therefrom within 1 year from the filing of the complaint by force, intimidation, strategy, threat or stealth; and Does the plaintiff ask for the restoration of his possession (Dizon v. Concina, G.R. No. 23756, December 27, 1969).

Unlawful detainer NOTE: The mode of appeal is record on appeal. This is one of the instances when the rules allow multiple appeals. A judgment declaring the existence of co-ownership is immediately appealable. Judgment directing an accounting is appealable regardless of whether the accounting is the principal relief sought or a mere incident, and becomes final and executory within the reglementary period (Miranda v. CA, G.R. No. L- 33007, June 18, 1976).

It is where one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied (Riano, 2012). It is commenced by a verified complaint (Sec. 1, Rule 70). Requisites of unlawful detainer

PARTITION OF PERSONAL PROPERTY

1.

The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable (Sec. 13, Rule 69).

Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied; NOTE: It has been held that prior physical possession by the plaintiff is not an indispensable requirement in an unlawful detainer case brought by a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right to hold possession. (William Go v. Albert Looyuko, G.R. No. 19652, July 01, 2013 Citing Sps. Maninang v. Ca, 373 Phil. 304 ).

PRESCRIPTION OF ACTION GR: Action to demand partition of a co-owned property does not prescribe. XPN: a co-owner may acquire ownership thereof by prescription where there exists a clear repudiation of the co-ownership and the co-owners are apprised of the claim of adverse and exclusive ownership (Heirs of Restar v. Heirs of Cichon, 475 SCRA 731; Riano 2009).

2. 3.

NOTE: Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-heirs as long as there is a recognition of the co-ownership expressly or impliedly (Art. 494, NCC).

Action is brought within 1 year after such unlawful deprivation or withholding of possession; and Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 1, Rule 70).

NOTE: If the complaint does not allege facts showing compliance with the prescribed one year period to file an action for unlawful detainer, then it cannot properly qualify as such action over which the MTCC can exercise jurisdiction. Such allegations are jurisdictional and crucial. It may then be an accion publiciana or accion reivindicatoria (Estate of Manantan v. Somera, GR No. 145867, April 7, 2009).

FORCIBLE ENTRY AND UNLAWFUL DETAINER (RULE 70) DEFINITIONS AND DISTINCTIONS Forcible entry

Formal contract not a prerequisite in unlawful detainer

It is an action to recover possession founded upon illegal possession from the beginning when one is deprived of physical possession of real property by means of force, intimidation, threat, strategy, or stealth. It is commenced by a verified complaint (Sec. 1, Rule 70).

Even if there is no formal contract between the parties, there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259, October 13, 1983).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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PROVISIONAL REMEDIES Forcible Entry v. Unlawful Detainer Forcible Entry (Detentacion) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by FISTS.

recovered should be brought to the MTC.

Unlawful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff. Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with the lease contract. The plaintiff need not have been in prior physical possession.

GR: Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession or right to possession of property. XPN: When the decision of the MTC is appealed to the RTC, the applicable rules are those of the latter court (Refugia v. CA, G.R. No. 118284, July 5, 1996). NOTE: Ejectment suits can be maintained with respect to all kinds of land, but agricultural lands under tenancy are now subject to the land reform laws, and cases arising thereunder are within the jurisdiction of Regional Trial Court acting as Special Agrarian Court (Regalado, 2012).

HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA AND ACCION REIVINDICATORIA Jurisdiction The actions of forcible entry and unlawful detainer are within the exclusive and original jurisdiction of the MTC, MeTC and MCTC (Sec. 33[2], BP 129; RA 7691) and shall be governed by the rules on summary procedure irrespective of the amount of damages or rental sought to be recovered (Sec. 3, Rule 70).

Distinguished from accion publiciana and accion reivindicatoria Actions available to recover possession of real property

In case of accion publiciana and accion reivindicatoria, RTC has jurisdiction if the value of the property exceeds Php 20,000 or exceeds Php 50,000 in Metro Manila. MTC has jurisdiction if the value of the property does not exceed the above amounts.

Accion Interdictal (ejectment); Accion Publiciana; and Accion Reinvindicatoria

NOTE: The amount of rents and damages claimed does not affect jurisdiction of the MTCs because the same are only incidental or accessory to the main action (Lao Seng Hian v. Lopez, G.R. No. L1950, May 16, 1949).

3 possessory actions distinguished from each other Accion Interdictal Summary action for the recovery of physical possession where the dispossession has not lasted for more than 1 year. All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be

Accion Publiciana A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year. RTC has jurisdiction if the value of the property exceeds Php 20,000 or Php 50,000 in Metro Manila. MTC

has

value of the property does not exceed the above amounts.

Rule that should govern the proceedings of accion interdictal

Demand to vacate is not required before the filing of the action because occupancy is illegal from the very beginning (Riano, 2009). The plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant. GR: The 1 year period is Period is counted from the counted from the date of date of the last demand or actual entry on the land. last letter of demand in case of non-payment of rentals XPN: When entry is by or violation of the stealth, the period must be conditions of the lease counted from the demand to (Riano, 2009). vacate upon learning of the stealth (Riano, 2009).

1. 2. 3.

jurisdiction if the value of the property does not exceed the above amounts.

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

If only rents or damages are claimed in an ordinary action, the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC.

Matters alleged in action for forcible entry 1. 2.

RTC has jurisdiction if the value of the property exceeds Php 20,000 or Php 50,000 in Metro Manila.

Plaintiff’s prior physical possession of the property; and He was deprived of possession of any land or building by force, intimidation, threat, strategy, or stealth (Riano, 2012).

MTC has jurisdiction if the

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REMEDIAL LAW Effect of the pendency of an action involving ownership on an action for forcible entry and unlawful detainer

ACTION ON THE COMPLAINT The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons (Sec. 5, Rule 70).

It does not bar the filing of an ejectment suit, nor suspend the proceedings. The underlying reason for this rule is to prevent the defendant from trifling with the summary nature of an ejectment suit by the simple expedient of asserting ownership over the disputed property (Tecson v. Gutierrez, G.R. No. 152978, March 4, 2005).

WHEN DEMAND IS NECESSARY NOTE: Ejectment suits are not suspended or barred by other actions (Wilson Auto Supply Corp. v. CA, G.R. No. 97637, April 10, 1992).

When demand is necessary Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2, Rule 70). The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand that vests upon the lessor a cause of action.

WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED Who may institute the action 1.

2.

A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other persons against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within 1 year after such unlawful deprivation or withholding of possession, bring an action in the proper MTC against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs (Sec. 1 Rule 70).

What constitute a demand in unlawful detainer 1. 2.

NOTE: The notice giving the lessee the alternative either to pay the increased rental or otherwise vacate the land is not the demand contemplated by the Rules of Court in unlawful detainer cases. When after such notice, the lessee elects to stay, he thereby merely assumes the new rental and cannot be ejected until he defaults in said obligation and necessary demand is first made (Peñas, Jr. v.Court of Appeals G.R. No. 112734,July 7, 1994).

Lessor to proceed against lessee only after demand Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises if no person be found thereon, and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings (Sec. 2, Rule 70).

Form of demand The demand may be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2, Rule 70). It has been ruled, however, that the demand upon a tenant may be oral (Jakihaca v. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses.

PLEADINGS ALLOWED The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified (Sec. 4, Rule 70).

Effect of non-compliance with the demand If the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings, the lessor may now proceed against the lessee (Sec. 2, Rule 70).

NOTE: Within 10 days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded (Sec. 6, Rule 70).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

To pay and to vacate – If the suit is based on defendant’s failure to pay the rentals agreed upon. To comply and to vacate – If suit is predicated upon the defendant’s non-compliance with the conditions of the lease contract (Riano, 2012).

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PROVISIONAL REMEDIES Prior demand in unlawful detainer not required (TRID) 1. 2. 3. 4.

may, within 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 30 days from the filing thereof (Sec. 15, Rule 70).

Where the purpose of the action is to terminate the lease by reason of expiry of its term; Where the purpose of the suit is not for ejectment but for the reinforcement of the terms of the contract; or When the defendant is not a tenant but a mere intruder. When there is stipulation dispensing with a demand (Art. 1169 NCC, Sec. 2 Rule 70).

NOTE: If judgment is appealed to the Regional Trial Court, said court may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant's appeal is frivolous or dilatory or that the appeal of the plaintiff is prima facie meritorious (Sec. 20, Rule 70).

Q: Ben sold a parcel of land to Del with right to repurchase within 1 year. Ben remained in possession of the property. When Ben failed to repurchase the same, title was consolidated in favor of Del. Despite demand, Ben refused to vacate the land, constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred that the case should be dismissed because Del had never been in possession of the property. Is Ben correct? (2008 Bar Question)

RESOLVING DEFENSE OF OWNERSHIP Determination of the issue of ownership in forcible entry and unlawful detainer cases In cases where defendant raises the question of ownership in the pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the court may proceed and resolve the issue of ownership but only for the purpose of determining the issue of possession. However, the disposition of the issue of ownership is not final (provisional determination only), as it may be the subject of separate proceeding specifically brought to settle the issue (De la Rosa v. Roldan, GR No. 133882, September 5, 2006).

A: No. In an action for unlawful detainer, it is not required that the plaintiff be in prior physical possession of the land subject of the action. In this action by the vendee a retro against a vendor a retro who refused to vacate the property even after title has been consolidated in the vendee, the latter, in contemplation of law, steps into the shoes of the vendor and succeeds to his rights and interest (Pharma Industries Inc. v. Hon. Pajarillaga, G.R. No. L-53788, October 17, 1980).

NOTE: The only issue involved in ejectment proceedings is as to who is entitled to the physical or material possession of the premises, that is, possession de facto and not possession de jure (Regalado, 2012).

Rule in case of tacita reconduccion in relation to unlawful detainer

Judgment in forcible entry and unlawful detainer cases NOT conclusive as to the title to the property

Under Art. 1670 of NCC, if at the end of lease, the lessee continues to enjoy the property leased for 15 days with consent of the lessor, and no notice to the contrary has been given, it is understood that there is an implied new lease.

The judgment rendered in an action for forcible entry or detainer is conclusive only as to possession of the property. Said judgment does not bind the title or affect the ownership of the land or building. A distinct and separate action between the same parties respecting title to the land or building may be had (Sec. 18, Rule 70).

When there is tacit reconduccion, the lessee cannot be deemed as unlawfully withholding the property. There is no unlawful detainer (Riano, 2012).

NOTE: The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia v. Dimatulac, 401 SCRA 742; Perez v. Cruz, 404 SCRA 487).

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION Remedy of the plaintiff in order to obtain possession of the premises during the pendency of an action The plaintiff may, within 5 days from filing of the complaint file a motion in the same action for the issuance of a writ of preliminary mandatory injunction to restore him his possession. This motion shall be resolved within 30 days from its filing (Sec. 15, Rule 70; Riano, 2012). Grant of injunction while the case is pending The court may grant preliminary injunction, in accordance with the provisions of Rule 58 (Preliminary Injunction), 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

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REMEDIAL LAW Binding of Judgment

Supersedeas bond NOT required

GR: Judgment in an ejectment case is binding only upon the parties properly impleaded and given an opportunity to be heard.

Where the: 1. Monetary award in the judgment of the inferior court has been deposited with the court; or 2. Judgment of the lower court did not make findings with respect to any amount in arrears, damages, or costs against the defendant.

XPNs: It becomes binding on anyone who has not been impleaded in certain instances as in the following: 1. A sublessee is bound by the judgment against the lessee because his right to the premises is merely subsidiary to that of the lessee; 2. A guest or a successor in interest, the members of the family of the lessee or his servants and employees are likewise bound by the judgment even if not impleaded in the suit for ejectment; 3. Trespassers, squatters or agents of the defendant fraudulently occupying the property to frustrate the judgment; and 4. Transferees pendente lite and other privies of the defendant (Riano, 2012).

Rules of res judicata and conclusiveness of judgment apply in ejectment case But subject to the qualification that judgment is conclusive with respect to the right of possession under and by virtue of a contract the existence of which has been proved in said ejectment suit (Penas v. Tuason, 22 Phil 303; Regalado, 2012). SUMMARY PROCEDURE, PROHIBITED PLEADINGS Prohibited pleadings and motions under Rule 70

Amount of monetary award

1.

Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with a referral to the Lupon Tagapamayapa in cases covered by the LGC; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions

The amount of monetary award is immaterial to its jurisdiction, the restoration of possession being primary relief sought and to be granted (Regalado, 2012). NOTE: The plaintiff, in ejectment cases, is entitled to damages caused by his loss of the use and possession of the premises, but not for damages caused on the land or building, which latter items of damages should be recovered by plaintiff, if he is the owner, in an ordinary action (Santos v. Santiago, 38 Phil 575). However, it has been held that plaintiff can recover from defendant liquidated damages stipulated in the lease contract (Gozon v. Vda. De Barrameda, L-17473, June 30, 1964; Regalado, 2010).

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT How to stay immediate execution of judgment As a rule, judgment of the MTC against the defendant in ejectment proceedings is immediately executory. However in order to stay the immediate execution of judgment defendant must take the following steps: 1. Perfect an appeal (in the same manner as in ordinary civil actions, Rule 40); 2. File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from; and 3. Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises (Sec. 19, Rule 70).

Q: Aries filed an unlawful detainer case against Patrick before the appropriate MTC. In his answer, Patrick avers as a special and affirmative defense that he is a tenant of Aries’ deceased father in whose name the property remains registered. What should the court do? Explain briefly. (2007 Bar Question) A: The court should hold a preliminary conference not later than 30 days after the defendant’s answer was filed, since the case is governed by summary procedure under Rule 70 of the Rules of Court, where a reply is not allowed. The court should receive evidence to determine the allegations of tenancy. If tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction.

NOTE: The order for the issuance of a writ of execution to immediately enforce the judgment of the inferior court is interlocutory and not appealable. Immediate execution is proper if the judgment is in favor of the plaintiff. If the judgment is in favor of the defendant with an award for damages under his counterclaims, such judgment is not immediately executory and can be executed only after the lapse of the 15-day period to appeal without the plaintiff having perfected his (Regalado, 2012).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

If it would appear that Patrick’s occupancy of the subject property was one of agricultural tenancy, which is governed by agrarian laws, the court should dismiss the case because it has no jurisdiction over agricultural tenancy cases. Patrick’s allegation that he is a “tenant” of plaintiff’s deceased father suggests that the case is one of landlord-

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PROVISIONAL REMEDIES tenant relation and therefore, not within the jurisdiction of ordinary courts.

Criminal contempt v. Civil Contempt

CONTEMPT (RULE 71) Contempt It is disobedience to the court by acting in opposition to its authority, justice and dignity. It signifies not only willful disregard or disobedience of court’s orders, but such conduct as tends to bring the authority of court and administration of law into disrepute or in some manner to impede the due administration of justice (Regalado v. Go, GR No. 167988, Febraury 6, 2007; Riano, 2011). Functions of contempt proceedings 1. 2.

Vindication of public interest by punishment of contemptuous conduct; Coercion to compel the contemnor to do what the law requires him to uphold the power of the court, and also to secure the rights of the parties to a suit awarded by the court (Ibid.).

2.

Civil Contempt It is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made (Riano, 2012).

Purpose is to vindicate the authority of the court and protect its outraged dignity.

Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons Proceedings are generally held to be remedial and civil in nature that is, for the enforcement of some duty, and essentially a remedy resorted to preserve and enforce the rights of a private party to an action and to compel obedience to a judgment intended to benefit such party litigant. Remedial in nature Intent is not necessary Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected Proof required is more than mere preponderance of evidence If judgment is for respondent, there can be an appeal

Proceedings should be conducted in accordance with the principles and rules applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt proceedings. Punitive in nature Intent is necessary State is the real prosecutor

KINDS OF CONTEMPT 1.

Criminal Contempt It is a conduct directed against the authority and dignity of the court or a judge acting judicially; it is a conduct obstructing the administration of justice which tends to bring the court into disrepute or disrespect (Riano, 2012).

According to nature (depending on the nature and effect of the contemptuous act) a. Civil b. Criminal According to the manner of commission a. Direct b. Indirect PURPOSE AND NATURE

Nature of contempt power The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders and mandates of the courts, and, consequently, to the due administration of justice.

Proof required is proof beyond reasonable doubt. If accused is acquitted, there can be no appeal.

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NOTE: If the purpose is to punish, it is criminal in nature but if to compensate, then it is civil.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Direct contempt v. Indirect contempt

Definition

Location Nature of proceeding How done

Grounds

Penalty

Direct Contempt A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so (Sec. 1, Rule 71). Committed in the presence of or so near a court. Summary in nature Contempt in facie curiae 1. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings; 2. Disrespect towards the court; 3. Offensive personalities toward others; or 4. Refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so (Sec. 1, Rule 71).

The penalty for direct contempt depends upon the court to which the act was committed: 1. If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or both; 2. If the act constituting direct contempt was committed against a lower court, the penalty is a fine not exceeding 200 pesos or imprisonment not exceeding 1 day, or both (Sec. 1, Rule 71); 3. If the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it.

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Indirect Contempt Committed by a person who does the following acts: 6. Disobedience or resistance to a lawful writ, process, order or judgment of a court; 7. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; and 8. Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice (Siy vs, NLRC, GR No. 158971, August 25, 2005). Not committed in the presence of the court. Punished after being charged and heard Constructive contempt 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; 2. Abuse or any unlawful interference with the proceedings not constituting direct contempt. 3. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court or unauthorized intrusion to any real property after being ejected. 4. Failure to obey a subpoena duly served. 5. Assuming to be an attorney or an officer of the court without authority. 6. Rescue or attempted rescue, of a person or property in the custody of an officer. 7. Any improper conduct tending to degrade the administration of justice (Sec. 3, Rule 71). The punishment for indirect contempt depends upon the level of the court against which the act was committed: 1. Where the act was committed against an RTC or a court of equivalent or higher rank, he may be punished by a fine not exceeding Php 30,000 or imprisonment not exceeding 6 months, or both; 2. Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Sec. 7, Rule 71); 3. Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for contempt against such persons or entities.

PROVISIONAL REMEDIES Remedy

The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of special civil action of certiorari or prohibition directed against the court, which adjudged him in direct contempt (Sec. 2, Rule 71). Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment shall be suspended, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him (Sec. 2, Rule 7; Canada v. Suerte, 474 SCRA 379). No formal proceeding is required to cite a person in direct contempt. The court against which the contempt is directed may summarily adjudge a person in direct contempt (Sec. 1 Rule 71; Encinas v. National Bookstore Inc., 464 SCRA 572).

Appeal (by notice of appeal) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against him (Sec. 11, Rule 71).

1. May be initiated motu proprio by the court against which the contempt was committed by order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt; or NOTE: This procedure applies only when the indirect contempt is committed against a court of judge possessed and clothed with contempt powers.

2. By a verified petition with supporting particulars and certified true copies of the necessary documents and papers (independent action; must comply with requirements of an initiatory pleadings) (Sec. 4, Rule 71).

Commencement of Contempt Proceeding

NOTE: If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision (Sec. 4, Rule 71).

Q: Lawyer Mendoza, counsel for the accused in a criminal case, was cited for direct contempt by Judge Tagle and was sentenced to 10 days imprisonment. Lawyer Mendoza was placed in prison immediately. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Is Judge Tagle correct?

decided against him (Tiongco v. Judge Salao, A.M. No. RTJ06-2009, July 27, 2006).

A: No. An order of direct contempt is not immediately executory or enforceable. The contemner must be afforded a reasonable remedy to extricate or purge himself of the contempt. Under Sec. 2, Rule 71, of the Rules of Court, a person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be

2.

Court that has jurisdiction 1.

3.

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Where the act was committed against a RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where the act was committed against a lower court, the charge may be filed with the RTC in which the lower court is sitting. It may also be filed in lower court against which the contempt was allegedly committed. The decision of the lower court is subject to appeal to RTC. Where the act was committed against persons or entities exercising quasi-judicial functions, the charge shall be filed in RTC of the place wherein the contempt was committed (Sec. 12, Rule 71; Riano, 2009).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Q: May a non-party be held for contempt?

4.

A: GR: No 5. XPN: If he is guilty of conspiracy with any one of the parties in violating the court’s orders (Desa Ent., Inc. v. SEC, G.R. No. L-45430, September 30, 1982).

6. 7.

Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz, however, interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged and falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray and Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest. But they were denied outright by Judge Victoria. Is Judge Victoria correct?

NOTE: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of justice.

Procedural requisites before the accused may be punished for indirect contempt 1. 2.

A: No. Direct contempt is a contumacious act done facie curiae and may be punished summarily without hearing. Indirect or constructive contempt, in turn, is one perpetrated outside of the sitting of the court.

3.

WHEN IMPRISONMENT SHALL BE IMPOSED When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it (Sec.8, Rule 71). Indefinite incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power.

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT Acts deemed punishable as indirect contempt After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

2.

3.

CONTEMPT AGAINST QUASI-JUDICIAL BODIES Contempt against Quasi-Judicial Bodies The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12, Rule 71; LBP v. Listana, GR No. 152611, August 5, 2003).

Misbehavior an officer of a court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A charge in writing to be filed; An opportunity for the person charged to appear and explain his conduct; and To be heard by himself or counsel (Regalado v. Go, G.R. No. 167988, February 6, 2007).

NOTE: If a person charged with indirect contempt fails to appear on that date after due notice without justifiable reason, the court may order his arrest, just like the accused in a criminal case. The court does not declare the respondent in default (Riano, 2012).

Here the use of falsified and forged documents is a contumacious act. However, it constitutes indirect contempt not direct contempt. The imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Sec. 3, Rule 71, a contemnor may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel.

1.

Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; Assuming to be an attorney or an officer of a court, and acting as such without authority; Failure to obey a subpoena duly served; The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3, Rule 71).

NOTE: Other acts or violations cannot be punished as contumacious conduct by administrative or quasi-judicial entities unless the governing law specifically defines such violation as contempt of court , or it unequivocally authorizes said official or body to punish contempt, providing at the same time the

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SPECIAL PROCEEDINGS corresponding penalty (People v. Mendoza, et. al, 92 Phil 570; Regalado, 2012).

City council does NOT have the power to subpoena witness and to punish non-attendance for contempt A city council does not have the power since there is neither a constitutional nor statutory conferment on it of such powers. Unlike Congress whose contempt power is sui generis and inheres in it as a coordinate branch of the government, no such power can be implied in the legislative functions delegated to local legislative bodies, especially since the contempt power is essentially of a judicial nature (Negros Oriental II Electric Cooperative, Inc., et. al., v. Sangguniang Panlungsod of Dumaguete, et. al., GR No. 72492. November 5, 1987; Regalado, 2012).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW SPECIAL PROCEEDINGS NOTE: The word “practicable” is defined as: possible to practice or perform; capable of being put into practice, done or accomplished. This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring a certification of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person as in the present case (Sheker v. Estate of Alice Sheker, G.R. No. 157912, Dec. 13, 2007).

Special proceeding It is a remedy by which a party seeks to establish a right, status or particular fact [Sec. 3(c), Rule 1]. Applicability of general rules In the absence of special provisions, the rules provided for in ordinary actions, shall be, as far as practicable, applicable in special proceedings (Sec. 2, Rule 72).

Distinction among ordinary action, special civil action and special proceeding Ordinary Action

Special Civil Action

Special Proceeding

To protect or enforce a right or prevent or redress a wrong Involves two or more parties – plaintiff and defendant

Civil action subject to specific rules

Governed by ordinary rules, supplemented by special rules

Ordinary rules apply primarily but subject to specific rules

Initiated by a complaint, and parties respond through an answer

Some are initiated by complaint, while some are initiated by petition

To establish a right, status, or a particular fact May involve only one party – only petitioner because it is an application for relief against the whole world or a proceeding in rem, not an action to enforce a right against a particular individual, except for correction or cancellation of entries under Rule 108, in which case, the Local Civil Registrar should be impleaded as a respondent Governed by special rules, supplemented by ordinary rules if applicable like rule on payment of docket fees and the requirement of certification against forum shopping (Ibid.) Initiated by a petition and parties respond through an opposition

Heard by courts of general jurisdiction Issues or disputes are stated in the pleadings of the parties Adversarial

Heard by courts of general jurisdiction

Heard by courts of limited jurisdiction

Issues or disputes are stated in the pleadings of the parties Some are adversarial while some are not adversarial

Issues are determined by law

Based on a cause of action

Some special civil action does not require a cause of action

Involves two or more parties

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

192

Not adversarial except for correction or cancellation of entries under Rule 108 (It may be summary or adversarial depending on what is sought to be rectified.) Not based on a cause of action except habeas corpus

SPECIAL PROCEEDINGS Subject matters of special proceedings Rules Rules 73-90

Special Proceeding Settlement of Estate of Deceased Persons

Jurisdiction RTC –when the gross value of the estate exceeds Php 300,000 if outside Metro Manila or P400,000 if within Metro Manila MTC –when the gross value of the estate is Php 300,000 or less if outside Metro Manila or Php 400,000 or less if within Metro Manila (Sec. 3, RA 7691)

1.

2.

Venue If resident of the Philippines (whether citizen or alien)- Court of the province/city where the deceased resides at the time of death If non- resident - court of any province/city wherein he had estate

NOTE:MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs

Rule 91

Escheat

RTC (Sec. 1, Rule 91)

1. Ordinary escheat proceedings: RTC a. If resident- place where the deceased last resided b. If non-resident- place where he had estate 2. Reversion of land to the State for violation of the Constitution- RTC where the land lies in whole or in part 3. Unclaimed deposits (for 10 years) RTC of the city/province where the bank is located NOTE: All banks located in 1 province where the court is located may be made partydefendant in an action.

Rules 92-97; Guardianship A.M. No. 03-0205-SC

Rule 98

Trustees

Rule 103

Change of name

Rule 108

Cancellation or correction of entries in the civil registry

Family Court – In case of minors (Sec. 3, A.M. No. 03-02-05-SC)

1. 2.

RTC – In cases of incompetents other than minors (Sec. 1,Rule 92) RTC–when the gross value of the estate exceeds Php 300,000 if outside Metro Manila or Php 400,000 if within Metro Manila MTC–when the gross value of the estate is Php 300,000 or less if outside Metro Manila or Php 400,000 or less if within Metro Manila RTC (Sec. 1) RTC(Sec.1)

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If resident- place where minor/ incompetent resides If non-resident- place where minor/ incompetent has property

Where the will was allowed or where the property or portion thereof affected by the trust is situated

Where petitioner resides for the last 3 years prior to the filing of the petition Where the corresponding civil registry is located

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Rules

Special Proceeding

RA 9048 as amended by RA No. 10172 effective August 15, 2012

Jurisdiction

1. Administrative correction of entry/change of first name or nickname 2. Correction of date of birth with regard to day and month of birth but not the year of birth 3. Change of sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry 4. Clerical or typographical errors which can be corrected by the civil registry. Rule 107 Declaration of absence and death A.M. No. 00-8- Corporate rehabilitation 10-SC BP 68 Voluntary dissolution of (Corporation corporation Code) Rule 101 Hospitalization of insane person A.M. No. 02-06- Domestic Adoption 02-SC A.M. No. 02-6- Rescission of Adoption 02-SC A.M. No. 02-6- Inter-country Adoption 02-SC A.M. No. 03-04- Custody of Minors 04-SC Rule 105 Judicial Approval of Voluntary Recognition of Minor Natural Children A.M. No.02-11- Declaration of nullity of 10-SC void marriage/ Annulment of marriage

Local Civil General(Sec. 3)

A.M. No. 02-11- Legal Separation 11-SC

Family Court(Sec. 2[c])

Art. 40, Family Code Family Code

RTC

Petition for judicial permission to marry Summary Proceedings

Registry/Consul

RTC(Sec.1) RTC designated as commercial court SEC(Secs. 118-120, Corporation Code)

Venue Local civil registry office where the record is kept/where the interested party is presently residing or domiciled

Where the absentee resided before his disappearance Where principal office of the corporation is situated Where principal office of corporation is situated

RTC(Sec. 1)

Where such insane person may be found

Family Court(Sec. 6)

Where the adopter resides

Family Court(Sec. 20)

Where the adoptee resides

Family Court or the Inter-Country Adoption Board Family Court(Sec. 3)

Where the adopter resides

Family Court(Sec. 1)

Family Court(Sec. 3[b])

Family Court(Sec.5, RA 8369)

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194

Where petitioner resides or where the minor may be found Where the child resides

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner Where the petitioner resides Where the petitioner resides or where the child resides if it involves minors

SPECIAL PROCEEDINGS Rules RA 8369

Rule 102

A.M. No. 0304-04-SC

Special Proceeding Jurisdiction Actions mentioned in the Family Courts Act 1. Petitions on Foster Family Court care and Temporary Custody 2. Declaration of Nullity of Marriage 3. Cases of Domestic Violence Against Women and Children Habeas Corpus SC, CA, RTC, MTC in the province or city in case there is no RTC judge; SB only in aid of its appellate jurisdiction (Sec. 2) Habeas Corpus in Relation Family Court, CA, SC (Sec. 20) to Custody of Minors

Venue Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner Where the aggrieved party is detained (RTC)

Where the petitioner resides or where the minor may be found

NOTE:A petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty)

A.M. No. 07-912-SC

Writ of Amparo

RTC, SB, CA or SC or any justice thereof (Sec. 3)

A.M. No. 08-116-SC

Writ of habeas data

RTC, SB, CA or SC or any justice thereof (Sec. 3)

A.M. No. 09-68-SC

Writ of Kalikasan

SC or any stations of CA (Sec. 3, Rule 7)

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Where the threat, act or omission was committed or any of its elements occurred Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner Where the unlawful act, omission or threat was committed

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Publication requirement in special proceedings Special Proceeding Clerical or typographical errors;administrative change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry Corporate rehabilitation Settlement of estate of deceased persons Judicial change of name Judicial cancellation or correction of entries in the civil registry Domestic adoption Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term) Declaration of absence

Publication of Order of Hearing Once a week for 2 consecutive weeks

Once a week for 3 consecutive weeks

Guardianship Trustees Custody of minors Hospitalization of insane person Rescission of adoption Correction of clerical or typographical error Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and children Summary proceedings

Special proceeding Settlement of estate of deceased persons Trustees Hospitalization of insane person Judicial change of name Judicial cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/ change of first name or nickname Guardianship

Once a week for 3 consecutive weeks NOTE: The declaration of absence shall not take effect until six (6) months after its publication in a newspaper of general circulation.

Escheat

Notificationrequirement in special proceedings

Once a week for 6 consecutive weeks None

NOTE:In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2 consecutive weeks.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Domestic Adoption Rescission of Adoption Inter-country Adoption Custody of Minors Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan Summary proceedings 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and children Declaration of nullity of void marriage / Annulment of marriage Legal separation Escheat

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To whom notice must be given Executor/administrator/any interested party All persons interested on the trust On the person alleged to be insane and to the one having charge of him or any of his relatives Interested parties/Solicitor General Persons named in the petition/Solicitor General/Civil Registrar impleaded as respondent Heirs/legatees/devisees/creditors/other interested persons Creditors/Debtors Creditors Interested parties

The minor if above 14 years of age/incompetent himself/Interested parties on the property of the ward. General or special notice may be given. Biological parents/Solicitor General Adopter Biological parents, if any/guardian Biological parents/guardian if any To the person to which the writ is directed Respondent Respondent Respondent Respondent and interested party Solicitor General/Public Prosecutor

City/Provincial Prosecutor/ Respondent

City/Provincial prosecutor/ Respondent None

SPECIAL PROCEEDINGS SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESSES

XPN: Estoppel by Laches When two proceedings were filed

WHICH COURT HAS JURISDICTION 1. Regional Trial Court Gross value of the estate exceeds Php 300,000 (outside Metro Manila) or exceeds Php 400,000 (within Metro Manila)

Metropolitan Trial Court Gross value of the estate is Php 300,000 or less (outside Metro Manila) or Php 400,000 (within Metro Manila)

2.

VENUE IN JUDICIAL SETTLEMENT OF ESTATE Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien

3.

Non-Resident Court of the province/city where the estate may be found

Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence, institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI, G.R. Nos. L-21938-39, May 29, 1970).

The probate of will is mandatory. It will be anomalous if the estate of person who died testate should be settled in intestate proceedings. The intestate case should be CONSOLIDATED with testate proceedings (Roberts v. Leonidas, 129 SCRA 33). Testate proceeding takes precedence over intestate proceeding. If in the course of intestate proceeding, it is found that decedent left a will, proceeding for probate of will should REPLACE intestate proceeding (Uriarte v. CFI of Negros Occidental, 33 SCRA 252). First court, upon learning that petition for probate has been presented in another court, may DECLINE TO TAKE COGNIZANCE of and HOLD IN ABEYANCE petition before it, and instead DEFER to second court. If the will is admitted to probate, it will definitely DECLINE to take cognizance (Cuenco v. CA, 53 SCRA 360).

NOTE: The difference between Uriarte and Cuenco is that in Uriarte, there was a showing that petitioner in the probate proceeding knew before filing of petition in the second court that there was already an intestate proceeding in the first court.

Wrong venue is a waivable procedural defect, and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss.

EXTENT OF JURISDICTION OF PROBATE COURT Extent of jurisdiction of probate court The Court, in the exercise of its probate jurisdiction, may issue warrants and processes to compel the attendance of witnesses or to carry into effect their orders and judgments and all other powers granted them by law (Sec. 3, Rule 73).

NOTE: Under this Rule, residenceis construed to be the personal, actual, physical habitation, his actual residence or place of abode, not his permanent legal residence or domicile (Fule v. CA, G.R. No. L-40502, Nov. 29, 1976).

Issuance of Writ of Execution

Principle of Preferential Jurisdiction

GR: The probate court cannot issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution.

GR: The probate court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts (Sec. 1 of Rule 73). It has exclusive jurisdiction over said estate and no other special proceedings involving the same subject matter may be filed before any other court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval v. Santiago, L- 1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (De Borja v. Tan, 77 Phil 872).

XPNs: 1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88); 2. To enforcepayment of the expenses of partition (Sec. 3, Rule 90); and 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142)

NOTE: The prohibition of filing an action relating to the estate other than in the probate court where the petition for the settlement of estate was filed refers only to courts in the Philippines and does not include foreign courts. Hence, in no way can it be validly maintained that the District Court of Hawaii has encroached upon, or “impinged on,” the jurisdiction of the probate court by the issuance of an order directing the investigation of the alleged commission of torture during the Marcos administration for a claim against his estate (Republic v. Villarama, Jr. G.R. No. 117733, September 5, 1997). The rule applies to both testate and intestate proceedings (Intestate Estate of Wolfson, 45 SCRA 381, June 15, 1972).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Declaration of Heirship 1.

2.

A creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of money chargeable against the conjugal property. The proper remedy is to file a claim in the settlement of estate of the decedent. The reasons is that upon the death of one spouse, powers of administration of surviving spouse ceases and is passed to administrator appointed by probate court in the settlement proceedings (Alipio v. CA, 341 SCRA 441 [2000]).

If the special proceedings are pending, or if there are no special proceedings filed but there is a need to file one, then the determination of heirship should be raised and settled in said special proceedings. If the special proceeding had been instituted but had been finally closed and terminated, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the deceased (Portugal and Portugal, Jr. v. PortugalBeltran, G.R. No. 155555, August 16, 2005).

If separate proceedings have been instituted for each estate, both proceedings may be consolidated if they were filed in the same court. The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. It does not apply to siblings, parents and child or other relatives no matter how close (Benigno v. de la Peña, G.R. No. L-38036, Oct. 15, 1932).

Issues of Ownership POWERS AND DUTIES OF PROBATE COURT GR: A probate court cannot determine issues of ownership in a proceeding for the settlement of estate of decedent because probate courts are courts of limited jurisdiction.

General power and duties of a probate court 1. 2. 3. 4.

XPNs: 1. Provisionally, for the sole purpose of including the property in the inventory, without prejudice to its final determination in a separate action; 2. When all the parties agreed to submit the issue of ownership to the probate court, provided that no rights of third persons are prejudiced; 3. If the question is one of collation or advancement (Agpalo, 2003).

5. 6. 7. 8.

Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Is Richard correct?

NOTE: The court acts as a trustee and as such must jealously guard the estate and see to it that it is wisely and economically administered, not dissipated (Timbol v. Cano, 111 Phil 923, 926).

Specific powers and duties of a probate court 1.

A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, January 24, 2000).

2. 3. 4. 5. 6.

Settlement of estate if the marriage is dissolved by death of either spouse or both When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either (Sec. 2, Rule 73).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Orders the probate of the will of the decedent Grants letters of administration Supervises and controls all acts of administration Hears and approves claims against the estate of the deceased Orders payment of lawful debts Authorizes sale, mortgage or any encumbrance of real estate Orders the payment of taxes and other charges Directs the delivery of the estate to those entitled thereto

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To pass upon the issue regarding the validity of the will (i.e. formalities required by law) Distribute shares Determine who are the legal heirs Issue warrants and processes to secure attendance of witnesses Determine and rule upon issues relating to settlement of the estate, such as administration, liquidation, and distribution of the estate Determine the following: a. Heirs of the decedent; b. Recognition of an illegitimate child; c. Validity of disinheritance effected by testator; d. Status of a person who claims to be the lawful spouse of the decedent ; e. Validity of waiver of hereditary heirs; f. Status of each heir; g. Whether property in the inventory is conjugal or exclusive property of deceased spouse; or h. Matters incidental or collateral to the settlement and distribution of the estate.

SPECIAL PROCEEDINGS Even a private instrument, oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. An extrajudicial settlement made in a private document can be used to compel the other heirs to execute a public instrument to transfer title over the property since a public instrument is required in the transfer and registration of title to the heirs.However, reformation of the instrument may be compelled (Borja vs. Vda. De Borja, 46 SCRA 577).

MODES OF SETTLEMENT OF ESTATES 1.

Extrajudicial settlement– Where the decedent left no will and no debts and heirs are all of age, or the minors are represented by their representatives duly authorized for the purpose, court proceedings are no longer necessary, but the formal requisites must be complied with (Sec. 1, Rule 74).

2.

Judicial settlement – where proceedings in court is necessary, and includes the following: a. Summary settlement of estate of small value – Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed P10,000, the court may proceed summarily, without the appointment of an executor or administrator (Sec. 2, Rule 74). b. Testate proceedings – When the decedent left a last will and testament (Rules 75-79). c. Intestate proceedings – When the decedent died without a will, or died with a will but was found invalid and thereafter disallowed (Rule 79). d. Partition – When there is no will and the parties entitled to the estate would agree on the project of partition (Rule 69).

2. 3.

4.

NOTE: If the estate consists of real property, no bond is required because it will be subjected to a lien in favor of creditors, heirs or other persons for a period of 2 years from distribution. Furthermore, such lien cannot be substituted by a bond.

Effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs An extra-judicial partition executed without the knowledge and consent of the other co-heirs shall not prejudice the coheir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose of satisfying such lawful participation (Sec. 4, Rule 74).

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED Substantial requisites for extra judicial settlement by agreement between the heirs

NOTE: This provision only applies to compulsory heirs entitled to a share in the estate, but not to those excluded by heirs in the direct line/descending line according to the rules of succession.

1. The decedent left no will 2. The decedent left no debts 3. The heirs are all of age 4. The minors are represented by their judicial or legal representatives duly authorized for the purpose (Sec. 1, Rule 74).

Publication of extrajudicial settlement Publication is necessary to notify and bind the whole world of the extrajudicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec. 1, Rule 74).

NOTE: It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. (Rule 74, Sec.1, Rules of Court)

NOTE: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he participated in the proceedings.

While the Rules of Court provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. Bautista, G.R. No. L-14921, December 31, 1960).

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution (Cua v. Vargas, G.R. No. 156536, October 31, 2006).

In case of disagreement of heirs, they may state their oppositions in an ordinary action of partition.

Procedural requisites settlement of estate 1.

for

making

an

Filed with the Register of Deeds; Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks; and Bond filed with the Register of Deeds equivalent to the value of personal property (Sec. 1, Rule 74).

extrajudicial

The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate (Spouses Tiro v. Heirs of Cuyos, G.R. No. 161220, July 30, 2008).

Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir; NOTE: The requirement of public instrument is not constitutive of the validity of extrajudicial settlement but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L273, Mar. 23, 1947).

199

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: The date of hearing shall be set by the court not less than one month, nor more than 3 months from the date of publication of last notice and the order of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general circulation.

Effect if the provisions on notice and participation have been strictly complied with It bars the distributees or heirs from objecting to an extrajudicial partition after the expiration of two years from such extrajudicial partition (Sampilo v. CA, 103 Phil.71).

The summary settlement of estates of small value is allowed when the gross value of the estate does not exceed Php 10,000, irrespective of whether there is a will or none. Such amount is jurisdictional (Sec. 2, Rule 74).

TWO-YEAR PRESCRIPTIVE PERIOD GR: After the expiration of two years from the extrajudicial partition, distributees or heirs are barred from objecting to an extra- judicial partition. However, the two year prescriptive period applies only: 1. To persons who have participated or taken part or had notice of the extrajudicial partition; and 2. When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians.

Extrajudicial settlement v. Summary settlement of estate of small value EXTRA JUDICIAL SETTLEMENT No court intervention. There is compliance by the filing of the public instrument with the Register of Deeds. The value of the estate is immaterial Allowed only in intestate succession There must be no outstanding debts of the estate at the time of the settlement Resorted at the instance and by agreement of all heirs

XPNs: If on the date of the expiration of the period of 2 years prescribed, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within 1 year after such disability is removed (Sec. 5, Rule 74). AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR An affidavit required by Sec.1, Rule 74 to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent. Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate (Delgado vda. de De la Rosa v. Heirs of Marciana Rustia vda. de Damian, G.R. No. 155733, January 27, 2006).

Amount of bond is equal to the value of personal property. If it is a real property, it is subject to a lien for a period of 2 years Publication of notice of the fact of extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation

NOTE: In a case, respondent, believing rightly or wrongly that she was the sole heir to Portugal’s estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Sec. 1, Rule 74. Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78 in case the decedent left no will, or in case he did, he failed to name an executor therein (Portugal v. Portugal-Beltran, G.R. No. 155555, August 16, 2005).

SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE Summary settlement of estate of small value It is a judicial proceeding, without appointment of executor or administrator, and without delay, wherein the competent court summarily proceeds to estimate the value of estate of the decedent; allow his will if any; declare his heirs, devisees, and legatees; distribute his net estate among them, who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them, respectively.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

200

SUMMARY SETTLEMENT OF ESTATE Requires summary adjudication filed with the MTC

Gross value of the estate must not exceed P10,000 Allowed in both testate and intestate succession Available even if there are debts. it is the court which will make provision for its payment May be instituted by any interested party even a creditor of the estate without the consent of all the heirs Amount of bond is to be determined by the court irrespective of whether the estate consists of real or personal property Publication of notice once a week for 3 consecutive weeks; court may likewise order that notice be given to persons as the court may direct. There is also a hearing to be held not less than one month nor more than 3 months from the date of last publication of notice.

SPECIAL PROCEEDINGS REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE AND SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

Guzman). If there is no adverse possession, then the action is imprescriptible (Villamor v. CA).

Grounds: a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate.(Section 4, Rule 74)

Also applicable in judicial proceedings not covered by summary settlement of estate of small value. On the ground of fraud which should be filed within 4 years from the discovery of fraud.

CLAIM AGAINST THE BOND OR REAL ESTATE

ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT

Should be brought within 2 years after settlement and distribution of the estate COMPEL THE SETTLEMENT OF ESTATE IN COURTS ORDINARY ACTION BUT NOT AGAINST THE BOND

Should be brought within 2 years after settlement and distribution of the estate If the order of closure has already become final and executory, the heir must file an independent civil action of accion reivindicatoriato recover his deprived share.

REOPENING OF THE PROCEEDINGS BY MOTION INSUMMARY SETTLEMENT

NOTE:It must be brought within 10 years from the time the right of action accrues [Art. 1144(c)].

After the lapse of 2 years, an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

ACTION FOR RESCISSION (APPLICABLE IN BOTH EXTRAJUDICIAL SETTLEMENT OR SUMMARY SETTLEMENT)

ACTION FOR RECONVEYANCE OF REAL PROPERTY (APPLICABLE IN BOTH EXTRAJUDICIAL SETTLEMENT OR SUMMARY SETTLEMENT)

Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest against both; or c. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. May be availed of after judgment but before the finality of the closure order

Also applicable in judicial proceedings not covered by summary settlement of estate of small value. If there is preterition of compulsory heir tainted with bad faith (Art 1104, NCC). It must be availed of within 5 years from the time the cause of action accrues (Art. 1149, NCC).

PETITION FOR REOPENING OF PROCEEDINGS (SUMMARY SETTLEMENT)

Also applicable in judicial proceedings not covered by summary settlement of estate of small value. GR: It is based on an implied or constructive trust due to fraud which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith (Lagujum v. Viola).

MOTION TO DELIVER SHARE (EXTRAJUDICIAL SETTLEMENT AND SUMMARY SETTLEMENT)

PETITION FOR RELIEF (SUMMARY SETTLEMENT)

XPN: Within 4 years from discovery of fraud if the heir adversely held the property such as obtaining a title and if title is registered from date of registration (Gerona v. De

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Also applicable in judicial proceedings not covered by summary settlement of estate of small value. If proceedings are already closed and the heir is excluded, within a prescriptive period of 10 years. Also applicable in judicial proceedings not covered by summary settlement of estate of small value. If the heir is not excluded but failed to receive his share Also applicable in judicial proceedings not covered by summary settlement of estate of small value. On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38). Also applicable in judicial proceedings.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW In testate succession, no valid partition among heirs until after will has been probated (Ralla v. Judge Untalan, 172 SCRA 858 [1989]).

Q: May an order denying probate of will be overturned after period to appeal has lapsed? Why? (2002 Bar Question)

Scope of examination of a will

A: Yes. A petition for relief may be filed on the grounds of fraud, accident, mistake or excusable negligence within a period of 60 days after the petitioner learns of the judgment or final order and not more than 6 months after such judgment or final order was entered (Secs. 1&3, Rule 38). An action for annulment may also be filed on the ground of extrinsic fraud within 4 years from its discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel (Secs. 2&3, Rule 47).

GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will. NOTE: The allowance of the decedent’s will is conclusive only as to its due execution. The authority of the probate court is limited to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. Thus, petitioner’s claim of title to the properties forming part of her husband’s estate should be settled in an ordinary action before the regular courts (Nittscher v. Nittscher, G.R. No. 160530, November 20, 2007).

PRODUCTION AND PROBATE OF WILL

XPNs: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1. If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added anxiety; as in the case of absolute preterition without any provision in favor of any devises or legatee (Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966). 2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).

NATURE OF PROBATE PROCEEDING Probate It is the act of proving before a competent court the due execution and validity of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court(Tabingan, 2nd ed). Probate is necessary to settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable (Fernandez v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967).

Q: What should the court do if, in the course of intestate proceedings, a will is found and it is submitted for probate? Explain. (2002 Bar Question)

NOTE: Also known as Allowance of Will.

A: The intestate proceeding will be suspended until the will is probated, thereby giving priority to the testate proceedings. Consequently, all the powers of the administrator shall cease and the administrator shall forthwith surrender the letters to the court and render his account within such time as the court directs.

Nature of a probate proceeding 1. 2.

3. 4.

5.

In rem - It is binding upon the whole world (Tabingan, 2nd ed.). Mandatory - No will shall pass either real or personal property unless it is proved and allowed in the proper court (Sec.1, Rule 75). Imprescriptible - because of the public policy to obey the will of the testator Doctrine of estoppel does not apply - The probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest (Fernandez v. Dimagiba, L- 23638, 1967). Res Judicata – once allowed, by the court, it can no longer be questioned, irrespective of any erroneous judgment because it serves as the law of the case (Balais v. Balais, L-33924, 1988).

WHO MAY PETITION FOR PROBATE Parties who may file petition for probate 1. 2. 3.

NOTE: An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate such as a creditor (Sumilang v. Ramagosa, G.R. No. L23135, Dec. 26, 1967).

NOTE: The Deed of Donation which is one of mortis causa, not having followed the formalities of a will, is void and transmitted no right to petitioner’s mother. But even assuming that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria (Aluad v. Aluad, G.R. No. 176943, October 17, 2008).

4. 5.

Testator himself during his lifetime (Sec. 1, Rule 76); or Any creditor – as preparatory step for filing of his claim therein.

Parties entitled to notice in a probate hearing

However, a will may be sustained on the basis of Art. 1080 of the NCC which states that, “if the testator should make a partition of his property by an act inter vivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir (Mang- Oy v. CA, G.R. No. L-27421, 1986).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Executor (Sec. 1, Rule 76); Devisee or legatee named in the will (Sec. 1, Rule 76); Person interested in the estate; e.g. heirs

1.

202

Designated or known compulsory heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known.

SPECIAL PROCEEDINGS 2. 3. 4.

Person named executor, if he not the petitioner. To any person named as co-executor not petitioning, if their places of residence be known. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs (Sec. 4, Rule 76).

Proving a will Will

Uncontested

Contested

Notarial will

The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law (Sec. 5, Rule 76).

All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will (Sec. 11, Rule 76).

Holographic will

At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator (Sec. 5, Rule 76).

The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator (Sec. 11, Rule 76).

NOTE: Notice is required to be personally given to known heirs, legatees, and devisees of the testator. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same (Alaban v. CA, G.R. No. 156021, September 23, 2005).

ALLOWANCE OR DISALLOWANCE OF A WILL CONTENTS OF PETITION FOR ALLOWANCE FOR WILL Contents of the petition 1.

2. 3. 4. 5.

Jurisdictional facts: a. Death of the testator and b. His residence at the time of his death c. If non- resident, the province where the estate was left The names, ages and residences of the heirs, legatees and devisees of the testator or decedent. The probable value and character of the property of the estate. The name of the persons for whom letters are prayed. The name of the person having custody of the will if it has not been delivered to the court (Sec. 2, Rule 76).

NOTE: In the absence of competent witness, and if the court deems it necessary, expert testimony may be resorted to (Sec. 5, Rule 76).

Remedy if none of the subscribing witnesses resides in the province where probate is being conducted

NOTE: No defect in the petition shall render void the allowance of the will or the issuance of letters testamentary or of administration with the will annexed (Ibid.).

A motion for taking of deposition of one or more of them (Sec. 7, Rule 76)

Effects of the allowance of a will

NOTE: The court may also authorize photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked questions with respect to matters pertaining to the will (Sec. 7, Rule 76).

The judgment or decree of the court allowing the will is: 1. Conclusive as to its extrinsic validity; 2. Not subject to collateral attack and it stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal by a higher court; and 3. Conclusive on the whole world (Yuseco v. CA, G.R. Nos. L-40719-21, Dec. 29, 1975).

Instances when the court may admit the testimony of witnesses other than the subscribing witnesses 1. 2.

The subscribing witnesses are dead or insane; or None of them resides in the Philippines (Sec. 8, Rule 76).

Matters that shall be testified on by the other witnesses 1. 2.

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The sanity of the testator; and Due execution of the will (Sec 8, Rule 76).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed

Substantial Compliance Rule If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC).

The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. In such case, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant (Sec. 12, Rule 76).

NOTE: Separate wills which contain essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate (Vda. de Perez v. Tolete, GR 76714, June 2, 1994).

REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES

Rule on proof of lost or destroyed will If it is a notarial will, it shall not be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least 2 credible witnesses (Sec. 6, Rule 76). In this case, a photostatic or machine copy of the will coupled with the testimonies of the attesting witnesses will suffice.

Reprobate Reprobate is a special proceeding to establish the validity of a will proved in a foreign country (Bernardo, 2006). While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them, petitioner, as ancillary administrator of Audrey’s estate was duty bound to introduce in evidence the pertinent law of the State of Maryland (Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006).

If holographic will, a photostatic copy or xerox copy of the lost will would not suffice. But if there are no other copies available then a photostatic or machine copy would suffice to serve as a comparison to the standard writings of the testator. No testimonies of witnesses is allowed because the will was made entirely by the testator himself (Bonilla vs. Aranz, G.R. No. L-58509, December 7, 1982).

Requisites for the allowance of a will proven outside the Philippines 1. 2. 3.

Requisites for allowance of a lost or destroyed will 4.

No will shall be proved as a lost or destroyed will unless: 1. Its execution and validity is established; 2. It must have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and 3. Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. 6, Rule 76).

5. 6. 7.

NOTE: Under the doctrine of processual presumption, there must be evidence to prove the existence of foreign law, otherwise the court should presume that the law of the foreign country is the same as Philippine laws.

GROUNDS FOR DISALLOWING A WILL Grounds for disallowance 1. 2. 3. 4. 5.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign court is based is impelled by the fact that our courts cannot take judicial notice of them (Salud Teodoro Vda. de Perez v. Hon. Zotico A. Tolete, 232 SCRA 722).

If not executed and attested as required by law; If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; If it was executed under duress, influence of fear, or threats; If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or of some other person for his benefit; or If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto (Sec. 9, Rule 76).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The testator was domiciled in a foreign country; The will has been admitted to probate in such country; The foreign court is, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; Proof of compliance with the law on probate procedure in said foreign country; The legal requirements in said foreign country for the valid execution of the will have been complied with; Filing a petition in the Philippines with copy of the will and of its decree of allowance; and Notice and hearing (PCIB v. Escolin, G.R. No. 76714, June 2, 1994).

Compliance with Sections 3 and 4 of Rule 76 regarding the publication and notice by mail or personally to known heirs, legatees and devisees of testator resident in the Philippines and to executor, if he is not the petitioner, required also in wills for probate (Vda. de Perez v. Tolete, 232 SCRA 722).

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SPECIAL PROCEEDINGS EFFECTS OF REPROBATE

Executor v. Administrator

Effects of reprobate 1. 2.

3.

EXECUTOR Nominated by the testator and appointed by court

The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. 3, Rule 77); Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines(Sec. 4, Rule 77); and Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will, may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. 4, Rule 77).

Must present will to the court within 20 days after he knows of the death of the testator or after he knew that he was appointed as executor (if he obtained such knowledge after the death of the testator), unless the will has reached the court in any manner Testator may provide that he may serve without a bond (BUT court may direct him to give a bond conditioned only to pay debts) Compensation may be provided for by the testator in the will, otherwise Sec 7, Rule 85 will be followed

NOTE: As a general rule, administration extends only to the assets of the decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over property in another state or country (Herrera, 2005).

Ancillary administration When a person dies intestate owning property in the country of his domicile as well as in a foreign country, administration shall be had in both countries. That which is granted in the jurisdiction of the decedent’s domicile is termed the principal administration, while any other administration is termed ancillary administration (Ibid.). LETTERS TESTAMENTARY AND OF ADMINISTRATION

ADMINISTRATOR Appointed by the court in case the testator did not appoint an executor or if the executor refused appointment (administration with a will annexed) or if the will was disallowed or if the person did not make a will (intestate succession) No such duty.

Bond is always required unless exempted by law.

Compensation is governed by Sec. 7, Rule 85

WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED

Bases of compensation of the executor or administrator

People who can administer the estate

1.

1. 2.

3.

GR: That provided by the will, in case of an executor; XPN: Unless there is a written instrument filed in the court which he renounces all claim to the compensation provided by law.

Executor – named by the testator in his will for the administration of his property after his death; Administrator – appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate; or Administrator with a will annexed – appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.

NOTE: Any competent person may serve as executor or administrator. There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond (Sec. 4, Rule 78). If the named executor does not qualify, then an administrator may be appointed (Sec. 6, Rule 78).

2.

If there is no compensation provided, the compensation shall be either: a. Php 4.00 per day for the time actually and necessarily employed; b. Commission upon the value of so much of the estate as comes into his possession and finally disposed of by him; or c. 2% of the first Php 5,000, 1% in excess of Php 5,000 up to Php 3,000, ½% in excess of Php 30,000 up to Php 100,000 and ¼% in excess of Php 100,000 (Sec. 7, Rule 85).

3.

If there are 2 or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively (Sec. 7, Rule 85).

NOTE: An administrator cannot recover attorney’s fees from the estatebecause his compensation is fixed by the rule and such compensation is in the nature of executor’s or administrator’s commissions, and never as attorney’s fees (Sec. 7, Rule 85).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW On the matter of appointment of administrator of the estate of the deceased, the surviving spouse is preferred over the next of kin of the decedent. When the law speaks of “next of kin”, the reference is to those who are entitled, under the statute of distribution, to the decedent’s property; one whose relationship is such that he is entitled to share in the estate as distributed, or, in short, an heir. In resolving, therefore, the issue of whether an applicant for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of suits (Angeles v. Maglaya, G.R. No. 153798, September 2, 2005).

Incompetent people to serve as executor or administrator 1. 2. 3.

4.

Minors; Non-residents of the Philippines; and Those who, in the opinion of the court, are unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or conviction of an offense involving moral turpitude (Sec. 1, Rule 78). Executor of an executor over the estate of the first testator (Sec., Rule 78).

NOTE: Courts may refuse to appoint a person as executor or administrator on ground of UNSUITABLENESS - adverse interest or hostile to those immediately interested in the estate (Lim v. DiazMaillares, 18 SCRA 371 [1966]).

2.

Failure to file an income tax return is not a crime involving moral turpitude because the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual (Republic v. Marcos, G.R. No. 130371, August 4, 2009).

3.

Authority issued to the person who administers the estate 1. 2.

3.

Letters testamentary – authority issued to an executor named in the will to administer the estate; Letters of administration – authority issued by the court to a competent person to administer the estate of the deceased who died intestate; or Letters of administration with a will annexed – authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent.

Remedies of a lawyer who was hired executor/administrator in collecting attorney’s fees 1.

2.

NOTE: The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision does not apply to the selection of a special administrator. The preference under Section 6, Rule 78 for the next of kin refers to the appointment of a regular administrator, and not of a special administrator, as the appointment of the latter lies entirely in the discretion of the court, and is not appealable. Not being appealable, the only remedy against the appointment of a special administrator is Certiorari under Rule 65 of the Rules of Court (Tan v. Gedorio, Jr., G.R. No. 166520, March 14, 2008). The Order of preference may be disregarded for a valid cause. Administration may be granted to such other person as the court may appoint in case the persons who have the preferential rights to be appointed are not competent or are unwilling to serve (Villamor v. CA, 162 SCRA 574).

by

Request the administrator to make payment and file an action against him in his personal capacity and not as administrator should he fail to pay; or Petition in the testate or intestate proceeding asking the court, after notice to all persons interested, to allow his claim and direct the administrator to pay it as an expense of administration (Occena v. Marquez, G.R. No. L-28693, Sept. 30, 1974).

The underlying assumption behind the order of preference is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990). This is likewise the same consideration which the law takes into account in establishing the preference of the widow to administer the estate of her husband upon the latter’s death, because she is supposed to have an interest therein as a partner in a conjugal partnership [De Guzman v. Limcolioc, 67 Phil 404 (1939)].

ORDER OF PREFERENCE Order of Preference If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give the bond, or a person dies intestate, administration shall be granted to: 1. The surviving spouse or next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve

Instances when co-administrators may be appointed 1.

2.

NOTE: Next of kin are the heirs entitled to receive a just share in accordance with the rule on distribution of the estate (Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin, or the person selected by them be incompetent or unwilling or if the surviving spouse or next of kin neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person Such other person as the court may select if there is no such creditor competent and willing to serve (Sec. 6, Rule 78).

3.

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To have the benefit of their judgment and perhaps at all times to have different interests represented [Gonzales vs. Aguinaldo et al., 140 SCRA 112 (1990)]; Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased [Vda. De Dayrit vs. Ramolete, 117 SCRA 608 (1982)]; Where the estate is large or, from any cause, an intricate and perplexing one to settle (Herrera, 2005);

SPECIAL PROCEEDINGS 4.

5.

To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate (ibid); or When a person entitled to the administration of an estate desires to have another competent person associated with him in the office (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992).

person may be deprived of his right to property without due process of law (Herrera, 2005). Notice to ‘known heirs and creditors of the decedent, and to any other person believed to have an interest in the estate’ (per Section 4, Rule 76) should be given if names and addresses are known (De Arranz v. Galing).

NOTE: The purpose of having co-administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they will respectively represent the legitimate and illegitimate groups of heirs to the estate (Gabriel v. CA, 212 SCRA 413, Aug. 7,1992).

Filing a bond GR: Before an executor or administrator enters upon the execution of his trust (Sec. 1, Rule 81). NOTE: The term and effectivity of the bond do not depend on payment of premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety v. Quebrar, G.R. No. L-40517, Jan. 31, 1984).

OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION Who may oppose

XPN: The executor may serve without a bond if the testator so directs, or with only his individual bond, conditioned only to pay the debts of the testator (Sec. 2, Rule 81).

Any person interested in the will may file a written opposition (Sec. 1, Rule 79). NOTE: In order to be a party, a person must have material and direct interest, not indirect or contingent (Herrera, 2005).

NOTE: In case of joint executors or administrators, the court may take separate bonds from each or a joint bond from all (Sec. 3, Rule 81).

Interested person

Conditions of the bonds

An ‘interested person’ has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent (San Luis v. San Luis, G.R. No. 133743, February 6, 2007).

1.

2.

3. NOTE: Where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which has not been established or worse, can no longer be established, such contingent interest does not make her an interested party (Tayag v. Tayag-Gallor, G.R. No. 174680, March 24, 2008).

4.

Requirement of a further bond The court may require further bond when there is: 1. Change in circumstances of the executor or administrator or for other sufficient cause (Sec. 2, Rule 81); 2. Sale, mortgage, or encumbrance of the property of the estate conditioned that such administrator or executor will account for the proceeds of the sale or encumbrance (Sec. 7, Rule 89).

Grounds for opposing a petition for administration 1. 2.

Make within 3 months a true and complete inventory of the property of the deceased which came to his knowledge and possession; Administer the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds; Render a true and just account within 1 year and when required by the court; Perform all orders of the court (Ibid.).

Incompetency of the person for whom letters are prayed therein; or Contestant's own right to the administration (Sec. 4, Rule 79).

NOTE: Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. 6, Rule 79).

Q: May the probate court order the forfeiture of the administrator’s bond? A: Yes, because the execution or forfeiture of an administrator’s bond is deemed to be necessary and an incident of administration proceedings, as much as its filing and the fixing of its amount. Therefore, the probate court may have the bond executed in the same proceedings (Phil. Trust Co. v. Luzon Surety Co., G.R. No. L-13031, May 30, 1961).

Notice The order of appointment of a regular administrator is appealable. Where no notice is required by Sec. 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person; the proceeding for the settlement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in order that no

207

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS

APPOINTMENT OF SPECIAL ADMINISTRATOR Appointment of Special Administrator

General powers of an administrator or an executor 1.

In case of a deceased partner: a. To have access to, and examine and take copies of books and papers relating to the partnership b. To examine and make invoices of the property belonging to the partnership

2.

To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court To make improvements on the properties under administration with the necessary court approval except for necessary repairs To possess and manage the estate when necessary for the payment of debts; and payment of expenses of administration (Rule 84).

3.

4.

A special administrator may be appointed when: 1. There is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will (Sec. 1, Rule 80); or 2. The executor or administrator is a claimant against the estate he represents (Sec. 6, Rule 86). The special administrator shall have the same powers as that of a general administrator. NOTE: Only 1 special administrator at a time may be appointed, since the appointment is merely temporary. When appointed, a special administrator is regarded, not as a representative of the agent of the parties suggesting the appointment, but as the administrator in charge of the estate, and in fact, as an officer of the court subject to the supervision and control of the probate court (Corona v. CA, 116 SCRA 316).

Purpose

NOTE: For an executor or administrator to freely exercise his rights and duties, he shall submit a written application to the court having jurisdiction of the estate (Sec. 1, Rule 84).

The appointment of a special administrator is justified only when there is delay in granting letters testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent leaves behind no will) occasioned by any cause. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and heirs (Tan v. Gedorio, Jr., G.R. No. 166520, March 14, 2009).

Restrictions on the powers of administrator or executor 1.

2. 3. 4.

He cannot acquire by purchase, even at public or judicial action, either in person or mediation of another, the property under administration (Art. 1491 NCC, par. 3); He cannot borrow money without authority from the court; He cannot speculate with funds under administration; He cannot lease the property under administration for more than 1 year;

Qualifications of a special administrator The appointment should be within the sound discretion of the court. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in the appointment of a special administrator (Herrera, 2005).

NOTE: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval (Mananquil v. Villegas, A.M. No. 2430, Aug. 30, 1990), only if the period of such lease contract does not extend beyond 1 year.

5. 6. 7.

8.

NOTE: The order of preference in the appointment of regular administrators does not apply to the appointment of special administrators, but such order of preference may be followed by the judge in the exercise of sound discretion (Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960).

He cannot continue the business of the deceased unless authorized by the court; He cannot profit by the increase or decrease in the value of the property under administration; He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners; He may only deliver properties of the estate to the heirs after payment of the debts, funeral charges and other expenses against the estate, except when authorized by the court (Silverio, Jr. v. CA, G.R. No. 178933, September 16, 2009).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Publication Notice through publication is still necessary for the appointment of a special administrator as mandated by Sec. 3, Rule 79 of Rules of Court (De Guzman v. Angeles, L-78590 [1988]).

208

SPECIAL PROCEEDINGS 5.

Powers and duties of a special administrator 1. 2. 3.

Possess and take charge of the goods, chattels, rights, credits and estate of the deceased; Preserve the same; Commence and maintain suit for the estate;

NOTE: These grounds are not exclusive. The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is justified in withdrawing the appointment and giving no valid efficacy thereto(Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946).

NOTE: While a special administrator may commence and maintain suits under Sec. 2 Rule 80, he cannot be sued by a creditor for the payment of the debts of the deceased. Such suit must await the appointment of a regular administrator (De Gala v. Gonzales, et al. 53 Phil 104).

4.

5. 6.

When he becomes incapable or unsuitable to discharge the trust (Sec. 2, Rule 82).

Other grounds for removal of an executor or administrator 1. 2. 3.

Sell only: a. Perishable property; and b. Other property ordered sold by the court; Pay debts only as may be ordered by the court (Sec. 2, Rule 80). Submit an inventory and render an accounting of his administration as required by the terms of his bond (Sec 4, Rule 81).

4. 5.

6. Order appointing a special administrator NOT appealable The order appointing a special administrator is an interlocutory order and the court making the appointment retains control over it to modify, rescind, or revoke the same on sufficient grounds at any time before final judgment. No appeal lies from the appointment of a special administrator (Esler v. Tad-y, G.R. No. L-20902, Oct. 9, 1923; Herrera, 2005).

Death Resignation An administrator who disbursed funds of the estate without judicial approval(Cotia v. Jimenez, 104 Phil. 960); False representation by an administrator in securing his appointment (Cabarubbias v. Dizon, 76 Phil. 209); An administrator who holds an interest adverse to that of the estate or by his conduct showing his unfitness to discharge the trust (Garcia v. Vasquez, 32 SCRA 490); An administrator who has the physical inability and consequent unsuitability to manage the estate (De Borja v. Tan, 93 Phil. 167).

Remedy of creditors against administrator Concerning complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Sec. 2, Rule 82. While the provision is silent as to who may seek with the court the removal of the administrator, a creditor, even a contingent one, would have the personality to seek such relief. After all, the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such purpose (Hilado v. CA, .G.R. No. 164108, May 8, 2009).

Extinguishment of powers of special administrator After the questions causing the delay are resolved and letters testamentary or administration are granted to executor or regular administrator (Sec. 1, Sec. 80). Regular administrator v. Special administrator REGULAR ADMINISTRATOR Order of appointment may be the subject of an appeal One of the obligations is to pay the debts of the estate Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed

NOTE: The rules provide for same grounds for removal/revocation between executor and administrator except in case of the ground of revocation of administration if a will of decedent is discovered (Sec. 1, Rule 82).

SPECIAL ADMINISTRATOR Order of appointment is interlocutory and hence not appealable Cannot pay the debts of the estate unless ordered by the court Appointed when there is delay in granting letters testamentary or administration

Effect of revocation of letters testamentary or of administration The effect of revocation of letters testamentary or of administration is to terminate the authority of the executor or administrator, but the acts of the executor or administrator, done in good faith prior to the revocation of the letters will be protected, and similar protection will be extended to rights acquired under a previous grant of administration [Vda. de Bacaling v. Laguda, et al., 54 SCRA 243 (1973)].

GROUNDS FOR REMOVAL OF ADMINISTRATOR Grounds for the removal of an executor or administrator 1. 2. 3. 4.

Duties of administrator upon revocation of the letters

Neglect to render an account and settle the estate according to law Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules When he absconds When he becomes insane, or

1. 2.

209

Surrender the letters to the court; and Render his account within such time as the court may direct (Sec. 1, Rule 82).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Powers of a new executor or administrator after the first one resigns or is removed

CLAIMS AGAINST THE ESTATE Claims against the estate

1. 2. 3.

To collect and settle the estate not administered; To prosecute or defend actions commenced by or against the former executor or administrator; and To recover execution on judgments in the name of former executor or administrator.

They are money claims of pecuniary nature which could have been enforced against the deceased in his lifetime and could have been reduced to simple money judgments. A money claim against an estate is more akin to a motion for creditors’ claims to be recognized and taken into consideration in the proper disposition of the properties of the estate.

An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing (Sec. 4, Rule 82).

A money claim is only an incidental matter in the main action for the settlement of the decedent’s estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, herein petitioner’s contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping (Sheker v. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007).

Accountability GR: The executor or administrator is accountable for the whole estate of the deceased. XPN: He is not accountable for properties which never came to his possession.

NOTE: When judgment in a civil case has become final and executory, execution is not the proper remedy to enforce payment; claimant should present claim before probate court (Domingo V. Garlitos, June 29, 1963).

XPN to the XPN: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge (Sec. 1, Rule 85).

If the defendant dies during the pendency of the action against him, the rule on substitution of parties will be followed (Sec. 16, Rule 3) and any adverse decision against him may be filed by the plaintiff as a claim against the estate.

Liability for damages The executor or administrator is liable for damages when: 1. He neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased (Sec. 5, Rule 85); 2. He neglects to pay over the money he has in his hands; 3. The value of the estate is lessened; 4. Unnecessary cost or interest accrues; and 5. The persons interested suffer loss (Sec. 6, Rule 85).

If the defendant dies after an adverse decision was rendered against him without having levied any property, then the plaintiff may file his claim against the estate. If the defendant dies after an adverse decision was rendered against him, and after a levy was made, then execution shall proceed, without the need of filing a claim against the estate.

Expenses of administration

Claims that must be presented in the settlement court in the testate or intestate proceedings

Expenses of administration refer to those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits (De Guzman v. De Guzman-Carillo, G.R. No. L-29466, May 18, 1978).

Only the following, which survive, must be presented: 1. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. Expenses for the last sickness of the decedent; or 4. Judgment for money against the decedent (Sec. 5, Rule 86).

Expenses NOT considered as necessary 1. 2.

3. 4. 5. 6.

Expenses on the anniversary of the death of the deceased; Expenses incurred by a presumptive heir for her appearance and that of her witnesses at the trial to oppose the probate of an alleged will; Expenses for the settlement of the question as who are entitled to the estate left by the deceased; Expenses incurred by the executor or administrator to procure a bond; Personal expenses of the occupant of the heir of the family residences; Expenses for stenographic notes, unexplained representation expenses (Herrera, 2005).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

NOTE: Taxes due and assessed after the death of the decedent should not be presented in the form of a claim. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Moreover, heirs even after distribution are liable for such taxes (Vera v. Fernandez, G.R. No. L-31364, Mar. 30, 1979).

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SPECIAL PROCEEDINGS Claims extinguished by death v. Actions which survive CLAIMS EXTINGUISHED BY DEATH Personal to either of the parties The claim can no longer be prosecuted by reason of the death of the party

Examples: legal separation, annulment of marriage, declaration of nullity of marriage

Q: Jericho loaned P5 Million from Carina. Said loan was secured by a real estate mortgage over a parcel of land owned by Jericho. Thereafter, Jericho died without satisfying the loan secured by the said mortgage. What are the remedies available to Carina to enforce her mortgage credit?

ACTIONS WHICH SURVIVE Those claims which can be filed either against the estate or the executor Claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased or against the executor or administrator Examples: contractual money claim, action to recover real property

A: 1. 2. 3.

Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; Foreclose the mortgage judicially and prove any deficiency as an ordinary claim; Rely on the mortgage exclusively, foreclosing the same judicially or extra judicially at any time before it is barred by prescription without the right to claim for any deficiency (Sec. 7, Rule 86).

The above remedies are alternative (Herrera, 2005).

NOTE: Claim for civil liability survives notwithstanding death of accused if the same may also be based on a source of obligation other than delict.

TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS Period to file claims against the estate

Sec. 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from a contract against the estate of a deceased debtor. Those claims are not actually extinguished. What is extinguished is only the obligee’s action or suit filed before the court, which is not then acting as a probate court. In the present case, whatever monetary liabilities or obligations Santos had under his contracts with respondent were not intransmissible by their nature, by stipulation, or by provision of law. Hence, his death did not result in the extinguishment of those obligations or liabilities, which merely passed on to his estate. Death is not a defense that he or his estate can set up to wipe out the obligations under the performance bond (Stronghold Insurance Company, Inc. v. Republic-Asahi Glass Corporation, G.R. No. 147561, June 2006).

GR: Claims against the estate should be filed not be less than 6 months nor more than 12 months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory and any action not filed within the period shall be barred forever, unless otherwise falling within any of the exceptions. XPNs: Belated claims may be filed even beyond the period fixed by the court: 1. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed for a period not exceeding 1 month from the order allowing the filing of the belated claims(Sec. 2 , Rule 86); or 2. Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him.

Absolute claim It is one which, if contested between living persons, would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain (Moran, 1980) Contingent claim It is a conditional claim, which is subject to the happening of a future uncertain event (Buan v. Laya, G.R. No. L-7840, Dec. 24, 1957).

NOTE: The period prescribed in the notice to creditors is not exclusive because money claims against the estate may be allowed at any time before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable (Quisumbing vs. Guison, 76 Phil 730).

Notice to file claims against the estate It is the duty of the court after granting letters testamentary or of administration to issue a notice requiring all persons having money claims to file them in the office of the clerk of court (Sec. 1, Rule 86).

Rationale 1.

The purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of the deceased. Further, its primary object is to apprise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro rata portion in the due course of the administration (Herrera, 2005).

2. 3.

211

To protect the estate of the deceased by informing the executor or administrator of the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed; Speedy settlement of affairs of deceased; and Early delivery of property to distributees, legatees, or heirs (Union Bank of the Philippines v. Santibanez, G.R. No. 149926, February 23, 2005).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW New period allowed

claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, Alan’s contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping (Sheker v. Estate of Alice O. Sheker, G.R. No.157912, Dec. 13, 2007).

At any time before the order of distribution is entered, creditor who failed to file his claim within the time set may move to be allowed to file such claim. Court may for good cause shown and on such terms as are just allow such claim to be filed within a period not exceeding 1 month.

CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE

NOTE: 1 month does not commence from the expiration of the original period for filing claims. It begins from the date of the order of the court allowing said filing (Barredo v. CA, 6 SCRA 620).

Claim of executor or administrator against the estate

STATUTE OF NON-CLAIMS

The executor or administrator, if he has a claim against the estate, shall give notice to the court in writing and the court shall thereafter appoint a special administrator (Sec. 8, Rule 86).

Statute of Non-claims The statute of non-claims is a period fixed by the courts for the filing of claims against the estate for examination and allowance (Herrera, 2005).

NOTE: This is one of the instances where a special administrator is appointed. The special administrator will have authority to act only with respect to the claim of the regular administrator of the executor (Regalado, 2008).

NOTE: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect (Sikat vs. Vda. De Villanueva, G.R. No. L-35925, Nov. 10, 1932).

From an estate proceeding perspective, the Special Administrator’s commission is no less a claim against the estate than a claim that third parties may make. The ruling on the extent of the Special Administrator’s commission - effectively, a claim by the special administrator against the estate - is the lower court’s last word on the matter and one that is appealable (Briones v. Henson-Cruz, G.R. No. 159130, August 22, 2008).

Q: A borrowed from B a sum of money in the year 1990 as evidenced by a written contract of loan. A died in 2001. During the probate proceedings of A, the court ordered that all claims against the estate must be filed from June 2001 to January 2002. When B filed his claim on July 2001, the court granted the same. Is the allowance of the claim correct? A: No, because the period to collect has already prescribed. When A died in 2001, the prescriptive period of 10 years from the time A borrowed money from B in 1990 has already lapsed. Thus, even if the claim was filed within the statute of non claims, the statute of limitations has already barred the filing of the claim. Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an order for all the creditors to file their respective claims against the estate. Alan filed a contingent claim for agent's commission due him in the event of the sale of certain parcels of land belonging to the estate and reimbursement for expenses incurred. The executrix of the estate moved for the dismissal of said money claim against the estate on the grounds that Alan failed to attach a certification against non-forum shopping. The trial court dismissed the case. Is the trial court correct? A: No. Under Secs. 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the

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SPECIAL PROCEEDINGS Procedure in filing claims

Deliver the claim with necessary vouchers to the clerk of court Serve a copy on the executor/administrator

Claim is due: Supported by affidavit stating the amount due and the fact that no payments have been made thereon or offsets

Claim is not due or is contingent: Supported by affidavit stating the particulars thereof

Executor/Administrator must file his answer to the claim within 15 days after service of a copy of the claim Service of answer to the claimant

Claim admitted entirely

Court, in its discretion, orders that known heirs, devisees, legatees be notified and heard

Claim contested

Court may approve it without hearing

If there is opposition, 15 days to file an answer

Trial Claim may be referred to commissioner Judgment Appeal: Record on appeal – filed within 30 days from notice of judgment

PAYMENT OF DEBTS

1. The personal property is not sufficient to pay the debts, expenses of administration and legacies (Sec. 3, Rule 88); 2. The sale of such personal property would be detrimental to the participants of the estate (Sec. 3, Rule 88); 3. Sale of personal property may injure the business or other interests of those interested of the estate (Sec. 2, Rule 89); 4. The testator has not made sufficient provision for payment of such debts, expenses or legacies (Sec. 2, Rule 89); 5. The decedent was, in his lifetime, under contract, binding in law, to deed real property to a beneficiary (Sec. 8, Rule 89); 6. The decedent during his lifetime held real property in trust for another person (Sec. 9, Rule 89).

Payment of Debts GR: The payment of the debts of the estate must be taken from the following order: 1. Portion or property designated in the will 2. Personal property; 3. Real property (Sec. 2, Rule 88). NOTE: If there is still a deficiency, it shall be met by contributions of devisees, legatees, or heirs who have entered into possession of portions of the estate before the debts and expenses have been settled and paid (Secs. 2, 3, and 6, Rule 88).

XPNs: On application by executor or administrator, with written notice to persons interested, and after hearing, real properties can be charged first even though the personal properties are not exhausted when:

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REMEDIAL LAW residing in the Philippines and the other creditors, according to their respective claims (Sec. 10, Rule 88).

Use of proceeds from sale of personal property 1. 2. 3.

To pay the debts and expenses of administration; To pay legacies; and To cover expenses for the preservation of the estate (Sec. 1, Rule 89).

Sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses, the court here may authorize the executor or administrator to sell, mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. 5, Rule 89).

Payment of contingent claims If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient estate to pay a portion equal to the dividend of the other creditors (Sec. 4, Rule 88).

ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Requisites before the court allows a contingent claim 1. 2. 3.

Actions that may be brought by the executor or administrator

Duly filed within the 2 year period allowed for the creditors to present claims; The claim is valid; and The claim became absolute (Sec. 5, Rule 88).

For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive (Sec. 2, Rule 87)

NOTE: The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees (De Bautista v. De Guzman, L28298, Nov. 25, 1983).

Executor or administrator may sue upon any cause of action which accrued to the decedent during his lifetime (Bayot v. Sorbito, 39 Phil 650).

If the contingent claim is not presented within the 2 year period after it becomes absolute, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same (Sec. 4, Rule 88). However, the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased (Sec. 5, Rule 88).

NOTE: When the demand is in favor of the administrator and the party against whom it is enforced is a third party, not under the court’s jurisdiction, the demand cannot be made by mere motion by the administrator, but an independent action against the third person. The demand cannot be made because third persons, not under the jurisdiction of the court are involved (Paula v. Ecsay, 97 Phil 617; Vide De la Cruz v. Camon, 16 SCRA 886, 888-889).

ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS

Order of payment if estate is insolvent or assets are insufficient

Actions that may be brought against the executor or administrator

The executor or administrator shall pay the debts according to the concurrence and preference of credits provided by Arts. 1059 and 2239-2251 of the NCC (Sec. 7, Rule 88).

Any action affecting the property rights of a deceased which may be brought by or against him if he were alive, may be instituted and prosecuted by or against the administrator, unless by its very nature, it cannot survive, because death extinguishes such right.

Disposition of estate in the Philippines of an insolvent non-resident

NOTE: When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done shall be maintained against him by an heir or devisee until there is an order of the court assigning the lands to such heir or devisee or until the time allowed for paying debts has expired (Sec. 3, Rule 87). The prohibition applies only to heirs or devisees and not to a donee inter vivos who may file an action to compel the administrator to deliver the property donated (Del Rosario v. Del Rosario, 2 Phil 321; Lopez v. Olbes, 15 Phil 540).

It shall be disposed of in a manner where his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits (Sec. 9, Rule 88). Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance may be added to the list of claims proved against the decedent in the Philippines and the estate will be distributed equally among those creditors (Sec. 10, Rule 88). NOTE: The benefits in the above provision shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors

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SPECIAL PROCEEDINGS Claims which can proceed settlement proceeding 1. 2. 3.

independently

of

the

Requisites before a creditor may bring an action for recovery of property fraudulently conveyed

Actions to recover real or personal property, or an interest therein, from the estate; Enforcement of a lien; Actions to recover damages for an injury to person or property, real or personal (Sec. 1, Rule 87).

1.

2.

NOTE: Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under Rule 86. These actions, being civil, survive the death of the decedent and may be commenced against the administrator pursuant to Section 1, Rule 87 (Hilado v. CA, G.R. No. 164108, May 8, 2009).

3. 4.

Right of the heirs to sue for the recovery of property of the estate during the pendency of administration proceedings

5. 6. 7.

GR: The heirs have no legal standing to sue for recovery of property of the estate (Herrera, 2005).

There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration; In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against his creditors; The subject of the attempted conveyance would be liable to attachment in his lifetime; The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time; Leave is granted by the court to the creditor to file the action; A bond is filed by the creditor; and The action by the creditor is in the name of the executor or administrator (Sec. 10, Rule 87).

The last 3 requisites are unnecessary where the grantee is the executor or administrator himself, in which event, the action should be in the name of all the creditors (Herrera, 2005).

XPNs: 1. If the executor or administrator is unwilling or refuses to bring suit; and 2. When the administrator is alleged to have participated in the act complained of and he is made a party defendant

NOTE: The creditor cannot directly file the action in court. It is only after the executor/administrator failed to file the action that the creditor is authorized to file the action, but it must still be in the name of the executor/administrator.

NOTE: Before distribution is made or before any residue known heirs and devisees have NO CAUSE OF ACTION against the administrator for recovery or property left by the deceased (Lao v. Dee, 90 Phil 868).

REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED

DISTRIBUTION AND PARTITION LIQUIDATION

Requisites before an executor/administrator may commence and prosecute action for recovery of property fraudulently conveyed, on behalf of the creditors 1. 2. 3.

Liquidation Liquidation means the determination of all assets of the estate and payment of all debts and expenses.

Application of the creditors; Payment of cost and expenses by the creditors; and Giving of security by the creditors in favor of the executor or administrator (Sec. 9, Rule 87).

NOTE: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs (Guilas v. Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972).

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REMEDIAL LAW Process for the distribution of the residue of the estate

NOTE: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims. The RTC in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not the proper vehicle to thresh out said question. The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes (Heirs of Doronio v. Heirs of Doronio, .G.R. No. 169454, December 27, 2007).

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SPECIAL PROCEEDINGS Order of distribution

Right of an heir over the property of the decedent

GR: Order of distribution shall be made after payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax (Sec. 1, Rule 90).

During the pendency of the estate proceedings without the prior approval of the probate court, an heir has the right to sell his undivided or ideal share of the estate, he being the co-owner with other heirs of the estate. Court approval is necessary only if specific property of the estate is sold (Heirs of Pedro Escanlar v. CA, G.R. No. 119777, Oct. 23, 1997).

XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before the payment of all debts, etc. (Sec. 1, par. 2, Rule 90).

Although the right of an heir over the property of the decedent is inchoate as long as estate has not been fully settled and partitioned, the law allows the co-owner to exercise the rights of ownership over such inchoate right.

NOTE: The Order that determines distributive share is appealable. Title to property is vested from finality of the order of distribution (Herrera, 2005). A decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees, which, if erroneous may be corrected by a timely appeal. Once it becomes final, its binding effect is like any other judgment in rem. However, in exceptional cases, a final decree of distribution of the estate may be set aside for lack of jurisdiction or fraud (Ancheta v. GuerseyDalaygon, 490 SCRA 140).Further, in Ramon v. Ortuzar, the Court ruled that a party interested in a probate proceeding may have a final liquidation set aside when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence.

Partial distribution Partial distribution of the estate should not have been allowed. There was no determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere made by the RTC in this case. In fact, there is a pending claim by LCN against the estate and the amount thereof exceeds the value of the entire estate (Quasha Ancheta Pena and Nolasco Law Offices v. LCN Construction Corp, .G.R No. 174873, August 26, 2008).

Declaration of heirship

Jurisdiction of Probate Court

The declaration of heirship must be made before the residue of the estate should be distributed. It must be made in the same proceedings, either intestate or testate and not a separate action. The declaration of heirship is important before distribution to determine who are entitled to the residue to be distributed (Section 1, Rule 90).

Once an action for the settlement of estate is filed with the court, the properties included therein are under the control of the estate court. And not even the administrator may take possession of any property that is part of the estate without the prior authority of the Court (Silverio, Jr. v. CA, G.R. No. 178933, September 16, 2009).

NOTE: This provision is not mandatory because it is the distribution of the residue of the estate before its obligations are paid which the court is enjoined to do but not the declaration of heirs prior to the satisfaction of these obligations. The court may therefore make a declaration of heirship even before the payment of its obligations (Ngo The Hua v. Chung kiat Hua, 118 Phil 956, 9 SCRA 113).

A probate court has the power to enforce an accounting as a necessary means to its authority to determine the properties included in the inventory of the estate to be administered, divided up, and distributed. Beyond this, the determination of title or ownership over the subject shares (whether belonging to Anastacia or Oscar) may be conclusively settled by the probate court as a question of collation or advancement (Reyes v. RTC Makati, Branch 142, G.R. No. 165744, August 11, 2008).

PROJECT OF PARTITION Project of partition It is a document prepared by the executor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs (Solivio v. CA, G.R. No. 83308, February 12, 1990).

Probate court loses jurisdiction of an estate under administration only after payment of all debts and remaining estate delivered to heirs entitled to receive the same (Guilas v. Judge of CFI of Pampanga, 43 SCRA 111).

The project of partition is not mandatory (Herrera, 2005). The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Estate of Ruiz v. CA, G.R. No. 118671, January 29, 1996).

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REMEDIAL LAW 2.

REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE 1.

2.

3.

Motion to set aside the distribution - If an heir appears after the court approved the project of partition, the heir must file a Motion to set aside the distribution with the court so that the court will not proceed with the distribution of the residue. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. If it is proven that the heir has a right, the court may order the revision of the project of partition for its adjustment.

TRUSTEES Trust It is the legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property. Trustee

Motion to deliver share – If the heir was not excluded from the proceedings but was not able to receive his share

A trustee is one who is appointed to carry out the provision of the will or any written instrument executed by the trustor.(Sec. 1, Rule 98)

Motion for the re- opening of the settlement proceedings- If the distribution has already been made, a motion for closure has already been granted, the heir must file a Motion for the re-opening of the settlement proceedings within the reglementary period, provided the order of closure has not yet become final and executory. The period is within 30 days from the date the order of closure of the administration proceeding was served on the executor or administrator (Divinagracia v. Rovira, 72 SCRA 307).

The trustee has the legal title over the property while the beneficial title is with the cestui que trust. Therefore, unlike an executor or administrator, the trustee can validly make conveyances of the property held by him in trust, subject to the right of the beneficiary against the trustee but not against the buyer. A trustee under the Rules of Court cannot be appointed

based on an implied trust. The provision of the Rules of Court refers to a judicial trust constituted only based on an express trust either from a will or any other written instrument (O’Lao v. Co Cho Chit, G.R. No. 58010, March 31, 1993).

NOTE: When motion to intervene is made by illegitimate children, there must be proof beyond allegations in such motion to show the interest of the private movants. In the absence thereof, the action taken by the judge allowing said intervention could be considered premature (Jerez v. Nietes, G.R. No. L-26876 [1969]).

4.

5.

The proper procedure is for the court to order the sale of the property of the deceased to satisfy the claim and in case of refusal to comply with the order, the court may cite him in contempt

DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR

Petition for the re-opening of the settlement proceedings – Although closed and terminated, the preterited heir who was excluded from the settlement proceedings can still file a petition to reopen within a period of 10 years (Art. 1144, NCC; Solvino v. CA, 182 SCRA 119).

EXECUTOR/ ADMINISTRATOR Accounts are not under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court Court that has jurisdiction may be MTC or RTC

Accion reivindicatoria - If the order of closure has already become final and executory, the remedy is to file an independent suit against the parties and all the other heirs for his/her share (Nunal v. CA, 221 SCRA 26).

INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION 1.

2. 3.

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (Upon application to the court with written notice to the heirs)

To satisfy the distributive shares of the devisees, legatees and heirs in possession of the decedent’s assets (Sec. 6, Rule 88); To enforce payment of the expenses of partition (Sec. 3, Rule 90); and To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142).

NOTE: Execution is not the proper remedy to satisfy an approved claim because: 1. A writ of execution is not allowed by the Rules of Court for the payment of debts and expenses of administration;

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TRUSTEE Accounts must be under oath and filed annually

Court which has jurisdiction is the RTC in which the will is allowed; or the RTC of the province in which the property or some portion thereof affected by the trust is situated. May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court

SPECIAL PROCEEDINGS Within 1 year, the authority to sell prescribes thereafter Approved by the court to settle estate of the decedent Not exempted from filing a bond even if such exemption is provided in the will (Bond may still be required for payment of debts) Services of executors or administrator is terminated upon payment of debts of the estate and distribution of property to the heirs Must pay the debts of the estate

3.

Order of sale has no limit Appointed to carry into effect the provisions of a will or written instrument (contractual trust) May be exempted from filing a bond if provided in the will or if beneficiaries requested such exemption

4.

REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE

Trusteeship is terminated upon turning over the property to beneficiary after expiration of the trust (period may be provided for in the will or trust contract) No obligation to pay the debts of the beneficiary or trustor

1. 2. 3.

1. 2. 3. 4.

Removal appears essential in the interest of petitioners; Insanity; Incapability of discharging the trust; or Unsuitability (Sec. 8, Rule 98).

A trustee may resign his trust if it appears to the court to be proper to allow such resignation (Ibid.). EXTENT OF AUTHORITY OF TRUSTEE Extent of authority of a trustee

CONDITIONS OF THE BOND

The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic of the Philippines. This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic of the Philippines, under whose courts he was appointed. Remotely, the rule is also based on the rule in international law of the sovereign equality of states(Herrera, 2005).

Filing of bond GR: The trustee is required to file a bond. Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. XPN: If requested by the testator or by all persons beneficially interested in the trust, the trustee may be exempted from filing a bond. But the court may cancel such exemption anytime (Sec. 5, Rule 98).

Testamentary trust Although the will does not name a trustee, the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will – where a trust is actually created by the will by the provision that certain of the property shall be kept together undisposed during a fixed period and for a stated purpose (Lorenzo v. Posadas, G.R. No. L-43082, June 18, 1937).

Conditions of the bond That the trustee will make and return to the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;

NOTE: The power to appoint a trustee is discretionary with the court before whom application is made, and the appellate court will decline to interfere except in cases of clear abuse (Herrera, 2005).

NOTE: When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory if one has already been filed.

2.

Petition filed by parties beneficially interested; Notice to trustee; and Hearing (Sec. 8, Rule 98). GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE

A trustee, like an executor or administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. However, the duties of executors and administrators are fixed by law while those of the trustee of an express trust are usually governed by the intention of the trustor. Also, the duties of trustees may cover a wider range than those of executors or administrators of the estate of deceased persons (Araneta v. Perez, G.R. Nos. L16185-86, May 31, 1962).

1.

That he will render under oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; and That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the persons entitled thereto (Sec. 6, Rule 98).

That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed;

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REMEDIAL LAW Contractual trust

WHEN TO FILE

When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy after due notice to all persons interested, the proper RTC may appoint a new trustee to act alone or jointly with the others, as the case may be. The non-acceptance by the trustee will not result in the failure of the trust, unless the trust is purely personal (Ibid.).

Three instances of escheat 1. 2.

NOTE: Escheat proceedings may be instituted as a consequence of violation of Article XIII of the Constitution which prohibits transfers of private agricultural land to aliens (Rellosa v. Gaw Chee Hun, G.R. No. L-1411, Sept. 29, 1953).

Notice to and consent of beneficiaries are not essential for the creation of the trust. The fact that beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to accept it is of no importance for it is not essential to the existence of a valid trust and to the right of the beneficiaries to enforce the same that they had knowledge thereof at the time of its creation. Neither is it necessary that the beneficiary should consent to the creation of the trust (De Leon, et. al v. MoloPeckson, et al., G.R. No.L-17809, Dec. 29, 1962).

3.

Who may file

A: GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. The trustee’s possession is not adverse because of the specific duties imposed upon him by the Rules and therefore cannot ripen into title by prescription.

An escheat proceeding is initiated, upon showing that an intestate decedent left some properties but no heir, by the Solicitor General or his representatives in behalf of the Republic of the Philippines (Sec. 1, Rule 91). Where filed

XPN: Prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present:

2. 3.

1. 2.

That the trustee has performed unequivocal acts amounting to an ouster of the cestui que trust; That such positive acts of repudiation had been made known to the cestui que trust; and That the evidence thereon should be clear and conclusive (Ceniza v. CA, 181 SCRA 552).

3.

In the RTC of the province where the deceased last resided(Sec. 1, Rule 91); If the deceased resided outside the Philippines, in the RTC of the province in which he had an estate (Sec. 1, Rule 91); In an action to recover unclaimed balances, in the RTC of the province where the bank is located.

Assignment of property escheated 1.

ESCHEAT

2.

Escheat

3.

It is a French or Norman term which means “chance” or “accident.” Escheat is a proceeding whereby the real or personal property of a deceased person in the Philippines, becomes the property of the State upon his death, without leaving any will or legal heirs (Herrera, 2005).

If personal property, to the municipality or city where he last resided in the Philippines; If real property, to the municipality or city where the property is situated in the Philippines; If deceased never resided in the Philippines, to the municipality or city where the property may be found (Sec. 3, Rule 91).

Purposes 1.

Escheat is a special proceeding commenced by petition. It is a substantial right of the State, being the last heir in the line of succession, and is not a claim based on charity, gratuity or unearned benefit. The right to escheat may be waived, either expressly or impliedly (Ibid).

2.

The nature of Escheat Proceedings rests on the principle of ultimate ownership by the State of all property within its jurisdiction. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Dormant accounts for 10 years (Unclaimed Balance Act of Banking Laws). NOTE: An action to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the name of the People of the Philippines in the RTC of the province where the bank is located, in which shall be joined as parties the bank and such creditors or depositors (Republic v. Pres. Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988).

Q: Can the possession of the trustee of the property ripen into ownership?

1.

When a person dies intestate leaving no heir but leaving property in the Philippines (Sec. 1, Rule 91); Actions for reversion of properties alienated in violation of the constitution or any statute (Sec. 5, Rule 91);

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The estate assigned shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary; The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used (Sec. 3, Rule 91).

SPECIAL PROCEEDINGS REQUISITES FOR FILING OF PETITION

Period for filing a claim

Requisites for filing a petition 1. 2. 3.

If a devisee, legatee, heir, widow, widower or other person legally entitled to the estate of the decedent appears, he should file a claim with the court within five (5) years from the date the property was delivered to the State. Otherwise, the claim shall forever be barred (Art. 1401, Civil Code; Sec. 4 Rule 91).

A person died intestate; He left no heirs or persons by law entitled to the same; and The deceased left properties in the Philippines (Sec. 1, Rule 91).

The court where the escheat proceeding is pending cannot allow the filing of a claim against the estate when it has not acquired jurisdiction. Such court has no jurisdiction to grant the remedy enabling the devisee, legatee, heir, widow, widower or other person entitled to the estate to appear within a specific period from the date of the decree of escheat and file a claim to the estate (Divino v. Municipality of Guianga, 62 Phil 926).

For the distribution of the estate to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rules of Court (Municipality of Magallon v. Bezore, G.R. No. L-14157, Oct. 26, 1960). Notice and Publication The date of hearing shall not be more than 6 months after the entry of Order (Sec. 2, Rule 91).

GUARDIANSHIP Guardianship

All interested parties, especially the actual occupant and adjacent lot owners, shall be personally notified of the proceedings and given the opportunity to present their valid claims, otherwise the property will be reverted to the State(Tan vs. City of Davao, G.R. No. L-44347, Sept. 26, 1988).

It is the power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity which renders him incapable to protect himself (Herrera, 2005).

The publication of the notice of hearing shall be at least once a week for 6 consecutive weeks in a newspaper of general circulation. This is a jurisdictional requirement, noncompliance with which affects the validity of the proceedings (Divino v. Municipality of Guianga, 62 Phil 926).

It may also describe the relation subsisting between the guardian and the ward. It involves the taking of possession and management of, the estate of another unable to act for himself (Ibid.). Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003 while guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship (Rules 92- 97).Hence, the application of the Rules on General Guardian and Guardianship in the Rules of Court is limited to guardianship of the person or estate of an “incompetent.”

NOTE: The court cannot convert escheat proceedings into settlement of the estate. Once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat, this jurisdiction cannot be converted into one for the distribution of the properties of the decedent. Each special proceeding must be governed by their respective rules separate from each other (Herrera, 2005).

Basis of guardianship

REMEDY OF RESPONDENT AGAINST THE PETITION; PERIOD FOR FILING A CLAIM

“Parens patriae” – The State has the duty of protecting the rights of persons or individuals who because of age or incapacity are in an unfavorable position vis-a-vis other persons (Herrera, 2005).

Remedy of the respondent against the petition for escheat 1.

2.

When the petition does not state the facts which entitle the petitioner to the remedy prayed for, or even admitting them hypothetically, the respondent may file a motion to dismiss, and in such case the Motion to dismiss plays the role of a demurrer to evidence (Herrera, 2005). File a claim against the estate within the period prescribed by the Rules.

Kinds of guardians 1.

The respondent shall have possession and title to the property, or if sold, the municipality or city shall be accountable to him for proceeds, after deducting reasonable charges of care of estate.

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According to scope a. Guardian of the person – has been lawfully invested with the care of the person of the minor or incompetent; b. Guardian of the property – appointed to have the management of the estate of a minor or incompetent; or c. General guardian – appointed to have the care and custody of the person and of all the property of the ward.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 2.

According to constitution a. Legal guardian – a guardian by provision of law without the need of judicial appointment, as in the case of parents over the persons of their minor children, or the father, or in his absence, the mother (the parent shall only furnish the necessary bond if the property of minor child exceeds P50,000); b. Guardian ad litem – any competent person appointed by the court to prosecute or defend a minor or incompetent in an action in court; c. Judicial guardian – a competent person appointed by the court over the person or property of the ward to represent the latter in all his civil acts and transactions (Herrera, 2005).

Where filed The guardianship proceedings for incompetents may be instituted: 1. In the RTC of the province where the incompetent resides, or 2. In the justice of the peace court of the municipality court of the province, or 3. If he resides in a foreign country, in the RTC of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such incompetent exceeds the jurisdiction of the MTC, the proceedings shall be instituted in the RTC(Sec. 1, Rule 92). Service of notice

Ancillary guardianship Service of notice upon the minor if 14 years of age or over or upon the incompetent, is jurisdictional. Without such notice, the court acquired no jurisdiction to appoint a guardian [Nery v. Lorenzo, 44 SCRA 431 (1972)].

It refers to the guardianship in a State other than that in which guardianship is originally granted (Ibid.). NOTE: Authority of the guardian may extend only to the property of the minor or incompetent within such State.

The rules do not necessitate that creditors of the minor or incompetent be likewise identified and notified. The reason is simple: because their presence is not essential to the proceedings for appointment of a guardian. They will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve the validity of said contracts and keep the supposed minor or incompetent obligated to comply therewith (Alamayri v. Pabale, G.R. No.151243, April 30, 2008).

Guardianship over incompetents The following are considered incompetents: 1. 2. 3. 4. 5. 6.

Those suffering the penalty of civil interdiction; Hospitalized lepers; Prodigals; Deaf and dumb who are unable to read and write; Those who are of unsound mind, even though they have lucid intervals; and Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation (Sec. 2, Rule 92).

Grounds for opposition to petition of guardianship of incompetent 1. 2.

Grounds for removal of guardianship over minors and incompetents

Jurisdictional facts which must appear in the application 1.

Competency of alleged incompetent; or Unsuitability of the person for whom letters are prayed for (Sec. 4, Rule 93).

The minority or incompetence of the person for whom guardianship is sought; His domicile.

1. 2. 3.

NOTE: In a petition for appointment of guardian of the property of the minor or incompetent, it is a jurisdictional fact and should be alleged therein, that the minor has property needing the care and attention of a guardian.

4.

Who may file a petition for guardianship of incompetents

Grounds for termination of guardianship over minors or incompetents

2.

1. 2. 3.

Any relative, friend, or other person on behalf of incompetent who has no parent or lawful guardian; Secretary of DOH in favor of an insane person who should be hospitalized; or Anyone interested in the estate of non-resident incompetent (Sec. 1 & 6, Rule 93).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

1. 2. 3. 4.

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Insanity; Incapability or unsuitability for discharging his trust; Wastage or mismanagement of the property of the ward; or Failure to render an account or make a return for 30 days after it is due (Sec. 24, A.M. No. 03-02-05-SC; Sec. 2, Rule 97).

Ward has come of age; Death of the ward; Competency of alleged incompetent; Guardianship is no longer necessary (Sec. 25, A.M. No. 03-02-05-SC; Sec. 1, Rule 97).

SPECIAL PROCEEDINGS GENERAL POWERS AND DUTIES OF GUARDIANS

CONDITIONS OF THE BOND OF THE GUARDIAN

General powers and duties of guardians

Conditions of the bond of the guardian

1.

1.

2. 3. 4. 5.

6.

7.

To have the care and custody of the person of the ward, and/or the management of his estate; Pay the debts of the ward; To settle accounts, collect debts, and appear in actions for the ward; Manage the estate of the ward frugally, and apply the proceeds to the maintenance of the ward; Render a verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons; Render to court for its approval an accounting of the property for 1 year from his appointment and as often thereafter as may be required, and upon application of interested persons Consent to a partition of real or personal property owned by ward jointly or in common with others (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC).

2.

3.

4.

To make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; To faithfully execute the duties of his trust, manage and dispose of the estate according to the rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by the rules and such other times as the court directs; At the expiration of his trust, settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC).

Unlike trustees, the accounting made by the guardian is not under oath, and not made annually [Sec. 6 (c), Rule 98 in relation to Sec. 8, Rule 96].

5.

If an issue arises as to who has the better right or title to the properties conveyed in the guardianship proceeding, such issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court, unless the ward’s right or title to the property is clear and undisputable.

NOTE: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian (Guerrero v. Teran, G.R. No. L-4898, Mar. 19, 1909).

Purpose of the bond

Sale of property of the ward

It is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, Vol. III-A, p. 281, 2005 ed.)

The guardian of a minor may sell the property of his ward: 1. When the income of a property under guardianship is insufficient to maintain and educate the ward, and his family; or 2. When it is for the benefit of the ward that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property (Sec. 19, A.M. No. 03-02-05-SC).

There is no requirement before the parents can exercise legal guardianship over their minor children. The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment (Sec. 1, A.M. No. 03-02-05-SC).

However, before the guardian can sell, mortgage or encumber the property of the ward, the guardian must seek authority from the court. The authority to sell or encumber shall not extend beyond one (1) year unless renewed by the court.

Posting a bond GR: The requirement of posting a bond does not extend to parents who are the legal guardians of the minor children. XPN: If the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians (Sec. 16, A.M. No. 03-02-05-SC).

The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require (Sec. 5, Rule 95).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Procedure in the appointment of guardians of minor or incompetent

Who may file a petition for guardianship of minors 1. 2. 3.

Petition for the appointment of a guardian

Court order fixing the time and date of hearing

Any relative or other person on behalf of the minor; The minor himself if 14 years or over; or The secretary of DSWD and DOH in case of insane minor who needs to be hospitalized (Sec. 2, A.M. No. 03-02-05-SC).

NOTE: While allegation as to the names, ages and residences of the minor’s relatives is jurisdictional, the same may not be necessary where the petition was filed by the minor’s relatives themselves (Vda. De Chua vs CA, G.R. No. 116835, March 5, 1998).

Notice of hearing Opposition, if any

Where filed A petition for guardianship over the person or property, or both, of a minor may be filed:

Case study report of the minor and prospective guardian conducted by a social worker submitted at least three (3) days before the scheduled hearing

1. 2.

Hearing and appointment of guardian

In the Family Court of the province or city where the minor actually resides, or If he resides in a foreign country, in the Family Court of the province or city where his property or any part thereof is situated (Sec. 3, A.M. No. 03-02-05-SC 200305-01).

Filing of bond by the guardian Grounds for the appointment of a guardian over the person or property, or both, of a minor

Service of judgment on the Local Civil Registrar of the place where the minor or incompetent resides and Register of Deeds where his property or part thereof is situated

1. 2. 3. 4.

Termination of guardianship

Factors to be considered for the appointment of guardian of minors

NOTE: The procedure for the appointment of guardian of a minor or incompetent is similar except for the case study report which is applicable only to appointment of guardian of a minor.

1. 2. 3. 4. 5.

RULE ON GUARDIANSHIP OVER A MINOR Minors Minors are those who are below eighteen (18) years old (Herrera, 2005).

6. 7.

Non-resident minors

Moral character Physical, mental, and psychological condition Financial status Relationship of trust with the minor Availability to exercise the powers and duties of a guardian for the full period of the guardianship Lack of conflict of interest with the minor Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC).

The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. (Sec.9, A.M. No. 0302-05-SC).

The Courts may appoint a guardian for non-resident minors or incompetents, but only insofar as to the property of the non-resident minor found in the Philippines is concerned. Any relative or friend of such minor, or anyone interested in his property, in expectancy or otherwise, may petition the Family Court/RTC for the appointment of a guardian over the property (Sec. 12, A.M. No. 03-02-05-SC; Sec.6, Rule 93). NOTE: Publication is required in case of a petition for guardianship over the property of a non-resident minor unlike in the case of a resident minor where no publication is required.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Death, continued absence, or incapacity of his parents Suspension, deprivation or termination of parental authority Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority, or When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05-SC).

224

SPECIAL PROCEEDINGS Order of preference in appointing a guardian As far as practicable, the order of preference shall be observed: 1. 2.

3.

Both parents jointly; Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;

Custody of the child Under Art. 213(2) of the FC, no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

NOTE: The court shall provide in its order awarding provisional custody appropriate visitation rights to the noncustodial parent or parents, unless the court finds said parent or parents unfit or disqualified (Sec. 15,Ibid.).

3.

4. 5.

6.

The child, who is over 7 years of age, may choose which parent he prefers to live with, unless the parent so chosen is unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty (Art. 213, FC).

The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or Any other person or institution the court may deem suitable to provide proper care and guidance for the minor (Sec. 13, Ibid.).

ADOPTION Republic Act No. 8552; Republic Act No. 8043; A.M. No. 02-06-02-SC Domestic Adoption Domestic adoption refers to the juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

Grounds for opposition to petition of guardianship of minors 1. 2.

Majority of the alleged minor; or Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M. No. 03-02-05-SC).

Inter-country Adoption Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is taken, and the decree ofadoption is issued outside of the Philippines [Sec. 3(a), RA 8043].

NOTE: Any interested person may contest the petition by filing a written opposition and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 93). If the interested person is a creditor and mortgagee of the estate of the minor, he cannot be appointed guardian of the person and property of the latter.

State policy on adoption

Stages in the Pre-trial 1. 2.

child may be a ground for ordering him to give support, but not for giving him custody of the child. Court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable (Sec. 18, AM No. 03-04-04-SC).

It is the policy of the State to ensure that every child remains under the care of his or her parent/s and be provided with love, care, understanding and security towards the full and harmonious development of his personality [Sec. 2(b)(i), A.M. No. 02-6-02].

First stage – the parties may agree on the custody of the minor. Second stage – the trial court will direct the parties to secure the services of a mediator if the parties do not agree on the custody of the minor (Sec. 12, AM No. 0304-04-SC).

Paramount considerations on adoption The best interests and welfare of children are the paramount considerations (Herrera, 2005).

If the second stage does not produce an amicable settlement, the court will proceed with the pre-trial conference. Pre-trial is mandatory (Sec. 12, Ibid.). Reliefs granted by the Court after hearing 1. 2.

Care, custody and control of each child as will be for his best interest. Court may order either or both parents to support or help support the child, irrespective of who may be its custodian. The fact that the father has recognized the

225

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION Domestic adoption v. Inter-country adoption

Jurisdiction

DOMESTIC Family Court where adopter resides

Who May adopt

(1) Any Filipino citizen a. Of legal age, b. In possession of full civil capacity and legal rights, c. Of good moral character, d. Has not been convicted of any crime involving moral turpitude; e. Who is emotionally and psychologically capable of caring for children, f. Who is in a position to support and care for his children in keeping with the means of the family and g. At least 16 years older than the adoptee. This requirement of a 16-year difference may be waived when the: i. Adopter is the biological parent of the adoptee or ii. Adopter is the spouse of the adoptee’s biological parent; (2)

Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided,

a. That his country has diplomatic relations with the Republic of the Philippines, b. That he has been living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, c. That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and d. That his government allows the adoptee to enter his country as his adopted child. The requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following: UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

226

INTER-COUNTRY Inter-Country Adoption Board [Petition may also be filed with Family Court where adoptee resides; FC to endorse petition to Inter-Country Adoption Board (ICAB)] A foreigner must meet the following requirements in order to be qualified to adopt in the Philippines under the InterCountry Adoption Act: a) GR: At least 27 years of age and at least 16 years older than the child to be adopted, at the time of application; XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent, he/she is not required to meet the above age requirement; b) If married, his/her spouse must jointly file for the adoption; c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; d) Not convicted of a crime involving moral turpitude; e) Eligible to adopt under his/her national law; f) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; h) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and i) Possesses all the qualifications and none of the disqualifications provided

SPECIAL PROCEEDINGS herein and in Philippine laws.

(i) A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; (ii) One who seeks to adopt the legitimate child of his Filipino spouse; (iii) One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

other

applicable

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) If one spouse seeks to adopt the legitimate child of the other spouse; or (ii) If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or (iii) If the spouses are legally separated from each other.

Supervised Trial Custody

Petition for adoption

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses. Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody like when the adopter is the biological parent of the adoptee) May include 1. Prayer for change of name 2. Rectification of simulated birth 3. Declaration that child is abandoned, dependent or neglected child or foundling

Within the country of the adopter (Mandatory; all expenses borne by adopter)

N/A

NOTE: This is the only instance where different special proceedings may be consolidated

Who may be adopted

1.

2. 3.

4.

5. 6.

Child legally available for adoption – A child below 18 years of age who has been administratively declared available for adoption The legitimate son or daughter of one spouse to be adopted by the other spouse; An illegitimate son or daughter by a qualified adopter to improve his status to that of legitimacy; A person of legal age, if prior to the adoption, said person has been consistently considered and treated by the adopter/s as his or her own child since minority; A child whose adoption has been previously rescinded; or A child whose biological or adoptive parent/s has died, provided, no proceedings shall be initiated within 6 months from the time of death of said parent/s (Sec. 5).

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Child legally free for adoption – Efforts should first be exhausted in order that a child declared legally available for adoption be placed under domestic adoption. It is only after such efforts have been exhausted and still the child cannot be placed under domestic adoption that he/she will be considered legally free in order to be available for inter-country adoption. NOTE: Child under the Inter-country adoption act refers to those below 15 years of age

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW \ DOMESTIC Supporting Documents

N/A

Publication

3 successive weeks in a newspaper of general circulation in the province or city where the court is situated Family Court which has jurisdiction

Where to file application

Domestic Adoption Act

There must be a certification which shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature. The certification shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. 8 RA 9523, An Act requiring certification of DSWD to declare a child legally available for adoption as a prerequisite for adoption proceedings).

Neglected child A child whose basic needs have been deliberately unattended or inadequately attended within a period of three (3) continuous months [Sec. 2(4), Ibid.]. Neglect may occur in 2 ways: 1. There is physical neglect when the child is malnourished, ill-clad, and without proper shelter. A child is unattended when left by himself/herself without proper provisions and/or without proper supervision [Sec. 2(4)(a), Ibid.]. 2. There is emotional neglect when the child is maltreated, raped, seduced, exploited, overworked, or made to work under conditions not conducive to good health; or is made to beg in the streets or public places; or when children are in moral danger, or exposed to gambling, prostitution, and other vices [Sec. 2(4)(b), Ibid.].

Written consent The written consent of the following is necessary to the adoption:

4.

5.

Adoptee, if ten years of age or over; Biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality; Legitimate and adopted child, ten years of age or over, of the adopter and adoptee, if any; Illegitimate child, ten years of age or over, of the adopter if living with said adopter and the latter’s spouse; Spouse, if any, of the person adopting or to be adopted (Sec. 9, RA 8552).

Change of name The Rules on Adoption authorizes that the petition for adoption may include an allegation and prayer for change of name.In case the petition for adoption includes a change of name, the title or caption must contain the following: 1. Registered name of the child; 2. Aliases or other names by which the child has been known; and 3. Full name by which the child is to be known (Sec. 10, A.M. No. 02-06-02).

GR: The written consent of the natural parent to adoption is indispensable [Sec. 9(c), RA 8552]. XPN: In case of abandonment, the consent of the natural parent who abandoned the child is no longer needed. The act of abandonment imports "any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children (Cang v. CA, G.R. No. 105308, Sept. 25, 1998).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

May be made through foreign placement agency which will then submit application to the ICAB

A child who has no proper parental care or guardianship, or whose parent(s) have deserted him/her for a period of at least 3 continuous months, which includes a foundling [Sec. 2(3),RA 8552].

Requisites for a child to be declared legally available for adoption

3.

INTER-COUNTRY Income Tax Returns Police Clearance Character Reference Family Picture Birth Certificate of adopter

Abandoned child

Rule on Domestic Adoption

1. 2.

1. 2. 3. 4. 5. N/A

228

SPECIAL PROCEEDINGS Procedure under the Domestic Adoption Act

A: No, Samuel Robert Dye, Jr. who is an American and, therefore, an alien is disqualified from adopting the minors Maricel and Alvin under Art. 184 of the FC. He is not a former Filipino citizen who seeks to adopt a relative by consanguinity. Nor does he seek to adopt his wife's legitimate child. Although he seeks to adopt with his wife her relatives by consanguinity, he is not married to a Filipino citizen, for Rosalina was already a naturalized American at the time the petition was filed, thus excluding him from the coverage of the exception. The law provides that for an alien to adopt, he or she must be married to a former Filipino citizen seeking to adopt jointly with his or her spouse a relative by consanguinity.

Petition for Adoption Publication of order of hearing at least once a week for 3 consecutive weeks

At the discretion of the court, copies of the order of hearing shall be furnished to the office of the SolGen through the provincial or city prosecutor, the DSWD and the biological parents of the adoptee, if known.

On her own, Rosalina Dye cannot adopt her brother and sister for the law mandates joint adoption by husband and wife, subject to exceptions. The FCprovides that the character of joint adoption is mandatory. Article 185 of the FC provides: Husband and wife must adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; (2) When one spouse seeks to adopt the legitimate child of the other. None of the above exceptions applies to Samuel and Rosalina Dye, for they did not petition to adopt the latter's child but her brother and sister (Republic v. Vergara, G.R. No. 95551, Mar. 20, 1997).

If a change of name of the adoptee is prayed for in the petition, notice to the Solicitor General is mandatory

1.

2.

Child and Home Study Reports A social worker verifies with the Civil Registry the real identity of the adoptee, and the fact that he is legally available for adoption He may make recommendations to the court if he finds some grounds to deny the petition

EFFECTS OF ADOPTION

Hearing GR: To be held within 6 months from the date of issuance of order of hearing XPN: If the petition includes a change of name, hearing must not be within 4 months after last publication, nor within 30 days prior to an election

Effects of adoption 1.

2.

GR :Supervised trial custody for a period of at least 6 months XPN: Same as exceptions from requirements of residency and certification

3. Decree of Adoption NOTE: In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated

Entry in Book of Adoption

All legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopter/s, except where the biological parent is the spouse of the adopter; The adoptee shall be considered the legitimate child of the adopter/s for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind; and In legal and intestate succession, the adopter/s and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his biological parent/s had left a will, the law on testamentary succession shall govern (Secs. 16-18, RA 8552).

NOTE: Art. 189(3) of the Family Code and Sec. 18, Art. V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent (Rabuya, 2009, p. 166 citing Obiter Dictum in In re In the Matter of Adoption of Stephanie Naty Astorga Garcia).

Q: On June 25, 1990, spouses Samuel R. Dye, Jr. and Rosalina Due Dye filed a petition before the RTC of Angeles City to adopt Maricel and Alvin, younger siblings of Rosalina. Samuel R. Dye, Jr. a member of the United States Air Force is an American citizen who resided at the Clark Air Base in Pampanga. His wife Rosalina is a former Filipino who became a naturalized American. Both Maricel and Alvin Due, as well as their natural parents, gave their consent to the adoption. The RTC granted the petition for adoption. Is the trial court correct?

If adopting parent should die before adopted child, latter cannot represent the adopter in the inheritance from the parents and ascendants of the adopter. Adopted child is not related to the deceased in that case because filiation created by fiction of law is exclusive between adopted and adopter. By adoption, the adopters can make for themselves an heir but they cannot make one of their relatives (Republic v. Valencia, G.R. No. L-32181, March 5, 1986).

229

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Effect of the petition for adoption in relation to use of surnames

known are required to be stated in the caption of the petition for adoption (Rabuya, 2009).

Pursuant to Art. 189 of the Family Code which states that the adopted child shall acquire the reciprocal rights and obligations arising from the relationship of a parent and child, including the right of the adopted to use the surname of the adopter, the adoptee has both the right and obligation to use the surname of the adopter, and that upon reaching the age of majority, he may file a petition for a change of surname, as the use by the adoptee of the surname of the adopter is more an incident rather than the object of adoption proceedings (Republic v. CA, G.R. No. 97906, May 21, 1992).

Prohibited acts under domestic adoption

NOTE: This ruling may imply that what may be included in a petition for adoption is only the first or given name of the adoptee and not the surname, for he has the right and obligation, at least initially to use the surname of the adopter (Agpalo, 2003).

5.

1.

2. 3. 4.

6.

Decree of Adoption

Simulation of birth

The decree of adoption shall order the Civil Registrar where the adoption was registered to issue a certificate of birth which shall not bear that it is a new or amended certificate and shall state among others, the following: registry number, registration date, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable [Sec. 16, 3(b), A.M. No. 02-06-02].

It refers to the tampering of the civil registry to make it appear in the birth records that a certain child was born to a person who is not his biological mother, thus causing such child to lose his true identity and status [Sec. 3(s), A.M. No. 02-06-02]. The mere registration of a child in his or her birth certificates as the child of the supposed parents is not a valid adoption. It does not confer upon the child the status of an adopted child and legal rights of such child (Rivera v. Villanueva, G.R. No. 141501 [2006]).

The decree of domestic adoption shall take effect as of the date of filing of the original petition (Sec. 16, Ibid.). Burden of proof

INSTANCES WHEN ADOPTION MAY BE RESCINDED

The burden of proof in establishing adoption is upon the person claiming such relationship (Vda. de Jacob v. CA, G.R. No.135216, Aug. 17, 1999).

Grounds for rescission of adoption Upon the petition of the adoptee, or with the assistance of the DSWD, if he is a minor, or if he is over 18 but is incapacitated, by his guardian or counsel, on any of the following grounds committed by the adopter/s: 1. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment and failure to comply with parental obligations (Sec. 19, Ibid.).

Nature of adoption proceedings and its records All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. All records, books, and papers relating to the adoption cases shall be strictly confidential (Sec. 18, A.M. No. 02-06-02). If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used [Sec. 18(2), Ibid.].

Only the adoptee can rescind the decree of adoption. However, the adopter is not left without any remedy as he may deny to an adopted child his legitime and by will, may freely exclude him from having a share in the disposable portion of his estate. The new law had already abrogated and repealed the right of an adopter under the Civil and Family Code to rescind a decree of adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003).

Adoption is in the nature of proceedings in remand the court does not acquire jurisdiction over the case if the notice by publication does not carry the true name of the child to be adopted. Under the new rules on Domestic Adoption, the registered name of the adoptee in the birth certificate and the names by which the adoptee has been

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts; Non-compliance with the procedures and safeguards provided by law for adoption; Subjecting or exposing the child to be adopted to danger, abuse or exploitation; Fictitious registration of the birth of a child under the name of person(s) who is not his/her biological parent(s); Cooperation of physician or nurse or hospital personnel in simulation of birth; and Violation of confidentiality and integrity of adoption processes (Sec. 21, RA 8552).

230

SPECIAL PROCEEDINGS shall be transmitted to the DFA and to the foreign adoption agency (Sec. 39, IRR of RA 8043).

Period to file for rescission of adoption The adoptee, if incapacitated, must file the petition for rescission within 5 years after he reaches the age of majority, or if he was incompetent, within 5 years after recovery from such incompetency (Sec. 21, A.M. No. 02-0602).

Trial custody Upon the actual physical transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child (Sec. 44, Ibid.)

EFFECTS OF RESCISSION OF ADOPTION 1.

2. 3.

4.

5.

The foreign adoption agency, during the trial custody period, shall notify the ICAB of any incident that may have resulted in a serious impairment of the relationship between the applicant and the child or any serious ailment or injury suffered by the child as soon as possible but not later than 72 hours after the incident or the ailment of the child (Sec. 46, Ibid.).

The parental authority of the adoptee's biological parent/s, if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated; The reciprocal rights and obligations of the adopter/s and the adoptee to each other shall be extinguished; The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his or her original birth certificate; The successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; and The vested rights acquired prior to judicial rescission shall be respected (Sec. 23, Ibid.).

If a satisfactory pre-adoptive relationship is formed between the applicant and the child, DFA’s consent, which must be transmitted by the ICAB to the foreign agency within thirty (30) days after receipt of the latter’s request, is necessary (Sec. 50, Ibid.). After the completion of trial custody period, the applicant shall file the petition for adoption with the proper court or tribunal in the country where the applicant resides within 6 months (Sec. 51, Ibid.).

INTER-COUNTRY ADOPTION WHEN ALLOWED

Grounds for termination of pre-adoptive relationship When allowed 1. Inter-country adoption shall only be allowed when all the possibilities for domestic adoption of the child have been exhausted and that inter-country adoption is in the best interest of the child (Sec. 27a, A.M. No. 02-06-02).

2.

Family selection

If the relationship is unsatisfactory to the child or applicant; or The continued placement is not in the best interest of the child (Sec. 47, Ibid.).

NOTE: No termination of pre-adoptive relationship shall be made unless it is shown that the foreign adoption agency has exhausted all the means to remove cause of unsatisfactory relationship.

No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally (Sec. 11, RA 8043).

If the ICAB, in coordination with the foreign adoption agency, fails to find a new placement for the child within reasonable time, the last resort is the repatriation of the child (Sec. 49, Ibid.).

Matching It refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship [Sec. 3(g), RA 8043].

Instances when adoption is presumed illegal 1.

Role of DFA in inter-country adoption 2. 3.

The DFA shall set-up a system by which Filipino children sent abroad for trial custody are monitored and checked as reported by the authorized and accredited inter-country adoption agency as well as the repatriation to the Philippines of a Filipino child whose adoption has not been approved [Sec. 14(3), RA 8043].

4.

The consent for an adoption was acquired through, or attended by coercion, fraud, or improper material inducement; There is no authority from the ICAB to effect adoption; The procedures and safeguards placed under the laws for adoption were not complied with; or If the child to be adopted is subject or exposed to danger, abuse and exploitation (Sec. 16, RA 8043)

Other acts which constitute violations of Inter-country Adoption Act

Upon receipt of applicant’s matching proposal and confirmation of the pre-adoptive placement plans by foreign agency, the ICAB shall issue the placement authority within 5 working days. The copy of the placement authority

1. 2.

231

Violation of confidentiality; (Sec. 55, IRR of RA 8043) Child trafficking (Sec. 57 (c), Ibid.).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW FUNCTIONS OF THE RTC

Nature of the petition

The RTC merely receives applications from foreign adoption agencies, evaluates and assesses the qualifications of the proposed adopter, and the court must submit its findings and the application papers to the ICAB. The supervised trial custody is conducted and the decree of adoption is issued by the court in the place of the adopter abroad (Sec. 10, RA 8043).

Habeas Corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into and his statements final. The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority. Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty (Caballes v. CA, G.R. No. 163108, February 23, 2005).

“BEST INTEREST OF THE MINOR” STANDARD It refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor (Sec. 14, AM No. 03-04-04-SC).

The writ itself plays the role of summons in ordinary actions; the court acquires jurisdiction over the person of the respondent by mere service of the writ (Sec. 7, Rule 102).

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family (Landingin v. Republic, G.R. No. 164948, June 27, 2006).

The writ of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review (Galvez v. CA, G.R. No. 114046, Oct. 24, 1994).

WRIT OF HABEAS CORPUS Writ of Habeas Corpus

The person released by virtue of habeas corpus may no longer be imprisoned again for the same offense, except by the lawful order or process of a court having jurisdiction of the cause or offense (Sec. 17, Rule 102).

It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day and the cause of his caption and detention to do, submit to and receive whatsoever, the court or judge awarding the writ shall consider in that behalf.

NOTE: In habeas corpus cases, the judgment in favor of the applicant cannot contain a provision for damages.

Period of appeal

It is regarded as “palladium of liberty”, a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge.

Under BP 129, the period of appeal in habeas corpus cases shall be 48 hours from the notice of the judgment appealed from.

Scope of the Writ Habeas corpus extends to:

Grounds for the issuance of writ of habeas corpus as a consequence of judicial proceeding

1.

1.

2.

Cases of illegal confinement or detention by which a person is deprived of his liberty; and Cases by which the rightful custody of the person is withheld from the person entitled thereto (Sec. 1, Rule 102).

2. 3. 4.

To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint of liberty must be actual and effective, not merely nominal or moral (Ilusorio v. Bildner, G.R. Nos.135789-90, May 16, 2000).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

232

There has been a deprivation of a constitutional right resulting in restraint of person; The court has no jurisdiction to impose the sentence; An excessive penalty has been imposed, the sentence being void as to excess; or Where the law is amended, as when the penalty is lowered (Feria v. CA, G.R. No. 122954, Feb. 15, 2000).

SPECIAL PROCEEDINGS Q: In 1978, Pete was convicted by the then CFI of Cavite on the sole basis of his extrajudicial confession. The decision soon became final and Pete has since been serving sentence until now, although to this day, he insists that he is innocent and that his confession had been coerced. He later learned of the SC’s decision in People v. Galit in which the Court reversed a conviction that had been based solely on an uncounselled confession. He forthwith caused a petition for habeas corpus to be filed, alleging that his confinement has all along been illegal. The Government opposed the petition on the ground that the decision of conviction had long become final and may no longer be reopened and that he is in fact serving sentence. Will habeas corpus lie? Reasons. (1988 Bar Question)

physical custody of the Provincial warden, as the judge has constructive custody of the accused. For the illegal order and warrant of arrest issued by the judge subsists and Ben is offered no speedy, adequate remedy or appeal in the ordinary course of law. The writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked, in fine, by the attendance of special circumstance that requires immediate action (Calvan v. CA, G.R. No.140823, October 3, 2000). Q: Rita Labriaga was caught selling two tea bags of marijuana in Daraga, Albay in a buy-bust operation conducted by the Narcotics Command. Rita was found in possession of 115 grams of marijuana. Rita was convicted for violation of RA 6425 and was sentenced for life imprisonment. Rita filed a motion for reconsideration with modification of sentence. Rita prays for the retroactive application to her case of RA 7659 which imposes imprisonment of prision correccional for less than 250 grams of marijuana and for her eventual release from confinement at the Correctional Institution for Women in Mandaluyong as a consequence of the application of the new law to her case. It appears that she already served sentence for a more than a year. Should the motion be granted?

A: Yes. Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention (Gumabon v. Director of Prisons, G.R. No. L-30026, Jan. 30, 1971). Q: Luis Ramos initiated a complaint-affidavit for deportation before the Bureau of Immigration and Deportation (BID) against Jimmy Go alleging that the latter is an illegal and undesirable alien. The complaint for deportation was dismissed but was subsequently reversed by the Board of Commissioners; hence the corresponding Charge Sheet was filed against Jimmy, charging him of violating the Philippine Immigration Act of 1940. The Board of Commissioners issued a warrant of deportation which led to the apprehension of Jimmy. Jimmy commenced a petition for habeas corpus. Should the petition be granted?

A: Yes. The appropriate remedy is to file a petition for habeas corpus considering that the decision in this case is final. However, in accordance with the ruling in Angeles v. Bilibid Prison (G.R. No. 117568, Jan. 4, 1995) and People v. Agustin (G.R. No. 98362, Sept. 5, 1995), in which the SC held that the rules on habeas corpus should be liberally applied in cases which are sufficient in substance, the motion in this case must be treated as a substantial compliance with the rules on habeas corpus. Rita Labriaga, having served more than the maximum imposable penalty of prision correccional, should be released (People v. Labriaga, G.R. No. 92418, Nov. 20, 1995).

A: No, once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” in this context includes quasi-judicial bodies of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration(Carlos Go Sr. v. Luis Ramos, G.R. No. 167569; Jimmy Go v. Luis Ramos, G.R. No. 167570; Hon. Alipio Fernandez v. Jimmy Go, G.R. No. 171946, Sept. 4, 2009).

CONTENTS OF THE PETITION A verified petition for a writ of habeas corpus should contain the following: 1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty; 2. The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; 3. The place where he is so imprisoned or restrained, if known; 4. A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear (Sec. 3, Rule 102).

Q: A municipal trial judge, who is related within the third degree of consanguinity to Archie, complainant, has conducted an ex parte preliminary investigation without affording Ben, accused, opportunity to be heard and thereafter issued a warrant of arrest, pursuant to which Ben has been detained, and subsequently forwarded the records of the case to the provincial prosecutor for appropriate action. Will habeas corpus and certiorari lie? A: Yes, a petition for habeas corpus to relieve Ben under the illegal warrant of arrest, and for certiorari to assail the warrant of arrest may be filed, and the judge may properly be made respondent, even though the accused has been in

233

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW CONTENTS OF THE RETURN

DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION

Contents of the Return Difference between a preliminary citation and a peremptory writ

When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocally: 1. Whether he has or has not the party in his custody or power, or under restraint; 2. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; 3. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; 4. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made (Sec. 10, Rule 102).

1.

2.

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition. The respondent must produce the person and explain the cause of his detention. However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Court’s order to the CA to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus (In the Matter of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August 25, 2005). WHEN NOT PROPER/APPLICABLE

NOTE: If it appears that the prisoner is in the custody of a public officer under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the validity of the restraint

Habeas corpus is not applicable when the purpose is to: 1. Enforce a right of service; 2. Determine whether a person has committed a crime; 3. Determine a disputed interstate boundary line; 4. Punish respondent; 5. Recover damages or other money award; 6. Assert or vindicate denial of right to bail (In re: Azucena Garcia, G.R. No. 141443, Nov. 18, 2000); 7. Correct errors in appreciation of facts or law.

If he is restrained of his liberty by an alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts (Sec. 13, Rule 102).

Q: When the soldier’s defense to a petition for habeas corpus is that they released the detainees for whom the petition was filed, but the allegation of release is disputed by the parents of the detainees, and it is not denied that the detainees have not been seen or heard from since their supposed release, do the parents have the burden in law of proving that the their children are still detained by the soldiers or does the burden shifts to the soldiers?

WHEN WRIT DISALLOWED/DISCHARGE Instances when the writ shall be disallowed or discharged 1.

2. A: The general rule in the number of cases is that the release of a detained person renders moot and academic the petition for habeas corpus. The cited general rule postulates that the release of the detainees is an established fact and not in dispute, and they do not constitute to be missing persons. Where, however, there are grounds for grave doubts about the alleged release of the detainees, where the standard and prescribed procedure has not been followed, then the burden of proving by clear and convincing evidence the alleged release is shifted to the soldiers, as the respondents to the petition (Dizon v. Eduardo, G.R. No. L-59118, March 3, 1988).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Preliminary citation is issued when a government officer has the person in his custody, the illegality of which is not patent, to show cause why the writ of habeas corpus should not issue. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the noncompliance therewith is punishable (Lee Yick Hon v. Collector of Customs, G.R. No. 16779, March 30, 1921).

In cases of supervening events such as issuance of a process and filing of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995); In cases of improper arrest or lack of preliminary investigation (Paredes v. Sandiganbayan, G.R. No. 89989, Jan. 28, 1991); NOTE: The proper remedy incase of improper arrest or lack of preliminary investigation is to quash warrant and conduct or direct preliminary investigation (Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000).

3.

4.

234

In cases of invalid arrest due to deportation cases cured by filing of the deportation proceedings (Santos v. Commissioner of Immigration, G.R. No.L-25694, Nov. 29, 1976). Petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial (Galvez v. CA, G.R. No. 114046 [1994]).

SPECIAL PROCEEDINGS NOTE: An application or admission to bail shall not bar the accused from challenging the validity of the his arrest, or the legality of warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea(Sec. 26, Rule 114; A.M. No.00-5-03-SC).

5.

Q: Edward Serapio is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against Serapio and his coaccused. Edward had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. He filed a petition for habeas corpus contending that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. He also maintains that the issuance by the Sandiganbayan of new orders cancelling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of Serapio's right to bail. Should the petition for habeas corpus be granted?

Habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings (Galvez v. CA, G.R. No. 114046 [1994]).

In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioner’s detention, from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been satisfied (Bernarte v. CA, G.R. No. 107741, November 18, 1996).

A:No. The general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same applies. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's right to bail. It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail, or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed.

If the person arrested is judicially charged within 3 days from his detention during the suspension of the writ, the aggrieved party is precluded from inquiring into the legality of the arrest or detention in the petition for habeas corpus and this justifies its dismissal, as the question of the legality of the arrest or detention should be raised in the pending criminal case, either in a motion to quash the warrant of arrest or the information itself (Bernarte v. CA, supra.). Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to “all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.” The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate (In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No. 167193, April 19, 2006).

The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's resolution of the pending application for bail of Serapio. The recourse of Serapio is to forthwith proceed with the hearing on his application for bail (Serapio v. Sandiganbayan, G.R. No. 148468, January 28, 2003). Q: After Alma had started serving her sentence for violation of BP 22, she filed a petition of writ of habeas corpus, citing Vaca v. CA where the sentence of imprisonment of a party found guilty of violation of BP 22 was reduced to a fine equal to double the amount of the check involved. She prayed that her sentence be similarly modified and that she be immediately released from detention. In the alternative, she prayed that pending determination on whether the Vaca ruling applies to her, she be allowed to post bail pursuant to Sec. 14, Rule 102, which provides that if a person is lawfully imprisoned or restrained on a charge of having committed an offense not punishable by death, he may be admitted to bail in the discretion of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her release. In your opinion, is the decision of the trial court correct? 1. Under Rule 102? 2. Under the Rules of Criminal Procedure? (2008 Bar Question)

Q: Mariano was convicted by the RTC for raping Victoria and meted the penalty of reclusion perpetua. While serving sentence, Mariano and Victoria got married. Mariano filed a motion in said court for his release from the penitentiary on his claim that under RA 8353, his marriage to Victoria extinguished the criminal action against him for rape, as well as the penalty imposed on him. The court denied the motion on the ground that it had lost jurisdiction over the case after its decision had become final and executory. What remedy/ies should the counsel of Mariano take to secure his proper and most expeditious release from the National Penitentiary? Explain. (2005 Bar Question) A: His counsel should file a petition for habeas corpus for the illegal confinement of Mariano or a motion in the court which convicted Mariano to nullify the execution of his sentence or the order of his commitment on the ground that a supervening development had occurred.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW A: 1.

2.

concurrently with the RTCs. Did the CA act correctly in remanding the petition to the RTC? Why? (1993 Bar Question)

No. Section 4, Rule 102 of the Rules of Court (habeas corpus) does not authorize a court to discharge by writ of habeas corpus a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

A: No, because while the CA has original jurisdiction over habeas corpus concurrent with the RTC, it has no authority to remand to the latter original actions filed with the former. On the contrary, the CA is specifically given the power to receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original jurisdiction (Sec. 9, BP 129, as amended by EO 33, s. 1986).

No. The trial court’s Order releasing Alma on bail even after judgment against her has become final and in fact she has started serving sentence, is a brazen disregard of the mandate in Sec. 24, Revised Rules of Criminal Procedure that: “In no case shall bail be allowed after the accused has commenced to serve sentence” (People v. Fitzgerald, G.R. No. 149723, Oct. 27, 2006).

Q: Upon a complaint that he is issuing fake Alien Certificate Registration, Morgan, a British national was arrested by the Bureau of Immigration and Deportation (BID). The Board of Commissioners (BOC) of the BID issued a deportation order against Morgan. A week after, Elisa, Morgan’s wife, filed a petition for the issuance of a writ of habeas corpus with the Manila RTC naming the Immigration Commissioner as respondent. After trial, the RTC dismissed Elisa’s petition on the ground that a petition for the issuance of a writ of habeas corpus is not the proper remedy. Is the RTC correct? A: Yes, the power to deport aliens is vested on the President of the Philippines, subject to the requirements of due process. The Immigration Commissioner is vested with authority to deport aliens under Section 37 of the Philippine Immigration Act of 1940, as amended. Thus, a party aggrieved by a Deportation Order issued by the BOC is proscribed from assailing said order in the RTC via a petition for a writ of habeas corpus. In case such motion for reconsideration is denied by the BOC, the aggrieved party may appeal to the Secretary of Justice and, if the latter denies the appeal, to the Office of the President of the Philippines. The party may also choose to file a petition for certiorari with the CA under Rule 65 of the Rules of Court, on the ground that the Secretary of Justice acted with grave abuse of discretion amounting to excess or lack of jurisdiction in dismissing the appeal, the remedy of appeal not being an adequate and speedy remedy. In case the Secretary of Justice dismisses the appeal, the aggrieved party may also resort to filing a petition for review under Rule 43 of the Rules of Court, as amended (Johnson v. Makalino, G.R. No. 139255, Nov. 24, 2003). Q: Roxanne, a widow, filed a petition for habeas corpus with the CA against Major Amor who is allegedly detaining her 18-year old son Bong without authority of law. After Major Amor had filed a return alleging the cause of detention of Bong, the CA promulgated a resolution remanding the case to the RTC for a full-blown trial due to the conflicting facts presented by the parties in their pleadings. In directing the remand, the CA relied on Sec. 9 (1), in relation to Sec. 21 of BP 129 conferring upon said court the authority to try and decide habeas corpus cases

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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SPECIAL PROCEEDINGS DISTINGUISH WRIT OF HABEAS CORPUS FROM WRIT OF AMPARO, HABEAS DATA AND KALIKASAN HABEAS CORPUS You have the body

AMPARO To protect

HABEAS DATA You have the data

Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

Remedy available to any person whose right to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Office of the Remedy

To direct the person detaining another to produce the body of the person being detained and show the cause of detention.

To direct the public officers involved to conduct an investigation as to the whereabouts and legality of the detention of a missing person.

To order the disclosure or destruction of data relating to the right to life, liberty or security of a person.

Coverage

Involves the right to liberty of and rightful custody by the aggrieved party.

Where to file

RTC or any judge thereof, CA or any member thereof in instances authorized by law; Sandiganbayan in aid of its appellate jurisdiction, or SC or any member thereof.

Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances. RTC of the place where the threat, act or omission was committed or any of its elements occurred; SB or any justice thereof; CA or any justice thereof; SC or any justice thereof.

It protects the image, privacy, honor, information, selfdetermination and freedom of information of a person. RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner; or with SC, CA or SB when the action concerns public data files or government offices.

Literal interpretation Description

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KALIKASAN It is a Filipino word which means “nature” in English Special remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. To order the protection of the constitutional right to a balanced and healthful ecology and restrain further acts that cause environmental damage of such a magnitude that prejudices the right to life, health or property of inhabitants in two or more cities or provinces. Constitutional right to a balanced and healthful ecology.

In SC or any stations of the CA.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW

Who may file a petition

1.

2.

HABEAS CORPUS Party for whose relief it is intended; or Any person on his behalf

AMPARO In the following order: 1. Any member of the immediate family 2. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity 3. Any concerned citizen, organization, association or institution

Respondent

May or may not be an officer.

Public official or employee or a private individual or entity.

Enforceability of the writ

If granted by SC or CA: enforceable anywhere In the Philippines;

Enforceable anywhere in the Philippines regardless of who issued the same

Docket fees

If granted by RTC: enforceable only within the judicial district Payment is required

Petitioner is from payment

exempted

NOTE: Rule on indigent petitioner applies.

Service of writ

Person who makes the return

When to file a return

Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found On the day specified in the writ

HABEAS DATA Any aggrieved party; However, in cases of extralegal killings and enforced disappearances: a. Any member of the immediate family b. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity Public official or employee or a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Enforceable anywhere in the Philippines

KALIKASAN A natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency.

Payment is required.

Petitioner exempted payment

1. 2.

NOTE: Rule on petitioner applies.

indigent

Public official or employee, private individual or entity.

Enforceable anywhere in Philippines

the

is from

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service.

Respondent

Respondent

Respondent

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits.

The respondent shall file a verified written return together with supporting affidavits within 5 working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons.

Within nonextendible period of 10 days after the service of writ.

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SPECIAL PROCEEDINGS Return

HABEAS CORPUS If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by RTC: returnable before such court In writ of habeas corpus in relation to custody of minors, the writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits (Sec. 20, A.M. No. 03-04-04-SC).

AMPARO If issued by RTC: returnable before such court;

HABEAS DATA If issued by RTC: returnable before such court;

If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred;

If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored;

If issued by SC or any of its justices: returnable before such court, or before SB, CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

KALIKASAN If issued by SC, returnable before such court or CA.

If issued by SC or any of its justices: returnable before such court, or before SB, CA, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored

General denial Liability of the person to whom the writ is directed if he refuses to make a return Hearing

Not prohibited. Forfeit to the aggrieved party the sum of P1000, and may also be punished for contempt.

Not allowed. Imprisonment or fine for committing contempt.

Not allowed. Imprisonment or fine for committing contempt.

Not allowed. Indirect contempt.

Date and time of hearing is specified in the writ.

Summary hearing shall be conducted not later than 7 days from the date of issuance of the writ.

Summary hearing shall be conducted not later than 10 working days from the date of issuance of the writ.

Period of appeal

Within 48 hours from notice of the judgment or final order appealed from.

5 working days from the date of notice of the adverse judgment.

5 working days from the date of notice of the judgment or final order.

The hearing including the preliminary conference shall not extend beyond 60 days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data. Within 15 days from the date of notice of the adverse judgment or denial of motion for reconsideration.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW HABEAS CORPUS None

Prohibited pleadings

1. 2.

AMPARO HABEAS DATA Motion to dismiss; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; NOTE: In writ of amparo, a motion for extension of time to file the return is no longer a prohibited pleading, as it may be granted by the court on highly meritorious cases.

3. 4. 5. 6. 7. 8. 9. 10. 11.

Dilatory motion for postponement; Motion for a bill of particulars; Counterclaim or cross - claim; Third - party complaint; Reply; Motion to declare respondent in default; Intervention; Memorandum; Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

5.

1. 2.

3. 4. 5. 6. 7. 8.

KALIKASAN Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; and Motion to declare respondent in default.

Certificate of Non-Forum Shopping signed personally by the petitioner (Sec. 4, AM No. 03-04-04-SC).

Who may file a petition for custody of minor

Issuance of Hold Departure Order

A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent (Sec. 2, AM No. 03-04-04-SC).

The minor child cannot be brought out of the country without leave from court while the petition is pending. The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court(Sec. 16, AM No. 03-04-04-SC).

Where filed The petition for custody of minor is filed with the Family courtof the province or city where the petitioner resides or where the minor may be found (Sec. 3, AM No. 03-04-04SC).

Q: Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife W files a petition for habeas corpus before the RTC of Pasay City, praying for custody over their minor child. H files a motion to dismiss the wife’s petition on the ground of the pendency of the other case. Rule (2007 Bar Question)

The CA and the SC have concurrent jurisdiction with Family courts in habeas corpus cases where the custody of minors is involved. The provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 ― that Family courts have concurrent jurisdiction with the CA and the SC in petitions for habeas corpus where the custody of minors is at issue (Thornton v. Thornton, G.R. No. 154598, Aug. 16, 2004; Madriñan v. Madriñan, G.R. No. 159374, July 12, 2007).

A: The motion to dismiss the petition for habeas corpus should be granted to avoid multiplicity of suits. The question of who between the spouses should have custody of their minor child could also be determined in the petition for declaration of nullity of their marriage which is already pending in the RTC of Pasig City. In other words, the petition filed in Pasay City, praying for custody of the minor child is unnecessary and violates only the cardinal rule of procedure against multiplicity of suits. Hence, the latter suit may be abated by a motion to dismiss on the ground of litis pendentia (Yu v. Yu, G.R. No. 164915, March 10, 2006).

Contents of the verified petition 1. 2.

3. 4.

The personal circumstances of the petitioner and of the respondent. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent. The material operative facts constituting deprivation of custody. Such other matters which are relevant to the custody of the minor. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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SPECIAL PROCEEDINGS Q: In a petition for habeas corpus which he filed before the CA, Joey sought custody of his minor son from his former live-in partner, Loreta. Joey alleged that the child's mother was abroad most of the time and thus, he should be given joint custody over their son. The CA however denied the petition, and on the basis of Art. 213, par (2) of the Family Code, awarded custody of the child in favor of the mother. Was the CA correct in denying Joey’s petition for habeas corpus for the custody of his minor son?

WRIT OF AMPARO A.M. NO. 07-9-12-SC Writ of Amparo It is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof (Sec. 1, A.M. No. 07-9-12-SC).

A:Yes. Under Art. 176 of the FC, parental authority over an illegitimate child is vested solely in the mother, and this is true notwithstanding that the child has been recognized by the father as his offspring. At most, such recognition by the father would be a ground for ordering the latter to give support to, but not custody of, the child (David v. CA, 250 SCRA 82). Custody over the minor in this case was therefore awarded correctly to the mother, and this is all the more so in view of Art. 213 of the Family Code which lays down the Maternal Preference Rule. There is also no showing that Joey was able to show proof of any compelling reason to wrest from the mother parental authority over their minor child.

The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings (Deliberations of the Committee on the Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and September 20, 2008).

Q: In a petition for habeas corpus that was filed by Loran against his estranged wife, as well as against his parentsin-law whom he alleged were unlawfully restraining him from having custody of his child, the trial court issued an order directing the aforesaid persons to appear in court and produce the child in question and to show cause why the said child should not be discharged from restraint. Does the trial court's Order run counter to Art. 213 of the Family Code?

Right to life, liberty and security

A: No. The assailed order of the trial court did not grant custody of the minor to any of the parties but was merely a procedural directive addressed to the petitioners for them to produce the minor in court and explain why they are restraining his liberty. Moreover, Art. 213 of the Family Code deals with the adjudication of custody and serves as a guideline for the proper award of-custody by the court. While the petitioners can raise it as a counter argument in the custody suit, it may not however be invoked by them to prevent the father from seeing the child. Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Art. 211 of the Family Code, both parents in this case have joint parental authority over their child and consequently joint custody over him. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody, both parents are still entitled to the custody of their child (Salientes, et al. v. Abanilla, et al.,G.R. No. 162734, Aug. 29, 2006).

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1.

The right to life guarantees essentially the right to be alive- upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property.

2.

The right to liberty as guaranteed by the Constitution was defined by Justice Malcolm to include “the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.

3.

The right to security includes the following: a. Freedom from fear - is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. In the amparo context, it is more correct to say that the “right to security” is actually the “freedom from threat.” Viewed in this light, the “threatened with violation” Clause in the latter part of Section 1 of theAmparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW b.

c.

Guarantee of bodily and psychological integrity or security - Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.

fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time (Section 3(g) of RA No. 9851). NOTE: The elements of enforced disappearance are: (AA-RR) 1. 2. 3.

Guarantee of protection of one’s rights by the government - The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice(Reyes v. CA, G.R. No. 182161, December 3, 2009).

4.

Nature of Writ of amparo An amparo proceeding is not criminal in nature. While the principal objective of its proceedings is the initial determination of whether an enforced disappearance, extralegal killing or threats thereof had transpired—the writ does not fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010). It partakes of the nature of a prerogative writ that does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance (Razon, Jr. v. Tagitis G.R. No. 182498, December 3, 2009).

NOTE: The threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo (Canlas v. Napico Homeowners Association I-XIII, Inc., G.R. No. 182795, June 5, 2008).

State Participation State participation is an indispensable element for the issuance of a writ of amparo. Proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. While the writ may lie if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person (Navia et al v. Pardico, GR 184467, June 19, 2012).

The Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to life, liberty and security, but on a concrete statutory definition as well of what an ‘enforced or involuntary disappearance’ is. Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances should be construed to mean the enforced or involuntary disappearance of persons contemplated in Section 3(g) of RA No. 9851, otherwise known as “Philippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimes against Humanity.” (Navia et al v. Pardico, GR 184467, June 19, 2012 citing Rubrico v. Macapagal Arroyo).

Extralegal killings

Writ NOT available for protection of property right

These are killings committed without due process of law, legal safeguards or judicial proceedings (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008).

A writ of amparo cannot be issued when the protection being asked for involves a property right. The writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the

Enforced disappearance The arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

That there be an arrest, detention, abduction or any form of deprivation of liberty; That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; That it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and, That the intention for such refusal is to remove the subject person from the protection of the law for a prolonged period of time. (Navia et al v. Pardico, GR 184467, June 19, 2012).

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SPECIAL PROCEEDINGS prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial (Tapuz v. Del Rosario, G.R. No. 182484, June 17, 2008).

amparo proceeding (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010). It must be clarified, however, that the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. They may be impleaded— not actually on the basis of command responsibility—but rather on the ground of their responsibility, or at least accountability (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010).

NOTE: The rule is the same with respect to habeas data.

Writ NOT available in a labor dispute The writ will not also be issued in a labor dispute. Employment constitutes a property right under the context of the due process clause of the Constitution and does not constitute an unlawful violation of the right to life, liberty, or security (Meralco v Lim, G.R. No. 184769 October 5 2010).

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. Thus, the doctrine of command responsibility does not determine criminal, civil or administrative liabilities but is to be applied merely to ascertain responsibility and accountability of the persons involved (Rodriguez v. Macapagal Arroyo, G.R. No. 191805, November 15, 2011).

NOTE: The rule is the same with respect to habeas data.

Inclusion of name in the Order of Battle NOT sufficient The mere inclusion of a name of a person in the military’s order of battle is not sufficient reason for the issuance of the writ of amparo. It is true that the writ covers even threatened violations against a person’s right to life, liberty or security. Further, threat and intimidation that vitiate the free will – although not involving invasion of bodily integrity – nevertheless constitute a violation of the right to security in the sense of “freedom from threat”. It must be stressed, however, that such “threat” must find rational basis on the surrounding circumstances of the case. Mere inclusion in the military’s order of battle which is not supported by independent and credible evidence stands on nebulous grounds. The liberality accorded to amparo cases does not mean that a claimant is dispensed with the onus of proving his case. (Saez v. Macapagal Arroyo, G.R. No. 183533 September 25, 2012).

NOTE: The same rule applies with respect to habeas data.

DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT A search warrant is a court order issued by a judge or magistrate judge that authorizes the law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. This serves as a protection of the people from the unreasonable intrusion of the government, while a writ of amparo is broader in scope as it protects the constitutional rights to life, liberty and security.

NOTE: The rule is the same with respect to habeas data.

Responsibility and Accountability The concept of responsibility is not the same as accountability under an amparo proceeding. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance while Accountability refers to the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance (Razon, Jr. v. Tagitis G.R. No. 182498, December 3, 2009).

The production order under the Amparo Rule pertained to a civil procedure that cannot be identified or confused with unreasonable searches prohibited by the Constitution. It should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution because it is likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides: “Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control”(The Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008).

The concept of command responsibility is not applicable in proceedings for a writ of amparo. The application of command responsibility presupposes an imputation of individual liability. It is more aptly invoked in a full-blown criminal or administrative case rather than in a summary

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW WHO MAY FILE

Sufficiency of the petition in form and substance

Who may file

The pleader must state the ultimate facts constituting the cause of action, omitting the evidentiary details. However, in an amparo petition, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision is to make the Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security.

Any aggrieved party may file the petition. It may also be filed by any qualified person or entity in the following order: 1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or 3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party (Sec. 2, A.M. No. 07-9-12-SC).

The test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or party action (Razon, Jr. v. Tagitis G.R. No. 182498, December 3, 2009).

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein(Sec. 2, Ibid.).

CONTENTS OF THE RETURN

When filed

Within 5 days after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

The petition may be filed on any day and at any time with the RTC of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the CA, the SC, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

1.

Court that has jursidiction 1. 2.

3.

2.

When issued by a RTC or any judge thereof, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the CA or any of their justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the SC or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred (Sec. 2, A.M. No. 07-9-12-SC)

3.

4.

NOTE: The Rule allowing the filing of the petition before the RTC does not require that the RTC have jurisdiction over the offense complained of. Jurisdiction can only be conferred by Congress. The rule merely establishes a procedure to enforce the right to life, liberty or security of a person which requires the filing of the petition before the RTC of the place where the threat, act or omission was committed or any of its elements. The intent is to prevent the filing of the petition in some far-flung area to harass the respondent. Moreover, allowing the amparo petition to be filed in any RTC may prejudice the effective dispensation of justice, as in most cases, the witnesses and the evidence are located within the jurisdiction of the RTC where the act or omission was committed (Annotation on the Writ of Amparo, A.M. NO. 07-9-12-SC).

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The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: a. To verify the identity of the aggrieved party; b. To recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; c. To identify witnesses and obtain statements from them concerning the death or disappearance; d. To determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. To identify and apprehend the person or persons involved in the death or disappearance; and f. To bring the suspected offenders before a competent court.

SPECIAL PROCEEDINGS may refer the case to the Department of Justice for criminal prosecution (Annotation on the Writ of Amparo, A.M. NO. 07-9-12-SC).

5. Other matters relevant to the investigation, its resolution and the prosecution of the case (Sec. 9, A.M. No. 07-9-12SC as amended).

An independent action for amparo is improper once criminal proceedings have been commenced. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writ of amparo. The reliefs afforded by the writs may, however, be made available to the aggrieved partyby motion in the criminal proceedings (Castillo v. Cruz G.R. No. 182165 November 25, 2009).

EFFECTS OF FAILURE TO FILE RETURN The court, justice or judge shall proceed to hear the petition ex parte. The hearing should not be delayed by the failure of the respondent to file a return, otherwise the right to life, liberty and security of a person would be easily frustrated (Sec. 12, Ibid.).

NOTE: The rule is the same with respect to habeas data.

The failure to file a return cannot be extended except on highly meritorious grounds. Thus, a motion for extension of time to file a return upon showing of a highly meritorious ground is no longer a prohibited pleading.

Q: Fr. Reyes was arrested and charged with rebellion. Consequently, the DOJ Secretary issued Hold Departure Order (HDO) No. 45 ordering the Commissioner of Immigration to include in the hold departure list the name of Fr. Reyes. The RTC dismissed the charge but the HDO No. 45 still subsisted. Thus, Fr. Reyes filed a petition for writ of amparo to the SC claiming that the continued restraint on his right to travel is illegal. Should the petition be granted?

OMNIBUS WAIVER RULE The Omnibus Waiver Rule states that all defenses not raised in the return (answer) are deemed waived (Sec. 10, Ibid.).It is different from the Omnibus Motion Rule which states that defenses not raised in a Motion to Dismiss are deemed waived.

A: No. The right to travel refers to the right to move from one place to another. As stated in Marcos v. Sandiganbayan, G.R. Nos. 115132-34, Aug. 9, 1995, a person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. The restriction on Fr. Reyes’ right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Fr. Reyes has failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security.

NOTE: A motion to dismiss is a prohibited pleading in an application for a writ of amparo. The filing of a motion to dismiss even on the ground of lack of jurisdiction over the subject matter and the parties is proscribed to avoid undue delay. The grounds of a motion to dismiss should be included in the return and resolved by the court, using its reasonable discretion as to the time and merit of the motion (Sec. 11, Ibid.).

PROCEDURE FOR HEARING The nature of the hearing on the petition is summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties (Sec. 13, Ibid.).

Under Sec. 22, A.M. No. 07-9-12-SC (effect of filing of criminal action), Fr. Reyes should have filed with the RTCMakati, where the information for rebellion was filed, a motion to lift HDO No. 45 (Rev. Fr. Robert Reyes v. CA, G.R. No. 182161, December 3, 2009).

The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus (Sec. 13, Ibid.).

CONSOLIDATION 1.

If the petitioner fails to appear due to valid cause such as threats on his life, the court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. (Sec. 20, ibid).

2.

When a criminal action is filed subsequent to the filing of the petition of the writ; and When a separate civil action and a criminal action was filed subsequent to the petition for the writ of amparo. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT

NOTE: The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of 2 years from notice to the petitioner of the order archiving the case (Sec. 20.).

Interim reliefs

INSTITUTION OF SEPARATE ACTION

1.

A separate action may be filed after filing a petition for a writ of amparo. It does not preclude the filing of a separate criminal, civil or administrative action(Sec. 21, Ibid.). However, if the evidence so warrants, the amparo court

2. 3. 4.

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Petitioner Temporary protection order; Inspection order; Production order; Witness protection order (Sec. 14)

1. 2.

Respondent Inspection order; Production order (Sec. 15)

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: An interim relief cannot be granted independently when a writ of amparo has already been issued. Provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition. The privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party (Yano v. Sanchez, G.R. No. 186640, February 11, 2010).

Appeal Any party may appeal from the final judgment or order to the SC under Rule 45. The appeal may raise not only questions of law but also questions of fact or both because its subject is extralegal killings or enforced disappearances, which might necessitate a review of errors of fact (Sec. 19, Ibid.).

Temporary protection and witness protection orders

WRIT OF HABEAS DATA A. M. NO. 08-1-16-SC

Temporary protection and witness protection orders may be issued motu proprio by the court unlike inspection and protection orders which may be issued only upon verified petition by the party.

The Writ of Habeas Data It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party(Sec. 1, A.M. No. 08-1-16-SC).

Inspection Order A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order. While the Amparo Rule does not require that the place to be inspected be identified with clarity and precision, it is, nevertheless, a minimum for the issuance of an inspection order that the supporting allegations of a party be sufficient in itself, so as to make a prima facie case (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010).

The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially the right to informational privacy of individuals. The writ operates to protect a person’s right to control information regarding himself, particularly in the instances where such information is being collected through unlawful means in order to achieve unlawful ends (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010).

QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO In a petition for a writ of amparo, the parties shall establish their claims by substantial evidence(Sec. 17, A.M. No. 07-912-SC).

Nature of Hearing on the Petition The nature of the hearing on the petition is summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties (Sec. 15, Ibid.).

Public officials and employees must prove that extraordinary diligence was exercised in the performance of duty while only ordinary diligence is required for private individual or entity. Public officials or employees are charged with a higher standard of conduct because it is their legal duty to obey the Constitution, especially its provisions protecting the right to life, liberty and security (Sec. 17, A.M. No. 07-9-12-SC).

SCOPE OF THE WRIT As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification (Rodriguez v. Macapagal Arroyo, G.R. No. 191805, November 15, 2011).

NOTE: Same provision provides that respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

Doctrine of Totality of Evidence The doctrine of totality of evidence in amparo cases means that the court must consider all the pieces of evidence adduced in their totality, not in isolation with each other, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test (Razon, Jr. v. Tagitis G.R. No. 182498, December 3, 2009).

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SPECIAL PROCEEDINGS CONTENTS OF THE PETITION

b.

Contents of the petition 1. 2.

3. 4.

5.

6.

The personal circumstances of the petitioner and the respondent The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party The actions and recourses taken by the petitioner to secure the data or information The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of. Such other relevant reliefs as are just and equitable (Sec. 6, Ibid.).

3.

NOTE: A general denial of the allegations in the petition shall not be allowed (Sec. 10, Ibid.).

INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS It may be conducted where defense that the release of question shall compromise secrets, or when the data divulged to the public due character (Sec. 12, Ibid.).

1.

2.

When a subsequent criminal action is filed, the Petition for the writ of Habeas Data shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action.

NOTE: After consolidation, the procedure under the Rule shall continue to govern the disposition of the reliefs in the petition (Sec. 21, Ibid.).

EFFECT OF FILING OF A CRIMINAL ACTION

Who may file

If a criminal action has already been instituted, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case (Sec. 22, Ibid.).

Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: 1. Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or 2. In default thereof, any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity (Sec. 2, A.M. No. 08-1-16-SC).

INSTITUTION OF SEPARATE ACTION The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions (Sec. 20, Ibid.).

CONTENTS OF RETURN

QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF HABEAS DATA

The respondent, within 5 working days from the service of the writ, unless reasonably extended by the Court, shall allege:

2.

the respondent invokes the the data or information in national security or State or information cannot be to its nature or privileged

CONSOLIDATION

NOTE: A petition for habeas data is fatally deficient when there are no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security, has not demonstrated any need for information under the control of police authorities, and has not shown the necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information. In such case, the prayer for the issuance of a writ of habeas data is nothing more than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not(Tapuz et al v. Judge del Rosario et al G.R. No. 182484, June 17, 2008).

1.

The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and c. The currency and accuracy of the data or information held; and Other allegations relevant to the resolution of the proceeding (Sec. 10, Ibid.).

Burden of Proof If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied (Sec. 16, Ibid.).

The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection;

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REMEDIAL LAW Issuance of the writ v. Privilege of the writ

Reliefs that may be granted

Issuance of the writ This is issued upon the filing of the petition if on its face it ought to issue.

1. 2.

NOTE: Sec. 7. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within 3 days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than 10 work days from the date of its issuance10 days from the time the petition is submitted for decision

Privilege of the writ This is issued after hearing, in the form of a judgment.

3. NOTE: The court shall render judgment within 10 days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied.

Enjoin the act complained of, or Order the deletion, destruction, or rectification of the erroneous data or information, and Grant other relevant reliefs as may be just and equitable. (Sec. 16, Ibid.)

Appeal Any party may appeal from the final judgment or order to the SC under Rule 45. The appeal may raise questions of fact or law or both (Sec. 19, Ibid.). CHANGE OF NAME A Petition for change of nameis a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceeding in rem and, as such, strict compliance with jurisdictional requirements, particularly in publication, is essential in order to vest the court with jurisdiction therefore (Republic v. CA, G.R. No. 97906, May 21, 1992).

DIFFERENCES UNDER RULE 103, RA 9048 as amended by RA 10172 AND RULE 108 Rule 103 Change of first name or surname.

Scope

Nature

Judicial; hearing necessary.

Initiated by Where to file

Verified petition. RTC of the province where the petitioner resides at least 3 months prior to the filing of the petition. CA under Rule 41

Where to appeal , in case of adverse decision Who may file

is

Filed by the person desiring to change his name.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

RA 9048 as amended by RA 10172 Clerical or typographical errors; change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general. Administrative; hearing is not necessary. Summary as it merely involves clerical errors.

Rule 108 Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries.

Sworn affidavit. Local Civil Registry office where the record is kept/Consul General.

Verified petition. RTC where the corresponding civil registry is located.

Civil Registrar General under (Rule 14, IRR of RA 9048) Petition is filed by the person of legal age who must have a direct and personal interest in the correction: 1. Owner of the record; 2. Owner’s spouse, children, parents, brothers, sisters, grandparents, guardian; or 3. Anyone authorized by law or owner of the record.

CA under Rule 41

248

Judicial; hearing is necessary. Adversarial since it involves substantial errors.

Any person interested in the act, event, decree or order concerning the civil status of persons.

SPECIAL PROCEEDINGS Who must be notified

Publication

Rule 103 Solicitor General/ Interested parties.

RA 9048 as amended by RA 10172 Interested parties/Solicitor General need not be notified.

Order for hearing shall be published once a week for 3 consecutive weeks.

Order for hearing in case of change of first name/nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake shall be published once a week for 2 consecutive weeks.

GROUNDS FOR CHANGE OF NAME

Requisites for a valid publication

Grounds for change of name

1.

1.

2.

2. 3.

4.

5. 6.

When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; When the change will avoid confusion; When one has been continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name will prejudice public interest When the change is a legal consequence of legitimation or adoption When the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody (Republic v. Wong, May 2, 1992, 209 SCRA 189; People v. Hernandez, February 9, 1996, G.R. No. 117209).

3.

4.

2. 3. 4.

That the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing; The cause for which the change of the petitioner's name is sought; The name asked for (Sec. 2, Rule 103); and All names and aliases of petitioner (Republic v. Marcos, G.R. L-31065, Feb. 15, 1990).

A: No. The failure of the petitioner to include his alias, Peregrine, in the caption is a jurisdictional defect and its inclusion in the body of the petition does not cure said defect. The reason for the rule is that the ordinary reader only glances fleetingly at the caption in a special proceeding and only if the caption strike him does he proceed to read the body of the petition; hence, he will probably not notice the other names or aliases of the petitioner (Gil Go v. Republic, G.R. No. L-31760, May 25, 1977).

Jurisdictional requirements in a petition for change of name 1. 2.

The petition and the copy of the order indicating the date and place for the hearing must be published; The publication must be at least once a week for three successive weeks; and, The publication must be in some newspaper of general circulation published in the province, as the court shall deem best. Another validating ingredient relates to the caveat against the petition being heard within 30 days prior to an election or within 4 months after the last publication of the notice of the hearing.

Q: Pernito, also known in the community as Peregrine, filed a petition for change of name to Pedro. The name Peregrine appeared in the body of the petition but not in the caption. When the petition was published, the caption and the body of the petition were merely lifted verbatim, so that as published, the petition’s caption still did not contain Peregrine as the petitioner’s alias. The government lawyer filed a motion to dismiss on the ground that, notwithstanding publication for the requisite number of times, the court did not acquire jurisdiction over the petition because petitioner’s alias-Peregrine did not appear on the published caption. The court denied the motion to dismiss with the ruling that there was substantial compliance with the law and that the omission of the alias was clearly set forth in the petition itself. Was the court correct in denying the motion to dismiss? Explain. (1992 Bar Question)

Contents of the petition for change of name 1.

Rule 108 Civil registrar impleaded as respondent; Solicitor General/ Interested parties. Order for hearing shall be published once a week for 3 consecutive weeks.

Publication for 3 successive weeks in some newspaper of general circulation in the province Both title or caption of the petition and its body shall recite: a. The name or names or aliases of the applicant; b. The cause for which the change of name is sought c. The new name asked for.

NOTE: Failure to comply with all the requirements and to spell correctly the names in the order and in the petition will preclude the trial court from acquiring jurisdiction (Jayme Tan v. Republic, G.R. No. 16384, Apr. 26, 1962).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Notice to the Solicitor General

4.

The State has an interest in the names borne by individuals for purposes of identification, and that changing one’s name is a privilege and not a right. Accordingly, a person can be authorized to change his name appearing in either his certificate of birth or civil registry upon showing not only of reasonable cause, or any compelling reason which may justify such change, but also that he will be prejudiced by the use of his true and official name (Republic of the Philippines v. Bolante, G.R. No. 160597, July 20, 2006). The interest of the State which is represented by the Solicitor General is paramount over personal right to choose a name. The State must identify its subjects (Ong Peng Oan v. Republic, G.R. No. L-80035, Nov. 29, 1975).

Those who have over the property of the absentee some right subordinated to the condition of his death (Sec. 2, Rule 107).

Administrator of the property of the absentee The spouse present shall be preferred in the appointment of a representative or administrator of property of the absentee provided they are not legally separated. If the absentee left no spouse or if the spouse present is incompetent, any competent person may be appointed by the court (Sec. 7, Ibid.). A petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife could be combined and adjudicated in the same proceedings.

It cannot be over-emphasized that in a petition for change of name, any interested person may appear at the hearing and oppose the petition. Likewise, the Solicitor General or his deputy shall appear on behalf of the Government. The government, as an agency of the people, represents the public and, therefore, the Solicitor General, who appears on behalf of the government, effectively represents the public. As it were, the Solicitor General was fully apprised of the new dates of the initial hearing. Accordingly, there was no actual need for a republication of the initial notice of the hearing. The peculiar circumstances obtaining in this case and the requirements of fair dealing demand that we accord validity to the proceedings a quo (Republic of the Philippines v. Bolante, G.R. No. 160597, July 20, 2006).

The wife who is appointed as an administrator may alienate or encumber the husband’s property, provided she secures first a judicial authority (Art. 388, NCC). Grounds for termination of the administration 1. 2. 3.

Absentee appears personally or through an agent; Absentee’s death is proved and heirs appear; or Third person appears showing that he acquired title over the property of the absentee (Sec. 8, Ibid.). WHEN TO FILE

Effect of change of name

When filed

A change of name does not define or effect a change of one’s existing family relations or in the rights and duties flowing there from. It does not alter one’s legal capacity, civil status or citizenship; what is altered is only the name (Republic v. CA, G.R. No. 97906, May 21, 1992).

1.

2.

After 2 years: a. From his disappearance and without any news about the absentee; or b. From the last news about the absentee. After 5 years – If he left an administrator of his property (Sec. 2, Ibid.).

ABSENTEES (RULE 107) Where filed An absentee is a person who disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer property or the power conferred on the agent has expired.

The petition for the appointment of an absentee should be filed in the RTC where the absentee resided before his disappearance (Sec. 1, Ibid.).

PURPOSE OF THE RULE

Duty of the Court

The purpose of the Rule is to appoint an administrator over the properties of the absentee. This is proper only where the absentee has properties to be administered.If the absentee left no properties, such petition is not necessary(Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986).

Upon filing of the petition, the court should: 1. 2. 3.

WHO MAY FILE Who may file 1. 2. 3.

Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; or

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

250

Issue an order setting forth the date and place of the hearing; Direct that notice must be sent to known interested persons at least 10 days before the hearing; and Order the publication once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where the absentee resides (Sec. 4, Ibid.).

SPECIAL PROCEEDINGS Declaration of absence

with the RTC of the province where the corresponding civil registry is located (Sec. 1, Rule 108).

The declaration of absence takes effect 6 months after publication of the judgment on declaration of absence in a newspaper of general circulation and in the Official Gazette. The order must also be recorded in the Civil Registry of the place where the absentee last resided (Sec. 6, par. 2, Ibid.).

When all the procedural requirements under Rule 108 are followed, said Rule is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001).

Periods of absence and their corresponding consequences Period of Absence After lapse of 2 years

5 years in case he left an agent Beyond 7 years (or 4 years under extraordinary circumstances)

The proceeding is adversarial in nature - one which has opposing parties; one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it (Republic v. Valencia, G.R. No. L-32181, March 5, 1986).

Consequence Petition for Appointment of Representative (unless the absentee left an agent to administer his property) Petition for Declaration of Absence and Appointment of Administrator or Trustee may be filed Considered dead for all intent and purposes except for purposes of succession (if disappeared under extraordinary circumstance, considered dead for all purposes even succession)

Requisites of adversarial proceedings 1.

Proper petition is filed where the Civil Registrar and all parties interested are impleaded; The order of hearing must be published once a week for three consecutive weeks; Notice must be given to the Civil Registrar and all parties affected thereby; The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and Full blown trial (Republic v. Valencia, supra.).

2. 3. 4.

5.

NOTE:Extraordinary circumstance is as follows: 1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years;

The law did not fix a period within which the petition for correction under Rule 108 in relation to Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from the time the petitioner discovered the error or mistake in the civil registry, and not from the date the birth certificate was registered in the civil registry (Lee v. CA, supra.). ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108

Considered dead for the purpose of opening his succession after an absence of 10 years. If he disappeared after the age of 75, the absence of 5 years is sufficient.

Entries subject to cancellation or correction under Rule 108 1. 2. 3. 4. 5. 6.

Marriage: if the spouse was absent for 4 years (or 2 years under extraordinary circumstances) and the spouse present has a well - founded belief that the absent spouse is already dead, the spouse present must institute a summary proceeding for the declaration of presumptive death for the purposes of contracting a subsequent marriage [Arts. 41-43, FC; Sec. 3 (w)(4), Rule 131].

7. 8. 9. 10. 11. 12. 13. 14.

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Cancellation or correction of entries in the Civil Registry

Births Marriages Deaths Legal separations Judgments of annulments of marriage Judgments declaring marriages void beginning Legitimation Adoptions Acknowledgments of natural children Naturalization Election, loss or recovery of citizenship Civil interdiction Judicial determination of filiation, and Change of name (Sec. 2, Rule 108).

from

Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto,

251

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

the

REMEDIAL LAW Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celine’s husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment before the CA, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. Celine opposed saying that the publication of the court order was sufficient compliance with due process. Rule. (2007 Bar Question)

RA 9048 as amended by RA 10172 ADMINISTRATIVE CORRECTION OF CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER Coverage 1. 2. 3. 4.

NOTE: The obvious effect of RA 9048 is to remove from the ambit of Rule 108 the correction or changing of such errors in the entries of civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register (Lee v. CA, G.R. No. 118387, Oct. 11, 2001).

A: It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v. Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, January 20, 2004).

RA 10172, which was approved on August 15, 2012 and became effective on September 8 of the same year, now allows the correction of the day and month of the date of birth and sex of a person unlike in RA 9048. Moreover, the grounds enumerated are subject to the qualification that the error or mistake to be corrected must be patently clear and it must be within the competence of the local civil registrar or consul general.

Clerical or typographical error It refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, no correction must involve the change of nationality, age (correction on year of birth), or status of the petitioner [Sec. 2(3), RA 9048 as amended by RA 10172; NSO Administrative Order No. 1 Series of 2012].

Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from “Chinese" to "Filipino" because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. (2005 Bar Question)

NOTE: Correction is allowed only on the day and month of birth but not on the year of birth because this will already alter the age of the petitioner.

A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to change the record of birth by changing the filiation from “legitimate” to “illegitimate” and petitioner’s citizenship from “Chinese” to “Filipino” does not involve a simple summary correction which could otherwise be done under the authority of RA 9048. Procedural requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Correction of clerical or typographical errors Change of first name or nickname, Change of the day and month in the date of birth, Change of sex of a person (Sec. 1 of RA 9048 as amended by RA 10172)

Grounds for a change of first name under RA 9048 1.

2.

3.

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The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 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; or The change will avoid confusion (Sec. 4, RA 9048 as amended by RA 10172).

SPECIAL PROCEEDINGS Q: Where should the petition for correction of entry or change of name under RA 9048 be filed?

A: Yes. First, RTC Manila does not have the jurisdiction to allow the petition filed by Julio. RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 and 108, until and unless an administrative petition for change of name is first filed and subsequently denied.

A: 1.

Resident of the Philippines - Local Civil Registry Office (city or municipal civil registrar) of the city or municipality where the record being sought to be corrected or changed is kept. NOTE: The local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with RA 9048 prescribing the procedure that the petitioner and local civil registrar should follow (Re: Final Report on the Judicial Audit Conducted at the RTC, Br. 67, Paniqui, Tarlac, A.M. No. 06-7414-RTC, October 19, 2007).

2.

3.

Second, the ground relied upon by Julio on his petition for change of name is not among those enumerated by RA 9048. Julio’s basis in praying for the change of his first name was his sex reassignment. However, a change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment (Silverio v. Republic, G.R. No. 174689, Oct. 22, 2007).

Migrant Petition (Petitioner has migrated to another place within the Philippines and it is not practical for such party, in terms of transportation expenses, time and effort to appear before the local civil registrar of the place of birth) – Local Civil Registry Office (city or municipal civil registrar) of the place where the petitioner is residing or domiciled.

NOTE: The State has an interest in the names borne by individuals and entitled for purposes of identification. A change of name is a privilege, not a right. Petitions for change of name are controlled by statutes.

Migrant Petition (Petitioner is one whose birth record was reported abroad and presently residing in the Philippines) - Local Civil Registry Office (city or municipal civil registrar) of the place of residence.

Q: Carla was born with two genitals, one for male and one for female. Only after maturity did his male dominant features becomes manifest. Carla filed a petition for change of name to Carlo. The available evidence presented in court including the fact that Carla thinks of himself as a male and as to the statement made by the doctor that Carla’s body produces high levels of male hormones, which is preponderant biological support for considering him as male. Should the petition be granted?

NOTE: Place of domicile is not included under this portion because it is understood that his domicile is abroad, his birth record having been reported therein, and under which Philippine laws do not apply.

4.

Citizens of the Philippines who are presently residing or domiciled in foreign countries- Nearest Philippine consulate (Consul General) (Sec. 3; NSO Administrative Order No. 1 Series of 2012)

A: Yes. Compassionate calls for recognition of the various degrees of intersex as variations should not be subject to outright denial. The court must give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. His congenital condition and his mature decision to be a male must be taken into account. Life is already difficult for the ordinary person. A change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons and the consequences that will follow (Republic v. Cagandahan, G.R. No. 166676, Sept. 12, 2008).

Q: Julio, born male, underwent a sex reassignment surgeryin Bangkok, Thailand. After the successful medical operation, Julio filed a petition to have his name in his birth certificate changed from “Julio” to “Julia,” and his sex from “male” to “female” with the RTC Manila. After hearing, the RTC Manila granted Julio’s petition. The Office of the Solicitor General filed a petition for certiorari in the CA alleging that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. The CA granted the petition for certiorari and reversed the RTC Manila’s order. Is the CA correct?

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Procedure for Petition for administrative corrections under RA 9048 as amended by RA 10172 and Administrative Order No. 1 Series of 2012 in relation to Administrative Order No. 1 Series of 2001

Sworn affidavit with supporting documents (3 copies – city or municipal registrar or consul general; Office of the Civil Registrar General; petitioner)

Correction of a clerical or typographical error The particular erroneous entry or entries sought to be corrected shall be stated, supported by the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; (3) Notice or certification of posting; (4) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition.

Change of first name or nickname The particular erroneous entry or entries sought to be changed shall be stated, supported by the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; (3) Notice posting;

or

certification

(5) A clearance or a certification that the owner of the document has no pending administrative, civil or criminal case, or no criminal record, which shall be obtained from the following: a. Employer, if employed; Bureau

Correction of erroneous entry concerning the sex of a person

The particular erroneous entry or entries sought to be corrected shall be stated, supported by the following documents:

The particular erroneous entry or entries sought to be corrected shall be stated, supported by the following documents:

(1) Earliest school record or earliest school documents

(1) Earliest school record or earliest school documents

(2) Medical records,

(2) Medical records,

(3) Baptismal certificate and other documents issued by religious authorities

(3) Baptismal certificate and other documents issued by religious authorities

of

(4) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition.

b. National Investigation;

Correction of erroneous entry concerning the day and moth in the date of birth

5) A clearance or a certification that the owner of the document has no pending administrative, civil or criminal case, or no criminal record, which shall be obtained from the following: a. Employer, employed;

if

b. National Bureau of Investigation; and c. Philippine National Police.

of and

c. Philippine National Police.

(4) a medical certification issued by an accredited government physician that the petitioner has not undergone sex change or sex transplant. 5) A clearance or a certification that the owner of the document has no pending administrative, civil or criminal case, or no criminal record, which shall be obtained from the following: a. Employer, employed;

if

b. National Bureau of Investigation; and c. Philippine National Police.

Publication of the petition for at least once a week for two (2) consecutive weeks in a newspaper of general circulation proven by an affidavit of publication from the publisher and a copy of the newspaper clipping

Posting for ten (10) consecutive days in a conspicuous place NOTE: In the case of migrant petitioner, the petition shall be posted first at the office of the Petition Receiving Civil Registrar for ten (10) consecutive days before sending it to the Record Keeping Civil Registrar. Upon receipt, the Record Keeping Civil Registrar shall post again the petition in his office for another ten (10) consecutive days. When the petition is for a change of first name, the migrant petitioner shall publish the petition in a newspaper of general and national circulation. In the case where a person's civil registry record or records were registered in the Philippines or in any of the Philippine Consulates, but the person presently resides or is domiciled in a foreign country, posting and/or publication, as the case may be, shall be done in the place where the petition is filed and in the place where the record sought to be corrected is kept.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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SPECIAL PROCEEDINGS

Registrar or Consul General acts on the petition and shall render decision not later than five (5) working days after the completion of the posting and/or publication requirement

Denies

Grants

Transmits the decision and the records to the Civil Registrar General

Civil Registrar General impugns the decision by way of an objection within ten (10) working days from on the following grounds (1) The error is not clerical or typographical; (2) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or (3) The basis used in changing the first name or nickname of a person does not fall under Section 4.

Appeal to the Civil Registrar General within ten (10) working days from receipt of the decision

If not impugned, decision becomes final and executory

Notify the local civil registrar or consul general

Local Civil Registrar or consul general notifies the petitioner

Notify the local civil registrar or consul general of the adverse decision

Local Civil Registrar or consul general notifies the petitioner

Motion for Reconsideration with the Civil Registrar General

File appropriate petition with the court 1. On questions of fact, of law, or mixed questions of facts and law: Petition for review with the CA under Rule 43 2. Only questions of law: Petition for review on certiorari with the SC under Rule 45 3. Grave abuse of discretion: Petition for certiorari with the CA under Rule 65

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW APPEALS IN SPECIAL PROCEEDING (RULE 109)

XPN: In habeas corpus cases, the appeal therein must be filed within 48 hours from the service of judgment. In writ of amparo and habeas data cases, the period of appeal is 5 working days from the date of notice of the adverse judgment. In writ of kalikasan, the period of appeal is within 15 days from the notice of adverse judgment or denial of motion for reconsideration.

JUDGMENTS AND ORDERS FROM WHICH APPEAL MAY BE TAKEN Appeal may be taken When such order or judgment: 1. Allows or disallows a will; 2. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; 3. Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; 4. Settles the account of an executor, administrator, trustee or guardian; 5. Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; 6. Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for new trial or for reconsideration (Sec. 1, Rule 109).

NOTE: Appeals in special proceedings are termed "multiple appeals." The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final. In this multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding from which the appeal was taken for the purposes of further remedies the parties may avail of (Briones v. Henson-Cruz, G.R. No. 159130, August 22, 2008).

MODES OF APPEAL 1.

2.

3.

NOTE: A stranger having neither material nor direct interest in a testate or intestate estate has no right to appeal from any order issued therein (Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928).

4.

People who are allowed to file an appeal 1.

2.

3. 4.

A surety of an executor or administrator, made a party to an accounting made by such executor or administrator, from an order approving or disapproving such accounting. An heir, legatee or devisee who has been served with notice as to a money claim against the estate admitted by the executor or administrator, from an order of the court approving such claim; A creditor who is allowed by the court to bring an action for recovery of property; and A special administrator, from an order disallowing a will (Herrera, 2005).

5.

RULE ON ADVANCE DISTRIBUTION A part of the estate as may not be affected by the controversy or appeal may be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 (Sec. 2, Rule 109).

Orders that are not appealable 1. 2.

3.

Notwithstanding a pending controversy or appeal in probate proceedings to settle the estate of a decedent, the court may, in its discretion and upon terms as it may deem just and proper, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among heirs or legatees, provided that estate obligations be either: 1. Paid or provided for, or, 2. Secured by a bond conditioned for the payment of said obligations as required under Rule 90 of the Rules (Ibid.).

Order directing administrator to take action to recover amount due to the estate; Order made in administration proceedings relating to inclusion or exclusion of items of property in the inventory of executor or administrator; Order appointing special administrator WHEN TO APPEAL

GR: The period of appeal shall be 30 days, a record on appeal being required (Sec. 2(a), Rule 41, Rules of Court). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Rule 40 (Appeal from MTC to RTC) – By filing a record on appeal and payment of appeal fees on questions of law or fact or both (settlement of estate); Rule 41 (Appeal from the RTC to CA in exercise of its original jurisdiction) – By ordinary appeal by filing a record on appeal and payment of appeal fees on questions of law or fact or both (settlement of estate, habeas corpus, guardianship, trustees, absentees, change of name under Rule 103, correction/cancellation of entries under Rule 108); Rule 42 (Petition for review from the RTC to the CA in exercise of its appellate jurisdiction) – By filing a record on appeal and payment of appeal fees on questions of law or fact or both; (settlement of estate) Rule 45 (Appeal by certiorari to the SC) – By filing of verified petition for review on certiorari and payment of fees which shall raise questions of law only but in cases of amparo and habeas data cases, questions of fact may also be entertained Rule 65 (Petition for certiorari) – By filing of verified petition for certiorari on the ground that the court acted without or in excess of jurisdiction or with grave abuse of discretion.

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CRIMINAL PROCEDURE CRIMINAL PROCEDURE

complaint, irrespective of whether the plaintiff is entitled or not, to recover upon the claim asserted therein, a matter resolved only after and as a result of the trial.

GENERAL MATTERS Criminal Procedure

voluntary appearance or surrender of the accused or by his arrest.

The method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense, and for their punishment, in case of conviction (Herrera, 2007; Pamaran, 2010).

Requisites for a valid exercise of criminal jurisdiction

Criminal Law v. Criminal Procedure

1.

Criminal Law Substantive It declares what acts are punishable. It defines crimes, treats of their nature and provides for their punishment.

REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION

Criminal Procedure Remedial It provides how the act is to be punished. It provides for the method by which a person accused of a crime is arrested, tried or punished.

2.

Criminal Jurisdiction

3.

It is the authority to hear and try a particular offense and impose the punishment for it (People v. Mariano, 71 SCRA 605).

NOTE: GR: Questions of jurisdiction may be raised at any stage of the proceedings.

Elements of criminal jurisdiction 1.

2. 3.

XPN: The party raising the question is guilty of estoppels or laches (Tijam v. Sibonghanoy, 23 SCRA 29).

Penalty attached – The jurisdiction of a Court in criminal cases is determined by the penalty imposable, and not by the penalty ultimately imposed (Guevarra v. Almodovar, 169 SCRA 476). Nature of the offense charged. Territorial jurisdiction over the place of commission of the crime.

Tests to determine jurisdiction of the court in criminal cases 1. 2.

The absence of any of these elements may be challenged by an accused at any stage of the proceedings in the court below or on appeal. Failing to comply with anyone of them, the resulting judgment is void (Uy v. Court of Appeals, 276 SCRA 374).

3.

4.

JURISDICTION OVER THE SUBJECT MATTER V. JURISDICTION OVER THE PERSON OF THE ACCUSED Jurisdiction over the Subject Matter Derived from law. It can never be acquired solely by consent of the accused. Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived. Jurisdiction over the subject matter is determined upon the allegations made in the

Jurisdiction over the subject matter – This is the power to hear and determine cases of general class to which the proceeding in question belongs. The offense, by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of. Jurisdiction over the territory – The offense must have been committed or any of its essential ingredients took place within the territorial jurisdiction of the court. It cannot be waived and where the place of the commission was not specifically charged, the place may be shown by evidence. Jurisdiction over the person of the accused – The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court.

Jurisdiction over the Person of the Accused May be acquired by consent of the accused or by waiver of objections. If he fails to make his objection on time, he will be deemed to have waived it.

Jurisdiction over the person of the accused is acquired by

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The geographical limits of its territory; Determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented; Determined by the nature of the offense and/ or penalty attached thereto and not what may be meted out after trial; and Determined by the law in force at the time of the institution of the criminal action and not at the time of its commission. Once vested it CANNOT be withdrawn by: a. Subsequent valid amendment of the information (People v. Chipeco, G.R. No. 1968, March 31, 1964); or b. Subsequent statutory amendment of the rules of jurisdiction unless the amendatory law expressly provides otherwise or is construed that it is intended to operate to actions pending before its amendment, in which case the court where the action is pending is ousted of jurisdiction and the pending action will have to be transferred to the court having jurisdiction by virtue of the amendatory law (Binay v. Sandiganbayan GR No. 120011, October 1, 1999).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW jurisdiction of the Office of the City Prosecutor over his person being a public official. Benipayo contends that it is the Sandiganbayan who has jurisdiction. Do the Sandiganbayan and RTC have concurrent jurisdiction over libel or written defamation cases?

JURISDICTION OF CRIMINAL COURTS Jurisdiction Determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented (Buaya v. Polo, G.R. No. 75097, January 26, 1989).

A: No. The grant to the Sandiganbayan of jurisdiction over offenses committed in relation to office, did not divest the RTC of its exclusive and original jurisdiction to try written defamation cases regardless of whether the offense is committed in relation to office (People v. Benipayo, G.R. Nos. 154473 and 155573, April 24, 2009).

Determination of jurisdiction when fine is the only penalty In cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court: 1. The RTC has jurisdiction where the fine is more than Php 4,000 including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed Php 6,000 (SC Court Circular No. 09-94) except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction of the MTC. 2. The MTC has jurisdiction where the fine is Php 4,000 or less.

WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION

Q: Will injunction lie to restrain the commencement of a criminal action? Explain. (1999 Bar Question) A: GR: Injunction cannot lie to restrain the commencement of a criminal action because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society [Asutilla vs. PNB, 225 Phil. 40, 43 (1986)]. XPNs: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority; 5. Where the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. Where the court has no jurisdiction over the offense; 8. Where it is a case of persecution rather than prosecution; 9. Where the charges are manifestly false and motivated by lust for vengeance; 10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and 11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners (People of the Philippines vs. Joseph V. Grey, G.R. No. 180109, July 26, 2010).

NOTE: Accessory penalties and civil liabilities are no longer determinative of criminal jurisdiction.

Court having jurisdiction on continuing offenses Continuing offensesare those consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g. estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts. Court having jurisdiction over crimes punishable by destierro Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the MTC, considering that in the hierarchy of penalties under Art. 71 of the RPC, destierro follows arresto mayor which involves imprisonment (People v. Eduarte, G.R. No. 88232, February 26, 1990). Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question) A: It is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime. It must be prosecuted integrally and must not be divided into component offenses which may be made subject of multiple informations brought in different courts (Cuyos v. Garcia, G.R. No. L-46934, Apr. 15, 1988). Q: Photokina Marketing Corporation filed a complaint for libel against Justice Alfredo Benipayo, then chairman of the COMELEC. The Information against Justice Benipayo was filed before the RTC despite the challenge on the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CRIMINAL PROCEDURE PROSECUTION OF OFFENSES RULE 110

investigation will not interrupt the prescriptive period (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992).

CRIMINAL ACTIONS, HOW INSTITUTED

Q: In offenses punishable by imprisonment not exceeding 6 years, may the offended party go directly to court to file a criminal action?

Criminal action

A: GR: No. Before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon chairman. The Lupon secretary must certify that no conciliation or settlement was reached, attested to by the Lupon chairman. The complaint may also be filed if the settlement is repudiated by the parties.

One by which the State prosecutes a person for an act or omission punishable by law. Institution of criminal action Criminal actions are instituted by: 1. Filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation for offenses where a preliminary investigation is required; 2. For all other offenses, by filing the complaint or information directly with the MTC and MCTC, or the complaint with the office of the prosecutor (Sec. 1, Rule 110);

XPNs: 1. Where the accused is under detention; 2. Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; 3. Where actions are coupled with provisional remedies; and 4. Where the action may be barred by the statute of limitations.

NOTE: For Metro Manila and other chartered cities, the complaint shall be filed with the prosecutor regardless of the imposable penalty (Sec 1b, Rule 110), while cases falling within the jurisdiction of the RTC are always commenced by information filed by the prosecutor.

Prescriptive periods of cases falling under the authority of the Lupon The prescriptive period shall be suspended from the time of the filing of complaint with the Punong Barangay which suspension shall not exceed 60 days. The prescriptive period shall resume upon receipt of the certificate of repudiation or certificate to file action [Sec. 410(c), LGC].

Direct filing of a complaint or information with the RTC or MeTCor other chartered cities There is no direct filing of an information or complaint with the RTC because its jurisdiction covers offenses which require preliminary investigation.

WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO

There is likewise no direct filing with the MeTC because in Manila, including other chartered cities. As a rule, the complaint shall be filed with the office of the prosecutor, unless otherwise provided by their charters. In case of conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, prevails.

Offense or crime that cannot be prosecuted de officio These are crimes or offenses which cannot be prosecuted except on complaint filed by the offended party or if the offended party is a minor, by the parents, grandparents or the guardian.

Effect of institution of a criminal action

NOTE: These are also known as private crimes.

GR: It interrupts the running of the period of prescription of the offense charged (Sec. 1, Rule 110).

Who may file GR: All criminal actions initiated by complaint or information are filed by the prosecutor.

NOTE: Notably, the aforequoted article (Art. 91, RPC), in declaring that the prescriptive period “shall be interrupted by the filing of the complaint or information,” does not distinguish whether the complaint is filed for preliminary examination or investigation only or for an action on the merits. Thus, in Francisco v. CA and People v. Cuaresma, this Court held that the filing of the complaint even with the fiscal’s office suspends the running of the statute of limitations (Reodica v. CA, G.R. No. 125066. July 8, 1998).

XPNs: Private crimes which may only be prosecuted by a complaint filed by the private offended party, i.e.: 1. Adultery and concubinage; 2. Seduction, abduction and acts of lasciviousness; and 3. Criminal actions for defamation imputing the abovementioned offenses (Sec. 5, Rule 110).

XPN: Prescriptive periods of violations of special laws and municipal ordinances governed by Act 3326 (An Act to Establish Periods of Prescription for Violations Penalized by Special Laws and Municipal Ordinances and to Provide When Prescription shall Begin to Run) shall only be interrupted by the filing of a complaint or information in court. The filing of a complaint with the prosecutor or the proper officer for purposes of conducting a preliminary

Party who may legally file a complaint for adultery or concubinage Only the offended spouse may file a complaint for adultery or concubinage (Sec. 5, Rule 110).

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REMEDIAL LAW NOTE: The offended spouse cannot institute a criminal action for adultery without including the guilty parties if both are alive; or if the offended party has consented to the offense or pardoned the offenders (Sec. 5, Rule 110). If the complainant has already been divorced, he can no longer file the complaint (Pilapil v. Somera, G.R. No. 80116, June 30, 1989). This is considered as lack of status.

her grandparents but was told not to file charges. Fey now asks you as counsel how she could make her uncle liable. What would your advice be? Explain. Suppose the crime committed against Fey by her uncle is rape, witnessed by your mutual friend Isay. But this time, Fey was prevailed upon by her grandparents not to file charges. Isay asks you if she can initiate the complaint against Polo. Would your answer be the same? Explain. (2000 Bar Question)

Parties who may file a complaint for seduction, abduction or acts of lasciviousness 1. 2. 3. 4.

The offended party; Parents of the offended party; Grandparents of the offended party; or Guardian of the offended party(Sec. 5, Rule 110).

A: The minor may file the complaint independently of her grandparents, because she is not incompetent or incapable of doing so upon grounds other than her minority (Sec. 5, Rule 110).

NOTE: Such crimes cannot be prosecuted if the offender has been expressly pardoned by any of the abovementioned parties (Sec. 5, Rule 110).

Since rape is now classified as a crime against persons under the Anti-Rape Law of 1997 or RA 8353, Isaycan initiate the complaint against Polo.

Instances when the State may initiate the action for seduction, abduction or acts of lasciviousness in behalf of the offended party 1. 2.

Pardon given by a minor in cases of seduction, abduction or acts of lasciviousness

When the offended party dies or becomes incapacitated before a complaint is filed; or The offended party has no known parents, grandparents or guardian (Sec. 5, Rule 110).

The pardon to be effective as to prevent prosecution of the accused must be given by both parents and the offended party (U.S. v. Luna, 1 Phil. 360). Pardon v. Consent

NOTE: This is pursuant to the doctrine of parens patriae.

Pardon Refers to past acts

Persons who may file a Complaint on cases of unlawful acts in RA 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act) 1. 2. 3. 4. 5. 6. 7.

In order to absolve the accused from liability, it must be extended to both offenders

Offended party Parents or guardians Ascendant or collateral relative within the third degree of consanguinity Officer, social worker or representative of a licensed child-caring institution Officer or social worker of the Department of Social Welfare and Development Barangay chairman; or At least 3 concerned, responsible citizens where the violation occurred (Sec. 27, RA 7160).

Parties who can give pardon Crimes

Filing a complaint by a minor for Seduction, Abduction, or Acts of Lasciviousness GR: The offended party, even if a minor, has the right to initiate the prosecution of such offenses independently of his parents, grandparents or guardian. XPNs: If the minor is: 1. Incompetent; or 2. Incapable of doing so (Sec. 5, Rule 110) NOTE: If the minor fails to file a complaint, his parents, grandparents or guardian may file the same. The right granted to the latter shall be excusive and successive in the order herein provided (Sec. 5, Rule 110).

Q: Fey, a minor orphan was subjected to acts of lasciviousness performed by her uncle Polo. She informed UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Consent Refers to future acts In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse

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a.

Concubinage and adultery

b.

Seduction, abduction and acts of lasciviousness:

Parties who can give pardon Only the offended spouse, not otherwise incapacitated. 1. The offended minor, if with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead; 2. The parents, grandparents or guardian of the offended minor, in that order, extend a valid pardon in said crimes without the conformity of the

CRIMINAL PROCEDURE offended party, even if the latter is a minor; or 3. If the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon.

CONTROL OF PROSECUTION Prosecution of criminal actions GR: The public prosecutor shall prosecute, direct and control all criminal actions commenced by a complaint or information. XPN: The private prosecutor (private counsel) may prosecute the case provided that: 1. The public prosecutor has heavy work schedule; or 2. There is lack of public prosecutors; 3. The private prosecutor must be authorized in writing by the Chief Prosecution Office or Regional State Prosecution; and 4. Such will be subject to the court’s approval (Sec. 5, Rule 110).

NOTE: The pardon shall be given before filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does not prohibit the continuance of the prosecution of the offense.

Subsequent marriage of the accused and offended party GR: The subsequent marriage between the party and the accused, even after the filing of the complaint, extinguishes the criminal liability of the latter, together with that of the co-principals, accomplices and accessories.

Prescription of the authority of the private prosecutor The authority of the private prosecutor shall continue until the end of the trial unless the authority is revoked or withdrawn (Sec. 5, Rule 110).

XPNs: 1. Where the marriage was invalid or contracted in bad faith in order to escape criminal liability; 2. In “private libel” or the libelous imputation of the commission of the crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness and in slander by deed; and 3. In multiple rape, in so far as the other accused in the other acts of rape committed by them are concerned.

Matters within the control and supervision of the prosecutor 1. 2. 3. 4.

Effect of desistance of the offended party in private crimes It does not bar the People from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity.

NOTE: 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 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, GR L-53373 June 30, 1987).

GR: Since it is the State who is the real offended party in a criminal case, it is the prosecutor or the Ombudsman as the case may be, or the Solicitor General in cases before the CA or SC, who has the personality and authority to prosecute and file a petition in behalf of the State. XPN: An offended party in a criminal case has sufficient personality to file a special civil action for certiorari, even without the imprimatur of the State. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the said complainant (Perez v. Hagonoy Rural Bank, Inc., G.R. No. 126210, March 9, 2000).

Matters within the control of the Court after the case is filed 1. 2. 3. 4. 5.

Effect of death of the offended party to the criminal action 1.

2.

What charge to file; Whom to prosecute; Manner of prosecution; and Right to withdraw information before arraignment even without notice and hearing.

If prior to the filing of a case in court, a complaint was already filed by the offended party with the prosecutor, the death of the complainant will not be sufficient justification for the dismissal of the information (People v. Ilarde, G.R. No. L-57288, April 30, 1984); or During the pendency of the case, the death of the complainant will not extinguish the criminal liability of the accused whether total or partial (Donio-Teves v.Vamenta, G.R. No. L-38308, December 26, 1984).

Suspension of arraignment; Reinvestigation; Prosecution by the fiscal; Dismissal of the case; and Downgrading of offense or dropping of accused even before plea.

Limitations on the Court’s power of control 1. 2.

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Prosecution is entitled to notice of hearing; Prosecution’s stand to maintain prosecution should be respected by the court

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3.

4.

The court must make its own independent assessment of evidence in granting or dismissing motion to dismiss. Otherwise, the judgment is void. Court has authority to review the Secretary of Justice’s recommendation and reject it if there is grave abuse of discretion (Villanueva v. Secretary of Justice, 475 SCRA 511).

When an offense is committed by more than one person, all of them shall be included in the complaint or information (Sec. 6, Rule 110).

Mistake in the name of the accused A mistake in the name of the accused is not equivalent and does not necessarily amount to a mistake in the identity of the accused especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime (People v. Amodia, GR No. 173791, April 7, 2009).

SUFFICIENCY OF COMPLAINT OR INFORMATION Information v. Complaint INFORMATION Information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed by him with the court (Sec. 4, Rule 110).

COMPLAINT Complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated (Sec. 3).

Name of the offended party The complaint or information must state the name and surname of the persons against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name. 1.

NOTE: The complaint contemplated under Sec. 3 is different from the complaint filed with the Prosecutor’s office. It refers to the one filed in court for the commencement of the criminal prosecution i.e. private crimes.

2.

Form of a valid complaint or information 1. 2. 3.

In writing; In the name of the People of the Philippines; and Against all persons responsible for the offense involved (Sec. 2, Rule 110).

3.

Sufficiency of a complaint or Information

Particularity of the date of the commission of the offense in the complaint or information

It is sufficient if it states the: 1. Name of the accused; 2. Designation of the offense given by the statute; 3. Acts or omissions complained of as constituting the offense; 4. Name of the offended party; 5. Approximate date of the commission of the offense; and 6. Place where the offense was committed (Sec. 6, Rule 110).

GR: It is not required. It suffices that the allegation approximates or be as near the actual date when the offense was committed (Sec. 11, Rule 110). XPN: If the date of the commission of the offense constitutes an essential element of the offense (e.g. infanticide, abortion, bigamy) (Sec. 11, Rule 110). NOTE: The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars under Sec. 10, Rule 116; the failure to move for specification or quashal of the information on any of the grounds provided by the Rules deprives the accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. Besides, the exact date of the commission of the crime is not an essential element of the crime (People v. Elpedes, G.R. Nos. 137106-07, January 31, 2001).

NOTE: In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls.

Name of the accused The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If the name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown (Sec. 7, Rule 110).

Place of the commission of the crime GR: The complaint or the information is sufficient if it can be understood from its allegation that the offense was

NOTE: If the true name of the accused is thereafter disclosed or appears in some other manner, such true name shall be inserted in the information or complaint in record (Ibid.).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

In crimes against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the particular offense charged. If the true name of the offended party is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information in record. If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or may be identified, without need of averring that it is a juridical person (Sec. 12, Rule 110).

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CRIMINAL PROCEDURE committed or some its essential ingredients occurred at some place within the jurisdiction of the court.

XPN: An accused could not be convicted under one act when he is charged with a violation of another if the change from the statute to the other: 1. Involves change in the theory of the trial; 2. Requires of the defendant a different defense; or 3. Surprises the accused in any way (U.S. v. Panlilio, G.R. No. L-9876, December 8, 1914).

XPN: When the place of commission constitutes an essential element of the offense charged or is necessary for its identification (e.g. trespass to dwelling, destructive arson, robbery in an inhabited place)(Sec. 10, Rule 110). DESIGNATION OF OFFENSE

CAUSE OF ACCUSATION Designation of the offense Cause of accusation The designation of the offense given by the statute must be stated in the complaint or information with the averment of acts or omissions constituting the offense and specify the 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 (Sec. 8, Rule 110).

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 the offense is being charged as well as the qualifying and aggravating circumstances (Sec. 9, Rule 110).

Q: Accused was charged with the offense of Estafa through Falsification of Public Documents under Art. 315 in relation to Art. 171 of the RPC in an Information filed by the prosecutor before the RTC of Quezon City. Accused assailed the Information claiming that the Information is invalid because the word "fraud" or "deceit" was not alleged in the Information. Decide the case.

Purposes of requiring that every element must be alleged 1. 2. 3.

A: Any error in the Information, with regard to the specification of the particular mode of estafa, allegedly committed by petitioners will not result in its invalidation because the allegations therein sufficiently informed petitioners that they are being charged with estafa through falsification of public document.

To enable the court to pronounce the proper judgment; To furnish the accused with such a description of the charge as to enable him to make a defense; and As a protection against further prosecution for the same cause (Herrera, 2007)

Effect when one or more elements of the offense have NOT been alleged in the Information The accused cannot be convicted of the offense charged, even if the missing elements have been proved during the trial. Even the accused’s plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged.

The Revised Rules of Criminal Procedure provides that an information shall be deemed sufficient if it states, among others, the designation of the offense given by the statute and the acts of omissions complained of as constituting the offense. However, the Court has clarified in several cases that the designation of the offense, by making reference to the section or subsection of the statute punishing, it is not controlling; what actually determines the nature and character of the crime charged are the facts alleged in the information (Batulanon v. People, G.R. No. 139857, September 15, 2006).

Statement of the qualifying and aggravating circumstances in the Information The qualifying and aggravating circumstances must be specified in the information. They must not only be proven but they must also be alleged, otherwise, they should not be considered (Catiis v. CA, G.R. 153979, February 9, 2006). Negative Averments

Conflict between the designation of the crime and the recital of the facts constituting the offense

Q: May the accused be convicted of a crime more serious than that named in the information?

GR: Where the statute alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitation or exceptions from its violation, the complaint or information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of right which the accused has to prove.

GR: Yes. The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the information and its commission is established by evidence (Buhat v. CA, G.R. No. 120365, December 17, 1996).

XPN: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violations are incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly

The title of the information or designation of the offense is not controlling. It is the actual facts recited in the information that determines the nature of the crime (Santos v. People, G.R. No. 77429, January 29, 1990).

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REMEDIAL LAW set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions (Herrera, 2007)

information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy.

Matter/s to be alleged if the crime is “committed in relation to his office” Mere allegation in the information that the offense was committed by the accused public officer in relation to his office is not sufficient. The phrase is merely “a conclusion of law,” not a factual averment that would show close intimacy between the offense charged and the discharge of the accused’s official duties. What is controlling is the specific actual allegations in the information (Lacson v. Executive Secretary, G.R. No. 128006, January 20, 1999).

which does not include or is not necessarily included in the original charge; hence the accused cannot claim double jeopardy.

Matters subject to amendment NOTE: An offense is deemed committed in relation to public office when the “office” is a constituent element of the offense. The test is whether the offense cannot exist without the office (Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005). The offense need not be connected with official duties. It is enough that it is in relation to office (Lecaroz v. Sandiganbayan, 128 SCRA 324).

Only valid information may be amended. An information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect (Herrera, 2007)

DUPLICITY OF OFFENSES; EXCEPTION

Tests to determine the propriety of amendment after plea

GR:A complaint or information must charge only one offense.

1.

XPN: When the law prescribes a single punishment for various offenses (Sec. 13, Rule 110), e.g.: 1. Complex crimes; 2. Special complex crimes; 3. Continuous crimes or delicto continuado; 4. Crimes susceptible of being committed in various modes; and 5. Crimes of which another offense is an ingredient.

2.

NOTE: Should there be duplicity of offense in the information unless a single punishment for various offenses is prescribed, the accused must move for the quashal of the same before arraignment (Sec. 3, Rule 117). Otherwise, he is deemed to have waived the objection and may be found guilty of as many offenses as those charged and proved during the trial (Sec. 3, Rule 120).

NOTE: After plea, by leave and at the discretion of the court, amendments in form, but not substance may be allowed as long as it will not prejudice the accused.

Formal Amendment

AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION

A formal amendment is made when: 1. It neither affects nor alters the nature of the offense charged; or 2. The charge does not deprive the accused of a fair opportunity to present his defense; or 3. It does not involve a change in the basic theory of the prosecution.

Amendment v. Substitution Amendment May involve either formal or substantial changes Amendment before the plea is entered can be effected without leave of court. An amendment as to form will not require another preliminary investigation and retaking of plea of the accused. An amended information refers to the same offense charged in the original

Substitution Involves substantial change from the original charge It must be with leave of court as the original information has to be dismissed. Substitution of the information entails another preliminary investigation and plea to the new information. Requires or presupposes that the new information involves a different offense

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Whether a defense under the information as it originally stood would be available after the amendment is made; and Whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance (Ricarze v. CA, G.R. No. 160451, February 9, 2007).

NOTE: The following have been held to be mere formal amendments: 1. New allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 2. An amendment which does not charge another offense different or distinct from that charged in the original one; 3. Additional allegations which do not alter the prosecution’s theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; 4. An amendment which does not adversely affect any substantial right of the accused; and 5. An amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision

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CRIMINAL PROCEDURE something which is already contained in the original information and which adds nothing essential for conviction for the crime charged (Ricarze v. CA, G.R. No. 160451, February 9, 2007).

alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner (Pacoy v. Cajigal, G.R. No. 157472, September 28, 2007).

Effect of a formal amendment There is no need for another preliminary amendment and retaking of the plea of the accused if such were already conducted.

Procedure for amendment When Made

Substantial amendment There is an amendment in substance where it covers matters involving the recital of facts constituting the offense charged and determinative of the jurisdiction of the court.

Before plea

NOTE: After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused (Ibid.). Substantial amendment after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy (Pacoy v. Cajical, G.R. No. 1574772, September 28, 2007).

Q: An Information for Homicide was filed in the RTC against petitioner. Upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge of Homicide. However, on the same day and after the arraignment, the respondent judge issued another Order directing the trial prosecutor to correct and amend the Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the Information which public respondent registered as having qualified the crime to Murder. Acting upon such Order, the prosecutor entered his amendment by crossing out the word “Homicide” and instead wrote the word “Murder” in the caption and in the opening paragraph of the Information. The accusatory portion remained exactly the same as that of the original Information for Homicide. Petitioner argued that the amendment and/or correction ordered by the respondent judge was substantial; and under Sec. 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since petitioner had already been arraigned and he would be placed in double jeopardy. Decide the case.

After plea and during the trial

Kind of amendment to be made

How amendment is made Without leave of court

1. Formal amendment 2. Substantial amendment 1. Substantial 1. Upon a motion amendment by the which: prosecutor; a. Downgrades the 2. With notice to nature of the the accused; offense and charged; or 3. With leave of b. Excludes any court accused from the complaint or information Formal amendment With leave of court; and without causing prejudice to the rights of the accused (Sec. 14, Rule 110).

Amended in the Information which downgrades the nature of the offense The prosecution should file a motion for leave of court with notice to the offended party. This is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution. Amendment in the Information which changes the nature of the crime after arraignment

A: In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court.

GR: The prosecutor can no longer amend the information after arraignment as it would prejudice the substantial rights of the accused. XPN: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact.

Sec. 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts

Q: Arthur was accused of homicide for the killing of Bebang. During the trial, the public prosecutor received a copy of the marriage certificate of Arthur and Bebang. Can the public prosecutor move for the amendment of the information to charge Arthur with the crime of parricide?

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REMEDIAL LAW Suppose instead of moving for the amendment of the information, the public prosecutor presented in evidence the marriage certificate without objection on the part of the defense, could Arthur be convicted of parricide?(1997 Bar Question)

3.

4. A: 1.

2.

No. The information cannot be amended to change the offense charged from homicide to parricide. Firstly, the marriage is not a supervening fact arising from the act constituting the charge of homicide. Secondly, after plea, amendments may be done only as to matters of form. The amendment is substantial because it will change the nature of the offense (Dionaldo v. Dacuycuy, G.R. No. L-55357, October 30, 1981).

5. 6.

No. Arthur can be convicted only of homicide not of parricide which is a graver offense. The accused has the constitutional rights of due process and to be informed of the nature and the cause of the accusation against him.

Period when substitution is proper

7.

If it appears anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Sec. 14, Rule 110).

Q: Where is the proper venue for the filing of information in the following cases? 1. The theft of a car in Pasig City which was brought to Obando, Bulacan, where it was cannibalized. 2. The theft by Carl, a bill collector of ABC Company, with main offices in Makati City, of his collections from customers in Tagaytay City. In the contract of employment, Carl was detailed to the Calamba branch office, Laguna, where he was to turn in his collections. 3. The malversation of public funds by a Philippine consul detailed in the Philippine Embassy in London (1997 Bar Question)

Limitations on substitution 1. 2.

3.

accepted principles of international law[Sec. 15(c), Rule 110]; Felonies under Art. 2 of the RPC – Shall be cognizable by the proper court where the criminal action was first filed [Sec. 15(d), Rule 110]; Continuous or transitory crimes – Such offenses may be tried by the court of any jurisdiction wherever the offender may be found, but the complainant should allege that the offense was committed within the jurisdiction of the court(Herrera, 2007); Piracy – The venue of piracy, unlike all other crimes, has no territorial limits. It is triable anywhere; Libel – The action may be instituted at the election of the offended or suing party in the municipality or city where: a. The libelous article is printed and first published; b. If one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense; c. If the offended party is a public official, where the latter holds office at the time of the commission of the offense; BP 22 cases – The criminal action shall be filed at the place where the check was dishonored or issued. In case of crossed check, the place of the depositary or the collecting bank.

No judgment has yet been rendered; The accused cannot be convicted of the offense charged or of any other offense necessarily included therein; and The accused would not be placed in double jeopardy (Herrera, 2007) VENUE OF CRIMINAL ACTIONS

Venue for the institution of criminal actions

A: 1.

GR: Subject to existing laws, criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or any of its essential ingredients occurred (Sec. 15, Rule 110).

2.

XPNs: 1. An offense was committed on a railroad train, in an aircraft, or in any other public or private vehicle in the course of trip – The criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival [Sec. 15 (b), Rule 110]; 2. Where the offense is committed on board a vessel on its voyage – The criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

266

The proper venue is in Pasig City where the theft of the car was committed, not in Obando where it was cannibalized. Theft is not a continuing offense (People v Mercado, G.R. No. L-2760, February 11, 1950). If the crime charged is theft, the venue is in Calamba where he did not turn in his collections. If the crime of Carl is estafa, the essential ingredients of the offense took place in Tagaytay City where he received his collections, in Calamba where he should have turned in his collections, and in Makati City where the ABC Company was based. The information may therefore be filed in Tagaytay City or Calamba or Makati which have concurrent territorial jurisdiction (Catingub v. CA, G.R. No. L-29365, March 25, 1983).

CRIMINAL PROCEDURE Alternative Answer: The information may be filed either in Calamba or in Makati City, not in Tagaytay City where no offense had as yet been committed. 3.

3.

The offended party had already instituted separate action.

Q: Gary requested the Ombudsman to investigate the petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then President of the Armed Forces of the Philippines Retirement and Separation Benefits System, (AFP-RSBS) together with 27 other persons for allegedly conspiring in misappropriating AFP-RSBS funds and in defrauding the government millions of pesos in capital gains and documentary stamp taxes. Special Prosecutor Joy C. Rubillar-Arao filed 24 separate Informations with the Sandiganbayan against the petitioner and several other accused. Ramiscal filed an Urgent Manifestation and Motion to Suspend Proceedings, because of the pendency of his motion for reinvestigation with the Office of the Ombudsman. Pending resolution of the aforementioned motions, the law firm of Albano & Associates filed a “Notice of Appearance” as private prosecutors. The notice of appearance was apparently made conformably to the letter-request of Retired Commodore Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members Association of Generals and Flag Officers, Inc. (AGFOI). Petitioner opposed the appearance of the law firm of Albano & Associates as private prosecutors, contending that the charges brought against him were purely public crimes which did not involve damage or injury to any private party; thus, no civil liability had arisen.Is the contention of petitioner tenable?

The proper court is the Sandiganbayan which has jurisdiction over crimes committed by a consul or higher official in the diplomatic service [Sec. 4(c), PD 1606, as amended by RA 7975]. The Sandiganbayan is a national court (Nunez v. Sandiganbayan, G.R. Nos. L50581 - 50617, January 30 1982). It has only one venue at present, which is in Metro Manila, until RA 7975, providing for two other branches in Cebu and in Cagayan de Oro, is implemented. Alternative Answer: Assuming that the Sandiganbayan has no jurisdiction, the proper venue is the first RTC in which the charge is filed [Sec. 15 (d), Rule 110].

Q: May conviction be had even if it appears that the crime was committed not in the place alleged in the Information? GR: Yes. Provided that the place of actual commission was within the jurisdiction of the court. XPN: The particular place of commission is an essential element of the offense charged.

A: Yes. The court agreed with the contention of the petitioner that the AGFOI, and even Commodore Aparri and Brig. Gen. Navarro, are not the offended parties envisaged in Sec. 16, Rule 110, in relation to Sec. 1, Rule 111 of the Revised Rules of Criminal Procedure. Under Sec. 5, Rule 110 of the Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor. The prosecution of offenses is a public function.

Q: Mike was charged with libel. The information however failed to allege that complainant Roy was a resident of the place over which the court has jurisdiction. May Mike file a motion to quash based on such defect in the Information? A: Yes. In libel cases, failure to allege in the information that the offended party is a resident of the place over which the court where the information was filed has jurisdiction and the fact that the articles were first published and printed in said place is a substantial defect that can be a proper ground for a motion to quash on the ground of lack of jurisdiction. Such defect is not merely as to form which can be properly amended (Agustin v. De Leon, G.R. No.164938, August 22, 2005).

Under Sec. 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. However, the offended party is the government, which was allegedly deprived by the petitioner and the other accused of the capital gains and documentary stamp taxes, based on the actual and correct purchase price of the property stated therein in favor of the AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of the crimes charged; neither was it prejudiced by the said transactions, nor is it entitled to the civil liability of the petitioner for said cases. Thus, it is not the offended party in the said cases (Ramiscal Jr., v. Sandiganbayan, G.R. No. 140576-99, December 13, 2004).

INTERVENTION OF OFFENDED PARTY Intervention of the offended party in criminal action GR: The offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for the recovery of civil liability is instituted in the criminal action pursuant to Rule 111 (Sec. 16, Rule 110). XPNs: 1. From the nature of the crime and the law defining or punishing it, no civil liability arises in favor of the offended party, e.g. sedition, rebellion, treason (crimes against national security); 2. The offended party waived the right to civil indemnity; or

267

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REMEDIAL LAW the face value of the check on the ground that the demurrer to evidence applied only to the criminal aspect of the case. Resolve the motion for reconsideration. (2003, 2001 Bar Question)

PROSECUTION OF CIVIL ACTIONS RULE 111 RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION

A: The motion for reconsideration should be denied. The ground that the demurrer to evidence applied only to the criminal aspect of the case was not correct. Under Rule 111, the criminal action for violation of BP 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.

Implied institution of civil action with criminal action GR: The institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged.

Q: Al was charged before the City Court of Cebu with the offense of Serious Physical Injuries Thru Reckless Imprudence, for having allegedly sideswiped Andrew along M. C. Briones St., Cebu City while Al was driving a jeepney owned and registered in the name of Carl who is Al’s employer. While the criminal case was pending, Andrew filed a separate civil action for damages based on culpa aquiliana against Al and the latter's employer, Carl. Al and Carl filed a motion to dismiss the civil case on the ground that the complaint for damages was filed without the proper reservation in the criminal action to institute a separate and independent civil action. Rule on the motion.

XPNs: When the offended party: 1. Waives the civil action; 2. Reserves his right to file a separate civil action; or 3. Institutes a civil action prior to the criminal action (Sec. 1, Rule 111). Reservation to file a separate action Jurisprudence instructs that the reservation may not be necessarily expressed but may be implied, which may be inferred not only from the acts of the offended party but also from acts other than those of the latter (Herrera, 2007).

A: There is no need to make a reservation of Andrew’s right to file a separate civil action inasmuch as the civil action contemplated is not derived from the criminal liability of the accused but one based on culpa aquiliana. The confusion lies in the failure to distinguish between the civil liability arising out of criminal negligence governed by the Penal Code on one hand, and the responsibility for culpa aquiliana or quasi-delict on the other, the latter being separate and distinct from the civil liability arising from crime. It is thus clear that the plaintiff-appellant's action, being one for culpa aquiliana (Art. 2176) may not be classified as a civil action arising from the criminal offense to be suspended "until judgment in the criminal case has been rendered (Bordas v. Canadalla, G.R. No. L-30036, April 15, 1988).

NOTE: Failure of the court to pronounce judgment as to the civil liability amounts to the reservation of the right to a separate civil action (Ibid.).

Period whenreservation of the right to file civil action be made The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting the evidence, and under circumstances affording the offended party a reasonable opportunity to make the reservation [Sec.1(2), Rule 111]. Effect of reserving the right to file a separate civil action The prescriptive period of the civil action that was reserved shall be tolled (Sec. 2, Rule 111).

WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY Instances when civil actionsmay proceed independently

Instances when the reservation to file a separate civil action is NOT allowed 1. 2. 3.

1. 2.

Criminal action for violation of BP 22 [Sec. 1(b), Rule 111]; A claim arising from an offense which is cognizable by the Sandiganbayan(Herrera, 2007); and Tax cases.

NOTE: The failure to reserve the right to file the enumerated actions does not amount to a waiver to institute a separate civil action (Herrera, 2007).

NOTE: Only the civil liability arising from the crime charged (cause of action arising from delict) as a felony is now deemed instituted (Sarmiento, Jr. vs. Court of Appeals, G. R. No. 122502, December 27, 2002).

Recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code may be prosecuted separately even without reservation (DMPI Employees Credit Cooperative v. Velez, G.R. No. 129282, November 29, 2001).In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.

Q: In an action for violation of BP 22, the court granted the accused's demurrer to evidence filed without leave of court. However, the accused was required to pay private complainant the face value of the check. The accused filed a motion for reconsideration regarding the order to pay UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Arising from breach of contract; and Independent civil actions or those based on Arts. 32, 33, 34 and Art. 2176 of the NCC or quasi-delict (Herrera, 2007).

268

CRIMINAL PROCEDURE Consolidation of civil action and criminal action arising from the same offense

arising from the crime may be proved preponderance of evidence (Herrera, 2007).

Before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action (Sec. 2, Rule 111).

NOTE: When the trial court acquits the accused based on reasonable doubt, it could make a pronouncement on the civil liability of the accused (Lontoc v. Jarantilla, G.R. No. 80194, March 21, 1989).The court may be compelled to include in the judgment of acquittal the civil liability through a petition for mandamus (Maximo v. Gerochi, G.R. Nos. L-47994-97, September 24, 1986).

NOTE: In cases where the consolidation is given due course, the evidence presented and admitted in the civil case shall be deemed automatically reproduced in the criminal action without prejudice to admission of additional evidence and right to cross examination (Sec. 2, Rule 111).

Instances where the acquittal of the accused does NOT bar the continuation of the civil case 1. 2.

Q: May the offended party compromise the civil aspect of a crime?

3. A: Yes. Provided it must be entered before or during the litigation and not after final judgment. WHEN SEPARATE CIVIL ACTION IS SUSPENDED

A: The employer cannot be held civilly liable for quasi-delict since quasi-delict is not deemed instituted with the criminal action. If at all the only civil liability of the employer would be his subsidiary liability under the RPC. Noteworthy is the fact that the subsidiary liability established in Arts. 102 and 103 of the RPC may be enforced in the same criminal case by filing in said criminal action a motion for execution against the person subsidiarily liable (Maniago v. CA, G.R. No. 101809, February 20, 1996).

GR: If the civil action is instituted before the criminal action and the criminal action is subsequently commenced, the pending civil action, in whatever stage it may be found, shall be suspended until final judgment of the criminal action has been rendered (Sec. 2, Rule 111). XPNs: 1. In cases of independent civil actions based on Arts. 32, 33, 34 and 2176 of the Civil Code; 2. In cases where the civil action presents a prejudicial question; and 3. Where the civil action is not one intended to enforce the civil liability arising from the offense.

EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION Effect of the death of the accused or convict on the civil action

Extinction of the civil action when the penal actionis extinguished

If the accused died: 1. After arraignment and during the pendency of the criminal action

GR: The extinction of the penal action does not extinguish the civil action.

GR: The civil liability of the accused based on the crime is extinguished.

XPN: When there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability might arise did not exist (Sec. 2, Rule 111).

XPN: Independent civil action based on Arts. 32 33, 34 and 2176 of the Civil Code; and Civil liability predicated on other sources of obligations, i.e. law, contract, and quasi-contract, which is subsequently instituted;

NOTE: The civil action that is extinguished refers exclusively to civil liability arising from the crime and does not include civil actions: 1. Based on quasi-delict 2. Based on Arts. 32, 33 and 34 of the NCC (independent civil actions) 3. Civil obligation not based on the criminal offense (Herrera, 2007).

2.

Effect of the Acquittal of the Accused on his Civil Liability

2.

Acquittal based on reasonable doubt; The decision contains a declaration that the liability of the accused is not criminal but only civil in nature; and The civil liability is not derived from or based on the criminal act of which the accused is acquitted (Sanchez v. Far East Bank and Trust Company, G.R. No. 155309, November 15, 2005).

Q: Can an employer be held civilly liable for quasi-delict in a criminal action filed against his employee?

Suspension of civil action

1.

by

3.

If the acquittal is based on the ground that he was not the author of the crime, it will extinguish his civil liability which may arise from the offense; or If the acquittal is based on reasonable doubt on the guilt of the accused, the civil liability of the accused

Before arraignment – the offended party may file the civil action against the estate of the deceased (Sec. 4, Rule 111). Pending appeal a. Civil liability arising from the crime is extinguished b. Civil liability predicated from another source survives i.e. civil liability arising from law, contracts, quasi-contract and quasi-delict.

NOTE: In nos. 1 and 3(b), the civil action may be continued against the estate or legal representative of the accused after proper

269

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW substitution, as the case may be (Sec. 4, Rule 111).Where the civil liability survives, it may be pursued by the filing of a separate civil action unless otherwise waived, reserved or instituted prior to the institution of the criminal action (Herrera, 2007).

prejudicial question to a previously instituted civil action not to a subsequent one.

Q: Ana, for failure to remit to Bong the money collected and instead deposited the same to the latter’s personal account, was charged with estafa. Ana filed a motion to suspend the proceedings pending resolution of a civil case earlier filed for accounting and damages regarding the same subject matter. How should the prosecutor oppose the motion? (2000 Bar Question)

Q: Allan and Boyet were charged with murder committed in conspiracy. After trial, Allan and Boyet were convicted as charged. While the case was pending in the CA, Allan died. Should the appeal still continue despite the death of Allan? A: Yes. Notwithstanding the death during the pendency of the criminal action of one of two accused charged with and convicted for murder committed in conspiracy, the appeal should continue to determine criminal and civil liability. Here, the death of Allan extinguished his criminal and civil liability arising from the offense, but Boyet may still be found criminally and civilly liable (People v.Tumayao, G.R. No. L-35442, March 4, 1932).

A: The civil case filed by Bong against Ana for accounting and damages does not involve an issue similar to or intimately related to the issue of estafa raised in the criminal action. The resolution of the issue in the civil case for accounting will not determine whether the criminal action for estafa may proceed. Q: Is the resolution of the action for annulment of marriage a prejudicial question that warrants the suspension of the criminal case for frustrated parricide?

Q: Does a judgment in favor of the defendant in a civil action bar a criminal action for the same act?

A: No.There is a prejudicial question when a civil action and a criminal action are both pending, and there exists in the civil action an issue which must be preemptively resolved before the criminal action may proceed because the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal case.

A: No. Final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to criminal action against the defendant for the same act or omission subject of the civil action (Sec. 5, Rule 111) unless the civil action is a prejudicial question which involves an issue similar or intimately related to the issue raised in the criminal, the resolution of which determines whether or not the criminal action may proceed.

The issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused. Even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent (Pimentel v. Pimentel, G.R. No. 172060, September 13, 2010).

PREJUDICIAL QUESTION Prejudicial question It is an issue involved in a civil action which is similar or intimately related to the issue raised in a criminal action, the resolution of which determines whether or not the criminal action may proceed.

Q: Andrew allegedly sold to Brian a parcel of land which Andrew later also sold to Xavier. Brian brought a civil action for nullification of the second sale and asked that the sale made by Andrew in his favor be declared valid. Andrew claims that he never sold the property to Brian and his purported signatures appearing in the first deed of sale were forgeries. Thereafter, an information for estafawas filed against Andrew based on the same double sale that was the subject of the civil action. Andrew filed a "motion for suspension of action" in the criminal case, contending that the resolution of the issues in the civil case would necessarily be determinative of his guilt or innocence. Is the suspension of the criminal action in order? Explain. (1999 Bar Question)

NOTE: The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. The petition for suspension by reason of prejudicial question is filed with the Office of the Prosecutor or court where the criminal action has been filed for trial at any time before the prosecution rests (Sec. 6, Rule 111).

Elements of a prejudicial question 1. 2.

3.

The civil action must be instituted prior to the criminal action; The civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and The resolution of such issue determines whether or not the criminal action may proceed (Sec. 7, Rule 111).

A: Yes. The suspension of the criminal action is in order because the defense of Andrew in the civil action, that he never sold the property to Brian and that his purported signatures in the first deed of sale were forgeries, is a prejudicial question the resolution of which is determinative of his guilt or innocence. If the first sale is null and void, there would be no double sale and Andrew would be innocent of the offense of estafa.

NOTE: For the principle of prejudicial question to apply, it is essential that there be two cases involved, invariably a civil case and a criminal case. If the two cases are both civil or if they are both criminal, the principle does not apply. The law limits a

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

270

CRIMINAL PROCEDURE PRELIMINARY INVESTIGATION RULE 112

Q: Atty. Alfred obtained a loan from Bing covered by several postdated checks. The checks were dishonored by the bank when Bing tried to encash them. Bing filed a case for violation of BP 22 before the MTC. Bing also filed a disbarment case. Atty. Alfred argues that the criminal prosecution constitutes a prejudicial question in the administrative proceedings for his disbarment. Is Atty. Alfred correct?

NATURE OF THE RIGHT Preliminary Investigation It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial (Sec. 1, Rule 112). It is merely inquisitorial and a means of determining the persons who may be reasonably charged with a crime. It is not a trial of the case on the merits (Herrera, 2007).

A: No. Administrative cases against lawyers are sui generis. They are distinct from and may proceed independently of criminal cases. The burden of proof in a criminal case is guilt beyond reasonable doubt while in an administrative case only substantial evidence is required. Thus, a criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings (Yu v. Palaña,558 SCRA 21).

A preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal (Cojuangco, Jr. vs. PCGG, et. al, as held in Uy v. Ombudsman, G.R. Nos. 156399-400, June 27, 2008).

RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION 1.

Actual damages

It is not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. The dismissal of the case by the investigator will not bar the filing of another complaint for the same offense, but if refiled, the accused is entitled to another preliminary investigation (US v. Marfori, G.R. No. 10905, December 9, 1916).

GR: No filing fee is required. XPN: B.P. 22 cases, wherein the amount of the filing fees shall be equivalent to the amount of the check involved. 2.

Liquidated, moral, nominal, temperate or exemplary damages – The filing fee shall be based on the amount alleged in the complaint or information [Sec. 1(4), Rule 111].

When required Preliminary Investigation is required to be conducted before filing of complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to fine.

NOTE: If the amount of the damages claimed is not specifically alleged in the complaint or information, but the court subsequently awards such, the filing fees based on the amount awarded shall constitute a first lien on the judgment [Sec. 1(3), Rule 111].

Period when preliminary investigation is required to be conducted GR: Before the filing of a complaint or information for an offense where the penalty prescribed by law is imprisonment of at least 4 years, 2 months and 1 day without regard to the imposable fine (Sec.1, Rule 112). XPNs: 1. Where an information or complaint is filed pursuant to Sec. 7, Rule 112, i.e. the complaint or information is filed directly in court (Ibid.); or 2. For cases requiring preliminary investigation, when a person is lawfully arrested without a warrant provided that inquest was made in accordance with Rule 112 (Sec. 6, Rule 112). NOTE: Cases falling under summary procedure or punishable with a penalty of imprisonment less than 4 yrs., 2 months and 1 day do not require preliminary investigation.

Documents accompanying the complaint 1. 2.

271

The affidavits of the complainant; The affidavits of his witnesses; and

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3.

Other supporting documents that would establish probable cause [Sec. 3(a) Rule 112].

the counter-affidavit, other affidavits and documents filed by the respondent.

NOTE: The affidavits of the complainant shall be subscribed and sworn to before: 1. Any prosecutor; 2. Before any government official authorized to administer oaths; or 3. In the absence or unavailability of the above mentioned, the affidavits may be subscribed and sworn to before a notary public.

NOTE: The parties do not have the right to examine or crossexamine each other or the witnesses. If they have questions to ask, they shall submit the questions to the investigating officer who shall ask the questions [Sec. 3(e), Rule 112].

Duty of the prosecutor after the termination of investigation Within 10 days from the termination of the investigation, the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial [Sec. 3(f), Rule 112].Afterwards, if the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint(Sec. 4, Rule 112).

The officer or notary public before whom the affidavits were subscribed and sworn to must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits [Sec. 3(a), Rule 112].

Duty of the Investigating Officer From the filing of the complaint, the investigating officer has 10 days within which to decide on which of the following options to take: 1. To dismiss the complaint if he finds no ground to conduct the investigation; or 2. To issue a subpoena in case he finds the need to continue with the investigation, in which case the subpoena shall be accompanied with the complaint and its supporting affidavits and documents [Sec. 3(b), Rule 112].

PURPOSES OF PRELIMINARY INVESTIGATION Purposes of conducting a preliminary investigation 1. 2.

NOTE: Within 10 days from receipt of subpoena, the respondent is required to submit his counter-affidavit, the affidavits of his witnesses and the supporting documents relied upon for his defense [Sec. 3(c) Rule 112].

3.

For the investigating prosecutor to determine if the crime has been committed; To protect the accused from inconvenience, expense and burden of defending himself in a formal trial unless probability of his guilt is first ascertained by a competent officer; To secure the innocent against hasty, malicious, and oppressive prosecution and to protect him from an open and public accusation of a crime and anxiety of a public trial; To protect the State from having to conduct useless and expensive trial; and To determine the amount of bail, if the offense is bailable(Herrera, 2007)

Despite the subpoena, if the respondent does not submit his counter-affidavit within the ten-day period granted him, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall apply in case the respondent cannot be subpoenaed [Sec. 3(d) Rule 112].

4.

Filing of motion investigation

Waiver of the right to preliminary investigation

to

dismiss

during

5.

preliminary

While the right to preliminary investigation is a substantive right and not a mere formal or technical right of the accused, nevertheless, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea at arraignment (People v. Buluran, G.R. No. 113940, Feb. 15, 2000).

GR: In preliminary investigation, a motion to dismiss is not an accepted pleading for it merely alleges the innocence of the respondent without rebutting or repudiating the evidence of the complainant. XPN: When it contains countervailing evidenceor defenses and evidence which rebuts or repudiates the charges; in which case it will be treated as a counter-affidavit.

It shall be deemed waived by: 1. Express waiver or by silence (Herrera, Remedial Law, Vol. IV, p. 278, 2007 ed.); 2. Failure to invoke it during arraignment (People v. De Asis, G.R. No. 105581, December 7, 1993); and 3. Consenting to be arraigned and entering a plea of not guilty without invoking the right to preliminary investigation (People v. Bulosan, G.R. No. 58404, Apr. 15, 1988).

NOTE: If one files a motion to dismiss and he only asserts that the case should be dismissed, then the motion to dismiss is a mere scrap of paper. If the respondent does not later on submit a counter-affidavit, it will constitute a waiver on his part to file a counter-affidavit.

Clarificatory Hearing NOT mandatory

NOTE: The waiver, whether express or implied, must be in a clear and unequivocal manner (Herrera, 2007).

Clarificatory hearing is not mandatory. A hearing may be set by the investigating officer only when there are facts and issues to be clarified either from a party or a witness, which shall be conducted within ten days from the submission of

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

272

CRIMINAL PROCEDURE Absence of a preliminary investigation

guilt (Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008).

Absence of a preliminary investigation does NOT: 1. Become a ground for a motion to quash the complaint or information as it does not impair the validity of the information or affect the jurisdiction of the trial court (Sec. 3, Rule 117; People v. Buluran, G.R. No. 113940, February 15, 2000); 2. Affect the court’s jurisdiction but merely the regularity of the proceedings (People v. De Asis, G.R. No. 105581, December 7, 1993); 3. Impair the validity of the information or render it defective; and 4. Justify the release of the respondent or nullify the warrant of arrest against him (Larranaga v. CA, G.R. No. 130644, March 13, 1998).

Persons authorized to conduct a preliminary investigation 1. 2. 3.

NOTE: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction (Sec. 2, Rule 112).

Court interference in the conduct of preliminary investigation

NOTE: If the accused raises the issue of lack of preliminary investigation before entering a plea, the court, instead of dismissing the information, should conduct the preliminary investigation or order the prosecutor to conduct it(Larranaga v. CA, G.R. No. 130644, March 13, 1998).

GR: The courts cannot interfere in the conduct of preliminary investigations, leaving the investigatory officers sufficient discretion to determine probable cause. XPN: When the acts of the officer are without or in excess of authority resulting from a grave abuse of discretion (Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008).

The right to preliminary investigation cannot be raised for the first time on appeal (Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993).

Extent of authority of the Ombudsman in the conduct of preliminary investigation

If lack of preliminary investigation is raised in a proceeding pending before the Sandiganbayan, the proceeding will be held in abeyance and case should be remanded to the Office of the Ombudsman or the Special Prosecutor to conduct the preliminary investigation (Ong v. Sandiganbayan, G.R. No. 126858, September 26, 2005).

The Ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayancases (Ledesma v. CA, G.R. 161629, July 29, 2005).The Ombudsman is authorized to take over at any stage, from any investigatory agency of the government, the investigation of such cases (Sec. 15, RA 6770).

Rights of the respondent in a preliminary investigation 1.

Submit a counter affidavit; NOTE: The prosecutor is not mandated to require the submission of counter-affidavits. Probable cause may then be determined on the basis alone of the affidavits and supporting documents of the complainant, without infringing on the constitutional rights of the petitioners (Borlongan, Jr. v. Pena, G.R. No. 143591, November 23, 2007).

2.

NOTE: The power to investigate and to prosecute granted to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by the regular courts (Office of the Ombudsman v. Breva, G.R. No. 145938, Feb. 10, 2006).

Examine the evidence submitted by the complainant at his own expense; and

This however does not include administrative cases of court personnel because the 1987 Constitution vests in the SC administrative supervision over all courts and court personnel.

NOTE: Object evidence need not to be furnished but is available for examination, copying or photographing at the expense of the requesting party (Sec. 3, Rule 112).

3.

Provincial or city prosecutors and their assistants; National and Regional State Prosecutors; and Other officers as may be authorized by law (e.g. Ombudsman authorized officer deputized by COMELEC for election offenses).

Party to conduct preliminary investigation inelection cases

Be present during the clarificatory hearing (Sec. 3, Rule 112).

The Commission on Elections is vested the power to conduct preliminary investigations; it may deputize other prosecuting arms of the government to conduct preliminary investigation and prosecute offenses (People v. Basilla, G.R. No. 83938-40, November 6, 1989).

WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE Probable cause in preliminary investigation

RESOLUTION OF INVESTIGATING PROSECUTOR

It is the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was prosecuted. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of

Resolution of investigating prosecutor If the investigating prosecutor finds cause to hold the defendant for trial, he shall prepare the resolution and information (Sec. 4, Rule 112).

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REMEDIAL LAW The information shall contain a certification by the investigating officer under oath in which he shall certify the following: 1. That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; 2. That there is reasonable ground to believe that a crime has been committed; 3. That the accused is probably guilty thereof 4. That the accused was informed of the complaint and of the evidence submitted against him; and 5. That he was given an opportunity to submit controverting evidence (Sec. 4, Rule 112).

reasons the motion of respondent August. (2005 Bar Question) A: The motion should be denied for the following reasons: 1. The Office of the Special Prosecutor does not have exclusive authority to conduct a preliminary investigation of the criminal case. It may participate in the investigation together with the Deputy Ombudsman for the Military who can handle cases of civilians; 2. The order of preventive suspension need not wait for the answer to the administrative complaint and the submission of countervailing evidence (Garcia v. Mojica, G.R. No. 13903, September 10, 1999); 3. Preventive suspension pursuant to Sec. 24 of the Ombudsman Act of 1989 shall continue until termination of the case but shall not exceed 6 months except in relation to RA 3019 (Anti-Graft and Corrupt Practices) and PD 807 (statute providing for the organization of CSC in accordance with the provision of the Constitution prescribing the powers and functions and other purposes). As a career executive officer, his preventive suspension under the Civil Service Law may only be for a maximum period of 3 months. The period of suspension under the Anti-Graft Law shall be the same pursuant to the equal protection clause (Garcia v. Mojica, ibid.).

Within 5 days from the issuance his resolution, the investigating prosecutor shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the parties of such action (Sec. 4, Rule 112). The resolution of the investigating prosecutor is merely recommendatory. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Sec. 4, Rule 112).

REVIEW

Different findings between the investigating prosecutor and superior prosecutor

Remedy of the aggrieved party from the resolution of the Investigating Prosecutor as approved by his superior

When the Investigating Prosecutor recommends the dismissal of the complaint but his findings are reversed by the “Superior” Prosecutor or Ombudsman on the ground that probable cause exists, the “superior” prosecutor or Ombudsman may by himself, file the information against the respondent, or direct another assistant prosecutor to do so without conducting another preliminary investigation (Sec. 4, Rule 112).

An aggrieved party may appeal by filing a verified petition for review with the Secretary of Justice and by furnishing copies thereof to the adverse party and prosecution office issuing the appealed resolution. The appeal shall be taken within 15 days from receipt of the resolution or of the denial of the motion for reconsideration/reinvestigation if one has been filed within 15 days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed. Unless the Secretary directs otherwise, the appeal shall not stay the filing of the corresponding information in court on the basis of the finding of probable cause in the assailed decision.

Q: Regional Director August of the DPWH was charged with violation of Sec. 3(e) of RA 3019 in the Office of the Ombudsman. An administrative charge was likewise filed against him in the same office. The Ombudsman assigned a team composed of investigators from the Office of the Special Prosecutor and from the Office of the Deputy Ombudsman for the Military to conduct a joint investigation of the criminal case and administrative cases. The team of investigators recommended to the Ombudsman that August be preventively suspended for a period not exceeding 6 months on its finding that the evidence of guilt is strong. The Ombudsman issued the said order as recommended by the investigators.

The decision of the prosecutor may be reviewed by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction (Herrera, 2007). Q: May a prosecutor be compelled by mandamus to file a complaint regarding a complaint filed which he previously dismissed for lack of merit after preliminary investigation? (1999 Bar Question) A: No. This is because the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice.

August moved to reconsider the order on the following grounds: (a) the Office of the Special Prosecutor had exclusive authority to conduct a preliminary investigation of the criminal case; (b) the order for his preventive suspension was premature because he had yet to file his answer to the administrative complaint. Resolve with

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CRIMINAL PROCEDURE Reversal or modification of the Resolution of the Provincial or City Prosecutor

prosecutor’s findings are supported by the facts, or by the law. In so doing, courts do not act as prosecutors but as organs of the judiciary, exercising their mandate under the Constitution, relevant statutes, and remedial rules to settle cases and controversies. The exercise of this Court’s review power ensures that, on the one hand, probable criminals are prosecutedand, on the other hand, the innocent are spared from baseless prosecution (Social Security System v. DOJ, G.R. No. 158131, August 8, 2007).

The Secretary of Justice may motuproprio reverse or modify the resolution of provincial or city prosecutor or chief state prosecutor. The Secretary of justice may review resolutions of his subordinates in criminal cases despite the information being filed in court (Community Rural Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909, April 6, 2005).The Secretary of Justice exercises the power of direct control and supervision over prosecutors, and may thus affirm, nullify, reverse or modify their rulings. In reviewing resolutions of state prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court.

NOTE: Even the RTCs can also make its own determination, upon proper motion, whether probable cause exists to hold the accused for trial (Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007).

WHEN WARRANT OF ARREST MAY ISSUE Actions by the judge upon the filing of the Complaint or Information

NOTE: If the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties (Sec. 4, Rule 112).

Within 10 days from the filing of the complaint or Information, the judge shall personally evaluate the resolution of the prosecutor. In conducting the evaluation of the resolution, the judge shall look into supporting evidence (Sec. 5, Rule 112).

Remedy of an aggrieved party against a Resolution of the Secretary of Justice

Options of the judge upon the filing of an Information 1.

The resolution of the Secretary of Justice is appealable administratively before the Office of the President, and the decision of the latter may be appealed before the CA pursuant to Rule 43 (De Ocampo v. Secretary of Justice, G.R. No. 147392, January 25, 2006). However, if there is grave abuse of discretion resulting to lack or excess of jurisdiction, a petition for certiorari under Rule 65 may be filed (Ching v. Secretary of Justice, G.R. No. 164317, February 6, 2006).

2.

3.

Remedy of an aggrieved party against the Resolution of the Ombudsman

Dismiss the case if the evidence on record clearly failed to establish probable cause; If he or she finds probable cause, issue a warrant of arrest or issue a commitment order of the accused has already been arrested pursuant to a warrant of arrest or lawfully arrested without warrant; and In case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information.

NOTE: It bears stressing that the judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause (Ong v. Genio, G.R. No. 182336, December 23, 2009).

The resolution of the Ombudsman in administrative cases may be subject of petition for review via Rule 43 before the CA (Sec. 7, Rule III of the Rules of Procedure of the Office of the Ombudsman) or a special civil action for certiorari via Rule 65 before the SC in criminal cases (Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5, 2002).

Complaint filed pursuant to a lawful warrantless arrest The court shall issue a commitment order instead of a warrant of arrest. In case the judge doubts the existence of probable cause, the judge may order the prosecution to submit additional evidence within 5 days from notice. The issue must be resolved by the court within 30 days from the filing of the complaint or Information (Sec. 5, Rule 122, Rules of Court as amended by A.M. 05-08-26-SC, August 30, 2005).

Effect of the filing of a Petition for Review before the DOJ if the Information was already filed in court Should the information be already filed in court but the accused filed a petition for review of the findings of the prosecutors with the DOJ, the court is bound to suspend the arraignment of the accused for a period not exceeding 60 days (Sec. 11, Rule 116).

CASES NOT REQUIRING A PRELIMINARY INVESTIGATION

Q: Does the SC and CA have the power to review preliminary investigation?

When preliminary investigation is NOT required 1.

A: Yes. The SC and CA have the power to review the findings of prosecutors in preliminary investigations. Courts should never shirk from exercising their power, when the circumstances warrant, to determine whether the

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When the penalty prescribed by law for the offense involves an imprisonment of less than 4 yrs., 2 mos., and 1 day;

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REMEDIAL LAW 2.

If a person is arrested lawfully without a warrant involving an offense which requires preliminary investigation, an Information or complaint may be filed against him without need for a preliminary investigation provided an inquest has been conducted in accordance with existing rules (Sec. 6 Rule 112 as amended by A.M. No. 05-08-26-SC, August 30, 2005). Thus, if a person is arrested by a police officer in flagrante delicto while robbing the victim, the arrest is a lawful one and a preliminary investigation is not required even if the penalty for robbery is more than 4 yrs., 2 mos., and 1 day (Riano, 2011).

Remedies available to the accused if there was no preliminary investigation conducted pursuant to a lawful warrantless arrest 1.

NOTE: Art. 125 of the RPC deals with the period ofdelay in the delivery of detained persons to the proper judicial authorities.In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel (Art. 125, RPC).

Institution of cases when preliminary investigation is NOT required 1.

2.

By filing the complaint directly with the prosecutor; or

2.

NOTE: The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing (Sec. 8(a), Rule 112).

3.

By filing the complaint or Information with the MTC.

Instances when amendment of an Information does NOT warrant a new preliminary investigation 1. 2.

3.

2.

A: No. The bail must be applied for and issued by the court in the province, city, or municipality where the person arrested is held. In this case, the bail application should have been filed with a Quezon City court which has the authority to grant the bail and not Marikina court (Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005). INQUEST

If the amendment of the information changes the nature of the crime charged (Luciano v. Mariano, G.R. No. L-32950, July 30, 1971); or When on its face the information is null and void for lack of authority to file the same and cannot be cured or revived by an amendment (Cruz, Sr. v. Sandiganbayan, G.R. No. 94595, February 26, 1995).

Inquest It is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court (Sec. 1, DOJ Circular No. 61).

REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION Period to properly question the lack of preliminary investigation

Duties of an inquest officer The initial duty of the inquest officer is to determine if the arrest of the detained person was valid; should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: 1. Recommend the release of the person arrested or detained; 2. Note down the disposition on the referral document; 3. Prepare a brief memorandum indicating the reasons

The accused must do so before he enters his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial. An application for or admission of the accused to bail does not bar him from raising such question (Sec. 26, Rule 114). Failure to invoke the right before entering a plea will amount to a waiver.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The waiver by the person lawfully arrested of the provisions of Art. 125 of the RPC does not preclude him from applying for bail; After the filing of the complaint or Information in court without a preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his evidence as provided in this Rule (Sec. 6, Rule 112).

Q: The accused was arrested lawfully without a warrant for carnapping and detained at Camp Crame in Quezon City. He asked for a preliminary investigation and signed a waiver of the provisions of Art. 125 of the RPC. However, the assisting judge of the RTC in Marikina approved the bail bond for the accused who was being held in Quezon City. Was the approval of the bail bond proper?

Amendment to information is not substantial (Villaflor v. Vivar, G.R. No. 134744, January 16, 2001); The court orders the filing of correct information involving a cognate offense (Sy Lim v. CA, G. R. No. L37494, March 30,1982); and If the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry to another would reveal (Orquinaza v. People, G.R. No. 165596, November 15, 2005; Herrera, 2007).

Instances when amendment of an information warrants a new preliminary investigation 1.

Before the complaint or Information is filed, the person arrested may ask for a preliminary investigation but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel;

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CRIMINAL PROCEDURE 4.

for the action taken; and Forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action (Sec. 9, DOJ Circular No. 61).

Inquest Proceeding Commences by a receipt by inquest officer from the law enforcer of complaint/ referral documents

NOTE: Where the recommendation is approved by the City or Provincial Prosecutorbut the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence.

Inquest officer shall first determine if the arrest is valid

Person to conduct preliminary investigation The preliminary investigation may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case may be assigned by the City or Provincial Prosecutor, which investigation shall be terminated within 15 days from its inception (Sec. 10, Part II, Manual for Prosecutors).

If not valid, he shall proceed with the inquest but shall recommend the release to be approved by the city or provincial prosecutor

NOTE: If the Inquest Officer finds that probable cause exists, he shall forthwith prepare the corresponding complaint/information with the recommendation that the same be filed in court (Sec. 13 Part II Manual for Prosecutors). If the Inquest Officer finds no probable cause, he shall recommend the release of the arrested or detained person (Sec. 15 Part II Manual for Prosecutors).

When the recommendation for release is approved, but the evidence warrants the conduct of a preliminary investigation, the said order shall be served on the officer having custody of the detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation

If the arrest is valid, detainee shall be asked if the detainee wants a new preliminary investigation, and if he does, he shall be made to execute a waiver of the provision of Art. 125 of RPC

Otherwise, Inquest proper shall be conducted

If the inquest officer finds probable cause, he must prepare a complaint/information with recommendation to be filed in court, otherwise recommend the release of person (Part II, manual for Prosecutor).

Matters included in a referral document 1. 2. 3. 4.

Affidavit of arrest; Investigation report; The statement of the complainant and witnesses; and Other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person.

NOTE: The Inquest Officer shall, as far as practicable, cause the affidavit of arrest and statements/affidavits of the complainant and the witnesses to be subscribed and sworn to before him by the arresting officer and the affiants (Sec. 3, Part II, Manual for Prosecutors).

Instances when production of a detained person before the inquest officer is dispensed with 1. 2.

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If he is confined in a hospital; If he is detained in a place under maximum security;

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REMEDIAL LAW 3. 4.

If production of the detained person will involve security risks; or If the presence of the detained person is not feasible by reason of age, health, sex and other similar factors (Sec .6, Part II, Manual for Prosecutors).

ARREST RULE 113 Arrest It is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113).

Q: Leo was arrested without a warrant following the issuance by PGMA of PD 1017. On the eve of his arrest, Leo was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition (Art. 142, RPC) based on a speech he allegedly gave during a rally. The inquest was based on a joint affidavit of Leo’s arresting officers who claimed to have been present at the rally. The inquest prosecutor filed the corresponding Information with the MeTC. Several days after the first inquest, he was again subjected to a second inquest but this time for rebellion allegedly committed based on the letters of CIDG investigators claiming that Leo was the leader/ promoter of an alleged plot to overthrow the Arroyo government. The panel of prosecutors from the DOJ which conducted the second inquest subsequently issued a resolution finding probable cause to indict Leo as leader/ promoter of alleged rebellion. The panel filed an Information with the RTC of Makati. The court sustained the finding of probable cause against Leo. Leo filed a Petition to set aside the orders finding probable cause and the denial of the MR to enjoin his prosecution. Was the second inquest valid?

Persons who are NOT subject to arrest 1.

A senator or member of the House of Representatives shall, in all offenses punishable by not more than 6 years of imprisonment, be privileged from arrest while Congress is in session (Sec. 11, Art. VI, 1987 Constitution); NOTE: The privilege of a senator or congressman will not apply when the offense is: a. Punishable by imprisonment of more than 6 years even if Congress is in session (People v. Jalosjos, G.R. No. 132875-76, Feb. 3, 2000); or b. If the offense is punishable by imprisonment of not more than 6 years, the privilege does not apply if Congress is not in session.

2.

A: No. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected.

3.

The joint affidavit of Leo’s arresting officers states that the officers arrested Leo, without a warrant, for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did conduct – an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Leo to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void (Crispin Beltran v. People and Secretary Gonzales, G.R. No. 175013, June 1, 2007).

Under the generally accepted principles of international law, sovereign and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charges d’affaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest; The arrest of duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics, subject to the principle of reciprocity (Secs. 4 and 7, RA 75). ARREST, HOW MADE

It is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2 Rule 113). NOTE: Arrest may be made on any day, at any time of the day or night (Sec.6, Rule 113). The head of the office to whom the warrant was delivered must cause it to be executed within 10 days from its receipt, and the officer to whom it is assigned must make a report to the judge who issued the warrant within 10 days from the expiration of the period. If he fails to execute it, he should state the reasons therefore (Sec. 4, Rule 113).

ARREST WITHOUT WARRANT, WHEN LAWFUL Instances when warrant of arrest is NOT necessary 1. 2. 3.

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Accused is already under detention; Complaint or information was filed pursuant to a valid warrantless arrest; and Complaint or information is for an offense penalized by fine only (Sec. 5 (c), Rule 112).

CRIMINAL PROCEDURE Instances of a valid warrantless arrest 1.

2.

Arrest by officer without a warrant (Sec. 8, Rule 113) The officer shall inform the 1. When the person to be person to be arrested of his arrested is engaged in authority and the cause of the commission of an the arrest w/out a warrant offense or is pursued immediately its commission; 2. When he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and 3. When the giving of such information will imperil the arrest. Arrest by a private person (Sec. 9, Rule 113) The private person shall 1. When the person to be inform the person to be arrested is engaged in arrested of the intention to the commission of an arrest him and the cause of offense or is pursued the arrest. immediately its commission; NOTE: The private person must 2. When he has escaped, deliver the arrested person to flees, or forcibly resists the nearest police station or before the officer has jail, otherwise, he may be held an opportunity to so criminally liable for illegal inform him; and detention. 3. When the giving of such information will imperil the arrest.

When in the presence of the arresting person, the person to be arrested has committed, is actually committing or is attempting to commit an offensein flagrante delicto arrest; When an offense has in fact been committed and the arresting person has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it (doctrine of hot pursuit); NOTE: There must be compliance with the element of immediacy between the time of the commission of the crime and the time of arrest (People v Salvatiera, 276 SCRA 55).

3.

When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another (Sec. 5, Rule 113).

Q: On his way home, a member of the Caloocan City police force witnessed a bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where he is stationed? Explain briefly. (2007 Bar Question) A: No. It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay (Sec. 3, Rule 113). This rule equally applies to situations of warrantless arrests. Here, the arrest was made in Pasay City. Hence, the suspect should be brought to the police station in Pasay City for booking and not in Caloocan City.

ARREST MADE BY OFFICER WITH WARRANT Amount of force to be used in making an arrest GR: No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2, Rule 113).

METHOD OF ARREST Method of Arrest 1. 2.

By actual restraint of the person to be arrested; By his submission to the custody of the person making the arrest.

XPN: If necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him and protect himself from bodily harm (Albano, 2010, citing People v. Delima, 46 Phil. 738).

Q: How may arrest be effected?

NOTE: An officer may break into a building or enclosure to effect an arrest provided that: 1. The person to be arrested is or reasonably believed to be in the said building; 2. The officer has announced his authority and purpose for entering therein; 3. He has requested and been denied admittance (Sec. 11, Rule 113).

A: Method of arrest

Exception to the rule on giving information Arrest by officer by virtue of a warrant (Sec. 7, Rule 113) The officer shall inform the 1. When the person to person to be arrested the be arrested flees; cause of the arrest and the 2. When he forcibly fact that the warrant has resists before the been issued for his arrest. officer has an opportunity to inform NOTE: The officer need not him; and have the warrant in his 3. When the giving of possession at the time of the such information will arrest but must show the same after the arrest, if the person imperil the arrest.

A lawful arrest may be made anywhere, even on a private property or in a house. This rule is applicable both where the arrest is under a warrant, and where there is a valid warrantless arrest.

Objects subject to confiscation from the person arrested 1.

arrested so requires.

2.

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REMEDIAL LAW 3. 4.

part of the person making the arrest, of facts or circumstances that the person/s to be arrested committed it (Herrera, 2007).

Those which might be used by the arrested person to commit violence or to escape; and Dangerous weapons and those which may be used as evidence in the case.

4.

Evasion of service of sentence by prisoner When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred.

5.

Where a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule 113). By the bondsman for the purpose of surrendering the accused (Sec. 23, Rule 114). Where the accused out on bail attempts to leave the country without permission of the court (Sec. 23, Rule 114).

NOTE: Arrest must precede the search, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest at the outset of the search. Reliable information alone is not sufficient to justify a warrantless arrest under Sec. 5, Rule 113.

Q: Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued the warrants of arrest. Learning of the issuance of the warrants, the 3 accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. On the date set for hearing of their motion, none of the accused showed up in the court for fear of being arrested. The RTC judge denied their motion. Did the RTC rule correctly? (2008 Bar Question)

6. 7.

Q: The officers went to the scene of the crime where they found a piece of wood and a concrete hollow block used by the killers in bludgeoning the victim to death. A neighbor of the accused who witnessed the killing, pointed to Roberto as one of the assailants. Roberto was arrested three hours after the killing. Is the arrest a valid warrantless arrest?

A: The RTC ruled correctly in denying the motion for reinvestigation and recall of the warrants of arrest because the accused have not surrendered their persons to the court. Jurisdiction over the person of the accused can only be obtained through arrest or voluntary surrender (Dimatulac v. Villon, G.R. No. 127107, October 12, 1998).

A: Yes. Under the abovementioned circumstances, since the policemen had personal knowledge of the violent death of the victim and of facts indicating that Roberto and two others had killed him, they could lawfully arrest Roberto without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did(People v. Gerente, 219 SCRA 756).

ARREST MADE BY OFFICER WITHOUT WARRANT GR: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law(Umil vs. Ramos, G.R. No. 81567, October 3, 1991). XPNs: 1. In flagrante delicto arrests When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. 2.

3.

Personal knowledge It means actual belief or reasonable grounds of suspicion that the person to be arrested is probably guilty of the offense based on actual facts.Personal knowledge has no reference to the actual commission of the crime but to personal knowledge of facts leading to probable cause.

Buy-bust Operation A form of entrapment which has been repeatedly accepted to be a valid means of arresting violators of the Dangerous Drugs Law. The violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime (People v. Juatan, G.R. No. 104378, August 20, 1996).

NOTE: Personal gathering of information is different from personal knowledge. The rule requires that the arrest immediately follows the commission of the offense (People v Manlulu, 231 SCRA 701).

Obligation of the arresting officer after the warrantless arrest The arresting officer must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under Art. 124, RPC. Jurisdiction over the person arrested must be transferred to the judicial authorities. Art. 125 is a procedural requirement in case of warrantless arrest. A case must be filed in court.

Hot Pursuit Arrest When an offense has in fact just been committed and he has probable cause to believe based on personal knowledge of fact and circumstance that the person to be arrested has committed it. NOTE: Elements of Hot Pursuit Arrest a. An offense has been committed close proximity between the arrest and the time of commission of the crime (Pamaran, 2007); b. The offense has just been committed; and c. Probable cause based on personal knowledge on the

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CRIMINAL PROCEDURE Period for officers to deliver the person detained under Art. 125 of the RPC

police arrested Bobot without a warrant of arrest and searched his house without a search warrant. 1. Can the gun used by Bobot in shooting Albert, which was seized during the search of the house of Bobot, be admitted in evidence? 2. Is the arrest of Bobot legal? (1997 Bar Question)

The person must be delivered to the judicial authorities within the period specified in Art. 125 (Delay in the delivery of detained persons to the proper judicial authorities): 1. 2. 3.

12 hours - Light penalties 18 hours - Correctional penalties 36 hours - Afflictive or capital penalties

A: 1.

NOTE: The accused should be brought to the prosecutor for inquest proceedings wherein existence of probable cause will be determined. Then the judge shall issue a commitment order (order issued by the judge when the person charged with a crime is already arrested or detained) and not a warrant.

2.

Q: Fred was arrested without a warrant. After preliminary investigation, an information was filed in court. He pleaded not guilty during arraignment. After trial on the merits, he was found guilty by the court. On appeal he claims that judgment was void due to his illegal arrest. As Solicitor General, how would you refute said claim? (2000 Bar Question)

No. The gun seized during the search of the house of Bobot without a search warrant is not admissible in evidence [Secs. 2 and 3(2), Art. III, 1987 Constitution]. Moreover, the search was not an incident to a lawful arrest of a person under Sec. 12, Rule 126. No. A warrantless arrest requires that the crime has in fact just been committed and the police arresting has personal knowledge of facts that the person to be arrested has committed it (Sec. 5, Rule 113).Here, the crime has not just been committed since a period of two days had already lapsed, and the police arresting has no such personal knowledge because he was not present when the incident happened (Go v. CA, G.R. No. 106087, January 11, 1995).

Q: May authorities resort to warrantless arrest in cases of rebellion?

A: Any objection to the illegality of the arrest of the accused without a warrant is deemed waived when he pleaded not guilty at the arraignment without raising the question. It is too late to complain about a warrantless arrest after trial is commenced and completed and a judgment of conviction rendered against the accused (People v. Cabiles, G.R. No. 112035, January 16, 1998).

A: Yes. Since rebellion has been held to be a continuing crime, authorities may resort to warrantless arrests of persons suspected of rebellion, as provided under Sec. 5, Rule 113. However, this doctrine should be applied to its proper context – i.e., relating to subversive armed organizations, such as the New People’s Army, the avowed purpose of which is the armed overthrow of the organized and established government. Only in such instance should rebellion be considered a continuing crime (People v. Suzuki, G.R. No. 120670, October 23, 2003).

NOTE: An accused who enters his plea of not guilty and participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as the accused, in this case, has voluntarily submitted himself to the jurisdiction of the court (People v. Macam, G.R. Nos. L-91011-12, November 24, 1994).

BY A PRIVATE PERSON

Ratification of an illegal arrest

Instances when a private person may make an arrest Illegality of warrantless arrest maybe cured by filing of information in court and the subsequent issuance by the judge of a warrant of arrest.

1.

NOTE: Once a person has been duly charged in court, he may no longer question his detention by petition for habeas corpus. His remedy is to quash the information and/or the warrant of arrest.

2.

Consequences of Illegal Arrests 1. 2. 3. 4.

3.

The documents, things or articles seized following the illegal arrest are inadmissible in evidence; The arresting person may be held criminally liable for illegal arrest under Art. 269, RPC; Arresting officer may be held civilly liable for the damages under Art. 32, NCC; and He may also be held administratively liable.

When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense 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 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.

NOTE: 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 subjected to an inquest proceeding.

Q: Albert was killed by Bobot during a quarrel over a guest relations officer in a nightclub. Two days after the incident, and upon complaint of the widow of Albert, the

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REMEDIAL LAW REQUISITES OF A VALID WARRANT OF ARREST

Period of the validity of a warrant of arrest

Warrant of arrest

No time limit is fixed for the validity of a warrant of arrest, unlike a search warrant, which is effective only for 10 days (Pamaran, 2007). It remains valid until arrest is effected or the warrant is lifted (Manangan v. CFI, G.R. 82760, August 30, 1990).

It is a legal process issued by a competent authority, directing the arrest of a person or persons upon the grounds stated therein (Herrera, 2007). Person who may issue a warrant of arrest

Remedy for warrantof arrest

The 1987 Constitution speaks of “judges” which means judges of all levels. This power may not be limited much less withdrawn by Congress. The power to determine the existence of probable cause to issue a warrant of arrest is a function of the judge and such power lies in the judge alone (People v. Inting, G.R. No. 85866, July 24, 1990).

Where a warrant of arrest was improperly issued, the proper remedy is a petition to quash it, not a petition for habeas corpus, since the court in the latter case may only order his release but not enjoin the further prosecution or the preliminary examination of the accused (Alimpoos v. CA, GR No L-27331, July 30, 1981).

NOTE: The exception is in case of deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested following a final order of deportation for the purpose of deportation (Salazar v. Achacoso, 183 SCRA 145).

DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST Probable Cause

Essential requisites of a valid warrant of arrest 1. 2.

3.

It refers to facts and circumstances which would lead a reasonably discreet and prudent manto believe that an offense has been committed by the persons involved. It need not be based on clear and convincing evidence of guilt. Neither is it based on evidence establishing guilt beyond reasonable doubt or on evidence establishing absolute certainty of guilt. It simply implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction. A finding of probable cause need only rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects (The Presidential Ad-Hoc FactFinding Committee on Behest Loans v. Desierto, G.R. No. 136225, April 23, 2008).

Issued upon probable cause; Probable cause is to be determined personally by the judge after examination under oath of the complainant and the witnesses he may produce; The judge must personally evaluate the report of the prosecutor and the evidence adduced during the preliminary examination (Soliven v. Makasiar GR No L-82585, November 14, 1988); NOTE: A warrant of arrest issued based only on the prosecutor’s findings and recommendation like the information and resolution finding a probable cause, without the court determining on its own the issue of probable cause based on evidence is null and void(Ho vs. People, 280 SCRA 365; Pamaran, 2007).

4. 5.

The warrant must particularly describe the person to be arrested; and It must be in connection with specific offense or crime.

Determination of the Existence of Probable Cause Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.

He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.

In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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If he finds probable cause, he shall issue a warrant of arrest, or a commitment order (Sec. 6, Rule112).

CRIMINAL PROCEDURE DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE

Purpose

Function Basis

Probable Cause as determined by the Prosecutor For the filing of an information in court by determining whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial.

Executive function Reasonable ground to believe that a crime has been committed.

BAIL RULE 114

Probable Cause as determined by the Judge For the issuance of warrant to determine whether there is a necessity for placing the accused under immediate custody in order not to frustrate the ends of justice (P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642, March 6, 2002). Judicial function The report and the supporting documents submitted by the fiscal during the preliminary investigation and the supporting affidavits that may be required to be submitted.

Bail It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions prescribed under the rules (Sec. 1, Rule 114). Basis of the right to bail The right to bail is a constitutional right which flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom. Thus, the right to bail only accrues when a person is arrested or deprived of his liberty. The right to bail presupposes that the accused is under legal custody (Paderanga v. Court of Appeals, 247 ACRS 741). Conditions attached to the grant of bail All kinds of bail are subject to the following conditions: (a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in form at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper court whenever required by the court or these Rules; (c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final execution. NOTE: The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last 6 months showing the face, left and right profiles of the accused must be attached to the bail (Sec. 2, Rule 114). When the court finds that there is likelihood of the accused jumping bail or committing other harm to the citizenry is feared, the court may grant other conditions in granting bail (Almeda v. Villaluz, G.R. No. L-31665, August 6, 1975).

Liability of the surety or bondsmen It is inherently civil in nature. The liability of the bondsmen on the bail bond arises not from the violation of, or an obligation to comply with, a penal provision of law. It emerges instead from a contract, the bond subscribed jointly by the accused and the surety or bondsmen. The obligation of the accused on the bond is different from the surety in that the former can be made to suffer a criminal penalty for failure to comply with the obligations on the bail bond. However, the surety is not under a similar path of punishment, as its liability on the bail bond would merely be civil in character (Reliance Surety and Insurance Co. v. Amante Jr., et. al., G.R. No. 150994, June 30, 2005).

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REMEDIAL LAW NOTE: The court may not impose additional obligations upon the bondsmen other than those provided by law. The obligation imposed upon the bondsmen cannot be greater nor of a different character than those imposed upon the accused (Bandoy v. Judge of CFI of La Laguna, GR. No. L-5200, March, 11, 1909).

b.

Effect of filing forged bail bonds By filing forged bail bonds, appellants are considered not merely to have jumped bail, but for all intents and purposes to have escaped from detention. Hence, their pending appeal should be dismissed, subject to the filing of the proper criminal cases against the parties responsible therefor (People of the Philippines v. Del Rosario, G.R. Nos. 107297-98. December 19, 2000).

c.

NATURE

he may be legally required to perform; The accused goes to an authorized bonding company and he will pay a premium for the service which is a percentage of the total amount of bail. The bonding company will then go to the court and execute an undertaking, or "security bond" in the amount of the bail bond in behalf of the accused, that if the accused is needed, the bonding company will bring him before the court; If the accused jumps bail, the bond will be cancelled and the bonding company will be given sufficient time to locate the whereabouts of the accused who posted bail but later on jumps bail. Notice to bonding company is notice to the accused. Notice is usually sent to the bonding company in order to produce the body of the accused.

Nature of bail proceedings

NOTE: Liability of surety/bondsman covers all three stages: trial, promulgation, and execution of sentence.

The hearing of an application for bail should be summary or otherwise in the discretion of the court.

2.

NOTE: By 'summary hearing' means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail (Ocampo v. Bernabe, 77 Phil. 55).

Purposes of bail 1.

2. 3.

To relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial (Almeda v. Villaluz GR No L-31665, August 6, 1975); To honor the presumption of innocence until his guilt is proven beyond reasonable doubt; To enable him to prepare his defense without being subjected to punishment prior to conviction.

Q: Andrew was charged with the crime of estafa in the RTC of Manila. A warrant of arrest was issued by Judge Matias. Before the warrant of arrest could be served, Judge Matias issued a recall order of the warrant of arrest issued against Andrew in view of the approval of his bail bond by the Executive Judge of the RTC of Manila. Was the application for bail of Andrew validly approved?

NOTE: In all cases, the surety of properties must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution (Sec. 12, Rule 114).

3.

A: No. The right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature to file a petition for bail for someone whose freedom has yet to be curtailed. Here, the bail application of Andrew was approved before the warrant for his arrest could be served(Alva v. CA, G.R. No. 157331, April 12, 2006). Forms of bail 1.

Corporate surety/ Bail bond; a. An obligation under seal given by the accused with one or more sureties and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Property bond; a. The title of the property will be used as security for the provisional liberty of the accused which shall constitute a lien over the property; b. The accused shall cause the annotation of the lien within 10 days after approval of the bond before the: i. Registry of Deeds if the property is registered; or ii. Registration Book in the Registry of Deeds of the place where the land lies and before the provincial, city or municipal assessor on the corresponding tax declaration if property is not registered (Sec. 11, Rule 114); c. The person who undertakes the conditions of a regular bond will be the custodian of the accused during the time that he is under provisional liberty.

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Cash deposit/ Cash bond; a. It is the deposited by the accused himself or any person acting in his behalf; b. Cash shall be in the amount fixed by the court or recommended by the prosecutor who investigated the case; c. It is to be deposited before the: i. Nearest collector of internal revenue; ii. Provincial, city or municipal treasurer; or iii. Clerk of court where the case is pending; d. No further order from the court is necessary for the release of the accused if the conditions prescribed were complied with; (Sec. 14, Rule 114) e. If the accused does not appear when required, the whole amount of the cash bond will be forfeited in favor of the government and the accused will now be arrested.

CRIMINAL PROCEDURE 4.

A: Mike may apply for bail in RTC Manila where the information was filed or in the RTC Quezon City where he was arrested, or if no judge thereof is available, with any MTC or MCTC judge therein.

Recognizance a. An obligation of record, entered into before some court or magistrate duly authorized to take it with the condition to do some particular act. It is an undertaking of a disinterested person with high credibility wherein he will execute an affidavit of recognizance to the effect that when the presence of the accused is required in court, the custodian will bring him to that court. b. This is allowed for light felonies only.

Other instances when bail may be availed of 1.

2. NOTE: If the accused does not appear despite notice to the custodian, or the person who executed the recognizance does not produce the accused, he may be cited for contempt of court. This is the remedy because no money is involved in recognizance.

Bail bond v. Recognizance BAIL BOND An obligation under seal given by the accused with one or more sureties, and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform.

RECOGNIZANCE An obligation of record entered into before some court or magistrate duly authorized to take it with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.

Q: Ana is the lone eyewitness to the brutal murder of Bruno allegedly committed by accused Carlo. She deliberately refuses to appear on the scheduled dates for the taking of her testimony for fear of reprisal from Carlo's die-hard followers. 1. May the court motu proprio order her to post bail? 2. How shall Ana be proceeded against if she refuses to give bail? 3. What protection may Ana avail if in case she decides to testify at the trial? (1994 Bar Question)

Where filed 1. 2.

In the court where the case is pending; or In the absence or unavailability of the judge thereof, with any RTC judge, MTC judge, or MCTC judge in the province, city, or municipality.

A: 1. 2.

NOTE: When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending (Sec. 19, Rule 114).

3.

Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or on appeal.

3.

4.

When a person lawfully arrested without a warrant asks for a preliminary investigation before the complaint or information is filed in court, he may apply for bail (Sec. 6, Rule 112). The court may require a witness to post bail if he is a material witness and bail is needed to secure his appearance. When the court is satisfied, upon proof or oath, that a material witness will not testify when required, and he or she is a lone eyewitness to the crime, 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 is taken (Sec. 14, Rule 119).

No. The rules require that the order to post bail is upon motion of either party. If Ana refuses to post bail, the court shall commit her to prison until she complies or is legally discharged after her testimony has been taken (Sec. 14, Rule 119). Ana may avail of the benefits under the Witness Protection Act.

Q: Is arraignment required before the court grants bail? A: No. For the following reasons: 1. The trial court could ensure the presence of the accused at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings [Section 2(b), Rule 114]; and 2. The accused would be placed in a position where he has to choose between filing a motion to quash and thus delay his release on bail, and foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail (Lavides v. Court of Appeals, GR No. 129670, February 1, 2000).

If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any RTC of said place, or if no judge thereof is available, with any MTC judge, MCTC therein; or Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held (Sec. 17, Rule 114).

Q: If an information was filed in the RTC Manila charging Mike with homicide and he was arrested in Quezon City, in what court or courts may he apply for bail? Explain. (2002 Bar Question)

Q: Bobby was charged with plunder before the Sandiganbayan. Thereafter, he was arrested by virtue of a warrant of arrest. He then filed an application for bail. The Sandiganbayan refused to resolve his application for bail until after his arraignment. He argues that his arraignment

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REMEDIAL LAW is not a pre-condition to his application for bail. Is Bobby correct? Explain.

WHEN A MATTER OF RIGHT; EXCEPTIONS WHEN A MATTER OF DISCRETION

A: Yes. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail.

Bail as matter of right 1. 2.

3.

NOTE: If the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116, January 28, 2003).

Bail as a matter of discretion 1.

Law on Juveniles in conflict with the law with respect to bail of non-capital offenses 2. 1.

2.

The privileged mitigating circumstances of minority shall be considered (Sec. 34, RA 9344, Juvenile and Justice Act of 2006). Where a child is detained, the court shall order the: a. Release of the minor on recognizance to his/her parents and other suitable person; b. Release of the child in conflict with the law on bail; or c. Transfer of the minor to a youth detention home/youth rehabilitation center (Sec. 35, RA 9344).

3.

Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment Regardless of the stage of the criminal prosecution, a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is not strong (Sec. 7, Rule 114); and A child in conflict with the law charged with an offense punishable by death, reclusion perpetua or life imprisonment when evidence of guilt is not strong (Sec. 28, A.M. No. 02-1-18-SC).

NOTE: The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However where the grant of bail is discretionary, the prosecution may show proof to deny the bail.

NOTE: The court shall not order the detention of a child in a jail pending trial or hearing of his/her case (Sec. 35, RA 9344).

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.

If minor is unable to furnish bail

Recommendation is necessary 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.

The minor shall be, from the time of his arrest, committed to the care of the DSWD or the local rehabilitation center or upon recommendation of DSWD or other agencies authorized by the court may, in its discretion be released on recognizance (Sec. 36, RA 9344).

Bail upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment

Court martial offenses

Bail should be filed with the trial court despite the filing of a notice of appeal provided that it has not yet transmitted the original record to the appellate court. If the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, then bail must be filed with the appellate court (Sec. 5, Rule 114).

An accused military personnel triable by courts martial or those charged with a violation of the Articles of War does not enjoy the right to bail. Filing of bail after a final judgment GR: Bail may not be filed once there is already a final judgment (Sec. 24, Rule 114).

Guidelines regarding the effectivity of bail The SC en banc laid the following policies concerning the effectivity of the bail of the accused: 1. When the accused is charged with an offense which is punishable by a penalty lesser than reclusion perpetua at the time of the commission of the offense, or the application for bail and thereafter he is convicted of a lesser offense than that charged, he may be allowed to be released on the same bail he posted, pending his appeal provided, he does not fall under any conditions of bail.

XPN: Even after conviction by the MTC, bail is still a matter of right. NOTE: If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. In no case shall bail be allowed after the accused has commenced to serve sentence.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Before or after conviction by the MeTC and MTC, and Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Sec. 4, Rule 114). Before final conviction by all children in conflict with the law for an offense not punishable by reclusion perpetua or life imprisonment.

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CRIMINAL PROCEDURE 2.

3.

The same rule applies if he is charged with a capital offense but later on convicted of a lesser offense, that is, lower than that charged. If on the other hand, he is convicted of that offense which was charged against him, his bail shall be cancelled and he shall thereafter be placed in confinement.

the circumstances enumerated in the said paragraph not being present. The second scenario contemplates the existence of at least one of the said circumstances. In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the 3rd paragraph of Sec. 5 Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating circumstances in the third paragraph of Sec. 5, Rule 114 are absent.

NOTE: Bail in these circumstances is still not a matter of right but only a matter of sound discretion of the court (Herrera, 2007).

Grounds for denial of bail if the penalty imposed by the trial court exceeds 6 years

On the other hand on the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Thus a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court the less stringent sound discretion approach (Leviste v. CA, GR No. 189122, March 17, 2010).

If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail, or his bail shall be cancelled upon showing by the prosecution, with notice to the accused, of the following or other similar circumstances: 1. That he is a recidivist, quasi-recidivist or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; 2. That he previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; 3. That he committed the offense while on probation, parole, or under conditional pardon; 4. That the circumstances of his case indicate the probability of flight if released on bail; or 5. That there is undue risk that during the pendency of the appeal, he may commit another crime (Sec. 5, Rule 114).

Remedy of the accused when bail is discretionary When bail is discretionary, the remedy of the accused is to file a petition for bail. Once a petition for bail is filed, the court is mandated to set a hearing. The purpose of the hearing is to give opportunity to the prosecution to prove that the evidence of guilt is strong. If strong, bail will be denied. If weak, the bail will be granted. Duties of the trial judge if an application for bail is filed

Q: Charged with murder, Leviste was convicted with the crime of homicide and was sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum. Pending appeal he applied for bail, but the same was denied by the CA. Petitioner’s theory is that, where the penalty imposed by the trial court is more than 6 years but not more than 20 years and the circumstances mentioned in the third paragraph of Sec. 5 are absent, bail must be granted to an appellant pending appeal. In an application for bail pending appeal by an appellant sentenced to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 of the Rules of Court?

1.

2.

3.

4.

Reasonably notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Sec. 18, Rule 114); Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Secs. 7 and 8, Rule 114); Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, A.M. No. 92-7-360-0, Apr. 6, 1995); If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied (Sec. 19, Rule 114).

Party with the burden of proof in bail applications

A: In an application for bail pending appeal by an appellant sentenced for more than six years, the discretionary nature of the grant of bail pending appeal does not mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 of the Rules of Court.

It is the prosecution who has the burden of showing that evidence of guilt is strong at the hearing of an application for bail filed by a person who is charged for the commission of a capital offense or offense punishable by reclusion perpetua or life imprisonment (Sec. 8, Rule 114).

The third paragraph of Sec. 5 of Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding 6 years. The first scenario involves the absence of any of the circumstances enumerated in the said paragraph deals with

Effect of a grant of bail The accused shall be released upon approval of the bail by the judge (Sec. 19, Rule 114).

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REMEDIAL LAW Remedy of the accused when bail is denied by the trial court

admission to bail, may be punished with death (Sec. 6, Rule 114).

File a petition for certiorari under Rule 65 based on grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such order. Such petition must take into account the hierarchy of courts. In the meantime however, while the case is pending, the accused may not be released (Caballes v. CA, G.R. No. 163108, February 23, 2005).

NOTE: RA 9346: An Act Prohibiting the Imposition of Death Penalty in the Philippines, abolished the death penalty.

Q: May a person charged with a capital offense be admitted to bail? A: It depends.No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution (Sec. 7, Rule 114).

Frivolous complaints against judges A party or a lawyer who is guilty of filing a frivolous administrative complaint or a petition for inhibition against a judge arising from the latter's action on the application for bail may be appropriately sanctioned (Sec. 7 A.M. No. 12-11-2-SC).

Bail in offenses punishable by death, reclusion perpetua or life imprisonment 1.

Q: When the accused is entitled as a matter of right to bail, may the court refuse to grant him bail on the ground that there exists a high degree of probability that he will abscond or escape? Explain. (1999 Bar Question) A: No. Where the offense is bailable, the mere probability that the accused will escape or if he had previously escaped while under detention does not deprive him of his right to bail. The remedy is to increase the amount of bail, provided the amount is not excessive (Sy Guan v. Amparo, G.R. No. L1771, December 4, 1947).

2.

3.

Q: Is bail proper if the accused is suffering from poor health condition? A: No. If continued confinement of the accused would be detrimental or dangerous to his health, the remedy would be to submit him to medical treatment or hospitalization. Q: Domingo was charged with murder, a capital offense. After arraignment, he applied for bail. The trial court ordered the prosecution to present its evidence in full on the ground that only on the basis of such presentation could it determine whether the evidence of Domingo's guilt was strong for purposes of bail. Is the ruling correct? (2002 Bar Question)

4.

A: No. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The prosecution is only required to present as much evidence as is necessary to determine whether the evidence of Domingo’s guilt is strong for purposes of bail (Sec. 8, Rule 114).

The hearing of the accused's motion for bail shall be summary, with the prosecution bearing the burden of showing that theevidence of guilt is strong. The accused may at his option, if he wants the court to consider his evidence as well, submit in support of his motion the affidavits of his witnesses attesting to his innocence. At the hearing of the accused's motion for bail, the prosecution shall present its witnesses with the option of examining them on direct or adopting the affidavits they executed during the preliminary investigation as their direct testimonies. The court shall examine the witnesses on their direct testimonies or affidavits to ascertain if the evidence of guilt of the accused is strong. The court's questions need not follow any particular order and may shift from one witness to another. The court shall then allow counsels from both sides to examine the witnesses as well. The court shall afterwards hear the oral arguments of the parties on whether or not the evidence of guilt is strong. Within 48 hours after hearing, the court shall issue an order containing a brief summary of the evidence adduced before it, followed by its conclusion of whether or not the evidence of guilt is strong. Such conclusion shall not be regarded as a pre-judgment on the merits of the case that is to be determined only after a full-blown trial (Sec. 6 A.M. No. 12-ll-2-SC).

Capital Offense

Q: In an Information charging them with murder, policemen Ian, Paul and Steve were convicted of homicide. Ian appealed from the decision but Paul and Steve did not. Paul started serving his sentence but Steve escaped and is at large. In the CA, Ian applied for bail but was denied. Finally, the CA rendered a decision acquitting Ian on the ground that the evidence pointed to the NPA as the killers of the victim. 1. Was the Court of Appeal's denial of Ian's application for bail proper? 2. Can Paul and Steve be benefited by the decision of the CA? (1998 Bar Question)

It refers to an offense which, under the law existing at the time of its commission and of the application for

A: 1.

HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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Yes. The CA properly denied Ian's application for bail. The court had the discretion to do so. Although Ian

CRIMINAL PROCEDURE was convicted of homicide only, since he was charged with a capital offense, on appeal he could be convicted of the capital offense (Obosa v. CA, G.R. No. 114350, January 16, 1997). 2. Alternative Answer: Under Circular No. 2-92, Ian is entitled to bail because he was convicted of homicide and hence the evidence of guilt of murder is not strong. 2.

Paul, who did not appeal, can benefit from the decision of the CA which is favorable and applicable to him [Sec. 11(a) Rule 122]. The benefit will also apply to Steve even if his appeal is dismissed because of his escape.

3.

4.

GUIDELINES IN FIXING AMOUNT OF BAIL Duty of the court to fix appropriate bail

5.

The court shall, after finding sufficient cause to hold the accused for trial, fix the amount of bail that the latter may post for his provisional release, taking into account the public prosecutor's recommendation and any relevant data that the court may find from the criminal information and the supporting documents submitted with it, regarding the following:

INCREASE OR REDUCTION OF BAIL

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

Financial ability of the accused to give bail Nature and circumstances of the offense Penalty for the offense charged Character and reputation of the accused Age and health of the accused; Weight of the evidence against the accused Probability of the accused appearing in trial Forfeiture of other bonds Fact that the accused was a fugitive from justice when arrested 10. Pendency of the cases in which the accused is under the bond (Sec. 1 A.M. No. 12-11-2-SC).

Increase or reduction of bail After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period (Sec. 20, Rule 114). NOTE: A motion to reduce the amount of bail likewise requires a hearing before it is granted in order to afford the prosecution the chance to oppose it (Sec. 18, Rule 114). Excessive bail may not be imposed because that is tantamount to denying bail.

Fixing of the amount of bail

When accused does not have financial ability to post the bail initially fixed by the court

Pending the raffle of the case to a regular branch of the court, the accused may move for the fixing of the amount of bail, in which event, the Executive Judge shall cause the immediate raffle of the case for assignment and the hearing of the motion (Sec. 2 A.M. No. 12-11-2-SC).

The accused may move for its reduction by submitting documents and affidavits that may warrant his claim for reduction (Sec.3 A.M. No. 12-11-2-SC).

NOTE: The principal factor to the determination of which most other factors are directed is the probability of the appearance of the accused, or of his flight to avoid punishment (Villasenor v Abano, 21 SCRA 312).

Priority of Hearing for motion for reduction of bail Such motion shall enjoy priority in the hearing of cases (Sec. 2 A.M. No. 12-11-2-SC).

BAIL WHEN NOT REQUIRED

The order fixing the amount of the bail shall not be subject to appeal (Sec. 4 A.M. No. 12-11-2-SC)

Instances when bail is NOT necessary or when recognizance is sufficient 1.

circumstances provided under RA 6036 (An Act providing that bail shall not, with certain exceptions, be required In cases of violations of municipal or city ordinances and in light offenses); Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on a reduced bail or on his own recognizance;(Sec. 16, Rule 114) Where the accused has applied for probation, pending the resolution of the case but no bail was filed or the accused is incapable of filing one (Sec. 24, Rule 114); In case of a youthful offender held for a physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD 603 (Child and Youth Welfare Code) as amended. Before final conviction, all juveniles charged with offenses falling under the Revised Rule on Summary Procedure shall be released on recognizance to the custody of their parents or other suitable person who shall be responsible for the juveniles’ appearance in court whenever required (Sec. 15, A.M. No. 02-1-18SC).

Release after service of minimum imposable penalty.

When the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or Php2,000 fine, under

The accused who has been detained for a period at least equal to the minimum of the penalty for the offense charged against him shall be ordered released, motu

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REMEDIAL LAW proprio or on motion and after notice and hearing, on his own recognizance without prejudice to the continuation of the proceedings against him [Sec. 5 A.M. No. 12-ll-2-SC citing Sec. 16, Rule 114 of the Rules of Court and Sec. 5 (b) of RA l0389].

APPLICATION FOR BAIL IS NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST; LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION Objection in illegal arrest or lack of or irregularity or lack of preliminary investigation

FORFEITURE AND CANCELLATION OF BAIL An application for bail is not a bar to objections in illegal arrest or irregularity or lack of preliminary investigation, provided that he raises them before entering his plea. The court shall resolve the matter as early as possible, not later than the start of the trial on the case (Sec. 26, Rule 114).

Effects ofthe failure of the accused to appear in court when so required 1. 2.

The bail shall be declared forfeited; or The bondsman is given 30 days within which to: a. Produce their principal or give the reason for his non-production; and b. Explain why the accused did not appear before the court when first required to do so.

Q: Paolo was charged with estafa. Thereafter, he was arrested by virtue of a warrant of arrest issued by the RTC. Before arraignment, Paolo filed an application for bail. Paolo then filed a motion to quash information on the ground that it charges more than one offense. RTC denied bail to Paolo on the ground that an application for bail and a motion to quash are inconsistent remedies. Is the RTC correct?

Liability of the bondsmen if due to failure to produce their principal, give the reason for his non-production, or explain why the accused did not appear when required If the bondsmen fail to comply with their obligations, the court will render judgment against the bondsmen jointly and severally if there are more than one bondsman (Sec. 21, Rule 114).

A: No. There is no inconsistency in filing an application of an accused for bail and his filing of a motion to quash. The purpose of bail is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial. On the other hand, a motion to quash an information is the mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law, or for defects which are apparent on the face of the information.

NOTE: The court shall not reduce or mitigate the liability of the bondsmen unless the accused has been surrendered or is acquitted (Sec. 21, Rule 114). The 30-day period granted to the bondsmen to comply with the two requisites for the lifting of the order of forfeiture cannot be shortened by the court but may be extended for good cause shown.

These two reliefs have objectives which are not necessarily antithetical to each other. The right of an accused to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116, January 28, 2003).

Cancellation of bail Upon the application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon: 1. Surrender of the accused; and 2. Proof of death of the accused (Sec. 22, Rule 114). Instances when there is automatic cancellation of bail 1. 2. 3.

Acquittal of the accused; Dismissal of the case; and Execution of judgment of conviction (Sec. 22, Rule 114).

NOTE: In all instances of cancellation of bail, automatic or otherwise, it shall be without prejudice to any liability on the part of the surety.

HOLD DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST

Order of forfeiture v. Order of cancellation Hold Departure Order (HDO) ORDER OF FORFEITURE Conditional and interlocutory. It is not appealable.

ORDER OF CANCELLATION Not independent of the order of forfeiture. It is a judgment ultimately determining the liability of the surety thereunder and therefore final. Execution may issue at once.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Order issued by the Secretary of Justice or the proper RTC commanding the Commissioner of the Bureau of Immigration to prevent the departure for abroad of Filipinos and/ or aliens named therein by including them in the Bureau’s Hold Departure List (DOJ Dept. Order No. 17). NOTE: The proper court may issue an HDO or direct the Department of Foreign Affairs to cancel the passport of the accused. This is a case of a valid restriction on a person’s right to

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CRIMINAL PROCEDURE travel so that he may be dealt with in accordance with the law (Silverio v. CA, GR No. 94284, April 8, 1991).

commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the legislature; when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health (DOJ Department Circular No. 41).

Who may issue an HDO A hold departure order may be issued either by: 1. The RTC pursuant to SC Circular 39-97; 2. By the RTC sitting as a Family Court pursuant to A.M. No. 02-11-12-SC; or 3. By the DOJ pursuant to Department Order No. 41.

NOTE: An HDO issued by the DOJ shall be valid for 5 years from the date of its issuance unless sooner terminated (Sec. 4, DOJ Circular No. 41).

NOTE: SC Circular 39-97 (June 19, 1997), "limits the authority to issue HDO to the RTCs. Considering that only the RTC is mentioned in said Circular and by applying the rule on legal hermeneutics of express mention implied exclusion, courts lower than the RTC — such as the MeTC, MTC, MTCC and MCTC — has no authority to issue hold departure orders in criminal cases (A.M. No. 99-9-141MTCC November 25, 1999).

Grounds for the cancellation of an HDO issued by the DOJ 1. 2.

HDO when issued 3.

HDO shall be issued only in criminal cases within the exclusive jurisdiction of the RTCs (SC Circular 39-97) upon proper motion of the party. Effect of the acquittal of the accused or dismissal of the case to the hold departure order issued by the RTC Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the HDO issued. The Court concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within 24 hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal.

4.

Instances when DOJ may issue an HDO 1.

Instances for the issuance of a Watch List Order (WLO)

Against an accused irrespective of nationality, in criminal case falling within the jurisdiction of courts below the RTCs;

1.

NOTE: If the case against the accused is pending trial, the application under oath of an interested party must be supported by: a) certified true copy of the complaint or information; and b) a certification from the Clerk of Court concerned that the criminal case is pending.

2.

If the accused has jumped bail or has become a fugitive of justice, the application under oath of an interested party must be supported by: a) a certified true copy of the complaint or information; b) a certified true copy of the warrant or order of arrest; and c) a certification from the Clerk of Court concerned that the warrant or order of arrest was returned unserved.

2.

3.

When the validity of the HDO has already expired; When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/ order of arrest has been recalled; or When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country (Sec. 5, DOJ Department Order No. 41). When the HDO/WLO was issued by the Secretary of Justice either motu proprio or upon request of government functionaries/ agencies, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health, may be lifted or recalled anytime if the application is favorably indorsed by the Government functionaries/ offices who requested the issuance of the HDO/WLO (Sec. 5, DOJ Department Circular No. 41).

3.

Against an alien whose presence is required either as a defendant, respondent or a witness in a civil or labor case pending litigation, or any case before an administrative agency; Against any person motu proprio, or upon the request of the Head of a Department of the Government, head of a constitutional body or

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Against the accused, irrespective of nationality in criminal cases pending trial before the RTC or before courts below the RTCs; Against the respondent, irrespective of nationality in criminal cases pending Preliminary Investigation, Petition for Review or Motion for Reconsideration BEFORE the DOJ or any of its provincial or city prosecution offices; The Secretary of Justice may likewise issue a WLO against any person, either motu proprio or upon request of any government agencies, including commissions, task forces or similar entities created by the Office of the President, pursuant to the “AntiTrafficking of Persons Act of 2003” (RA 9208) and/ or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health (Sec. 2, DOJ Department Order 41).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Period of Validity of a WLO

Bail in Extradition Cases

A WLO issued shall be valid for 60 days unless sooner terminated or extended, for a non-extendible period of not more than 60 days (Sec. 4, DOJ Dept. Order No. 41).

1.

Permission to leave the country

2.

Permission to leave the country should be filed in the same court where the case is pending because they are in the best position to judge the propriety and implication of the same (Santiago v. Vasquez, G.R. No. 99289-90, January 27, 1993).

3.

4. Remedy against an HDO/ WLO A WLO may be attacked by filing a motion for cancellation or by getting an Allow Departure Order from the DOJ or by filing a Motion to Lift Hold Departure Order.

5.

Allow Departure Order (ADO) An ADO is a directive that allows the traveler to leave the territorial jurisdiction of the Philippines. This is issued upon application to the Commissioner of Immigration and the appropriate government agency (Ledesma,).

NOTE: The required proof of evidence is “clear and convincing evidence” and not preponderance of evidence nor proof beyond reasonable doubt. The burden of proof lies with the extradite (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).

Period for the issuance of ADO Any person subject of an HDO/ WLO pursuant to Department Order No. 41, who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO upon submission of the following requirements: 1.

2.

Rule regardingbail in deportation proceedings It is available, however bail in deportation proceedings is wholly discretionary.

Affidavit stating clearly the purpose, inclusive period of the intended travel, and undertaking to immediately report to the DOJ upon return; and Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/ WLO was based is pending or from the investigating prosecutor in charge of the subject case.

Remedy of a person who is not the same person whose name appears in the HDO/ WLO Any person who is prevented from leaving the country because his/ her name appears to be the same as the one that appears in the HDO/ WLO may upon application under oath obtain a Certification to the effect that said person is not the same person whose name appears in the issued HDO/ WLO upon submission of the following requirements: 1. 2. 3. 4.

Affidavit of Denial; Photocopy of the page of the passport bearing the personal details; Latest clearance from the National Bureau of Investigation; and Clearance from the court or appropriate government agency when applicable.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the constitution. While extradition is not a criminal proceeding, it still entails a deprivation of liberty on the part of the potential extraditee and furthermore, the purpose of extradition is also the machinery of criminal law. The Universal Declaration of Human Rights applies to deportation cases, hence, there is no reason why it cannot be invoked in extradition cases. The main purpose of arrest and temporary detention in extradition cases is to ensure that the potential extraditee will not abscond. Under the principle of pacta sunt servanda, the Philippines must honor the Extradition Treaty it entered into with other countries. Hence, as long as the requirements are satisfactorily met, the extraditee must not be deprived of his right to bail (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).

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CRIMINAL PROCEDURE Equipoise Rule

RIGHTS OF THE ACCUSED RULE 115

Where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused who must be acquitted (People v. Erguiza, GR No. 171348, November26, 2008).

The rule enumerates the rights of a person accused of an offense which are both constitutional as well as statutory, save the right to appeal, which is purely statutory in character.

Reverse trial

RIGHTS OF ACCUSED AT THE TRIAL

A reverse trial happens if the accused admits the killing but claims self-defense. He must first establish the elements of self-defense in order to overturn the presumption that he was guilty of the offense.

Rights of the accused at the trial 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Right to be presumed innocent; Right to be informed of the nature and the cause of the accusation against him; Right to be present and defend in person and by counsel at every stage of the proceeding; Right to counsel; Right to testify as a witness in his own behalf; Right against self-incrimination; Right to confront and cross examine witnesses against him at trial; Right to compulsory process; Right to a speedy, impartial and public trial; and Right to appeal on all cases allowed by law and in the manner prescribed by law (Sec. 1, Rule 115).

Q: In a case of rape, the court ordered the accused to present evidence ahead of the prosecution. Is the court order correct? Why? A: No. It violated the right of the accused to be presumed innocent and the right to due process. In fact, it violated the order of the presentation of evidence. The accused has the right not to take the witness stand (Albano, 2010, citing Alejandro v. Pepito). Accused’s right to be informed The right requires that the information should state the facts and circumstances constituting the crime charged in terms sufficient to enable a person of common understanding to know what offense is being charged.

Right to be presumed innocent GR: Accusation is not synonymous with guilt. The presumption of innocence must be overcome by evidence of guilt beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption by presenting the quantum of evidence required. Conviction should be based on the strength of the prosecution and not on the weakness of the defense (People v. Angus, GR No. 178778, August 3, 2010).

Waiver of right to be informed The right to be informed may not be waived. It is a basic constitutional right of the accused to be informed of the nature and cause of accusation against them. Q: Noque was convicted for the crime of selling and possessing methamphetamine hydrochloride. On appeal, Noque claimed that his conviction violated his right to be informed of the nature and cause of the accusations against him since the charges in the Information are for selling and possessing methamphetamine hydrochloride but what was established and proven was the sale and possession of ephedrine. Is the appellant’s right to be informed of the nature and cause of accusation violated?

XPNs: 1. In cases of self-defense, the person invoking self defense is presumed guilty. In this case, a reverse trial will be held. 2. The legislature may enact that when certain facts have been proved, they shall be prima facie evidence of the existence of guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the other is not an unreasonable and arbitrary experience (People v. Mingoa, G.R. No. L-5371, March 26, 1953).

A: No. The Information filed was for the crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug; it is classified as the raw material of shabu. Under Secs. 4 and 5, Rule 120 of the Rules of Court, an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. At any rate, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal (People v. Noque GR No. 175319, January 15, 2010).

Reasonable doubt The doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty is not demanded by law to convict of any criminal charge but moral certainty is required as to every proposition of proof requisite to constitute the offense (Sec. 2, Rule 133).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Instances when the presence of the accused is mandatory in criminal proceedings 1. 2.

3.

XPNs: 1. When the prosecution has already established a prima facie case, the accused must present proof to overturn the evidence; and 2. If the defense of the accused is alibi and he does not testify, the inference is that the alibi is not believable.

During arraignment [Sec.1(b), Rule 116]; Promulgation of judgment except when the conviction is for a light offense, in which case, it may be pronounced in the presence of his counsel or a representative (Sec.6, Rule 120); and When ordered by the court for purposes of identification (Sec.1, Rule 115)

Scope of the right against self-incrimination GR: The right covers only testimonial compulsion and not the compulsion to produce real and physical evidence using the body of the accused (Schmerber v. California, 384 US 757).

NOTE: Such requirement has no application to the proceedings or to the entry and promulgation of the judgments before the CA and SC. The defendant need not be present during the hearing of the appeal (Sec. 9, Rule 124).

XPNs: Immunity statutes such as: 1. Forfeiture of illegally obtained wealth (RA 1379) 2. Bribery and graft cases (RA 749) (Herrera, 2007).

Waiver of right to be present during the trial Right to be present may be waived by: 1. A waiver pursuant to the stipulation set forth in his bail; 2. Absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat; and 3. If the accused jumps bail, such shall be an automatic waiver of the right to be present on all subsequent trial dates until custody over him is regained [Sec. 1(c), Rule 115].

NOTE: The right against self-incrimination is available not only in criminal cases but also in government proceedings, civil, and administrative proceedings where there is a penal sanction involved.

Purpose of the right against self-incrimination The privilege is intended to prevent the State, with all its coercive powers, from extracting from the suspect testimony that may convict him and to avoid a person subject to such compulsion to perjure himself for his own protection (People v. Bersonia, 422 SCRA 210).

NOTE: The accused may be compelled to be present despite waiver for purposes of identification, but if the accused manifests in open court that he is indeed the accused, such shall also be considered a waiver thereof.

Waiver of right of the accused against self-incrimination It may be waived by the failure of the accused to invoke the privilege after the incriminating question is asked and before his answer.

Effects of waiver of the right to appear by the accused 1. 2. 3.

It is also a waiver to present evidence; Prosecution can present evidence despite the absence of the accused; and The court can decide even without accused’s evidence.

Q: Does the right against self-incrimination include the furnishing of a signature specimen? A: Yes. Writing is not a purely mechanical act for it involves the application of intelligence and attention. If such person is asked whether the writing in a document is his or not, and he says it is not, he is deemed to have waived his right. On the other hand, if the accused simply refused to answer the question inquiring about the handwriting, no waiver of the right took place (Beltran v. Samson G.R. No. 32025, September 23, 1929).

Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a State witness. What procedure will you take? Explain. (2006 Bar Question) A: As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the prosecutor for him to move for the discharge of my client as a State witness or the accused can apply as a State witness with the Department of Justice pursuant to RA 6981, the Witness Protection, Security and Benefit Act. The right to prosecute vests the prosecutor with a wide range of discretion, including what and whom to charge.

Confrontation The act of setting a witness face-to-face with the accused so that the latter may make any objection he has to the witness which must take place in the court having jurisdiction to permit the privilege of cross-examination. In addition, the accused is entitled to have compulsory process issued to secure the attendance of witness and production of other evidence in his behalf [Sec. 1 (g), Rule 115].

Accused's refusal to testify GR: The silence of the accused should not be used against him.

NOTE: The main purpose of this right to confrontation is to secure the opportunity of cross-examination and the secondary purpose is to enable the judge to observe the demeanor of witness.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CRIMINAL PROCEDURE Waiver of right to cross-examination

Duty of the trial court, public or private prosecutor, and the defense counsel to observe time limits

The right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to crossexamine and the testimony given on direct examination of the witness will be received or allowed to remain in the record (Equitable PCI Banking Corporation v. RCBC Capital Corporation, GR No. 182248, December 18, 2008; People v. Abatayo, 433 SCRA 562).

Compliance with the following time limits in the prosecution of the case against a detained accused is required: 1. The case of the accused shall be raffled and referred to the trial court to which it is assigned within 3 days from the filing of the information; 2. The court shall arraign the accused within 10 days from the date of the raffle; 3. The court shall hold the pre-trial conference within 30 days after arraignment or within 10 days if the accused is under preventive detention; provided, however, that where the direct testimonies of the witnesses are to be presented through judicial affidavits, the court shall give the prosecution not more than 20 days from arraignment within which to prepare and submit their judicial affidavits in time for the pre-trial conference; 4. After the pre-trial conference, the court shall set the trial of the case in the pre-trial order not later than 30 days from the termination of the pre-trial conference; and 5. The court shall terminate the regular trial within one hundred 180 days, or the trial by judicial affidavits within 60 days, reckoned from the elate trial begins, minus the excluded delays or postponements specified in Rule 119 of the Rules of Court and the Speedy Trial Act of 1998 (Sec. 8 A.M. No. 12-11-2-SC).

Q: Does the right to confrontation cover witnesses who did not appear or was not presented at the trial? A: No. The right to confrontation applies only to witnesses who appear before the court; the witness must be present for the right to confrontation to attach. What is important is that the accused is given the right to cross-examine the witness presented (People v. Honrada, G.R. Nos. 11217879, Apr. 21, 1995). Rule regarding the testimony of a witness who dies or becomes unavailable If the other party had the opportunity to cross-examine the witness before he died or became unavailable, the testimony may be used as evidence. However, if the other party did not have the opportunity to cross-examine before the death or unavailability of the witness, the testimony will have no probative value.

Denial of right to speedy trial a ground for dismissal The case against the detained accused may be dismissed on ground of denial of the right to speedy trial in the event of failure to observe the above time limits (Sec. 9 A.M. No. 1211-2-SC).

Right to compulsory process The accused may move for the issuance of subpoena ad testificandum or subpoena duces tecum in his behalf in order to compel the attendance of witnesses and the production of other evidence.

Service of subpoena and notices through electronic mail or mobile phones

NOTE: If a witness refuses to testify when he is required, the Court should order the witness to give bail or order his arrest, if necessary. Failure to obey a subpoena amounts to contempt of court.

Subpoena and notices may be served by the court to partiesand witnesses through electronic mails (e-mail) or through mobile phoneeither through phone calls or through short messaging service (SMS)(Sec. 11 A.M. No. 12ll-2-SC).

Facts to be considered to determine whether the right to speedy trial has been violated 1. 2. 3. 4.

Ways of ascertaining proper service of notice of hearing or subpoena

Length of the delay; Reason for the delay; The accused’s assertion or non-assertion of the right; and Prejudice to the accused resulting from the delay (Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008; Tan v. People, G.R. No. 173637, April 21, 2009).

1.

NOTE: There is no violation of the right where the delay is imputable to the accused.

2.

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The public prosecutor shall, during inquest or preliminary investigation, require the complainant and his witnesses and, in proper cases, the police officers who witnessed the commission of the crime subject of the investigation, to leave with him their postal and email addresses and mobile phone numbers for use in summoning them when they need to appear at the hearings of the case. When requesting the court to issue a subpoena or subpoena duces tecum for their witnesses, the parties shall provide the court with the postal and e-mail addresses and mobile phone numbers of such witnesses.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3.

4.

5.

6.

The service of notice of hearing or subpoena at the postal address, e-mail address, or through mobile phone number shall be proved by any of the following: a. An officer's return or affidavit of service if done by personal service, or by registry return card; b. Printouts of sent e-mail and the acknowledgment by the recipient; c. Printouts of electronic messages transmitted through the court's equipment or device and the Acknowledgment by the recipient; or d. Reports of phone calls made by the court. The postal and e-mail addresses as well as the mobile phone numbers supplied by the parties and their witnesses incident to court cases shall be regarded as part of the judicial processes in those cases. Consequently, any person who uses the same without proper authority or for purposes other than sending of court notices shall be deemed guilty of indirect contempt and accordingly punished. In cases of police officers whose testimonies arc essential to the prosecution of the case, service of the notice of hearing or subpoena on them shall be made through the police unit responsible for the arrest and prosecution of the accused, copy furnished the Personnel Department of the Philippine National Police. It shall be the responsibility of the head of that police unit to ensure the transmission of the notice or subpoena to the addressee. Service upon the police unit shall be deemed service upon such police officers. The court shall cause the service of a copy of the order of provisional dismissal upon the offended party in the manner provided above (Sec. 12 A.M. No. 12-11-2-SC).

g. h. i. j.

4.

5.

Q: Is the rule that the trial should be public absolute? A: No. The court may bar the public in certain cases, such as when the evidence to be presented may be offensive to decency or public morals; or in rape cases, where the purpose of some persons in attending is merely to ogle at the parties.

Establishment of Local Task Force Katarungan at Kalayaan 1.

2.

3.

The Court shall establish a Task Force Katarungan at Kalayaan in appropriate places for the purpose of eliminating unnecessary detention. It shall be chaired by an RTC Judge, with a Metropolitan or Municipal Trial Court Judge as vice-chairman, both to be appointed for a term of two years by the Executive Judge of the place. The city or provincial prosecutor of the place or his representative and the local head of the Public Attorney's Office or his representative shall be members of the Task Force. The assistance of the local Bureau of Jail Management and Penology and the Office of the Provincial Governor may be enlisted. The Task Force shall track and keep a record of the progress of the criminal cases of all detained persons within their jurisdiction and ensure that such persons are accorded the rights and privileges provided by law, the rules, and these guidelines. Each court shall maintain a "Detainees Notebook," that shall be supplied free by the Office of the Court Administrator and shall contain: a. The full name of the accused; b. The docket number and title of the case c. The kind of crime charged; d. The date his detention began; e. The date when his detention becomes equal to the minimum of the imposable penalty; f. The date when his detention becomes equal to the maximum imposable penalty; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The date of arraignment; The date of pre-trial hearing or conference; The first day of trial; The statutory last clay of trial if no excluded delays or postponements arc incurred; k. Sufficient space for entering the progress of the hearing of the case; and l. Such other data as may be essential to the monitoring of his or her case. One (1) copy of the notebook shall be attached to the record of the case and other copy kept by the jail warden which copy shall be brought with the accused at the bearing. m. The branch clerk of court shall update the two copies of the notebook at every hearing by stating what action the court has taken in it, the next scheduled hearing, and what action the court will further take on the case. The Task Force shall have access to all case records and information relating to detained persons and shall advise the judges hearing their cases, when warranted, of the need for them to act on any incident or situation that adversely affects the rights of detained persons or subject them to undue or harsh treatment. The Office of the Chief Justice shall exercise direct supervision over all such Task Forces (Sec. 15 A.M. No. 12-11-2-SC).

The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties (Sec. 21, Rule 119). Trial by publicity The right of the accused to a fair trial is not incompatible with free press. Pervasive publicity is not per se prejudicial to the right to a fair trial. To warrant the finding of prejudicial publicity, there must be allegations and proof that judges have been unduly influenced, not simply that they might be due to the barrage of publicity (People v. Teehankee, G.R. Nos. 111206-08, October 6, 1995). Nature of the right to appeal The right to appeal from a judgment of conviction is fundamentally of statutory origin. It is not a matter of absolute right independently of constitutional or statutory provision allowing such appeal.

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CRIMINAL PROCEDURE Waiver of right to appeal Rights of persons under custodial investigation GR: The right to appeal can be waived expressly or impliedly.

1.

The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun; 10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or

XPN:Where the death penalty is imposed, such right cannot be waived as the review of the judgment by the CA is automatic and mandatory pursuant to Administrative Circular No. 20-2005 which is an order directing regional trial courts to directly forward to the CA records of criminal cases which are subject of automatic review or regular appeals. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION Custodial Investigation It is the questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements that the rule begins to operate(Aquino v. Paiste, G.R. No. 147782, June 25, 2008). NOTE: Sec. 2(f) of RA 7438 expanded the meaning of custodial investigation to include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law.

Period of the attachment of the rights of the accused in custodial investigation The rights begin to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements (People v. Jose Ting Lan Uy, G.R. No. 157399, November 17, 2005). It includes the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. Requisites of a valid custodial investigation report RA 7438 provides for the following requisites for a valid custodial investigation report: 1. The report shall be reduced to writing by the investigating officer; 2. If the person arrested or detained does not know how to read or write, it shall be read and adequately explained to him by his counsel or by the assisting counsel in the language or dialect known to such arrested or detained person. This is to be done before the report is signed. If this procedure is not done, the investigation report shall be null and void and of no effect whatsoever.

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REMEDIAL LAW exculpatory, in whole or in part, shall be inadmissible in evidence (People v. Mahinay, G.R. No. 122485, February 1, 1999).

question asked by the investigating officer until the signing of the extrajudicial confession (People v. Morial, G.R. No. 129295, August 15, 2001).

Importance of the right to counsel in custodial investigation

NOTE: The right to counsel covers the period beginning from custodial investigation until rendition of judgment and even on appeal (People v. Serzo, Jr., G.R. No. 118435, June 20, 1997).

The importance of the right to counsel is so vital that under existing law, “in the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Art. 125 of the RPC [Sec. 3(c), RA 7438].

Q: An affidavit was made by the accused without the presence of counsel during preliminary investigation, admitting the commission of a crime. When presented during trial as evidence, the accused objected claiming that there was a violation of his right to a competent and independent counsel. Is the accused correct?

NOTE: The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting a confession (People v. Duenas, Jr. 426 SCRA 666).

A: No. The constitutional right to a competent and independent counsel exists only in custodial interrogations, or in-custody interrogation of accused persons. A preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being under custodial investigation (People v. Ayson, G.R. No. L-28508-9, July 7, 1989).

Distinction between the right to counsel during trial and right to counsel during custodial investigation Right to counsel during trial means the right of the accused to an effective counsel. Counsel is not to prevent the accused from confessing but to defend the accused. On the other hand, right to counsel during custodial investigation requires the presence of competent and independent counsel who is preferably the choice of the accused. The reason for such right is that in custodial investigation, there is a danger that confessions can be exacted against the will of the accused since it is not done in public.

Requisites for the validity of an extrajudicial confession made by a person arrested, detained or under custodial investigation For an extrajudicial confession to be valid the following requisites must concur: 1. It shall be in writing and signed by the person arrested, detained or under custodial investigation; 2. It must be signed in the presence of his counsel or in the latter’s absence, upon a valid waiver and; 3. In the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him [Sec. 2(d), RA 7438].

Waiver of right to counsel during trial It can be waived when the accused voluntarily submits himself to the jurisdiction of the court and proceeds with his defense. The accused may defend himself in person only if the court is convinced that he can properly protect his rights even without the assistance of counsel. The defendant cannot raise the question of his right to have an attorney for the first time on appeal. This right may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused (People v. Del Castillo, 439 SCRA 601). The right to a competent and independent counsel is one of the rights of the accused guaranteed under Sec. 12(1) of Art. III of the Philippine Constitution.

Q: Two suspects during police investigation orally waived their right to remain silent and to counsel. They freely answered under oath the questions asked by the police desk officer. They later signed their sworn statements before the police captain who is also a lawyer. They both admitted their guilt. In due course, proper charges were filed by the City Prosecutor against both arrestees before the MM RTC. May the written statements signed and sworn by them be admitted by the trial court as evidence for the prosecution? (2004 Bar Question)

Accused to defend himself without the aid of a counsel Only when it sufficiently appears that he can properly protect his right without the assistance of counsel [Sec. 1(c), Rule 115].

A: No. It will not be admitted in evidence because they were not assisted by counsel. Even if the police captain before whom they signed the statements was a lawyer, he cannot be considered as an independent counsel. Waiver of the right to a lawyer must be done in writing and in the presence of an independent and competent counsel.

Q: Is the statement signed by the accused admissible if during the investigation, the assisting lawyer leaves, or comes and goes? A: No. It is inadmissible because the lawyer should assist his client from the time the confessant answers the first UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CRIMINAL PROCEDURE Period of arraignment

ARRAIGNMENT AND PLEA RULE 116

GR: Arraignment shall be made within 30 days from the date the court acquires jurisdiction over the person of the accused [Sec. 1(g), Rule 116].

ARRAIGNMENT Arraignment

XPNs: 1. When an accused is under preventive detention, his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case (RA 8493 Speedy Trial Act). 2. Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay. 3. Cases under RA 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment. 4. Cases under the Dangerous Drugs Act. 5. Cases under SC AO 104-96 i.e. heinous crimes, violations of the Intellectual Property Rights law, these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case.

It is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him (People v. Pangilinan, 518 SCRA 358, March 14, 2007). Arraignment is the proceeding in a criminal case, whose object is to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead, or to obtain from the accused his answer, in other words, his plea to the information. When made GR: Arraignment must be made before start of the trial or before the prosecution presents its case. XPN: Arraignment which was made after the prosecution rested its case was considered a non-prejudicial error under the following: 1. Counsel of the accused failed to object lack of arraignment during trial 2. Counsel of the accused had full opportunity to crossexamine witnesses (People of the Philippines vs. Atienza, G.R. No. L-3001, June 17, 1950; People of the Philippines vs. Cabale, G.R. Nos. 73249-50, May 8, 1990).

Presence of the accused during arraignment The accused must be present at the arraignment and personally enter his plea [Section 1(b), Rule 116]. NOTE: Both arraignment and plea shall be made in record but failure to do so shall not affect the validity of the proceedings [Sec. 1(b), Rule 116].

Presence of the offended party during arraignment

NOTE: The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him(Borja v. Mendoza, 77 SCRA 422).

The private offended party shall be required to appear in the arraignment for the following purposes: 1. Plea bargaining; 2. Determination of civil liability; and 3. Other matters requiring his presence [Sec. 1(f), Rule 116].

Procedure of arraignment 1. 2. 3. 2. 3. 4.

It must be in open court where the complaint or information has been filed or assigned for trial; By the judge or clerk of court; By furnishing the accused with a copy of the complaint or information; Reading it in a language or dialect known to the accused(People v. Albert 251 SCRA 136); Asking accused whether he pleads guilty or not guilty [Sec.1(a), Rule 116]; Both arraignment and plea shall be made of record but failure to enter of record shall not affect the validity of the proceedings [Sec. 1(b), Rule 116].

NOTE: In case the offended party fails to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone [Section 1(f), Rule 116].

Different rules on arraignment 1. 2.

NOTE: The accused must be arraigned before the court where the complaint or information was filed or assigned for trial [Sec. 1(a), Rule 116].

3.

Trial in absentia may be conducted only after valid arraignment. Accused must personally appear during arraignment and enter his plea (counsel cannot enter plea for accused) Accused is presumed to have been validly arraigned in the absence of proof to the contrary.

GR: Judgment is void if accused has not been validly arraigned. XPN: If accused went into trial without being arraigned, subsequent arraignment will cure the error provided that

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REMEDIAL LAW the accused was able to present evidence and cross examine the witnesses of the prosecution during trial.

Grounds for suspension of arraignment Upon motion by the proper party on the following grounds: 1. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; 2. There exists a valid prejudicial question; 3. A petition for review of the resolution of the prosecutor is pending at the Department of Justice or the Office of the President (Sec. 11, Rule 116), provided that the period of suspension shall not exceed 60 days counted from the filing of the petition; 4. There are pending incidents such as: a. Motion to Quash b. Motion for Inhibition c. Motion for Bill of Particulars

Right to counsel de officio A: No. While the right to be represented by counsel is immutable, his option to secure the services of counsel de parte, however, is not. The court may restrict the accused’s option to retain a counsel de parte if the accused insists on an attorney he cannot afford, or chooses a counsel who is not a member of the bar, or when the attorney declines to represent the accused for a valid reason, such as conflict of interests (People v. Servo, G.R. No. 119217, January 19, 2000). Persons allowed to be appointed as counsel de officio 1. 2. 3.

Members of the bar with good standing; Has the ability, experience and competence to defend the accused; and In localities where such members of the bar are not available, the court may appoint any person who is a resident of such province with good repute for probity and ability, to defend the accused (Sec. 7, Rule 116).

NOTE: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office (Sec. 11, Rule 116).

PLEA-BARGAINING Plea

NOTE: Whenever a counsel de officio is appointed by the court, he shall be given reasonable time to consult with the accused as to his plea before proceeding with arraignment (Sec. 8, Rule 116).

It pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him.

Duties of a counsel de officiowhen the accused is imprisoned 1.

2.

3.

Plea-Bargaining

Promptly undertake to obtain the presence of the prisoner for trial, or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial. Upon receipt of the notice, the person having custody of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at any time thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney. Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial.

Plea bargaining in criminal cases is a process whereby the accused and the prosecution work a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi- count indictment in return for a lighter sentence than that for the graver charge (Daan v. Sandiganbayan GR No. 163972-77, March 28, 2008). NOTE: It is to be noted that the decision to accept or reject a plea bargaining agreement is within the sound discretion of the court subject to certain requirements of statutes or rules (AmanteDescallar v. Judge Ramas 582 SCRA 22).

Instances when a plea of NOT guilty is entered 1. 2. 3.

NOTE: Public Attorneys referred to in this section are those attorneys of the Public Attorney’s Office of the Department of Justice who are assisting accused who are not financially capable to have a counsel of their own. These public attorneys enter their appearance in behalf of the accused upon his request or that of his relative or upon being appointed as counsel de officio by the court.

4.

4. 5.

When the person having custody of the prisoner receives from the attorney a properly supported request for the availability of the prisoner for purposes of the trial, the prisoner shall be made available accordingly (Sec. 7, Rule 119).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

6.

When the accused so pleaded; When he refuses to plead [Sec. 1(c)]; Where in admitting the act charged he sets up matters of defense or with lawful justification; When he enters a conditional plea of guilty [Sec. 1(c)]; Where after a plea of guilty but presents exculpatory circumstances, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him [Sec. 1(d)]; When the plea is indefinite or ambiguous.

Q: Fredo was charged with murder attended by treachery and evident premeditation. During arraignment, Fredo, assisted by counsel, pleaded guilty with qualification “hindi ko sinadya patayin”. His counsel assured the court

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CRIMINAL PROCEDURE that he fully apprised Fredo of the information, the nature of the charge, and the consequences of his plea. Fredo even waived the prosecution’s presentation of evidence against him. The court convicted him of murder. Was the plea of guilty entered valid? (1996 Bar Examination)

attempted homicide does not (Amatan v. Aujero, A.M. No. RTJ-93-956, September 27, 1995). Q: D was charged with theft of an article worth Php 15,000. Upon being arraigned he pleaded not guilty to the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea of not guilty to a plea of guilty but only to estafa involving Php 5, 000. Can the court allow D to change his plea? Why? (2002 Bar Examination)

A: No. The plea of guilty by Fredo with the qualification “Hindi ko sinadya patayin” was a conditional plea of guilty and hence a plea of not guilty should be entered for him [Sec. 1(c) of Rule 116]. Also, when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea. The court should not rely on the assurance of the counsel of the accused for this purpose (Sec. 3, Rule 116).

A: No. A plea of guilty to a lesser offense may be allowed if the lesser offense is necessarily included in the offense charged (Sec. 2, Rule 116). Estafa involving Php 5, 000 is not necessarily included in theft of an article worth Php 15,000.

Q: May the accused enter a plea of guilty to a lower offense?

PLEA OF GUILTY BY ACCUSED Plea of guilty

A: Yes. 1. During arraignment a. If the offended party is present, the latter must consent with the prosecutor to the plea; and b. That the lesser offense is necessarily included in the offense charged. 2.

A judicial confession of guilt (People v. Comendador, GR No. L-38000, September 19, 1980). It is an unconditional plea of guilt which admits of the crime and all the attendant circumstances alleged in the information including the allegations of conspiracy and warrants judgment of conviction without need of further evidence.

After arraignment but before trial provided the following requisites are present: a. The plea of guilty is withdrawn; b. The plea of not guilty and the withdrawal of the previous guilty plea shall be made before trial; c. The lesser offense is necessarily included in the offense charged; and d. The plea must have the consent of the prosecutor and the offended party(Sec. 2, Rule 116).

Effect of a plea of guilty GR: A plea of guilty admits the truth of all material facts alleged in the information, including all the aggravating circumstance mentioned therein (People v. Koloh Pohong, GR No. L-32332, August 15, 1973). XPNs: 1. Where the plea of guilt was compelled by violence or intimidation; 2. When the accused did not fully understand the meaning and consequences of his plea; 3. Where the information is insufficient to sustain conviction of the offense charged; 4. Where the information does not charge an offense, any conviction thereunder being void; 5. Where the court has no jurisdiction.

NOTE: No amendment of complaint or information is necessary (Sec. 2). A conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of double jeopardy (People v. Magat, GR No. 130026, May 31, 2000).

3.

After prosecution rests – Allowed only when the prosecution does not have sufficient evidence to establish guilt for the crime charged.

XPN to the XPN: If what the accused would prove is an exempting circumstance, it would amount to a withdrawal of his plea of not guilty.

Q: Luis was charged with homicide. Upon arraignment, however, the parties, with the acquiescence of the Public Prosecutor and the consent of the offended party, entered into plea bargaining where it was agreed that the accused would plead guilty to the lesser offense of attempted homicide instead of consummated homicide as originally charged in the information. Consequently, Judge Berde found Luis guilty beyond reasonable doubt of the lesser crime of attempted homicide in accordance with the plea bargaining agreement. Is Judge Berde correct?

NOTE: For non-capital offenses, the reception of evidence is merely discretionary on the part of the court (Sec. 4,Rule 116). If the information or complaint is sufficient for the judge to render judgment on a non-capital offense, he may do so. But if the case involves a capital offense, the reception of evidence to prove the guilt and degree of culpability of the accused is mandatory in which case, the accused may present evidence in his behalf and the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea (Sec. 3, Rule 116).

A: No. One accused of homicide cannot be allowed to plead guilty to attempted or frustrated homicide, although the lesser offense is necessarily included in the offense charged. The reason is that the crime of homicide as defined in Art. 249 of the RPC necessarily produces death;

WHEN ACCUSED PLEADS TO A CAPITAL OFFENSE Duty of the court after the accused pleads guilty to a capital offense

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REMEDIAL LAW When the accused pleads guilty to a capital offense, the court shall: 1. Conduct a searching inquiry into the: a. Voluntariness of the plea, and b. Full comprehension of the consequences of the plea; 2. Require the prosecution to prove guilt and the precise degree of his culpability; 3. Ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. However, the defendant after pleading guilty may not present evidence as would exonerate him completely from criminal liability such as proof of self-defense.

Purpose of searching inquiry To determine whether the plea of guilty was made voluntarilyand whether the accused understood fully the consequence of his plea. Duty of the judge in conducting searching inquiry In all cases, the judge must convince himself that: 1. The accused is entering the plea voluntarily and intelligently; 2. There exists a rational basis for finding of guilt based on accused’s testimony 3. Inform the accused of the exact length of imprisonment and the certainty that he will serve it in a national penitentiary

NOTE: This procedure is mandatory, and a judge who fails to observe it commits grave abuse of discretion. The reason for this strictness is to assure that the State makes no mistake in taking life except the life of the guilty (People v. Diaz, 254 SCRA 735).

NOTE: The case of People v. Pastor (379 SCRA 181) provided the following as guidelines on how judges must conduct a “searching inquiry”: 1. Ascertain from the accused himself (a) how he was brought into custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations; 2. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty; 3. Elicit information about the personality profile of the accused; 4. Inform the accused of the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence; 5. Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime; 6. All questions posed to the accused should be in a language known and understood by the latter; 7. The trial judge must satisfy himself that the accused is truly guilty.

Purpose of the presentation of evidence after the plea of guilty To preclude any room for reasonable doubt in the mind of either the trial court or of the Supreme Court, on review, as to the possibility that there might have been misunderstanding on the part of the accused as to the nature of the charges to which he pleaded guilty; and to ascertain the circumstances attendant to the commission of the crime which justify or require the exercise of greater or lesser degree of severity in the imposition of prescribed penalties (People v. Basa, 51 SCRA 317). No collateral attack on plea of guilty A plea of guilty entered by one who is fully aware of the direct consequences, including the actual value of any commitments made to him by court, the prosecutor or his own counsel must stand.

Q: Crisanto is charged with murder. At his arraignment the prosecution witnesses appeared in court together with the heirs of the victim. Realizing the gravity of the offense and the number of witnesses against him Crisanto consulted his counsel de officio who explained to him the nature of the charge and the consequences of his plea. Crisanto then manifested his readiness for arraignment. The information was read to him in a language he clearly understood after which he pleaded guilty. To be sure, the judge forthwith asked him if he indeed fully understood the implications of his plea and Crisanto readily and without hesitation answered in the affirmative. The judge, fully convinced that the plea of the accused was made with the latter’s full knowledge of the meaning and consequences of his plea, then pronounced sentence on the accused.

NOTE: It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.

SEARCHING INQUIRY Searching Inquiry In conducting a searching inquiry, the following must be present: a. The trial judge must satisfy himself that the accused has pleaded guilty out of his voluntary will; b. That the accused is truly guilty; c. Based on the accused’s testimony, there exists a rational basis for a finding of guilt(People vs. Dayot, G.R. No. 88281, July 20, 1990). NOTE: It is more than a merely informing the accused the fact of facing a jail sentence but also of length of imprisonment under the law and the certainty of serving sentence at a national penitentiary or penal colony. Furthermore, the accused must not be under the misconception that a plea of guilty carries with it a more lenient treatment from the judge(People of the Philippines vs. Dayot, G.R. No. 88281, July 20, 1990).

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Comment on the action of the judge. Explain. Suppose Crisanto with the assistance of counsel waives the presentation of evidence by the prosecution saying that, after all, he has already entered his plea, may the court insist on the presentation of the evidence for the prosecution? Explain.

CRIMINAL PROCEDURE 3.

4.

A: 1.

2. 3.

4.

Suppose upon plea bargaining Crisanto decides to plead guilty to the lesser offense of homicide, may the court still require presentation of evidence? Explain. After the information was read to Crisanto upon arraignment and he pleaded guilty to the charge but the facts did not sufficiently constitute an offense, did his plea of guilt which has already been entered in the records, have the effect of supplying what was not alleged in the information to complete the elements of the offense to justify his conviction? Explain (1995 Bar Examination).

Period to enter pleas of guilty to a lesser offense GR: Plea-bargaining is made during pre-trial stage of criminal proceedings. XPN: The law still allows accused to change his plea thereafter provided that the prosecution does not have sufficient evidence to establish guilt of the crime charged(People vs. Valderama, G.R. No. 99287, June 23, 1992). IMPROVIDENT PLEA Improvident plea

The judge erred in pronouncing sentence on the accused without previously conducting a searching inquiry into the voluntariness and full comprehension of the consequences of the plea of guilty and requiring the prosecution to prove the guilt and the precise degree of culpability (Sec. 3, Rule 116). Yes, in accordance with Sec. 3, Rule 116 Although Crisanto pleads guilty to a non-capital offense the court may still require evidence to determine the penalty to be imposed (Sec. 4, Rule 116). No, his plea of guilty did not have the effect of supplying what was not alleged in the information to complete the elements of the offense to justify his conviction. His plea merely admits the truth of the facts alleged in the information.

It is a plea without information as to all the circumstances affecting it. It is based upon a mistaken assumption or misleading information or advice. Instances of improvident plea 1. 2. 3. 4. 5.

Plea of guilty was compelled by violence or intimidation; The accused did not fully understand the meaning and consequences of his plea; Insufficient information to sustain conviction of the offense charged; Information does not charge an offense; or Court has no jurisdiction.

Period to withdraw an improvident plea Q: Charged with the crime of murder before the RTC of Bulacan, the accused, assisted by counsel, pleaded guilty to the charge. Thereupon, the trial court rendered judgment convicting the accused for the crime of murder and sentencing him to suffer reclusion perpetua and to pay civil indemnity to the heirs of the victim. Did the trial court act properly? Why?

The court may permit an improvident plea of guilty to be withdrawn, at any time before the judgment of conviction becomes final, and be substituted by a plea of not guilty. NOTE: The withdrawal of a plea of guilty is not a matter of right to the accused but addressed to the sound discretion to the trial court (Sec. 5, Rule 116).

A: No. Sec. 3, Rule 116 applies not only to those cases in which death penalty is imposed but covers also cases in which reclusion perpetua is imposed. Thus, the requirement under Sec. 3 of Rule 116 must be complied with.

Effect of withdrawal of improvident plea The court shall set aside the judgment of conviction and reopen the case for new trial.

WHEN ACCUSED PLEADS TO A LESSER OFFENSE When accused may enter plea of guilty to a lesser offense An accused may enter a plea of guilty to a lesser offense provided that there is consent of the offended party and prosecutor to the plea of guilty to a lesser offense which is necessarily included in the offense charged. Effect of plea of guilty without consent of offended party and prosecutor If accused was convicted, the accused’s subsequent conviction of the crime charged would not place him in double jeopardy [Sec. 7(c), Rule 117].

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REMEDIAL LAW 3.

MOTION TO QUASH RULE 117

4.

Motion to Quash

5.

It is a special pleading filed by the defendant before entering his plea, which hypothetically admits the truth of the facts spelled out in the complaint or information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings.

6.

7. 8.

Period to filea motion to quash an information or complaint

9.

GR: At any time before entering his plea, the accused may move to quash the information or complaint (Sec. 1, Rule 117). XPN: Instances where a motion to quash may be filed after plea: 1. The facts charged do not constitute an offense 2. Lack of jurisdiction over the offense charged 3. The criminal action or liability has been extinguished 4. Double Jeopardy (Sec. 9, Rule 117)

That the court has no jurisdiction over the person of the accused; That the officer who filed the information had no authority to do so; That the information does not conform substantially to the prescribed form; That more than one offense is charged except when a single punishment for various offense is prescribed by law; That the criminal action or liability has been extinguished; That it contains various averments which if true would constitute legal excuse or justification; That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (double jeopardy) (Sec. 3, Rule 117).

NOTE: The enumeration is exclusive.

GROUNDS FOR MOTION TO QUASH 1. The facts charged do not constitute an offense

Who may file The right to file a motion to quash belongs only to the accused.The court is not authorized to motu proprio initiate a motion to quash by issuing an order requiring an explanation why the information should not be quashed. The court, though, has the discretion to dismiss the case if the information is not sufficient or on any ground provided by law, or to dismiss the information for a different one.

It is fundamental that the complaint or information must state every fact necessary to make out an offense for the Constitution guarantees that in all criminal prosecutions the accused should be informed of the nature and cause of the accusation against him[Sec. 14 (2) Art. III, 1987 Constitution].

Purpose of motion to quash

It is required that the acts or omissions complained of as constituting the offense must be stated in ordinary and concise language so as to enable a person of common understanding to know what offense is intended to be charged, and to enable the court to pronounce judgment (Sec. 9, Rule 110).

The designated purpose of a motion to quash is to assail the validity of the criminal information for defects or defenses apparent on the face of the information (Galzole y Soriaga v. Briones and People, G.R. No. 164682, September 14, 2001). Form and contents of motion to quash 1. 2. 3.

2. Jurisdiction over the offense charged

In writing; Signed by the accused or his counsel; and Specify distinctly the factual and legal grounds on which it is based (Sec. 2, Rule 117).

If the trial court has no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel.

NOTE: The court shall not consider any other ground other than those specifically stated in the motion to quash except lack of jurisdiction over the offense charged and when the information does not charge an offense(Sec. 2, Rule 117).

3. Jurisdiction over the territory

GROUNDS Grounds for a motion to quash the complaint or information 1. 2.

In criminal proceedings, no one should be held to answer for any crime committed by him except in the jurisdiction where it was committed.

That the facts charged do not constitute an offense; That the court trying the case has no jurisdiction over the offense charged; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CRIMINAL PROCEDURE 4. Jurisdiction over the person of the accused 4. Jurisdiction over the person is that acquired by the voluntary appearance of a party in court and his submission to its authority, or by the coercive power of legal process exerted over the person through an arrest. Unlike jurisdiction over the subject matter and territory, jurisdiction over the person of the accused may be waived, either expressly or by implication.

the head / Chief prosecutor (Sec. 4, Rule 112); Information is filed without the complaint in cases involving private crimes.

NOTE: An infirmity in the information caused by the lack of authority of the officer signing it cannot be cured by silence, acquiescence, or even by express consent. An invalid information is no information at all. No criminal proceeding may prosper therefrom, thus, it is subject to quashal (Romualdez vs. Sandiganbayan, G.R. Nos. 143618-41, July 30, 2002).

Test of the court’s jurisdiction

6. Complaint or information does not conform to the prescribed form

GR: What determines the jurisdiction of the court in criminal cases is the extent of the penalty which the law imposes on the misdemeanor, crime or violation of law charged.

Lack of substantial compliance with the requirements for a good complaint or information required under Secs. 3 to 13, Rule 110 renders the accusatory pleading quashable.

XPN: 1. Jurisdiction of the Sandiganbayan which is not based on the penalty provided by law, but on the salary grade of the public official. 2. Libel, which is within the exclusive jurisdiction of the RTC although the imposable penalty does not exceed 6 years. 3. Those offenses cognizable by the family court where the determining factor is the minority of any of the parties 4. The offense of slight physical injuries is cognizable by the Metropolitan, Municipal or Municipal Circuit Trial Court, but where the victim is a minor, the case is to be filed in the RTC.

NOTE: But mere defects in matters of form may be cured by amendment.

7. Multiplicity of offenses charged A complaint or information must charge but one offense, except only in those cases in which the existing laws prescribe a single punishment for various offenses (Pamaran, 2010). Q: The information filed against Abi charged more than one offense. She has not yet been arraigned. If you were the lawyer of Abi, would you file a motion to quash or a motion for bill of particulars? Explain. (1996 Bar Examination)

5. Lack of authority of the officer to file information Criminal prosecutions are brought by authority of the sovereign, and, therefore, only the officers possessed of legal power to do so must be allowed to file criminal information.

A: I would file a motion to quash on the ground that more than one offense is charged. A motion for bill of particulars is not proper because there are no defects or details in the information that need clarification.

NOTE: The law invests the authority to file and prosecute criminal cases to the following: a. Provincial fiscals and their assistants (Sec. 1686, Revised Administrative Code) b. Chief State Prosecutor and his deputies c. Tanodbayan and his deputies in special cases (PD 1607) d. A lawyer appointed by the Secretary of Justice (Sec. 1686, Revised Administrative Code)

8. Extinction of criminal action or liability Grounds for extinction of criminal liability Under Art. 89 of the RPC, it is provided that criminal liability is totally extinguished by: 1. The death of the convict, as to personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment;

Instances where there is an unauthorized filing of information 1. Officer filing is irregularly appointed. It does not necessarily invalidate the information if such officer may be considered de facto; 2. Officer is disqualified from appointment to such position. The information is invalid and the court does not acquire jurisdiction to try the accused thereon (Villa vs. Banez, G.R. No. L-4313, March 20, 1951); 3. Officer filed the information without the approval by

NOTE: The death of the offended party before final conviction will not abate prosecution where the offense charged is one against the State involving peace and order as well as in private crimes (People v. Misola, G.R. No. L-3606, December 29, 1950).

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REMEDIAL LAW imposed. 2. 3. 4. 5. 6. 7.

Service of the sentence; Amnesty, which completely extinguishes the penalty and all its effects; Absolute pardon; Prescription of the crime; Prescription of the penalty; and The marriage of the offended woman, as provided in Article 344 of the Revised Penal Code.

Rule on the period of prescription of penalties The period of penalties commences to run from the date when the culprit should evade the service of his sentence and is interrupted if the defendant should give himself up, be captured, should go to some foreign country with which the Philippines has no extradition treaty, or should commit another crime before the expiration of the period of prescription (Art 93, RPC;(People vs. Pontillas, 65 Phil. 658).

Pardon v. Amnesty Pardon Granted by Executive.

the

Chief

It is a private act which must be pleaded and proved by the person pardoned because the courts take no notice of it. Granted to one after conviction.

Relieves the offender from the consequences of the offense of which he is convicted. It only serves as a relief from the punishment but it does not restore the political rights of the person, unless it is expressly provided for in the pardon.

Amnesty Proclaimed by the President, but it has to be with the concurrence of Congress. It is a public act which the courts have to take judicial notice of.

Nolle Prosequi It is a Latin term for “we shall no longer prosecute.” It is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of its judicial discretion. It partakes of a non-user or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. It is not an acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense. Thus, it can be refiled (Galvez v. CA, G.R. No. 120715, March 29, 1996).

Granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Abolishes and puts into oblivion the offense itself. It is as though the offense was never committed.

NOTE: Nolle prosequi is not the same as quashal, although both have the same result – the dismissal of the case. A nolle prosequi is initiated by the prosecutor while a quashal is upon motion to quash filed by the accused.

Q: When a criminal case is dismissed on nolle prosequi, can it later be refiled? (2003 Bar Examination) A: As a general rule, when a criminal case is dismissed on nolle prosequi before the accused is place on trial and before he is called on to plead, this is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense(Galvez v. CA, 237 SCRA 685).

Computation of prescriptive period of offenses 9. That it contains averments, which if true, would constitute a legal excuse or justification

The period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities of their agents, and shall be interrupted by the filing of the complaint or information, and commences to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription does not run when the offender is absent from the Philippines (Art. 91, RPC).

Only exempting circumstances constitute a legal excuse or justification. Justifying circumstances such as self-defense must be proven. 10. Double Jeopardy Elements of Double Jeopardy

Prescription of the penalty

It attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid

The loss of right to demand the service of the penalty

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CRIMINAL PROCEDURE question of guilt or innocence of the accused. Governed by Rule 117 of the Rules of Court. Does not require a prior leave of court.

plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. Instances when double jeopardy will not attach

the accusation. Governed by Rule 119 of the Rules of Court. May be filed by the accused either with leave or without leave of court.

EFFECTS OF SUSTAINING THE MOTION TO QUASH 1.

2.

3.

4.

The dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial (Flores v Montemayor, G.R. No. 170146, June 8, 2011). When the Court finds that the “criminal trial was a sham” because the prosecution representing the sovereign people in the criminal case was denied due process (Galman v. Sandiganbayan, 144 SCRA 43). A void judgment for having been issued without jurisdiction. No double jeopardy attaches because a void judgment is, in legal effect, no judgment at all. By it, no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone (People v. Court of Appeals, 101 SCRA 450). Dismissal is with the express consent of the accused except on the following: a. The dismissal is based on insufficiency of evidence or b. The case is dismissed for violation of the accused’s right to speedy trial (Benares v. Lim, G.R. No. 173421, December 14, 2006).

Effects of granting a motion to quash 1.

2.

3.

4.

Effect of failure to move to quash or failure to allege a ground before he pleads to the complaint or information

5.

GR: It shall be deemed a waiver of any objections. XPNs: Grounds based on: 1. The facts charged do not constitute an offense; 2. The court trying the case has no jurisdiction over the offense charged; 3. Criminal liability has been extinguished; and 4. That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (Sec. 9, Rule 117). DISTINGUISHED FROM DEMURRER TO EVIDENCE MOTION TO QUASH Filed before the defendant enters his plea. Does not go into the merits of the case but is anchored on matters not directly related to the

If the court sustains the motion, the accused remains in custody if, at the time, he is under detention, unless he is admitted to bail. If no order to that effect is made, or if so made, no information is filed within the time specified in the order or within such further time allowed upon showing a good cause, the accused must be set free, unless he is also under custody by reason of some other charge. If the motion to quash is sustained upon any of the following grounds, the court must state, in its order granting the motion, the release of the accused if he is in custody, or the cancellation of his bond if he is out on bail: a. That a criminal action or liability has been extinguished; b. That it contains averments which, if true, would constitute a legal excuse or justification; or c. That the accused has been previously convicted or acquitted of the offense charged. If the ground upon which the motion to quash was sustained is that the court has no jurisdiction over the offense, the better practice is for the court to remand or forward the case to the proper court, not to quash the complaint or information. If the ground of the motion is either: a. That the facts charged do not constitute an offense; b. That the officer who filed the information had no authority to do so; or; c. That it does not conform substantially to the prescribed form; or d. That more than one offense is charged then the court should order the prosecution to file another information or an amendment thereof, as the case may be, with a definite period, the order further stating that in case of failure to comply therewith, the accused if he is in custody shall be discharged, or his bond cancelled if he is bonded (Pamaran, 2010].

Q: Is the order denying the motion to quash appealable?

DEMURRER TO EVIDENCE Filed after the prosecution has rested its case. Based upon the inadequacy of the evidence adduced by the prosecution in support of

A: GR: No. It is interlocutory and not appealable. Certiorari and prohibition are not the correct remedies against an order denying a motion to quash. The defendant should instead go to trial and raise the special defense he had invoked in his motion. And if after trial on the merits, an adverse decision is rendered, remedy is to appeal in the manner authorized by law (Bulaong v. CA, G.R. No. 78555, January 30, 1990).

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REMEDIAL LAW jurisdiction over the person of the accused and over the subject matter of the offense charged. Hence, this ground is not waived if not raised in a motion to quash and could be raised at the pre-trial (People v. Hon. Zeida Aurora Garfin, G.R. No. 153176, March 29, 2004).

XPNs: 1. The act has ceased to be an offense; 2. When intervention by higher court is required for the orderly administration of justice or in the interest of both the accused and the public; 3. It is unfair and unjust to make the accused go to trial; 4. When the circumstances warrant that technicalities of procedure should be set aside; 5. If the court denying the motion to quash acted without or in excess of jurisdiction or with grave abuse of discretion.

Q: Chato is charged with the murder of Velay. Before arraignment, you, as counsel de officio of Chato, discovered that the information failed to allege any qualifying circumstances. 1. How may you properly object the insufficiency of the information, and on what ground? 2. May you still avail of that remedy after Chato has entered her plea? 3. What course or courses of action may the court take if it sustains the remedy you seek? (1994 Bar Question)

Procedure when the motion to quash is denied 1. 2. 3.

The accused should plead; Accused should go to trial without prejudice to thespecial defenses he invoked in the motion; Appeal from the judgment of conviction, if any, andinterpose the denial of the motion as an error.

A: 1.

Q: After the requisite proceedings, the Provincial Prosecutor filed and Information for homicide against Peter. The latter however, timely filed a Petition for Review of the Resolution of the Provincial Prosecutor with the Secretary of Justice who, in due time, issued a Resolution reversing the resolution of the Provincial Prosecutor and directing him to withdraw the Information. Before the Provincial Prosecutor could comply with the directive of the Secretary of Justice, the court issued a warrant of arrest against Peter. The Public Prosecutor filed a Motion to Quash the Warrant of Arrest and to withdraw the Information, attaching to it the Resolution of the Secretary of Justice. The court denied the motion. Was there a legal basis for the court to deny the motion?(2002 Bar Question)

2.

3.

A: Yes. There is a legal basis for the court to deny the motion to quash the warrant of arrest and to withdraw the information. The court is not bound by the Resolution of the Secretary of Justice. This is because once an 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 (Crespo v. Mogul, 151 SCRA 462).

EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION TO QUASH IS NOT A BAR TO ANOTHER PROSECUTION GR: An order sustaining the motion to quash is not a bar to another prosecution for the same offense. XPNs: 1. Double jeopardy; or 2. Criminal liability is extinguished (Sec. 6, Rule 117).

Q: Bimby is charged with illegal possession of firearms under an Information signed by the Provincial Prosecutor. After arraignment but before pre-trial, he found out that the Provincial Prosecutor had no authority to sign and file the Information as it was the City Prosecutor who has such authority. During the pre-trial, Bimby moves that the case against him be dismissed on the ground that the information is defective because the officer signing it lacked the authority to do so. The Provincial Prosecutor opposes the motion on the ground of estoppel as Bimby did not move to quash the Information before arraignment. If you are the counsel for Bimby, what is your argument to refute the opposition of the Provincial Prosecutor? (2000 Bar Question)

DOUBLE JEOPARDY (RES JUDICATA IN PRISON GREY) Double Jeopardy It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. Likewise, if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

A: I would argue that since the Provincial Prosecutor had no authority to file the information, the court did not acquire UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

As counsel de officio for the accused, I can file a motion to quash based on the ground that the facts charged do not constitute the crime of murder there being no qualifying circumstances alleged [Sec. 3(a) Rule 117]. After Chato has entered her plea, she may still move to quash because she is not deemed to have waived such objection (Sec. 9, Rule 117). If the court sustains the motion to quash, the court may order that another information be filed. If the accused is in custody, he shall remain so unless he shall be admitted to bail. If the information is not filed within the time specified, or within the time specified in the order, or within such further time as the court may allow for good cause shown, the accused, if in custody, shall be discharged therefrom unless he is also in custody on some other charge (Sec. 5, Rule 117).

308

CRIMINAL PROCEDURE Purpose of the right against double jeopardy

prosecution moved to withdraw the information altogether and its motion was granted. Can the prosecution re-file the information although this time for murder? (2002 Bar Question)

The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense (Caes v. Intermediate Appellate Court, 179 SCRA 54). It protects the accused not against the peril of second punishment but against being tried again.

A: Yes. The prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached (Galvez v. Court of Appeals, 237 SCRA 685).

Kinds of double jeopardy 1. 2.

Q: Dondon was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the prosecution has presented its evidence, the trial court set the continuation of the hearing on another date. On the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of Dondon, dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and directed Dondon to present his evidence. Before the next date of trial came, however, he moved that the last order be set aside on the ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor then filed an information in the RTC, charging Dondon with direct assault based on the same facts alleged in the information for slight physical injuries but with the added allegation that he inflicted the injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the board of election inspectors. He moved to quash the second information on the ground that its filing had placed him in double jeopardy. How should Dondon’s motion to quash be resolved? (2002 Bar Question)

No person shall be put twice in jeopardy for the same offense. When the act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the same act (Sec. 21, Art. III, 1987 Constitution).

Requisites for the attachment of the first jeopardy 1. 2. 3. 4.

Competent Court; Valid jurisdiction; Accused was arraigned; Accused pleaded.

Attachment of the second jeopardy 1. 2. 3. 4.

When the accused was acquitted When there is final conviction Dismissal on the merits Dismissal without express consent

NOTE: The prohibition against double jeopardy refers to the same offense and not to the same act. The offense charged in the two prosecutions must be the same in law and in fact, because the same acts may be violative of two or more provisions of the criminal law.

A: Dondon’s motion to quash should be granted on the ground of double jeopardy because the first offense charged is necessarily included in the second offense charged. Although the dismissal of the first case was upon motion of the accused, double jeopardy attached since the dismissal was due to failure to prosecute which amounts to an acquittal (People v. Clobel, 11 SCRA 805; Esmene v. Pogoy, 102 SCRA 851).

Q: Can a person convicted by a court-martial be prosecuted again in the civil court? A: No. A person convicted by a court-martial cannot, for the same offense, be prosecuted again in the civil court. A court martial is a court, and the prosecution of an accused before it is criminal, not administrative; thus it would be, under certain conditions, a bar to another prosecution of the defendant for the same offense, because the latter would place the accused in double jeopardy(Marcos vs. Chief of Staff, 89 Phil. 477).

Tests in determining the identity of the offenses for the purpose of applying the rule on double jeopardy Same offense test – Whether the offense charged in the first information is the same offense in the second charge, or whether the second offense necessarily includes or is necessarily included in the first offense charged in the former complaint or information.

Q: Is there double jeopardy when the complaint or information was dismissed before the defendant has been arraigned and had pleaded thereto?

Same-evidence test – Whether the facts alleged in the second information, if proved, would have been sufficient to sustain the former information, or from which the accused may have been acquitted or convicted.

A: No. The requirement that the accused must have been arraigned and pleaded to the charge rests upon the idea that it is only from that moment that the issues for trial are deemed joined. Before that, the accused is not in danger of being validly convicted (People vs. Apostol, 64 Phil. 676).

Identity Rule GR: There is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense includes or is necessarily included

Q: Dora and Egor were charged with homicide in one information. Before they could be arraigned, the

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REMEDIAL LAW in the first offense or an attempt or frustration thereof, or when it necessarily includes or is necessarily included in the offense charged in the first information.

defendant is responsible, which changes the character of the offense and, together with the fact existing at the time, constitutes a new and distinct offense,” the accused cannot be said to be in second jeopardy if indicated for the new offense (Melo v. People, G.R. No. L – 3580, March 22, 1950).

XPNs: 1. The graver offense developed due to supervening facts arising out of the same act or omission constituting the former charge [Sec. 7(a), Rule 117]. 2. The facts constituting the graver offense became known or were discovered only after a plea was entered in the former complaint or information [Sec. 7(b), Rule 117]. 3. The plea of guilty to a lesser offense was made without the consent of the prosecutor and the offended party [Sec. 7 (c), Rule 117]. 4. The second offense was not in existence at the time of the first prosecution for the simple reason that in such case, there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent (Melo v. People, 85 Phil 766).

NOTE: Accordingly, an offense may be said to necessarily include or to be necessarily included in another offense, for the purpose of determining the existence of double jeopardy, when both offenses were in existence during the pendency of the first prosecution, for otherwise, if the second offense was then inexistence, no jeopardy could attach therefor during the first prosecution, and consequently a subsequent charge for the same cannot constitute second jeopardy. By the very nature of things there can be no double jeopardy under such circumstance (Ibid.).

Q: Accused was charged with and convicted of less serious physical injuries. The accused had already begun serving his sentence when it was found out that the complainant’s injuries did not heal within the period formerly estimated, and so the provincial fiscal filed another information for serious physical injuries. The accused moved to quash this second information on the ground of double jeopardy. Is the accused correct?

NOTE: In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.

A: No. Reversing the trial court’s order granting his motion, the SC reiterated the Melo ruling and then added: “That rule applies to the present case where, after the prosecution for a lesser crime, new facts have supervened which, together with those already in existence at the time of the first prosecution, have made the offense graver and the penalty first imposed legally inadequate” [Double Jeopardy: The Supervening Event Doctrine, 76 SCRA 469 (1977)].

Variance doctrine An offense charged necessarily includes the offense proved when some of the essential ingredients or ingredients of the former as alleged in the complaint or information constitute the latter. An offense charged isnecessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.

NOTE: “It is indispensable that a new fact for which the defendant is responsible had supervened and this new fact changes the character of the crime first imputed to him so that, together with the facts previously existing, it constitutes a new and distinct offense (Ibid.).

Doctrine of Supervening Fact If, after the first prosecution, a new fact supervenes on which the defendant may be held liable, altering the character of the crime and giving rise to a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense.

Effect of double jeopardy on the civil aspect of the case The offended party and the accused may appeal the civil aspect of the case because the concept of double jeopardy evidently has reference only to the criminal case and has no effect on the civil liability of the accused (Riano, 2011)

Q: Melo was charged with frustrated homicide, for having allegedly inflicted upon Obilloseveral serious wounds which required medical attendance. Obillo died from his wounds hours after the accused pleaded guilty of the offense charged. An amended information was then filed charging the accused with consummated homicide. The accused filed a motion to quash the amended information alleging double jeopardy. Is the accused correct?

Non-applicability of double jeopardy to administrative cases The rule on double jeopardy does not apply to a controversy where one is an administrative case and the other is criminal in nature (Riano, 2011, citing Icasiano v. Sandiganbayan, 209 SCRA 377).

A: No, for the simple reason that in such case there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent. Thus, where the accused was charged with physical injuries and after conviction the injured person dies, the charge for homicide against the same accused does not put him twice in jeopardy.

Q: As a result of vehicular mishap, petitioner was charged before the MTC of two separate offenses in two informations: a. Reckless imprudence resulting in slight physical injuries; and b. Reckless imprudence resulting in homicide and damage to property for the death of the husband of the respondent and damage to the vehicle.

Stating it in another form, the rule is that "where after the first prosecution a new fact supervenes for which the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CRIMINAL PROCEDURE if he fails or refuses to testify against his co-accused in accordance with his sworn statement, he may be prosecuted again.

Petitioner pleaded guilty to the first information and was punished only by public censure. Invoking such conviction, petitioner now moves for the quashal of the other information on the ground of double jeopardy. Does double jeopardy apply to quasi offenses?

PROVISIONAL DISMISSAL Requisites of provisional dismissal

A: Yes. The two charges arose from the same facts and were prosecuted under the same provision of the RPC, namely Art. 365. The doctrine is that reckless imprudence under Art. 365 is a single quasi- offense by itself and not merely a means to commit other crimes. Hence, conviction or acquittal of such quasi offense bars subsequent prosecution for the same quasi offense, regardless of its various resulting acts (Ivler v. Modesto- San Pedro, GR No. 172716, November 17, 2010).

1.

2. 3. 4.

Q: For firing a machine gun which caused panic among the people present and physical injuries to one, two separate informations (one for serious public disturbance and the other for reckless imprudence resulting in physical injuries) were filed against the accused. As he pleaded guilty to the charge of reckless imprudence resulting in physical injuries, the accused was convicted and sentenced accordingly.Later, the accused sought to dismiss the charge of serious public disturbance on the ground of double jeopardy. Is there double jeopardy? Why? (1993 Bar Question)

NOTE: The concept of provisional dismissal contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the Rules of Court.

Rule on provisional dismissal of a case GR: Where the case was dismissed provisionally with the consent of the accused, he cannot invoke double jeopardy in another prosecution therefore or where the case was reinstated on a motion for reconsideration by the prosecution.

A: No. The protection against double jeopardy is only for the same offense. A single act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an acquittal or conviction under one does not bar prosecution under the other. In this case, the act of firing a machine gun violated two articles of the RPC. Consequently, conviction for one does not bar prosecution for the other.

XPNs: The dismissal amounts to an acquittal even if the dismissal was ordered at the instance of the defendant if it is based on: 1. Lack or insufficiency of evidence 2. If the same was predicated upon the right of the accused to a speedy trial, hence, even if the accused gave his express consent to such dismissal or moved for dismissal, such consent would be immaterial as such dismissal is actually an acquittal 3. There is variance between the proof and the allegations in the complaint or information

Dismissal v. Acquittal Dismissal Does not decide on the merits, does not determine the defendant’s guilt or innocence. Double jeopardy always attach.

will

not

Acquittal Always based on the merits. Defendant is acquitted because guilt was not proven beyond reasonable doubt. Double jeopardy always attaches.

Period when provisional dismissal becomes permanent The dismissal shall become permanent if: 1. The case is not revived within 1 year after the issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment not exceeding 6 years or a fine of any amount or both; or 2. The case is not revived within 2 years after the issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment of more than 6 years (Sec. 8, Rule 117).

Instances wherein dismissal of the case is tantamount to an acquittal 1. 2.

There must be a motion by the prosecution with the express conformity of the accused, or by the accused himself, or by both the prosecution and the accused for a provisional dismissal of the case; The offended party is notified of the motion for a provisional dismissal of the case; The court issues an order granting the motion and dismissing the case provisionally; The public prosecutor is served with a copy of the order of provisional dismissal of the case (People v. Lacson, et al., G.R. No. 149453, April 1, 2003).

Insufficiency of evidence of the prosecution (Demurrer to evidence) Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent)

Thus, within the periods stated, the prosecution has to revive the case if it desires to prevent the provisional dismissal becoming permanent and the revival of the case being time-barred.This is known as the TIME BAR RULE. If no revival of the case is made within the prescribed period, the dismissal shall be removed from being provisional and becomes permanent.

Rules on the application of double jeopardy on State witnesses An order discharging an accused as a State witness amounts to an acquittal, hence double jeopardy will apply. However,

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REMEDIAL LAW NOTE: The State may revive a criminal case beyond the one-year or two-year periods, provided there is justifiable necessity for the delay, and subject to the right of the accused to oppose the same on the ground of double jeopardy, or that such revival or refiling is barred by the statute of limitations (People v. Lacson, G.R. No. 149453, Oct. 7, 2003).

1.

Express consent

2.

It must be a positive, direct, unequivocal consent requiring no inference or implication to supplying its meaning. The mere inaction or silence of the accused or his failure to object to a provisional dismissal of the case does not amount to express consent. Q: In a prosecution for robbery against Adrian, the prosecutor moved for the postponement of the first scheduled hearing on the ground that he had lost his records of the case. The court granted this motion but, when the new date of trial arrived, the prosecutor alleging that he could not locate his witnesses, moved for the provisional dismissal of the case. If Adrian’s counsel does not object, may the court grant the motion of the prosecutor? Why? (2002 Bar Question) A: No. A case cannot be provisionally dismissed except upon the express consent of the accused and with notice to the offended party.

3.

Q: Before the arraignment for the crime of murder, the private complainant executed an Affidavit of Desistance stating the she was not sure if the accused was the man who killed her husband. The public prosecutor filed a Motion to Quash the Information on the ground that with private complainant’s desistance, he did not have evidence sufficient to convict the accused. On January 2, 2001, the court without further proceedings granted the motion and provisionally dismissed the case. The accused gave his express consent to the provisional dismissal of the case. The offended party was notified of the dismissal but she refused to give her consent.

Reckoning period of one or two year period for revival of criminal case The one or two year period allowed for reviving a criminal case that has been provisionally dismissed shall be reckoned from the issuance of the order of dismissal. The dismissal shall become automatically permanent if the case is not revived within the required period. Such permanent dismissal shall amount to an adjudication of the case on the merits (Sec. 14, A.M. No. 12-11-2-SC).

Subsequently, the private complainant urged the public prosecutor to refile the murder charge because the accused failed to pay the consideration which he had promised for the execution of the Affidavit of Desistance. The public prosecutor obliged and refiled the murder charge against the accused on February 1 2003. The accused filed a Motion to Quash the Information on the ground that the provisional dismissal of the case had already become permanent. Was the provisional dismissal of the case proper? (2003 Bar Question). A: Yes. The provisional dismissal of the case was proper because the accused gave his express consent thereto and the offended party was notified. It was not necessary for the offended party to give her consent thereto (Sec. 8, Rule 117). Provisional dismissal under A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial) UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

When the delays are due to the absence of an essential witness whose whereabouts are unknown or cannot be determined and, therefore, are subject to exclusion in determining if, with the prescribed time limits which caused the trial to exceed 180 days, the court shall provisionally dismiss the action with the express consent of the detained accused. When the delays are due to the absence of an essential witness whose presence cannot be obtained by due diligence though his whereabouts are known, the court shall provisionally dismiss the action with the express consent of the detained accused provided: a. The hearing in the case has been previously twice postponed due to the non-appearance of the essential witness and both the witness and the offended party, if they are two different persons, have been given notice of the setting of the case for third hearing, which notice contains a warning that the case would be dismissed if the essential witness continues to be absent; and b. There is proof of service of the pertinent notices of hearings or subpoenas upon the essential witness and the offended party at their last known postal or e-mail addresses or mobile phone numbers. For the above purpose, the public or private prosecutor shall first present during the trial the essential witness or witnesses to the case before anyone else. An essential witness is one whose testimony dwells on the presence of some or all of the elements of the crime and whose testimony is indispensable to the conviction of the accused (Sec. 10, A.M. No. 12-11-2-SC).

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CRIMINAL PROCEDURE PRE-TRIAL RULE 118

Content of the order for pre-trial conference It must contain orders: 1. Requiring the private offended party to appear thereat for purposes of plea-bargaining and for other matters requiring his presence; 2. Referring the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least 3 days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and 3. Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pretrial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the Philippine Mediation Center unit for purposes of mediation if available (A.M. No. 03-1-09-SC).

Importance of pre-trial It is the purpose of the Pre-trial Conference to simplify the issues, shape up the testimonial and documentary evidence and generally clear the decks for the trial (Irving Trust Company v. US 221 F.2D 303, April 5, 1955). Pre-trial is mandatory in all criminal cases cognizable by the 1. 2. 3. 4. 5.

Sandiganbayan; RTC; Metropolitan Trial Court; Municipal Trial Court in Cities; Municipal Trial Court and Municipal Circuit Trial Court(Sec. 1 Rule 118). MATTERS TO BE CONSIDERED DURING PRE-TRIAL

Period of pre-trial

Form of a valid pre-trial agreement

After arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused unless a shorter period is provided by special laws or circulars of the Supreme Court (Sec. 1, Rule 118).

The pre-trial agreement must be in writing and signed by both the accused and his counsel. If the required form is not observed, the pre-trial agreement cannot be used against the accused (Sec. 2, Rule 118).

Pre-trial in a Civil case v. Pre-trial in a Criminal case (1997 Bar Question) Pre-trial in Civil Cases Is set when the plaintiff moves ex parte.

The motion to set the case for pre-trial is made after the last pleading has been served and filed (Ibid.).

Considers the possibility of an amicable settlement or compromise.

The agreements and admissions may be contained in the record of pre-trial and pre-trial order. The “Minutes of Preliminary Conference, may be signed by either the party or his counsel. A pre-trial brief is required to be submitted (Sec. 6, Rule 18). (Riano, 2011)

NOTE: The agreements covering the matters in the pre-trial conference shall be approved by the court.

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

Matters considered during pre-trial 1. 2. 3. 4. 5.

6.

Plea bargaining; Stipulation of facts; Marking for identification of evidence of parties; Waiver of objections to admissibility of evidence; Modification of the order of the trial if one of the accused admits the charge but interposes a lawful defense (reverse trial); and Such other matters as will promote a fair and expeditious trial of the civil and criminal aspects of the case (Sec. 1).

NOTE: During the preliminary conference, the branch clerk of court shall assist the parties in reaching a settlement of the civil aspect of the case, mark the documents to be presented as exhibits and copies thereof attached to the records after comparison, ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits and consider such other matters as may aid in the prompt disposition of the case. The proceedings during the preliminary conference shall be recorded in the minutes of preliminary conference to be signed by both parties and counsel. The minutes of preliminary conference and the exhibits shall be attached by the branch clerk of court to the case record before the pre-trial (A.M. No. 03-1-09-SC).If the accused has pleaded not guilty to the crime charged, he may state whether he interposes a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the

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REMEDIAL LAW order of trial and require the accused to prove such defense by clear and convincing evidence(Sec. 3, Speedy Trial Act).

WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED

Plea-Bargaining

The court shall: 1. Issue an order which contains the plea bargaining arrived at; 2. Proceed to receive evidence on the civil aspect of the case; and 3. Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence(A.M. No. 03-1-09-SC).

The process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi- count indictment in return for a lighter sentence than that for the graver charge. Instance when plea-bargaining not applicable

PRE-TRIAL AGREEMENT

In violations of the Dangerous Drugs Act regardless of the imposable penalty (Sec. 23, RA 9165).

Pre- trial agreement All agreements or admissions made or entered into during the pre- trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used as evidence against the accused.

Action of the court when plea bargaining fails 1.

2.

3. 4.

5.

6.

Adopt the minutes of preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents and list object and testimonial evidence; Scrutinize every allegation of the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation and other documents identified and marked as exhibits in determining further admissions of facts, documents and in particular as to the following: a. The identity of the accused; b. Court’s territorial jurisdiction relative to the offense/s charged; c. Qualification of expert witness; d. Amount of damages; e. Genuineness and due execution of documents; f. The cause of death or injury, in proper cases; g. Adoption of any evidence presented during the preliminary investigation; h. Disclosure of defenses of alibi, insanity, selfdefense, exercise of public authority and justifying or exempting circumstances; and i. Such other matters that would limit the facts in issue. Define factual and legal issues; Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision and use the time frame for each stage in setting the trial dates; Require the parties to submit to the Branch COC the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and Consider modification of order of trial if the accused admits the charge but interposes a lawful defense(A.M. No. 03-1-09-SC).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Requisites before a pre-trial agreement may be used as evidence 1. 2.

They are reduced to writing; The pre-trial agreement is signed by the accused and his counsel

The agreements in relation to matters referred to in Sec. 2, i.e, Plea bargaining, Stipulation of Facts, Marking for Identification of evidence of parties, Waiver of objections to admissibility of evidence, and Other matters as will promote a fair and expeditious trial are subject to the approval of the court. Provided, that the agreement on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the court when the same is contrary to law, public morals, or public policy (Sec. 3, Speedy Trial Act of 1998). NOTE: The requirement of Sec. 2 is intended to safeguard the right of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into, or which any person may have ascribe to the accused without his knowledge, as he may have waived his presence at the pre-trial conference (People vs. Uy, G.R. No. 128046, March 7, 2000).

NON-APPEARANCE DURING PRE-TRIAL Effect of non-appearance of counsel for the accused or the prosecutor during the pre-trial without valid justification Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. The court may impose proper sanctions or penalties in the form of reprimand, fines or imprisonment if he does not offer an acceptable excuse for his lack of cooperation (Sec. 3, Rule 118; Sec. 5, Speedy Trial Act).

314

CRIMINAL PROCEDURE Rationale of the exclusion of the accused in the mandatory appearance during pre-trial

arrangement to resolve disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and de-clog court dockets.”

The principal reason why the accused is not included in the mandatory appearance is the fear that to include him is to violate his constitutional right to remain silent [Sec. 12(1), Art. III, 1987 Constitution].

Role of the judge in mediation

NOTE: Unless otherwise required by the court, personal appearance of the accused at the conference is not indispensable. This is aside from the consideration that the accused may waive his presence at all stages of the criminal action, except at the arraignment, promulgation of judgment or when required to appear for identification (Regalado, 2008).

The pre-trial judge will rule on the compromise agreement reached through mediation. If court-annexed mediation fails, the pre-trial judge takes on the role of conciliator, neutral evaluator and mediator. The judge will sit down with counsel and their parties to hear a summary of the case and will attempt to conciliate the differences between the parties. As a neutral evaluator, the judge will be free to express his views on the chances of each party in the case. At this point, if the parties agree to reconsider and undergo mediation, the judge will facilitate the settlement as a mediator. If the parties still refuse mediation, however, the judge will then issue an order referring the case to another judge. The order will specify that both CAM and JDR have failed.

PRE-TRIAL ORDER Pre-trial order It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference (Sec. 4, Rule 118). Purpose and effect of the pre-trial order

Three stages of diversion of cases to CAM and JDR

Such order shall bind the parties, limit the trial to those matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice (Ibid.; Sec. 5, Speedy Trial Act of 1998).

1.

2.

NOTE: To prevent manifest injustice, however, the pre-trial order may be modified by the court, upon its own initiative or at the instance of any party.

Period for the trial judge to issue a pre-trial order and its contents It must be issued within 10 days after the termination of the pre-trial. It shall set forth the following: 1. Actions taken during the pre-trial conference; 2. Facts stipulated; admissions made; 3. Evidence marked; and 4. Number of witnesses to be presented and the schedule of trial(Sec. 4, Rule 118).

3.

The first stage is the CAM where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators. Upon failing to secure a settlement of the dispute during the first stage, a second attempt is made at the JDR stage. There, the JDR judge sequentially becomes a mediator conciliator-early neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt, the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will try the unsettled case. The trial judge shall continue with the pre-trial proper and, thereafter, proceed to try and decide the case. The third stage is during the appeal where covered cases are referred to the PMC-Appeals Court Mediation (ACM) unit for mediation.

Cases covered by CAM and JDR REFERRAL FOR SOME CASES FOR COURT ANNEXED MEDIATION AND JUDICIAL DISPUTE RESOLUTION (A.M. No, 11-1-6-SC-PHILJA)

The following cases shall be (1) referred to CAM and (2) be the subject of JDR proceedings: 1. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of BP 22, except those which by law may not be compromised; 2. Special proceedings for the settlement of estates; 3. All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law; 4. The civil aspect of Quasi-Offenses under Title 14 of the RPC; 5. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment where the offended party is a private person;

Purpose of Court Annexed Mediation (CAM) and Judicial Dispute Resolution (JDR) The diversion of pending court cases both to CAM and to JDR is plainly intended to put an end to pending litigation through a compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion. It is also intended to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (RA 9285), to wit: “to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own

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REMEDIAL LAW 6. 7.

8.

9.

10.

The civil aspect of estafa, theft and libel; All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Sec. 33(1) of the Judiciary Reorganization Act of 1980; All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Sec. 33(2) of the Judiciary Reorganization Act of 1980; All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Sec. 33(3) of the Judiciary Reorganization Act of 1980; and All habeas corpus cases decided by the first level courts in the absence of the RTCjudge that are brought up on appeal from the special jurisdiction granted to the first level courts under Sec. 35 of the Judiciary Reorganization Act of 1980.

Cases which CANNOT be referred to CAM and JDR 1. 2. 3. 4. 5.

Appellate Court Mediation (ACM) It is a mediation program in the CA, corollary to CAM in the lower courts. It provides a conciliatory approach in conflict resolution. Through ACM, the CA promotes a paradigm shift in resolving disputes from a right-based (judicial) to an interest-based (mediation) process.

CAM v. Court Referred Mediation (CRM) CAM Any mediation process conducted under the auspices of the court that has acquired jurisdiction of the dispute.

CRM A mediation ordered by a court to be conducted in accordance with the agreement of the parties when an action is prematurely commenced in violation of such agreement

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Civil cases which by law cannot be compromised (Art. 2035, NCC); Other criminal cases not covered under paragraphs 3 to 6 above; Habeas Corpus petitions; All cases under RA 9262 (Violence against Women and Children); and Cases with pending application for Restraining Orders/Preliminary Injunctions. However, in cases covered under 1, 4 and 5 where the parties inform the court that they have agreed to undergo mediation on some aspects thereof, e.g., custody of minor children, separation of property, or support pendent lite, the court shall refer them to mediation.

Persons qualified to serve as mediator in appellate court mediation Only an Appellate Mediator who is trained and accredited by the Philippine Judicial Academy (PHILJA) can mediate in the CA. As a basic qualification, he/she must be a retired justice, judge, senior member of the Bar, or senior law professor, who possesses creative problem-solving skills and has strong interest in mediation.

316

CRIMINAL PROCEDURE ACM process I. Selection of Cases

II. Resolution to appear at the PMC-CA

III. Agreement to mediate

IV. Mediation Proceedings

V. Disposition of Cases

Division Clerk of court identifies the pending cases to be approved by the (ponente) Justice in charge, for decision.

Petitioner or appellant specifies that the case is qualified formediation.

Ponente issues a resolution directing the parties to appear at the PMC-CA without counsel to consider the possibility of mediation.

The resolution also suspends the running of the period to file the appellee’s brief.

Upon agreement of the parties to mediate, the PMC-CA requires the parties to execute an Agreement to Mediate

Mediator completes the proceedings within 30 days from date of initial conference, with extendible period of 30 days if there is a justifiable ground.

If the parties agree to a full or partial compromise, the mediator drafts written terms with the concurrence of the parties / counsel.

Court approves the compromise agreement and makes an immediate entry of judgment.

If the case is eligible for mediation, the ponente refers the case to PMC-CA

Parties choose a mediator and the date and time of the initial mediation conference

Individual litigants are required to attend mediation conferences in person; corporate parties must be represented by a corporate officer duly authorized byBoard resolution.

Parties/counsel and mediator sign the compromise agreement which is transmitted to theCourt.

In case of full settlement, the parties agree to withdraw the appeal and enter into a mutual satisfaction of claims and counterclaims. Upon receipt, the Court renders an order of dismissal.

If the parties fail to reach a settlement, the mediator returns the case to the Division of origin. He then makes a confidential report to the PMC-CA on the reasons for the failure.

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REMEDIAL LAW JDR process LuponTagapamayapa

Reaches a compromise agreement

Failure to mediate

Filing of Case

Non-mediatable

Trial

Mediatable

Decision CAM

Failure to appear

Complainant

Dismiss the case

Defendant

Compromise agreement

Pre-trial judge will rule on the compromise agreement

Settlement cannot be reached

JDR Pre-trial judge as mediator

Complainant presents his case Reaches a settlement

Fails

Decision

Judgment based on compromise

Refer the case to another judge for trial

Decision

ACM: Appeal to CA

Reaches a settlement

Fails

Decision

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

318

CRIMINAL PROCEDURE Distinction among CAM, JDR and ACM CAM A case eligible for mediation at a First Level Court or RTC during the pre-trial stage is referred by the presiding judge to the Philippine Mediation Center Unit for mediation. Mediation is successful if the parties enter into a Compromise Agreement, and the judge renders a decision based on this agreement. If it fails or the parties refuse to undergo mediation, the case goes back to court for trial.

JDR The mediation process is also in the lower courts and mediation is conducted just like in CAM. If mediation fails or the parties refuse mediation, the case goes back to the judge who does not yet try the case. The judge, acting sequentially as Conciliator, Neutral Evaluator and Mediator or a combination of the three, attempts to convince the parties to settle their case amicably. If the parties still refuse to settle, the case goes back to court for trial.

decide the case on the basis of what was presented by the plaintiff alone. ACM The case has been tried and judgment has been rendered at the lower courts but has been appealed to the CA.

Effect of the referral of the case to CAM and JDR The period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings. Procedure after the parties reached a settlement If full settlement of the dispute is reached, the parties, assisted by their respective counsels, shall draft the compromise agreement which shall be submitted to the court for judgment upon compromise or other appropriate action. Where compliance is forthwith made, the parties shall instead submit a satisfaction of claims or a mutual withdrawal of the case and, thereafter, the court shall enter an order dismissing the case. If partial settlement is reached, the parties shall, with the assistance of counsel, submit the terms thereof for the appropriate action of the court, without waiting for resolution of the unsettled part. Effect of the non- compliance of the other party with the agreement reached The court which approved the compromise agreement must be informed immediately for it to issue an order to comply. Sanctions will be imposed for non-compliance. The aggrieved party may also apply for a writ of execution. Remedy if the case is not resolved during JDR 1.

Duration of mediation in the PMC The Mediator shall have a period of not exceeding 30 days to complete the mediation process. Such period shall be computed from the date when the parties first appeared for the initial conference as stated in the Order to appear. An extended period of another 30 days may be granted by the court, upon motion filed by the Mediator, with the conformity of the parties.

Multiple sala court – If the case is not resolved during the JDR, the case shall be raffled to another branch for the pre- trial proper until judgment. For cases with pending applications for restraining orders/preliminary injunctions, the judge to whom the case was raffled shall rule on the said applications. During the pre-trial stage, the judge refers the case to CAM, but if the parties do not settle at CAM, the case will be raffled to another branch for JDR. If the parties do not settle at JDR, the case will be returned to the branch that ruled on the applications for the pre-trial proper and up to judgment.

Availability of JDR even during trial Cases may be referred to JDR even during the trial stage upon written motion of one or both parties indicating willingness to discuss a possible compromise. If the motion is granted, the trial shall be suspended and the case referred to JDR, which shall be conducted by another judge through raffle in multiple sala courts.

2.

Consequence of failure of one party to participate in mediation Once the court determines that the case is mediatable, the parties are compelled to appear before the PMC unit. If the complainant fails to appear for mediation, the case may be dismissed. If the defendant is absent, the court will then

Single sala court – Unless otherwise agreed upon as provided, the JDR proceedings will be conducted by the judge of the pair court, if any, otherwise, by the judge of the nearest court as determined by the concerned Executive Judge. The JDR proceedings shall be conducted at the station where the case was originally filed. The result of the JDR proceedings shall be referred to the court of origin for appropriate action, e.g. approval of the compromise agreement, trial, etc. Notwithstanding the foregoing, before the commencement of the JDR proceedings, the parties

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REMEDIAL LAW may file a joint written motion requesting that the court of origin conduct the JDR proceedings and trial. 3.

TRIAL RULE 119

Family court – Unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as a family court, shall be conducted by a judge of another branch through raffle. However, if there is another family court in the same area, the family court to whom the case was originally raffled shall conduct JDR proceedings and if no settlement is reached, the other family court shall conduct the pre-trial proper and trial.

Trial The examination before a competent tribunal according to the laws of the land, of facts put in issue in a case for the purpose of determining such issue. After a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. The trial shall commence within 30 days from receipt of pre-trial order (Sec. 1, Rule 119).

Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the family court to which the case was originally raffled shall conduct the JDR proceedings and trial.

NOTE: Under Sec. 7 of the Rule 114, accused is entitled as for right to at least two days to prepare for trial. Denial of this right to prepare is reversible error; the proper remedy from a judgment of conviction under such case is appeal and not certiorari nor habeas corpus (Montilla v. Arellano, G.R. No. 123872, Jan. 30, 1998).

Despite the non-mediatable nature of the principal case, like annulment of marriage, other issues such as custody of children, support, visitation, property relations and guardianship, may be referred to CAM and JDR to limit the issues for trial. 4.

Hearing Hearing is not confined to trial, but embraces several stages of litigation including the pre- trial stage. A hearing does not necessarily imply the presentation of oral or documentary evidence in open court but that the parties are afforded an opportunity to be heard (Republic v. Sandiganbayan, 416 SCRA 133, 2003).

Commercial, intellectual property and environmental courts – Unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as commercial/intellectual property/environmental court, hereafter referred to as special court, shall be conducted by another judge through raffle and not by the judge of the special court. Where settlement is not reached, the judge of the special court shall be the trial judge. Any incident or motion filed before the pre-trial stage shall be dealt with by the special court that shall refer the case to CAM.

Procedure of trial The trial once commenced, shall continue from day to day as far as practicable until terminated. However, it may be postponed for a reasonable period of time for good cause (Sec. 2, Rule 119). NOTE: The granting or refusal of an application for continuance or postponement of the trial lies within the sound discretion of the court and the discretion will not be interfered with by mandamus or by appeal, unless there is grave abuse of discretion.

Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the special courts to which the case was originally raffled shall conduct the JDR proceedings and trial.

Purpose of the continuous trial system The purpose of the system is to “expedite the decision or resolution of cases in the trial courts” considering the mandate of Sec. 12, Art. XVIII of the 1987 Constitution. SC Circular No. 1-89 requires that the “judge shall conduct the trial with utmost dispatch, with judicious exercise of the court's power to control the trial to avoid delay” and that “a strict policy on postponements shall be observed.” NOTE: The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for a trial well defined at pre-trial and the whole proceedings terminated and ready for judgment within 90 days from the date of initial hearing,unless for meritorious reasons an extension is permitted.

Q: Petitioner assails the decision of the CA affirming the decision of the RTC in denying his petition for postponement of the trial on account of the absence of his witnesses to appear during trial. In deciding the case against petitioner, the CA held that the RTC did not act in UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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CRIMINAL PROCEDURE grave abuse of its discretion as the petitioner failed to substantiate his motion for postponement as required by the Rules. Is the CA correct?

3.

A: Yes. As it is a well-settled rule that motions for postponement are addressed to the sound discretion of the court and this discretion would not be interfered with unless it has been clearly abused. In order for the absence of a witness to justify the postponement of a trial, the following must be shown: First, that the witness is really material and appears to the court to be so; second, that the party who applies has been guilty of no neglect; and third, that the witness can be held at the time to which the trial has been deferred, and, incidentally, that no similar evidence could be obtained. Further, the affidavit should contain a statement that the facts to which it is claimed the absent witness would testify cannot be proved by any other witnesses who are available, or by the exercise of diligence, could have been made available to the applicant at the trial (Casilan vs. Gancayco, et. al., G.R. No. L-10525, August 29, 1958).

The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. NOTE: Rebuttal evidence is any competent evidence to explain, repel, counteract or disprove the adversary’s proof. It is receivable only where new matters have been developed by the evidence of one of the parties and is generally limited to a reply to new points.

4.

Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda (Sec. 11, Rule 119).

NOTE: The order of the trial may be modified when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense [Sec. 11(e), Rule 119; Sec 1(e), Rule 118].

Q: What is reverse trial and when may it be resorted to? Explain briefly. (2007 Bar Question)

Q: In an action to declare null and void the order of respondent judge in dismissing the criminal cases, petitioner claims that said judge has lost jurisdiction over the criminal cases by failure of the interested parties to secure a written authority from the Chief Justice of the Supreme Court authorizing the adjournment of the trial thereof beyond the three-month period provided in Rule 22, Sec. 3 of the Revised Rules of Court. Is the petition meritorious?

A: When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial court may allow the accused to present his defense first and thereafter give the prosecution an opportunity to present its rebuttal evidence. A departure from the order of the trial is not reversible error as where it was agreed upon or not seasonably objected to, but not where the change in order of the trial was timely objected by the defense.

A: No. As the applicable rule on adjournments and postponements in criminal cases is found not in Sec. 3, Rule 22 but in Sec. 2, Rule 119. The only limitation expressed in Rule 119 is that the postponement of the trial of a criminal case must be for 'good cause' shown and for such period of the time as 'the ends of justice and the right of the defendant to a speedy trial require. The greater flexibility of the rule on postponements in criminal actions was obviously based on the criterion in the early case of U.S. v. Ramirez that the trial court is in criminal proceedings "the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial, nor for light causes jeopardize the rights or interests of the public" and that "the discretion which the trial court exercises must be judicial and not arbitrary" consistent with the ends of justice and the granting of sufficient time and opportunity to both prosecution and defense to present their witnesses and the right of the accused to a speedy trial (People vs. Catolico, 38 SCRA 389, 1971).

Where the order of the trial set forth was not followed by the court to the extent of denying the prosecution an opportunity to present evidence, the judgment is a nullity. If there is not enough evidence to prove the accused’s guilt beyond reasonable doubt, then the defense should file demurrer to evidence. Right and opportunity to adduce additional evidence If the judge is not satisfied with the evidence adduced in criminal cases, he may, on his motion, call witnesses or recall some of the same witnesses for the purpose of satisfying his mind with the reference to particular facts involved in the case. Case deemed submitted for decision Upon the admission of the parties’ evidence-in-chief, rebuttal and sur-rebuttal proof, the case is deemed submitted for decision unless the court directs them to argue their respective memoranda.

Order of trial in criminal cases In criminal cases, unless the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial shall proceed in the following order: 1. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. 2. The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of a provisional remedy in the case.

INSTANCES WHEN PRESENCE OF THE ACCUSED REQUIRED Instances when presence of the accused is required 1. 2.

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Upon arraignment and in entering plea; During trial when his presence is necessary for the purpose of identification; UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3. 4.

Upon promulgation of judgment except for light offenses When the court with due notice requires so (People v. Joven De Grano, et. al, GR No. 167710, June 5, 2009).

b.

Time limit for the trial of criminal cases GR: Trial shall not exceed 180 days from the first day of trial. XPNs: 1. Those governed by the rules on summary procedure; 2. Those where the penalty prescribed by law does not exceed 6 months imprisonment or a fine of P1,000 or both; and 3. Those authorized by the Chief Justice of the SC (Sec. 6, RA 8493, Speedy Trial Act).

2. 3.

NOTE: Commencement of trial may be extended based on the following conditions: 1. For the 180 days, for the first 12 calendar month period from the effectivity of the law. 2. 120 days for the second 12 month period. 3. 80 days for the third 12 month period (Sec. 9, RA 8493).

4.

Effect of court's failure to comply with the mandates of the Speedy Trial Act to terminate the case within the 180 day period

5.

The judge may be charged administratively, or may be fined, suspended or removed unless his failure to comply with the speedy trial act is for reasons not attributable to him.

6.

Cases where the time limitation is inapplicable 1. 2. 3. 4.

When the offended party is about to depart with no definite date of return; Child abuse cases (Sec. 32, RA 7610 or The Child Abuse Act); Violations of Dangerous Drugs Law; and Kidnapping, robbery by a band, robbery against banking or financial institution, violation of Carnapping Act and other heinous crimes (Herrera, 2007).

Q: In a petition assailing the validity of the order of the trial court, the petitioner insists that the judge acted with grave abuse of discretion when it dismissed the criminal case against the accused on the ground that that the 30day time limit set by Rule 119 had been breached. It is, further, claimed by the petitioner that their pending petition for transfer of venue should interrupt proceedings and, therefore, halt the running of the 30-day time limit. Is the petition meritorious?

Duties of the Presiding Judge under the continuous trial system 1. 2. 3. 4.

Adhere faithfully to the session hours prescribed by laws; Maintain full control of the proceedings; Effectively allocate and use time and court resources to avoid court delays; and Continuous trial on a weekly or other short-term trial calendar at earliest possible time.

A: No. As the delay that may be excluded from the time limit in Sec. 3 of Rule 119 within which trial must commence are those resulting from proceedings concerning the accused. The time involved in the proceedings in a petition for transfer of venue can only be excluded from said time limit if it was the accused who instituted the same. Further, the petition for transfer of venue cannot interrupt proceedings unless a TRO or writ of preliminary injunction has been issued in accordance with Sec. 7 of Rule 65 as said petition is akin to a petition for certiorari (Mari vs. Gonzales, G.R. No. 187728, September 12, 2011).

Exclusions in computation of time within which trial must commence 1.

Any periods of delay resulting from other proceedings concerning the accused, including but not limited to the following: a. Examination of the physical and mental condition of the accused; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Proceedings with respect to other criminal charges against the accused; c. Extraordinary remedies against interlocutory orders; d. Pre-trial proceedings; provided, that the delay does not exceed 30 days; e. Orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; f. A finding of the existence of a prejudicial question; g. Reasonably attributable to any period, not to exceed 30 days, during which any proceeding concerning the accused is actually under advisement. Any period of delay resulting from the absence or unavailability of an essential witness; Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial; If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge; A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted; and Any period of delay resulting from a continuance granted by any court motuproprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial (Sec. 3, Rule 119).

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CRIMINAL PROCEDURE Factors to be considered for granting continuance

3.

Whether or not: 1. The failure to grant continuance would make a continuation of the proceeding impossible or result in a miscarriage of justice; or 2. The case, as a whole, is novel, unusual and complex, or it is unreasonable to expect adequate preparation within the periods of time established therein (Sec. 4, Rule 119).

4.

Examination of defense witness v. Examination of prosecution witness before trial Examination of Defense Witness The accused may have his witness examined conditionally in his behalf before trial upon motion with notice to all other parties. Grounds: 1. Witness is so sick to afford reasonable ground to believe that he will not be able to attend the trial. 2. He resides more than 100 kilometers and has no means to attend the same. 3. Other similar circumstances exist that would make him unavailable or prevent him from attending trial (Sec. 12, Rule 119). Conducted before any judge, member of bar in good standing or before any inferior court. No right to cross examine.

Prohibited grounds for a continuance 1. 2.

Congestion of the court’s calendar or due to lack of diligent preparation; Failure to obtain available witnesses on the part of the prosecutor (Sec. 4, Rule 119).

Time limit following an order for new trial GR: If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within 30 days from notice of order. XPN: If the 30-day period becomes impractical due to unavailability of the witnesses and other factors, it may be extended by the court but in no case should it exceed 180 days from notice of said order for new trial(Sec. 5, Rule 119). Duties of the public attorney when the accused is imprisoned It shall be his duty to do the following: 1. Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advice the prisoner of his right to demand trial. 2. Upon receipt of that notice, the custodian of that prisoner shall promptly advice the prisoner of the charge and of his right to demand trial. If at any time thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney. 3. Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. 4. When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made available accordingly(Sec. 7, Rule 119).

2.

Examination of Prosecution Witness Conducted in the presence of the accused unless he waived his right after reasonable notice.

Grounds: 1. The witness is too sick to appear at trial. 2. He has to leave the Philippines with no definite date of return (Sec. 15, Rule 119);

Conducted only before the judge or the court where the case is pending. Right to cross-examine. Hence such statements of the prosecution witnesses may thereafter be admissible in behalf of or against the accused.

May be made if the witness resides more than 100 km from the place of trial (Secs. 13 and 15, Rule 119). Deposition It is the testimony of a witness taken upon oral questions or written interrogatories, in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated and intended to be used in preparation and upon the trial of a civil or criminal prosecution.

Acts of the counsel, attorney, or prosecutor which would warrant a sanction 1.

Knowingly makes a false statement in order to obtain continuance which he knows to be false and which is material to the granting of a continuance; and Willfully fails to proceed to trial without justification (Sec. 8, Rule 119).

Knowingly allowing the case to be set on trial without disclosing that a necessary witness would be unavailable for trial; Files a motion solely for delay, knowing it to be frivolous and without merit;

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REMEDIAL LAW Purposes of taking deposition 1. 2. 3.

4.

5. 6. 7. 8.

TRIAL IN ABSENTIA

Greater assistance to the parties in ascertaining the truth and checking and preventing perjury; Provide an effective means of detecting and exposing false, fraudulent claims and defenses; Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with greater difficulty; Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements, Expedite litigation; Prevent delay; Simplify and narrow the issues; and Expedite and facilitate both preparation for and trial.

Trial in absentia Sec. 14 (2), Art. III of the Constitution provides that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable (Parada v. Veneracion, A.M. No.RTJ96-1353, March 11, 1997). Requisites of trial in absentia 1. 2. 3.

Conduct of trial for several accused

The accused has been arraigned; He has been notified of the trial; and His failure to appear is unjustified [Sec. 14(2), Art. III, 1987 Constitution of the Phiippines; Bernardo v. People, 520 SCRA 332, April 4, 2007].

Effects of trial in absentia

GR: When two or more persons are jointly charged with an offense, they shall be tried jointly. This rule is so designed as to preclude a wasteful expenditure of judicial resources and to promote an orderly and expeditious disposition of criminal prosecutions. XPN: The court, upon motion of the prosecutor or any of the defendants, may order a separate trial for one or more accused(Sec. 16, Rule 119).

The accused waives the right to present evidence and crossexamine the witnesses against him. The accused’s waiver does not mean, however, that the prosecution is deprived of the right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial.

NOTE: In the interest of justice, a separate trial may be granted even after the prosecution has finished presenting its evidence in chief (Joseph v. Villaluz, G.R. No. L-45911, April 11, 1979). If a separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter. In joint trial, it would be admissible if the latter had an opportunity for cross-examination.

Q: Assailing the validity of the decisions of both trial and appellate court, the petitioner questions the decisions of both courts convicting him for violation of BP 22 on the ground that he was denied due process of law as the trial court proceeded with his trial and promulgated the assailed decision in absentia. Is the petition meritorious?

REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS

A: No. The holding of trial in absentia is authorized by law. Under Sec. 14 (2), Art. III of the 1987 Constitution, “after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.” The failure of the accused to appear before the court in spite of notice has been considered a waiver of their right to be present at their trial, and the inability of the court to notify them of the subsequent hearings did not prevent it from continuing with their trial. They were deemed to have received notice. Thereafter, the trial court had the duty to rule on the evidence presented by the prosecution against all the accused and to render its judgment accordingly (Bernardo vs. People, G.R. No. 166980, April 4, 2007).

Requisites before a trial can be suspended on account of the absence of a witness 1. 2. 3.

4.

Witness is material and appears to the court to be so; Party who applies has been guilty of no neglect; Witnesses can be had at the time to which the trial is deferred and no similar evidence could be obtained; and Affidavit showing the existence of the above circumstances must be filed.

Remedies of the accused when a prosecuting officer without just cause secures postponements of the trial against his protest beyond a reasonable period of time 1. 2.

REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD

Mandamus to compel a dismissal of the information; or If he is restrained of his liberty, by habeas corpus to obtain his freedom.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Remedy if accused is not brought to trial within the prescribed period If the accused is not brought to trial within the time limit required by Sec. 1(g), Rule 116, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial (Sec. 9, Rule 117).

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CRIMINAL PROCEDURE NOTE: The dismissal shall be subject to the rules on double jeopardy (Ibid.).

3.

Burden of proving the motion

The testimony of the accused sought to be discharged must be susceptible of substantial corroboration in its material points. An example of this is where the testimony of the discharged witness was amply supported by the fact that various articles of the stolen property were found secreted in the place where he indicated them to be (U.S. vs. Mananquil, 25 Phil. 75).

The accused has the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under Sec. 3, Rule 117 (Ibid.). Failure of the accused to move for dismissal prior to trial 4.

The failure of the accused shall constitute a waiver of the right to dismiss under Sec. 9, Rule 117.

3. 4.

Ask for the trial of the case; Unreasonable delay of the trial of a criminal case as to make the detention of defendant illegal gives ground for habeas corpus as a remedy for obtaining release; Mandamus proceeding to compel the dismissal of the information; or Ask for the trial of the case and then move to dismiss (Gandicela v. Lutero, G.R. No. L-4069, March 5, 1951).

5.

State witness He is one of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the State (People v. Ferrer, G.R. No. 102062, March 14, 1996).

Persons who may avail the Program of Witness Protection, Security and Benefit Act (RA 6981) Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program, provided that: 1. The offense in which his testimony will be used is a grave felony as defined under the RPC, or its equivalent under special laws; 2. His testimony can be substantially corroborated in its material points; 3. He or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and 4. He is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under this Act (Sec. 3, RA 6981).

Requisites before an accused may become a State witness There is absolute necessity for the testimony of the accused whose discharge is requested; The discharge or exclusion of a co-accused from the information in order that he may be utilized as state witness is expedient that must be availed of only when there is absolute necessity for the testimony of the accused whose discharge is requested, and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution (People v. Borja, 106 Phil. 1111). 2.

Said accused has not at any time been convicted of any offense involving moral turpitude (Sec. 17, Rule 119). Moral turpitude includes any act done contrary to justice, honesty, modesty or good morals. It is an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellowmen and to society in general contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.

REQUISITES FOR THE DISCHARGE OF THE ACCUSED TO BECOME A STATE WITNESS

1.

Said accused does not appear to be the most guilty; and The discharged defendant need not be the least guilty; all the law requires, in order to discharge an accused and to use him as a state witness, is that the defendant whose exclusion is requested does not appear to be the most guilty, not necessarily that he was the least guilty (People vs. Faltado, 84 Phil. 89).

Remedies available to the accused when his right to speedy trial is violated 1. 2.

The testimony of said accused can be substantially corroborated in its material points;

There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused; It is essential, before a defendant is discharged from the information for the purpose of utilizing him as a witness for the government, that there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused (U.S. vs. Mandangan, 52 Phil. 62).

Q: Petitioner claims that the public respondent judge erred when it ordered the discharge of private respondents as state witnesses when the latter were already charged along with the other accused, including

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REMEDIAL LAW him, before they were admitted to the Witness Protection under RA 6981. Petitioner argues that if this were to be allowed, the same is tantamount to permitting the prosecution to supplant with its own the court’s exercise of discretion on how a case over which it has acquired jurisdiction, will proceed. Is the petition meritorious?

be inadmissible in evidence (People v. Feliciano, G.R. No. 136258, October 10, 2001). XPNs: 1. When the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of his discharge (Sec. 18, Rule 119). 2. Failure to testify refers exclusively to defendant’s will or fault, 3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him (People v. Beberino GR No L-23213 October 28, 1977).

A: No. The discharge of an accused under RA 6981 is separate and distinct from Rule 119. Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. The Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. RA 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime. What is only required under RA 6981 is compliance with Sec. 14 of Rule 110 requiring that the exclusion of the accused be made only upon motion by the prosecutor, with notice to the offended party and with leave of court (Yu vs. Judge RTC of Tagaytay City, G.R. No. 142848, June 30, 2006).

NOTE: Discharge under this rule is only one of the modes to be a State witness. Other modes are: 1. The Witness Protection Program of RA 6981; 2. The power of the Ombudsman to grant immunity under Sec. 17, RA 6770; 3. Immunity under PD 749; 4. Immunity under EO 14-A; 5. Immunity under the Comprehensive Dangerous Drugs Act of 2002, RA 9165; and 6. Immunity and Protection under the Human Security Act of 2007, RA 9372.

Q: Is the discharge of an accused as a state witness necessary before the prosecution be allowed to present him as a prosecution witness? A: No. As there is nothing in the rules that require that the accused be discharged first as a state witness before he becomes a prosecution witness. While it is true that an accused cannot be made a hostile witness for the prosecution, for to do so would compel him to be a witness against himself, he may, however, testify against a codefendant where he has agreed to do so, with full knowledge of his right and the consequences of his acts. There is a difference between testifying as state witness and testifying as a co-accused. In the first, the proposed state witness has to qualify as a witness for the state, after which he is discharged as an accused and exempted from prosecution. In the second, the witness remains an accused and can be made liable should he be found guilty of the criminal offense (People vs. Chaves, G.R. No. 131377, February 11, 2003).

Effects when the discharged accused retracts or fails to comply with his part of the agreement If the retraction or failure to testify is solely his fault, his confession of his participation in the commission of the crime is admissible as evidence (People v. Beberino, G.R. No. L-23092, October 28, 1977). Witness Protection Program v. Sec. 17, Rule 119 of the Rules of Court Witness Protection Program The offense in which the testimony is to be used is limited only to grave felony under the RPC or its equivalent under special law. Any member of the family of the person applying for admission within the second civil degree of consanguinity or affinity is subjected to threat of his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying or to testify falsely or evasively on account of his testimony. The witness applying is not a law enforcement officer.

Period for the application for discharge of the state witness It should be made upon motion of the prosecution before resting its case. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS Effects of the order discharging the accused as a State witness GR: 1.

2.

3.

Discharge of accused operates as an acquittal and bar to further prosecution for the same offense (Sec. 18, Rule 119) Evidence adduced in support of the discharge shall automatically form part of the trial (People v. Feliciano, G.R. No. 136258, October 10, 2001); and If the court denies the motion to discharge the accused as State witness, his sworn statement shall UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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Rules of Court It has no qualification. It applies to all felonies.

This is not required.

There is no such limitation. One can be discharged as a

CRIMINAL PROCEDURE

The immunity is granted by DOJ. The witness is automatically entitled to certain rights and benefits. The witness need not be charged elsewhere. No information may thus be filed against the witness.

NOTE: A demurrer to evidence is actually a motion to dismiss that is filed by the accused after the prosecution has rested its case (1994 Bar Question).

witness whether he is a law enforcement officer or not. The immunity is granted by the court.

Rule on demurrer to evidence How made

The witness so discharged must still apply for the enjoyment of said rights and benefits in the DOJ. He is charged in court as one of the accused as stated in the information. The charges against him shall be dropped and the same operates as an acquittal.

When made Ground Effect

NOTE: Both require that there is absolute necessity for the testimony and that there is no other direct evidence available for the prosecution of the offense committed.

1. Court on its own initiative; or 2. Upon filing of the accused for demurrer of evidence: a. With leave of court; or b. Without leave of court. After the prosecution rests its case. Insufficiency of evidence The court may dismiss the case (Sec. 23, Rule 119).

NOTE: If the demurrer is sustained by the court, the order of dismissal is tantamount to an acquittal, hence it is NOT appealable. On the other hand, the order of denial of the demurrer to evidence is not reviewable by appeal or certiorari before judgment, unless the denial is attended by grave abuse of discretion, in which case such denial may be assailed through a petition for certiorari.

Rule when the discharge of an accused operates as an acquittal GR: The discharge of the accused shall amount to an acquittal and shall be a bar to future prosecution for the same offense.

Effect of filing a demurrer with leave of court v. Filing a demurrer without leave Demurrer With Leave of Court If leave of court is denied, the accused may proceed with presenting his evidence.

XPN: If the accused fails or refuses to testify against his coaccused in accordance with his sworn statement constituting the basis of the discharge (Sec. 18, Rule 119). Remedy when mistake has been made in charging the proper offense When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears to be a good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the case upon filing of the proper information (Sec. 19, Rule 119).

The motion for leave of court to file a demurrer to evidence shall specifically state its grounds and shall be filed within a nonextendible period of 5 days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of 5 days from its receipt.

NOTE: This rule is predicated on the fact that an accused has the right to be informed of the nature and cause of the accusation against him, and to convict him of an offense different from that charged in the complaint or information would be an unauthorized denial of that right.

Demurrer Without Leave of Court If demurrer to evidence is denied, it is tantamount to a waiver of the accused’s right to present evidence and as a consequence the case will be submitted for judgment on the basis of the evidence for the prosecution. If demurrer to evidence is consequentially granted, the case will be dismissed, and will result to an acquittal of the accused (Goodland v. Co and Chan, G.R. 196685, December 14, 2011).

DEMURRER TO EVIDENCE If leave of court is granted, the accused may file the demurrer to evidence within 10 days. The prosecution may however, oppose the demurrer to evidence within a nonextendible period of 10 days from the receipt of the demurrer (Sec. 23, Rule 119).

Demurrer to evidence It is an objection by one of the parties in an action to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue (Nicolas v. Sandiganbayan, 544 SCRA 324, February 11, 2008).

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REMEDIAL LAW JUDGMENT RULE 120

Purpose of leave of court To determine whether or not the defendant in a criminal case has filed the demurrer merely to stall the proceedings (People v. Mahinay, G.R. No. 109613, July 17, 1995).

Judgment It is adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability, if any. It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and is regarded as the sentence of the law pronounced by the court on the action or question before it (Sec. 1, Rule 120).

Demurrer to evidence v. Motion to dismiss Demurrer to Evidence Assumes that the prosecution has already rested its case filed by the accused with or without leave of court and submits the case for judgment on the evidence of the prosecution.

It may be filed in good faith with or without leave of court.

Motion to Dismiss It is based on the denial of the accused’s right to speedy trial characterized by unreasonable, vexatious and oppressive delay without fault of the accused, or by unjustified statements that unreasonably prolonged the trial. It is filed without leave of court and before the prosecution has rested its case.

Difference between a judgment and a ratio decidendi A judgment pronounces the disposition of the case; while a ratio decidendi provides the basic reason for such determination. Final order It disposes of the whole subject matter or terminates a particular issue leaving nothing to be done but to enforce by execution what has been determined. Interlocutory order It is issued by the court when the proceeding is not yet terminated because not all matters of the proceedings have been finished. REQUISITES OF A JUDGMENT It must be: 1. Written in official language; 2. Personally and directly prepared by the judge; 3. Signed by the judge; and 4. Contain clearly and distinctly a statement of the facts and the law upon which it is based (Sec. 1, Rule 120). NOTE: The jurisdictional requirements before a judgment may be validly rendered are jurisdiction over the subject matter, territory and the person of the accused (Antiporda, Jr. v. Garchitorena, 321 SCRA 551).

CONTENTS OF JUDGMENT Contents of judgment The judgment must state: 1. If of conviction a. Legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending its commission; b. Participation of the accused whether as principal, accomplice or accessory; c. Penalty imposed upon the accused; and d. Civil liability or damages caused by the wrongful act or omission unless a separate civil action has been reserved or waived (Sec. 2, Rule 120). 2. If of acquittal

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CRIMINAL PROCEDURE a.

b.

constitutional right of the accused to be informed of the nature of the offense charged against him (Herrera, 2007).

Whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt; and In either case, the judgment shall determine if the act or omission from which the civil liability might arise did exist (Sec. 2, Rule 120).

Effect of the judgment of conviction upon a minor GR: The courts shall promulgate the sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to PD 603 or the Child and Youth Welfare Code. In which case, the child shall have been committed under the care of the DSWD or any other accredited government institution until he reaches the age of 21 or until the court so determines (Sec. 40, RA 9344, Juvenile Justice and Welfare Act of 2006).

Q: Can the courts impose penalties in the alternative? A: No. It is true that under many of the provisions of the penal law, the court has the discretion or alternative of imposing one or another of different penalties; but certainly it cannot be argued that, because the judge has the discretion of fixing one or another penalty, he can impose both in the alternative. He must fix positively and with certainty the particular penalty (U.S. vs. Chong Ting, 23 Phil. 120).

XPNs: There is no suspension of sentence when such minor offender: 1. Has enjoyed previous suspension of sentence; 2. Is convicted of a crime punishable by death or life imprisonment; 3. Is convicted by a military tribunal; or 4. Is already of age at the time of sentencing even if he was a minor at the time of the commission of the crime (Declarador v. Gubaton, G.R. No. 159208, August 18, 2006).

Award of indemnity to offended party in spite of acquittal In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment must make a finding on the civil liability of the accused in favor of the offended party(Sec. 2, par. 2, Rule 120).

Rule if the minor already reached the age of majority upon the promulgation of his sentence

NOTE: The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration that the facts from which the civil liability might arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt (PNB vs. Catipon, 98 Phil. 286).

He is no longer entitled to the suspension of sentence. However, the time he spent during the period of his confinement shall be credited to his actual service of sentence. Furthermore, he shall still be entitled to the privileged mitigating circumstance of minority (People v. Francisco, G.R. No. 102976, October 25, 1995; RA 9344, Juvenile Justice and Welfare Act of 2006).

Judgment for two or more offenses charged in the complaint or information 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 of each offense, setting out separately the findings of the fact and law in each offense (Sec. 3, Rule 120).

PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA Promulgation of judgment It is the official proclamation or announcement of judgment. It is promulgated by reading it in the presence of the accused and any judge of the court which it was rendered, or when the judgment is one of conviction for a light offense, in the presence of the defendant’s counsel or representative (Sec. 6, Rule 120).

NOTE: Failure of the accused to object to the duplicity of offense charged in the complaint or information, is deemed a waiver thereof (Herrera, 2007).

Variance between the offense charged and proved GR: An accused can be convicted of an offense only when it is both charged and proved; if it is not charged although proved, or if it is not proved although charged, the accused cannot be convicted thereof.

NOTE: A judgment or sentence does not become a judgment or sentence in law until the same has been read or announced to the defendant or has become a part of the record of the court (U.S. vs. CFI of Manila, 24 Phil. 321).

XPN: Where there is a variance between the offense charged in the complaint or information and that proved AND the offense as charged is included in or is necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved (Sec. 4).

Authority to promulgate the judgment GR: The judge of the court who renders the judgment. XPNs: When: 1. The judge is absent or outside the province or city – Judgment may be promulgated by the clerk of court; and

NOTE: An accused cannot be convicted of an offense not charged or included in the information for this will be in violation of the

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REMEDIAL LAW 2.

Accused is confined or detained in another city – Judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention (Sec. 6, Rule120).

warden to hold the accused in accordance with the terms of judgment.

NOTE: Where there is not merely physical absence of the judge who penned the decision, but the cessation or termination of his incumbency as such judge, there is no judgment validly entered in such a case (Ong Siu vs. Paredes, 17 SCRA 661).

A finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case upon motion of the accused on the ground that the evidence fails to show beyond reasonable doubt that the accused is guilty.

Acquittal

Q: Is the presence of the accused indispensable in the promulgation of judgment? A: No. The promulgation shall still be made by: (1) recording such judgment in the criminal docket, and (2) serving him a copy thereof in his last known address or through his counsel. If judgment is one of conviction and the accused is absent without justifiable cause, the court shall order his arrest and he shall lose the remedies available in the rules against judgment and his bail shall be forfeited.

NOTE: It is well settled that acquittal, in a criminal case is immediately final and executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy (Barbers v. Laguio Jr., AM No. RTJ-001568, February 15, 2001).

Reasonable doubt The state of the case which, after full consideration of all evidence, leaves the mind of the judge in such a condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge.

However, the accused may surrender and file a motion for leave of court to avail of these remedies within 15 days from the promulgation of judgment. If such motion is granted, he may avail of these remedies within 15 days from notice of such order granting the motion (Sec. 6, Rule 120). He must however, state the reasons for his absence at the promulgation and prove that his absence was for a justifiable cause.

FINALITY OF JUDGMENT Finality of judgment 1.

Instances when judgment may be promulgated even if the accused is not present 1. 2.

3.

After the lapse of time for perfecting an appeal NOTE: In case of death penalty is imposed, theCA shall automatically review the judgment before it becomes final.

A judgment of acquittal. Judgment is for a light offense, in which case judgment may be promulgated in the presence of the counsel for the accused or a representative. Accused fails to attend the promulgation despite due notice or if he jumped bail or escaped from prison. Notice must be given to the bondsmen, warden, accused’s bailor and counsel (Sec. 6, Rule 120).

2. 3. 4.

When the sentence has been partially or totally satisfied. When the accused has expressly waived in writing his right to appeal. When the accused has applied for probation (Sec. 7, Rule 120).

Instances when the trial court loses jurisdiction even before the lapse of the 15 day period to appeal

Rule on modification of judgment

1.

A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected (Sec.7, Rule 120).

2. 3. 4. 5.

NOTE: A judgment of acquittal becomes final immediately after promulgation and cannot be recalled for correction or amendment (People vs. Sison,105 Phil. 1248).

The defendant voluntarily submits to the execution of the judgment; When the defendant perfects an appeal; Defendant withdraws his appeal; Accused expressly waives in writing his right to appeal; Accused files for probation. ENTRY OF JUDGMENT

Remedy when the judgment fails to award civil liability 1. 2. 3.

The recording of the judgment or order in the book of entries of judgments shall constitute its entry. The record shall contain the dispositive part of the judgment order and shall be signed by the clerk, with a certificate that such judgment or order has become final and executory (Sec. 2, Rule 36).

Appeal; Certiorari; or Mandamus

Mittimus It is a process issued by the court after conviction to carry out the final judgment, such as commanding a prison

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CRIMINAL PROCEDURE EXISTING PROVISIONS ON SUSPENSION OF SENTENCE OF YOUTHFUL OFFENDERS

NEW TRIAL OR RECONSIDERATION RULE 121

GR: Once the child is under 18 years of age at the time of the commission of the offense charged, the Court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the Court shall place the child in conflict with the law under suspended sentence without need of application. Suspension of sentence shall still be applied if the juvenile is already 18 years of age or more at the time of the pronouncement of his/her guilt (Sec. 38, RA 9344).

GROUNDS Motion for New Trial v. Motion for Reconsideration New trial Rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken. Grounds: 1. Errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial. 2. New and material evidence has been discovered which the accused could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted would probably change the judgment (Sec. 2, Rule121). 3. Other grounds which the court may consider in the exercise of its jurisdiction : a. Negligence or incompetency of counsel or mistake which is so gross amounting to deprivation of the substantial rights of the accused and due process (Aguilar v. CA GR No. 114282, November 28, 1995); b. Recantation of a witness where there is no evidence sustaining the judgment of conviction other than the testimony of such witness (Tan Ang Bun v. CA GR No. L- 47747, February 15, 1990); c. Improvident plea of guilty which may be withdrawn; d. Disqualification of attorney de officio to represent accused in trial. e. Interest of justice (Sec. 6, Rule 121).

XPNs: 1. Offender has enjoyed previous suspension of sentence. 2. Offender is convicted of crime punishable by death or life imprisonment. 3. Offender is convicted by military tribunal. 4. Offender is already of age at the time of sentencing even if he was minor at the time of the commission of the crime. EXISTING PROVISIONS ON PROBATION Probation The court may, after it shall have convicted and sentenced a defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and conditions it may deemed best. No application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction (Sec. 4, PD 968 as amended). Offenders who are disqualified from probation 1. 2. 3.

4. 5.

Those sentenced to serve a maximum term of imprisonment of more than 6 years. Those charged with subversion or any crime against national security or public order. Those previously convicted by final judgment of an offense punished by imprisonment not less than one month and one day and/or a fine not less than two hundred pesos. Those who have been once on pardon. Those who are already serving sentence at the time the Probation Law of 1976 became applicable (Sec. 9, PD 968 as amended).

Reconsideration May be filed in order to correct errors of law or fact in the judgment. It does not require any further proceeding.

Grounds: 1. Errors of law; or 2. Errors of fact (Sec. 3, Rule121). NOTE: The principle underlying this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from being taken. The grant by the court of reconsideration should require no further proceedings, such as taking of additional proof.

Period to file an MNT or MR It should be filed with the trial court within 15 days from the promulgation of the judgment. If an appeal has already

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REMEDIAL LAW been perfected, a motion for new trial on the ground of newly discovered evidence maybe filed in the appellate court.

Recantation The public and formal withdrawal by a witness of his prior statement (People v. Ballabare, G.R. No. 108871, November 19, 1996).

REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE

Recantation v. Desistance Requisites before a new trial may be granted on the ground of newly discovered evidence (Berry Rule) 1. 2.

3. 4.

Recantation A witness who previously gave a testimony subsequently declares that his statements are untrue publicly (People v. Ballabare, G.R. No. 108871, November 19, 1996). GR: It is not a ground for granting a new trial and are hardly given weight

The evidence was discovered after trial; Such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; It is material, not merely cumulative, corroborative or impeaching; and The evidence is of such a weight that it would probably change the judgment if admitted (Herrera, 2007).

NOTE: A new trial may be granted at any time before the judgment of conviction becomes final: 1. On motion of the accused. 2. On motion of the court but with consent of the accused.

XPN: When there is no evidence sustaining the judgment of conviction other than the testimony of the recanting witness (Tan Ang Bun v. CA, G.R. No. L47747, February 15, 1990).

Q: May errors or ignorance of counsel be a ground for new trial or reconsideration? A: GR: Mistakes or errors of counsel in the conduct of his case are not grounds for new trial. This rule is the same whether the mistakes are the result of ignorance, inexperience, or incompetence.

Affidavit of Desistance The complainant states that he did not really intend to institute the case and he is no longer interested in testifying or prosecuting.

It is not by itself a ground for dismissal of the action (People v. Ramirez, G.R. Nos. 150079-80, June 10, 2004). It is merely an additional ground to buttress the defense and not a sole consideration for acquittal (People v. Ballabare, G.R. No. 108871, November 19, 1996).

EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION

XPN: If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case(Abrajano v. CA, G.R. No. 114282, October 13, 2000).

Effects of granting a new trial or reconsideration

Form of a motion for new trial or reconsideration

1.

Errors of law or irregularities committed during the trial a. All proceedings and evidence not affected by such errors and irregularities shall stand; b. Those affected shall be set aside and taken anew; and c. In the interest of justice, the court may allow the introduction of additional evidence.

2.

Newly discovered evidence a. The evidence already taken shall stand; b. Newly discovered and other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record (Sec. 6, Rule121).

In all cases, when the court grants a new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. In addition, when new trial is granted on the ground of:

The motion must: 1. Be in writing; 2. Be filed in court; 3. State the grounds on which it is based; and 4. If the motion for new trial is based on newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is expected to be given or duly authenticated copies of documents which it is proposed to introduce in evidence (Sec. 4, Rule 121). NOTE: While the rule requires that an affidavit of merit be attached to support a motion for new trial based on newly discovered evidence, the rule also allows that the defect of lack of merit may be cured by the testimony under oath of the defendant at the hearing of the motion(Paredes v. Borja, G.R. No. L-15559, November 29, 1961).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

NOTE: The effect of granting a new trial is not to acquit the accused of the crime of which the judgment finds him guilty but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been had before.

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New trial v. Reopening of the case New Trial Filed after judgment is rendered but before the finality thereof. Made by the court on motion of the accused or at its own instance but with the consent of the accused.

APPEAL RULE 122

Re-opening of the Case Made by the court before the judgment is rendered in the exercise of sound discretion. Does not require the consent of the accused; may be at the instance of either party who can thereafter present additional evidence.

Appeal It is a proceeding for review by which the whole case is transferred to the higher court for a final determination. It is not an inherent right of a convicted person. The right of appeal is statutory. Only final judgments and orders are appealable. Parties who may avail of appeal Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy (Sec. 1, Rule 122).

APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES Effect of filing a motion for new trial or reconsideration on the period of perfecting an appeal

Period to take an appeal

A fresh period of 15 days to appeal is counted from the denial of the motion for reconsideration or new trial (Neypes v. CA, G.R. No. 141524, September 14, 2005).

It must be taken within 15 days from promulgation of judgment or from notice of final order appealed from (Sec. 6, Rule122).

Q: Does the “fresh period rule” apply to criminal cases?

WHERE TO APPEAL

A: Yes. 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. The Court held in the case of Yu v. Samson-Tatad,G.R. No. 170979, February 9, 2011 that the pronouncement of a “fresh period” to appeal should equally apply to the period for appeal in criminal cases under Sec. 6 of Rule 122, for the following reasons:

Courts where appeal is taken

1.

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.

5.

The provisions of Sec. 3 of Rule 41 of the 1997 Rules of Civil Procedure and Sec. 6 of Rule 122 of the Revised Rules of Criminal Procedure mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned – the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed.

A: GR: No. The accused would be subjected to double jeopardy.

While the Court did not consider in Neypes the ordinary appeal period in criminal cases under Sec. 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 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 Sec. 3 of Rule 122 of the Revised Rules of Criminal Procedure.

3.

2.

3.

1. 2. 3. 4.

RTC, in cases decided by the MTC, MTCC, MeTC, or MCTC; CA or to the SC in the proper cases provided by law, in cases decided by the RTC; SC, in cases decided by the CA(Sec. 2, Rule122); SC, in cases decided by CTA en banc (Sec. 1 Rule 116 A.M. No. 05-11-07-CTA); SC, in cases decided by Sandiganbayan (Sec. 1 Rule 45).

Q: May the prosecution appeal a judgment of acquittal?

XPNs: 1. If the dismissal is made upon motion or with the express consent of the accused. XPNs to the XPN: a. Insufficiency of the prosecution evidence; or b. Violation of the accused’s right to speedy trial. 2.

4.

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If the dismissal is not an acquittal or based upon consideration of the evidence on the merits; If the question is purely legal so that should the dismissal be found incorrect, the case shall be remanded for further proceedings to determine the guilt or innocence of the accused; and If there is a showing of grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari under Rule 65 may be available

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002) Procedure of an appeal Appeal to RTC CA

SC

From decision of MTC RTC 1. Exercising its original jurisdiction for offenses with imposable penalties less than reclusion perpetua or life imprisonment. 2. Exercising its appellate jurisdiction. 3. Where the imposable penalty is: a. life imprisonment or reclusion perpetua; or b. a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable reclusion perpetua or life imprisonment. 4. Where the imposable penalty is death. 1. All other appeals except: a. Decision of RTC where the imposable penalty is life imprisonment or reclusion perpetuaor a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable by reclusion perpetua or life imprisonment; and b. Decisions of RTC imposing the penalty of death. 2. CA a. When it finds that death penalty should be imposed. b. Where it imposes reclusion perpetua, life imprisonment or a lesser penalty. 3. Sandiganbayan a. Exercising its appellate jurisdiction for offenses where the imposable penalty is reclusion perpetua or life imprisonment.

1. 2. 1. 2.

How taken File a notice of appeal with the MTC; Serve a copy of the notice to the adverse party. File a notice of appeal with the RTC; Serve a copy of the notice to the adverse party.

File a petition for review under Rule 42. 1. File a notice of appeal with the RTC; 2. Serve a copy of the notice to the adverse party.

Automatic review to CA (Sec. 10, Sec. 122). Petition for review on certiorari via Rule 45.

Automatic review (Sec. 13, Rule 124).

Notice of appeal (Sec. 13, Rule 124). File a notice of appeal

b.

Exercising its original jurisdiction for offenses where the imposable penalty is reclusion perpetua and life imprisonment.

File a notice of appeal (Sec. 13, Rule 124; Sec. 5, PD 1606 as amended by RA 8249).

c.

Cases not falling in paragraphs (a) and (b) above.

Petition for review on certiorari via Rule 45.

NOTE: By virtue of RA 9346, the imposition of death penalty is suspended.

Modes of review recognized by the Rules of Court 1. 2. 3. 4.

XPN: If personal service cannot be made, through: 1. Registered mail; or 2. By substituted service pursuant to Secs. 7 and 8 of Rule 13(Sec. 4, Rule122). 3. By publication, made in a newspaper of general circulation in the vicinity once a week for a period not exceeding 30 days (Pamaran, 2010).

Ordinary appeal; Petition for review; Petition for review on certiorari; Automatic appeal.

Service of notice of appeal NOTE: The appellee may waive his right to notice of appeal. However, the appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require (Sec. 5, Rule 122).

GR: Through personal service made upon the adverse party or his counsel.

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CRIMINAL PROCEDURE Period to withdraw an appeal

EFFECT OF AN APPEAL Effect of an appeal

1.

An appeal in a criminal case opens the whole case for review and this includes the review of penalty, indemnity, and the damages involved. Consequently, on appeal, the appellate court may increase the penalty and indemnity of damages awarded by the trial court although the offended party had not appealed from said award, and the party who sought a review of the decision was the accused.

2.

GROUNDS FOR DISMISSAL OF APPEAL

Modes of appeal that may be taken from a judgment convicting the accused 1. 2.

1.

The accused may seek a review of said judgment as regards both criminal and civil actions; or The complainant may appeal only with respect to the civil action either because the lower court has refused or failed to award damages or because the award made is unsatisfactory to him.

2. 3.

Effect of perfection of appeal with regard to the jurisdiction of the court

4.

Once an appeal in a case, whether civil or criminal, has been perfected, the court a quo loses jurisdiction over the case both over the record and over the subject of the case (Director of Prisons v. Teodoro, G.R. No. L-9043, July 30, 1955). Failure to serve a copy to the prosecutor is not a defect which can nullify the appeal or prejudice the unquestionable rights of the accused.

5.

6.

7.

Effects of failure to prosecute an appeal 1. 2.

An appellant may withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court as provided by Sec. 8, Rule 122, in which case the judgment shall become final (Sec. 12). The court may also, in its discretion, allow the appellant to withdraw his appeal, provided a motion to that effect is filed before the rendition of the judgment in the case on appeal (Sec. 12, Rule122).

Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; Failure of the appellant to pay the docket and other lawful fees as provided in Sec. 5 of Rule 40 and Sec. 4 of Rule 41; Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec. 4 of Rule 44; Failure of the appellant to serve and file the required number of copies of his brief of memorandum within the time provided by these Rules; Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Sec. 13, paragraphs (a), (c), (d) and (f) of Rule 44; Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

Judgment of the court becomes final. Accused cannot be afforded the right to appeal unless: a. He voluntarily submits to the jurisdiction of the court; or b. He is otherwise arrested within 15 days from notice of judgment against him. EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED

Effects of appeal by any of the several accused 1.

2.

3.

An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter; The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from; and Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party (Sec. 11, Rule122).

NOTE: In People v. Olivo, G.R. No. 177768, July 27, 2009, an accused has benefitted from the acquittal of his co-accused despite the former’s failure to appeal from the judgment.

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REMEDIAL LAW custody so that he may be peace officer to search bound to answer for the personal property commission of the offense. described therein and to bring it to court. Does not become stale. Validity is for 10 days only. May be served on any day To be served only in and at any time of day or daytime unless the affidavit night. alleges that the property is on the person or in the place to be searched. Searching examination of The judge must personally witnesses is not necessary. conduct an examination of the complainant and the witnesses. Judge is merely called upon Examination must be to examine and evaluate probing. Not enough to the report of the merely adopt the questions prosecutor and the and answers asked by a evidence. previous investigator.

SEARCH AND SEIZURE RULE 126 Search Warrant It is an: 1. Order in writing issued in the name of the People of the Philippines; 2. Signed by a judge; 3. Directed to a peace officer, commanding him to search for personal property described therein; and 4. Bring it before the court (Sec. 1, Rule 126). NOTE: The warrant must name the person upon whom it is to be served except in those cases where it contains a descriptio personae such as will enable the officer to identify the person. The description must be sufficient to indicate clearly the proper person upon whom it is to be served(People v. Veloso GR No L-23051, October 20, 1925).

General warrant

NOTE: In general, the requirements for the issuance of a search warrant are more stringent than the requirements for the issuance of a warrant of arrest. The violation of the right to privacy produces a humiliating effect which cannot be rectified anymore. This is why there is no other justification for a search, except a warrant. On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty.

A search warrant which vaguely describes and does not particularize the personal properties to be seized without definite guidelines to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion regarding what articles they should seize. NOTE: A general warrant is not valid as it infringes on the constitutional mandate requiring particular description of the things to be seized.

Distinguish search from seizure Search is an examination of a man’s house or other buildings or premises or of his person for the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged. Seizure on the other hand is the physical taking of a thing into custody.

Scatter-shot search warrant It is a warrant issued for more than one offense. It is invalid because it violates the Constitution. NOTE: There must be strict compliance with the constitutional and statutory requirements. Otherwise, it is void. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it (People v. Veloso, G.R. No. 23051, October 20, 1925). It will always be construed strictly without going the full length of requiring technical accuracy.

APPLICATION FOR SEARCH WARRANT, WHERE FILED Court where to file an application for a search warrant GR: It should be filed with the court within whose territorial jurisdiction the crime was committed.

NATURE OF SEARCH WARRANT XPNs: 1. For compelling reasons, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced 2. However, if the criminal action has been filed, the application shall only be made in the court where the criminal action is pending (Sec. 2, Rule126); 3. In case of search warrant involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti- Money Laundering Act of 2001, the Tariff and Customs Code, the Executive judges and whenever they are on official leave of absence or are not physically present in the station, the Vice- Judges of RTCs of Manila and Quezon City shall have the authority to act on the application

It is in the nature of a criminal process and may be invoked only in furtherance of public prosecutions. Search warrants have no relation to civil process or trials and are not available to individuals in the course of civil proceedings, nor for the maintenance of a mere private right. It is interlocutory in character because it leaves something more to be done, which is the determination of the guilt of the accused. DISTINGUISH FROM WARRANT OF ARREST Warrant of Arrest v. Search Warrant Warrant of Arrest Order directed to the peace officer to execute the warrant by taking the person stated therein into

Search Warrant Order in writing in name of the People of Philippines signed by judge and directed to

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

the the the the

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CRIMINAL PROCEDURE NOTE: The warrant must not have been issued more than 10 days prior to the search made pursuant thereto.

filed by the NBI, PNP and the Anti- Crime Task Force (ACTAF) (Administrative Matter No. 99-10-09-SC).

PROBABLE CAUSE

NOTE: The application shall be personally endorsed by the heads of such agencies and shall particularly describe therein the places to be searched and/ or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and the Vice-Exceutive Judges concerned shall issue the warrants if justified, which may be served outside the territorial jurisdiction of said courts (Sps. Marimla v. People, G.R. No. 158467, October 16, 2009).

Probable cause It refers to the facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos v. Chief of Staff, G.R. No. L-65334, December 26, 1984).

Q: Barney filed a complaint with the NBI against Ted alleging that the latter was engaged in the reproduction and distribution of counterfeit products originally produced by Barney. Said products, allegedly, was produced in Cavite but sold in Manila. Thus, NBI applied with the RTC of Manila for warrants to search Ted’s premises in Cavite. The RTC of Manila issued a search warrant covering Ted’s premises at Cavite. The NBI served the search warrants on Ted’s premises and seized the said counterfeit products. Thereafter, Ted filed a motion to quash the search warrant questioning the propriety of the venue where the warrant was enforced. Should the motion to quash be granted?

Basis of probable cause The basis must be the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The test of sufficiency of a deposition or affidavit is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. Mere affidavits of the complainant and his witnesses are not sufficient. The judge has to take the depositions of the complainant and the witnesses in writing and attach them to the record (Mata v. Bayona, G.R. No. L-50720, March 26, 1984).

A: No. As a general rule, search warrants issued by courts may be effectuated only within their territorial jurisdiction. Thus, the RTC of Manila does not have the authority to issue a search warrant for offenses committed in Cavite. Nonetheless, this case involves a transitory or continuing offense of unfair competition.

Factors to consider for the determination of probable cause 1.

Ted’s imitation of the general appearance of Barney’s goods was done allegedly in Cavite. It sold the goods allegedly in Metro Manila. The alleged acts would constitute a transitory or continuing offense. Thus, clearly, under Sec. 2 (b), Rule 126; Sec. 168, R.A. 8293 and Art. 189 (1), RPC, Barney may apply for a search warrant in any court where any element of the alleged offense was committed, including any of the courts within the NCR(Sony Computer Entertainment, Inc. v. Supergreen, Inc., G.R. No. 161823, March 22, 2007).

2.

Requisites before a search warrant may be issued 1. 2. 3.

4.

5.

6. 7.

Time of the application in relation to the alleged offense committed. The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause (Asian Surety Insurance v. Herrera, G.R. No. L-25232, December 20, 1973). There must be competent proof of particular acts or specific omissions but only the best evidence under the circumstances is required (People v. Judge Estrada, G.R. No. 124461, September 26, 1998).

Requirement of Multi-factor Balancing test in determining probable cause

It must be issued upon probable cause; Probable cause must be determined by the issuing judge personally; The judge must have personally examined, in the form of searching questions and answers, the applicant and his witnesses; The search warrant must particularly describe or identify the property to be seized as far as the circumstances will ordinarily allow; The warrant issued must particularly describe the place to be searched and the persons or things to be seized; It must be in connection with one specific offense; The sworn statements together with the affidavits submitted by witnesses must be attached to the record (Prudente v. Dayrit, G.R. No. 82870, December 14, 1989).

It requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed, and the circumstances attending the incident. Q: Does the absence of probable cause on a particular article invalidate the entire search warrant? A: No. Such particular article may be severed from the rest of the search warrant, provided that the remaining parts meet the requirements of probable cause and particularity.

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REMEDIAL LAW cannot be utilized as authority to make another search (Gorospe, 2006, citing Uy Kheytin v. Villareal, 42 Phil. 886).

PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESS

The time must not be one which is intrusive or violative of one’s privacy, like at the middle of the night. Then, too, depending on the locality, what may be reasonable time in one place would not be so in some other cases (Gorospe, 2006).

Requisites of “Personal Examination by the Judge” 1. 2. 3.

4.

5.

The judge must examine the witness personally; The examination must be under oath; The examination must be reduced to writing in the form of searching questions and answers (Marinas v. Siochi, G.R. Nos. L-25707 & 25753-25754, May 14, 1981); It must be probing and exhaustive, not merely routinary or pro forma(Roan v. Gonzales, G.R. No. 71410, November 25, 1986); and It is done ex-parte and may even be held in the secrecy of chambers (Mata v. Bayona, G.R. No. L-50720, March 26, 1984).

Q: What is a reasonable time to effect a search? A: 7:30 P.M. is a reasonable time for executing a search warrant in the metropolis. The exact time of the execution of a warrant should be left to the discretion of the law enforcement officers. And in judging the conduct of said officers, judicial notice may be taken not just of the realities of law enforcement, but also the prevailing conditions in the place to be searched. We take judicial notice that 7:30 P.M. in a suburban subdivision in Metro Manila is an hour at which the residents are still up-and-about. To hold said hour as an unreasonable time to serve a warrant would not only hamper law enforcement, but could also lead to absurd results, enabling criminals to conceal their illegal activities by pursuing such activities only at night (Ibid).

Form of search warrant The search warrant must be in writing and must contain such particulars as the name of the person against whom it is directed, the offense for which it was issued, the place to be searched and specific things to be seized.

“Knock and announce” principle

NOTE: The warrant must name the person upon whom it is to be served except in those cases where it contains a descriptio personae such as will enable the officer to identify the person. The description must be sufficient to indicate clearly the proper person upon whom it is to be served (People v. Veloso, G.R. No. L-23051, October 20, 1925).

It states that officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty.

Lifetime of a search warrant A warrant is valid for 10 days from the date of its issue. After such time, it is void (Sec. 10). A search warrant can be used only once, thereafter it becomes functus oficio, except when the search conducted on one day was interrupted, in which case the same may be continued under the same warrant the following day if not beyond the 10 day period.

NOTE: A lawful entry is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against unreasonable search and seizure if the entry was illegal, whether accomplished by force, or by threat or show of force or obtained by stealth, or coercion.

Rule with respect to the time of making a search GR: A search warrant must be served at day time.

Instances when an unannounced intrusion into the premises is permissible

XPN: A search warrant may be made at night when it is positively asserted in the affidavit that the property is on the person or in the place ordered to be searched. The affidavit making such assertion must itself be sufficient as to the fact so asserted, for if the same is based upon hearsay, the general rule shall apply. A search warrant conducted at night without direction to that effect is an unlawful search. The same rule applies where the warrant left blank the “time” for making the search.

When: 1. A party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; 2. Such person in the premises already knew of the identity of the officers and of their authority and persons; 3. The officers are justified in the honest belief that there is an imminent peril to life or limb; or 4. Those in the premises, aware of the presence of someone outside, are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted.

Q: May the implementation of the search warrant be done on different days? A: Yes. It could be served at any time within its 10-day lifetime, and if its object or purpose cannot be accomplished in one day, the same may not be used for a different purpose on each day. After the articles for which the warrant was issued have been seized, the same warrant UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

NOTE: The exceptions above are not exclusive or conclusive. There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances (People v. Huang Zhen Hua, G.R. No. 139301, September 29, 2004).

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CRIMINAL PROCEDURE Rules to be observed in case of search of a house or room

2.

In order to insure that the execution of the warrant will be fair and reasonable, and in order to insure that the officer conducting the search shall not exceed his authority or use unnecessary severity in executing the search warrant, as well as for the officer’s own protection against unjust accusations, it is required that the search be conducted in the presence of the: 1. Lawful occupant of the place to be searched; 2. Any member of his family; 3. In their absence, in the presence of 2 witnesses of sufficient age and discretion residing in the same locality (Sec. 8, Rule 126).

EXCEPTIONS TO SEARCH WARRANT REQUIREMENT Instances of a valid warrantless search 1.

Immediate control test – A search incidental to a lawful warrantless arrest may extend beyond the person where the exigencies of the situation justify a warrantless search for dangerous weapons and to prevent the arrestee from destroying evidence of the crime within reach (People v. Musa, G.R. No. 95329, January 27, 1993).

PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED Tests to determine particularity of the place to be searched

2.

3.

When the description therein is as specific as the ordinary circumstance will allow (People v. Rubio, GR No L-35500, October 27, 1932); When the description express a conclusion of fact, not of law which the warrant officer may be guided in making the search and seizure; When the things described therein are limited to those which bear direct relation to the offense for which the warrant is being issued.

2.

Consented search (waiver of right) – Consent cannot be presumed simply because the accused failed to object to the search. To constitute a waiver, the following requisites must concur: a. The right exists; b. The person involved had knowledge, actual or constructive, of the existence of such rights; and c. Actual intention to relinquish such rights(People v. Burgos, G.R. No. 92739, August 2, 1991).

3.

Search of moving vehicle – May validly be made without a search warrant because the vessel or aircraft can quickly move out of the jurisdiction before such warrant could be secured (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991).

4.

Checkpoints; body checks in airport – Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search (People v. Vinecario, G.R. No. 141137, January 20, 2004).

Importance of describing with particularity the place to be searched and the persons or things to be seized The purpose of the rule is to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made that abuses may not be committed (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967). PERSONAL PROPERTY TO BE SEIZED Kinds of personal properties subject to seizure 1. 2. 3.

Subject of the offense; Stolen or embezzled and other proceeds or fruits of the offense; and Used or intended to be used as the means of committing an offense (Sec. 3, Rule126).

In body checks in airports, passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or

NOTE: It is not required that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized (Burgos v. Chief of Staff, G.R. No. L-65332, December 26, 1984).

Objects subject to seizure during a search incidental to an arrest of a person even without a search warrant 1.

Search incident to lawful arrest – This includes searching the person who is arrested, in order to find and seize the things connected with the crime as fruits or as the means by which it was committed. NOTE: Search made without warrant cannot be justified as an incident of arrest unless the arrest itself was lawful.

NOTE: A public officer or employee who exceeds his authority or uses unnecessary severity in executing the warrant is liable under Art. 129, RPC.

1.

Anything which may be used as proof of the commission of an offense.

Dangerous weapons; and

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REMEDIAL LAW

5.

6.

substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures (People v. Johnson, G.R. No. 138881, December 18, 2000).

discovered and seized before or after the seizure of the shabu. If they were discovered after the seizure of the shabu, then they could not have been seized in plain view. The confiscation of the marijuana leaves must not be upheld, hence rendering the same inadmissible in evidence against the accused.

Plain view doctrine– It authorizes a search and a seizure without a warrant. For the doctrine to apply, the following requisites must be met: a. There must have been a legal presence in the place where the search is made; b. The evidence was discovered inadvertently by an officer with a right to be where he is; c. The evidence is immediately apparently illegal; and d. There is no need for any further search to obtain the evidence (People v. Concepcion, 361 SCRA 540; People v. Sarap, 399 SCRA 503; People v. Go; 411 SCRA 81).

REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE Parties who may question the validity of search and seizure It can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed by third parties (Stonehill v. Diokno, G.R. L19550, June 19, 1967). Remedies against an unlawful search 1. 2.

Stop and frisk situations – This is a limited protective search of the outer clothing of a person to determine the presence of weapons. Probable cause is not required but a genuine reason (not mere suspicion) must exist, in the light of the officer’s experience and surrounding circumstances, to warrant the belief that the persons has concealed weapons (Malacat v. Court of Appeals, 283 SCRA 159). Its object is either to: a. Determine the identity of a suspicious individual; or b. Maintain the status quo momentarily while the police officer seeks to obtain more information.

3. 4.

NOTE: The remedies are alternative. If a motion to quash is denied, a motion to suppress cannot be availed consequently. The illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law. However, those personalties seized in violation of the constitutional immunity whose possession is not illegal or unlawful per se ought to be returned to their rightful owner or possessor.

NOTE: The officer may search the outer clothing of the person in an attempt to discover weapons which might be used to assault him(Manalili v. CA, G.R. No. 113447, October 9, 1997).

7.

Venue of filing a motion to quash search warrant 1.

Enforcement of custom laws

2.

Q: The search warrant authorized the seizure of “undetermined quantity of shabu”. During the service of the search warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as evidence for the violation of Sec. 11 of the Comprehensive Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State justified the seizure of the marijuana leaves under the “plain view” doctrine. There was no indication of whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If you are the judge, how would you rule the motion to suppress? (2008 Bar Question)

It may be filed and acted upon only by the court where the action has been instituted; If no criminal action has been instituted, it may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court (Sec. 14, Rule 126).

Rule with respect to waiver of legality and admissibility of a search warrant Objection to the legality of the search warrant, or as to the admissibility of the evidence obtained is deemed waived where no objection of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant (Demaisip v. CA, G.R. No. 89393, January 25, 1991).

A: It should be granted. The search warrant violates the constitutional and statutory requirement that should particularly describe the person or things to be seized (Sec. 2, Art. III, 1987 Constitution; Sec. 2, Rule 126). The “plain view” doctrine cannot be invoked because the marijuana leaves were wrapped in newsprint. Besides the marijuana leaves are not the subject of the search warrant. There was no evidence as to whether the marijuana leaves were UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Motion to quash the search warrant; Motion to suppress as evidence the objects illegally taken (exclusionary rule – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding); Replevin, if the objects are legally possessed; and Certiorari, where the search warrant is a patent nullity.

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CRIMINAL PROCEDURE PROVISIONAL REMEDIES IN CRIMINAL CASES RULE 127 NATURE Provisional Remedies They are those to which parties may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action. They are applied to a pending litigation for the purpose of securing the judgment or preserving the status quo; and in some cases after judgment, for the purpose of preserving or disposing of the subject matter (Cala v. Roldan, G.R. No. L-252, March 30, 1946). KINDS OF PROVISIONAL REMEDIES Kinds of Provisional Remedies available in criminal cases 1. 2. 3. 4. 5.

Attachment (Rule 57); Preliminary injunction (Sec. 58); Receivership (Rule 59); Delivery of personal property (Rule 60); Support pendente lite (Rule 61).

Attachment It is a remedy afforded to the offended party to have the property of the accused attached as security for satisfaction of any judgment that may be recovered from the accused. Party who may apply for attachment The aggrieved party in whose behalf the civil aspect of the criminal action is prosecuted may apply for the issuance of a writ of preliminary attachment, he being the person primarily and directly interested thereby. The prosecutor in the criminal action may make such an application in behalf of or for the protection of the interest of the offended party. Cases wherein attachment is made available 1. 2.

3. 4.

When the accused is about to abscond from the Philippines When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, or any officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation of a duty; When the accused has concealed, removed or disposed of his property or is about to do so; When the accused resides outside the Philippines (Sec. 2, Rule127).

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REMEDIAL LAW GENERAL PRINCIPLES

evidence, are equivalent to proof.

not

CONCEPT OF EVIDENCE FACTUM PROBANS v. FACTUM PROBANDUM Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact (Sec. 1, Rule 128).

Factum Probandum The fact or proposition to be established

NOTE: Evidence is only the means of ascertaining the truth. This truth would depend upon the evidence admitted in Court.

The fact to be proved, the fact which is in issue and to which the evidence is directed.

SCOPE OF THE RULES ON EVIDENCE Applicability of the Rules on Evidence The rules of evidence, being part of the Rules of Court, apply only to judicial proceedings (Sec. 1, Rule 128).

ADMISSIBILITY OF EVIDENCE Three (3) Kinds of Admissibility of Evidence

NOTE: The Rules of Court shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1).

1.

Multiple admissibility - where the evidence is relevant and competent for two or more purposes, such evidence should be admitted for any or all purposes for which it is offered provided it satisfies all the requirements of law for its admissibility therefor (Regalado, 2008). Thus, depending upon circumstances, the declaration of a dying person may be admissible for two or more purposes. It may be offered as a dying declaration under Sec. 37 of Rule 130 of the RoC, as part of res gestae under Sec. 42 of Rule 130. The statement by a bus driver immediately after the collision that he dozed off in the wheel while driving may be admissible as an admission under Sec. 26 of Rule 130 or as part of res gestae pursuant to Sec. 42 of Rule 130.

2.

Conditional admissibility - where the evidence at the time of its offer appears to be immaterial at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on condition that the other facts will be proved thereafter, otherwise the evidence already given will be stricken out (Regalado, 2008).

3.

Curative admissibility – it allows a party to introduce otherwise inadmissible evidence to answer the opposing party’s previous introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence [Adams v. Burlington N. R.R. Co., 865 S.W. 2d 748, 751 (Mo. App. 1993)]. Thus, a party who first introduces either irrelevant or incompetent evidence into the trial cannot complain of the subsequent admission of similar evidence from the adverse party relating to the subject matter [Commonwealth v. Alexander, K., 5 S.W. rd104, 105 (1999) quoting Dunaway v. Commonwealth, 239 Ky. 166, 39 S.W. 2d 242, 243 (1931); Smith vs. Commonwealth, Ky., 904 S.W. 2d 220, 222 (1995)]. Conversely, the doctrine should not be invoked where evidence was properly admitted.

Principle of Uniformity As a general policy, the rules of evidence shall be same in all courts and in all trials and hearing (Sec. 2, Rule 128). EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASE EVIDENCE IN CIVIL CASE The party having the burnden of proof must prove his claim by a preponderance of evidence (Sec. 1, Rule 133). An offer of compromise is not an admission of any liability, and not admissible in evidence against the offeror (Sec. 27, Rule 130).

The concept of presumption of innocence does not apply and generally there is no presumption for or against a party exept in certain cases provided by law.

EVIDENCE IN CRIMINAL CASE The guilt of the accused has to be proven beyond reasonable doubt (Sec. 1, Rule 133).

The same may be received in evidence as an admission of guilt except those involving quasioffenses (criminal negligence) or those allowed by law to be compromised (Sec. 27, Rule 130) The accused enjoys the constitutional presumption of innocence (Sec. 14, Art. III, 1987 Constitution)

PROOF v. EVIDENCE Proof The result or effect of evidence. Bare allegations unsubstantiated by

Evidence The medium or means by which a fact is proved or disproved.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Factum Probans The facts or material evidencing the fact or proposition to be established. The probative or evidentiary fact tending to prove the fact in issue.

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EVIDENCE REQUISITES OF ADMISSIBILITY OF EVIDENCE 1.

COMPETENT AND CREDIBLE EVIDENCE

The evidence is relevant to the issue; and

Competent evidence is one that is not excluded by law in a particular case. If the test of relevance is logic and common sense, the test of competence is the law or the rules. Competence, in relation to evidence in general, refers to eligibility of an evidence to be received as such.

NOTE: It is relevant accord if “it has such a relation to the fact in issue as to induce belief in its existence or non-existence.” Relevancy is, therefore determinable by the rule of logic and human experience.

2.

Burden of proof v. burden of evidence

The evidence is not excluded by the rules (competent)

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law (Rule 131, Sec. 1, Rules of Court).

NOTE: Competency is determined by the prevailing exclusionary rules of evidence.

RELEVANCE OF EVIDENCE AND COLLATERAL MATTERS Relevancy of Evidence

Burden of proof Burden of proof or “onus probandi” traditionally refers to the obligation of a party to the litigation to persuade the court that he is entitled to relief

Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Collateral matters GR: Evidence on collateral matters is not allowed. XPN: Evidence on collateral matters shall be allowed when it tends in any reasonable degree to establish the probability or improbability of fact in issue.

Duty of a party to present evidence to establish his claim or evidence by the amount of evidence required by law, which is preponderance of evidence in civil cases (Supreme Transliner, Inc. v. CA, 370 SCRA 411) Does not shift and remains throughoput the entire case exactly where the pleadings originally placed it.

DIRECT AND CIRCUMSTANTIAL EVIDENCE 1.

2.

Direct Evidence – proves a fact without the need to make an inference from another fact (Riano, 2013). Circumstantial Evidence or indirect evidence – that evidence which indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established (People v. Matito, 423 SCRA 617). POSITIVE AND NEGATIVE EVIDENCE

Generally determined by the pleadings filed by the party.

Positive v. Negative Evidence Evidence is positive when the witness affirms that a fact did or did not occur, while it is negative when the witness states he did not see or know of the occurrence of a fact (Regalado, 2008). NOTE: When a witness declares of his personal knowledge that a fact did not take place that is actually positive testimony since it is an affirmation of the truth of a negative fact (Ibid.).

Burden of evidence Burden of evidence is that logical necessity which rest upon a party at any particular time during the trial to create a prima facie case in his favor or to overthrow one created against him. Duty of the party to go forward with the evidence to overthrow the prima facie evidence against him (Bautista v. Sarmiento, 138 SCRA 587).

The burden of going forwards with the evidence may shift from party to party as the exigencies of the trial require (Chamberlayne, Sec. 203, 108, 169). Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.

PRESUMPTIONS Conclusive presumptions

Denial as negative evidence

The following are instances of conclusive presumptions:

A denial is a negative evidence. It is considered by the Court to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when the latter comes from the mouth of a credible witness (People v. Mendoza, 450 SCRA 328, as cited in Riano, 2013).

a.

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Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing is 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 (Rule 131, Sec. 2[a], Rules of Court).

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

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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 (Rule 131, Sec. 2[b], Rules of Court).

substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion (Rule 133, Sec. 5, Rules of Court). Clear and convincing evidence

Disputable presumptions Evidence is clear and convincing if it produces in the mind of the trier of a fact a firm belief or conviction as to allegations sought to be established. It is intermediate; being more than preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases (Black’s Law Dictionary, 5th Ed., 227).

The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) that a person is innocent of crime or wrong; (b) that an unlawful act was done with an unlawful intent; (c) that a person intends the ordinary consequences of his voluntary act; (d) that a person takes ordinary care of his concerns; (e) that evidence willfully suppressed would be adverse if produced; (f) that money paid by one to another was due to the latter; (g) that a thing delivered by one to another belonged to the latter; and other enumerations under Rule 131, Sec. 3, Rules of Court.

Hierarchy of Evidentiary Values In the hierarchy of evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing evidence, then by preponderance of evidence, and lastly by substantial evidence, in that order (Manalo v. Roldan-Confessor, 215 SCRA 808).

Liberal construction of the rules of evidence Like all other provisions under the Rules of Court, the rules of evidence must be liberally construed (Rule 1, Sec. 6, Rules of Court). Rules of Procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application must always be eschewed if it would subvert their primary objective of enhancing substantial justice.

JUDICIAL NOTICE AND JUDICIAL ADMISSIONS WHAT NEED NOT BE PROVED Facts that need not be proved 1. 2. 3. 4.

QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) Proof beyond reasonable doubt

5. 6.

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind (Rule 133, Sec. 2, Rules of Court).

7.

Those of which the courts may take judicial notice (Rule 129); Those that are judicially admitted (Rule 129); Those that are conclusively presumed (Rule 131); Those that are disputably presumed but uncontradicted (Rule 131); Immaterial allegations; and Facts admitted or not denied provided they have been sufficiently alleged (Sec. 1, Rule 8). Res ipsa loquitur MATTERS OF JUDICIAL NOTICE

Judicial notice It is the cognizance of certain facts which judges may properly take and act upon without proof because they are supposed to be known to them. It is based on considerations of expediency and convenience. It displaces evidence, being equivalent to proof (Regalado, 2008).

Preponderance of evidence In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number (Rule 133, Sec. 1, Rules of Court).

Function of judicial notice Judicial Notice dispenses the presentation of evidence and fulfills the purpose for which the evidence is designed to fulfill (Moran, 1980, citing Alzua vs. Johnson, 21 Phil. 308). Its function is to abbreviate litigation by admission of matters that needs no evidence because judicial notice is a substitute for formal proof of a matter by evidence (Riano, 2013). Kinds of judicial notice

Substantial evidence 1. In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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Mandatory – insofar as those matters enumerated under Sec. 1, Rule 129;

EVIDENCE 2.

Discretionary – on matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their functions (Sec. 2, Rule 129).

3.

NOTE: Judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known (State Prosecutors vs. Muro, A.M. No. RTJ-92-876, September 19, 1994).

When Judicial Notice of a fact may be taken 1. 2. 3.

Ought to be known to judges because of their judicial functions (Sec. 2, Rule 129).

During trial; After trial and before judgment; or Appeal.

In all instances, the court may act on its own initiative or on request of a party (Sec. 3, Rule 129).

Requisites in order that the principle of discretionary judicial notice may apply

MANDATORY JUDICIAL NOTICE 1. Mandatory judicial notice 2. When the matter is subject to a mandatory judicial notice, no motion or hearing is necessary for the court may take judicial notice of a fact.

3.

Matters subject to mandatory judicial notice (EPOL-APOLMG) 1. 2. 3. 4. 5. 6. 7. 8. 9.

Existence and territorial extent of States; Political history, forms of government and symbols of nationality; Law of nations; Admiralty and maritime courts of the world and their seals; Political constitution and history of the Philippines; Official acts of legislative, executive and judicial departments of the Philippines; Laws of nature; Measure of time; and Geographical divisions (Sec. 1, Rule 129).

NOTE: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety (Ibid.). The test of notoriety is whether the fact involved is so notoriously known as to make it proper to assume its existence without proof.

Hearing in cases of discretionary judicial notice DURING TRIAL

The court on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon (Sec. 3, Rule 129).

DISCRETIONARY JUDICIAL NOTICE Discretionary judicial notice When the matter is subject to discretionary judicial notice, a hearing is necessary before judicial notice is taken of a matter. Matters which the court may take judicial notice of 1.

AFTER TRIAL BUT BEFORE JUDGMENT OR ON APPEAL The proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case (Ibid).

NOTE: Hearing is necessary in the foregoing instances to afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice or the tenor of the matter to be judicially noticed.

Matters which are of public knowledge; NOTE: Public knowledge are those matters coming to the knowledge of men generally in the course of ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration.

2.

The matter must be one of common and general knowledge; It must be well and authoritatively settled and not doubtful or uncertain; and It must be one which is not subject to a reasonable dispute in that it is either: a. Generally known within the territorial jurisdiction of the trial court; or b. Capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable (Expertravel & Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005).

Instances when the Court takes judicial notice 1.

Capable of unquestionable demonstration; or NOTE: Matters which are capable of unquestionable demonstration are facts, theories and conclusions which have come to be established and accepted by the specialists in the areas of natural science, natural phenomena, chronology, technology, geography, statistical facts and other fields of professional and scientific knowledge (Francisco, 1996).

2.

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The court may take judicial notice of the existence and location within the territory over which they exercise jurisdiction of great rivers and lakes, and their relation to provincial boundaries, of navigability of streams, constituting highway commerce and notorious facts concerning the same (Banatao v. Tuliao, 38 Phil. 612). The SC took judicial notice that financial problem is a factor that beset the sugar industry; that there is crisis

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3.

4.

5.

in the sugar industry (Hilado v. Leogardo, Jr., 142 SCRA 286). The SC took judicial notice of the general increase in rentals of real estate especially of business establishments (Commander Realty, Inc. v. CA, 168 SCRA 181). The SC took judicial notice of the reality that, especially in local elections , political rivals or operators benefited from the usually belated decisions by COMELEC on petitions to cancel or deny due course to CoCs of potential nuisance candidates (Casimira S. Dela Cruz vs. Commission on Elections, G.R. No. 192221; November 13, 2012). The SC has taken into consideration how rapists are not deterred by the presence of people nearby, such as the members of their own family inside the same room, with the likelihood of being discovered, since lust respects no time, locale or circumstance (People of the Philippines vs. Neil B. Colorado, G. R. No. 200792; November 14, 2012).

admission was made (Sec. 4, Rule 129). Judicial admissions need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established. Conclusive upon the admitter Admissible even if selfserving Subject to crossexamination

Requires formal offer for it to be considered

Rebuttable Not admissible if selfserving Not subject to crossexamination

Requisites of judicial admission 1. 2.

It must be made by a party to the case or his counsel; It must be made in the course of the proceedings in the same case; and It can be verbal or written admission. There is no particular form required (Regalado, 2008).

Q: May judicial notice be taken of the financial condition of the government?

3.

A: Judicial notice could be taken of the fact that government is and has for many years been financially strapped, to the point that even the most essential services have suffered serious curtailment (La Bugal-B’Laan Tribal Assoc. v. Ramos, 445 SCRA 1).

Different forms of judicial admission:

Q: May judicial notice be taken of the practice of banks in conducting background checks on borrowers and sureties?

2.

A: Yes. While courts are not mandated to take judicial notice of this practice under Sec. 1, Rule 129, they nevertheless may do so under Rule on discretionary judicial notice (Sec. 2, Rule 129) which provides that the court may take judicial notice of matters which are of public knowledge, or ought to be known to judges because of their judicial functions (Solidbank Corporation v. Mindanao Ferroally Corpo., 464 SCRA 409).

How judicial admissions are made

1.

Verbal – Verbal waiver of proof made in open court, a withdrawal of contention, or disclosure made before the court, or admission made by witness in his testimony or deposition; Writing – Pleading, bill of particulars, stipulation of facts, request for admission, or a judicial admission contained in an affidavit used in the case (31 C.J.S 1069; Programme Inc. v. Province of Bataan, GR No. 144635, June 26, 2006).

Judicial admissions may be made in: 1. The pleadings filed by the parties; 2. The course of the trial either by verbal or written manifestations or stipulations, including depositions, written interrogatories and requests for admissions; or 3. Other stages of the judicial proceedings, as in pre-trial (Binarao vs. Plus Builders, Inc., 491 SCRA 49).

JUDICIAL ADMISSIONS Judicial Admission These are admissions, verbal or written, made by a party in the course of the proceedings in the same case, which does not require proof (Sec. 4, Rule 129).

2 ways in which admissions are made in pleadings

Judicial admissions v. Extrajudicial admissions

2.

JUDICIAL ADMISSIONS Those made in the course of the proceeding in the same case Do not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such

1.

EXTRAJUDICIAL ADMISSIONS Those made out of court or in a judicial proceeding other than the one under consideration Regarded as evidence and must be offered as such, otherwise the court will not consider it in deciding the case.

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Actual Admission – When a party categorically admits a material allegation made by the adverse party. Implied Admission – When the admission is inferred from the failure to specifically deny the material allegations in the other party’s pleadings.

EVIDENCE Rule with regard to self-serving evidence

EFFECTS OF JUDICIAL ADMISSIONS

The self-serving rule is not applicable to judicial admissions. If the declaration is made in open court, it is admissible because the witness may be cross-examined on that matter.

Effects of judicial admission 1. 2.

They do not require proof; and They cannot be contradicted because they are conclusive upon the parties (Ibid).

Effect of a guilty plea made by the accused during his arraignment which was later on withdrawn

NOTE: Judicial admissions are conclusive and no evidence is required to prove the same (Solivio vs. CA, 182 SCRA 119).

A plea of guilty entered by the accused may be later withdrawn at any time before the judgment of conviction becomes final. Such plea is not admissible in evidence against the accused and is not even considered as an extrajudicial admission.

Admissions made in pleadings which were NOT filed with the court Admissions made therein are not judicial admissions 1. If signed by the party litigant himself – Considered as extrajudicial admission. 2. If signed by the counsel – Not admissible because a counsel only binds his client with respect to admissions in open court and in pleadings actually filed with the court (Riano, 2013).

HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED Grounds for contradicting judicial admissions 1.

Upon showing that the admission was made through palpable mistake; or When it is shown that no such admission was made (Sec. 4, Rule 129).

Effect of an invalid and ineffective denial of actionable documents attached to the complaint

2.

When an action or defense is founded upon an actionable document, the genuineness and due execution of the same instrument shall be deemed admitted unless it is specifically denied under oath. The failure to deny the genuineness and due execution of said document amounts to a judicial admission. (PNB v. Refrigeration Industries, Inc. GR No. 156178, Jan. 20, 2006)

Remedy of party who made a judicial admission 1.

2.

Written admission – File a motion to withdraw such pleading, or any other written instrument containing such admission. Oral admission – The counsel may move for the exclusion of such admission. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE

NOTE: But the failure to deny the genuineness and due execution of an actionable document does not preclude a party from arguing against the document by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppel and want of consideration. He is however, precluded from arguing that the document is a forgery because the genuineness of document is impliedly admitted (Acabal v. Acabal, 454 SCRA 555; PNB v. Refrigeration Industries, Inc, ibid.).

Judicial notice of foreign laws GR: Courts cannot take judicial notice of foreign laws. They must be alleged and proved.

NOTE: When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided by Sec. 7, 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 (Sec. 8, Rule 8).

XPN: When said laws are within the actual knowledge of the court and such laws are: 1. Well and generally known; 2. Actually ruled upon in other cases before it; and none of the parties claim otherwise (PCIB v. Escolin, 56 SCRA 266).

Rule in case of admissions made in amended pleadings

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. Where a foreign law is not pleaded or even if pleaded, is not proved, the presumption is that the foreign law is same as ours (ATCI Overseas Corporation, Amalia G.Ikdal and Ministry of Public Health – Kuwait vs. Ma. Josefina Echin, G.R. No. 178551, October 11, 2010).

Doctrine of Processual Presumption

Admissions in a pleading which had been withdrawn or superseded by an amended pleading, although filed in the same case, are considered as extrajudicial admissions. The original must be proved by the party who relies thereon by formally offering it in evidence (Torres v. CA, G.R. Nos. L37420-21, July 31, 1984). Pleadings that have been amended disappear from the record, lose their status as pleadings and cease to be judicial admissions, and to be utilized as extrajudicial admission, they must, in order to have such effect, be formally offered in evidence (Ching v. Court of Appeals 331 SCRA 16).

Q: Suppose a foreign law was pleaded as part of the defense of the defendant but no evidence was presented to prove the existence of said law, what is the presumption to be taken by the court as to the wordings of said law? (1997 Bar Question)

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REMEDIAL LAW A: The doctrine of processual presumption applies. The presumption is that the wordings of the foreign law are the same as the local law (Northwest Orient Airlines v. CA, G.R. No. 83033, June 8, 1990; Moran, 1980). In the absence of evidence of the law of the foreign country, Philippine laws should be applied under this doctrine (Laureano v. Court of Appeals, 324 SCRA 414).

(Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, April 28, 2005). XPNs: 1. When in the absence of any objection, with the knowledge of the opposing party, the contents of said other cases are clearly referred to by title and number in a pending action and adopted or read into the record of the latter; 2. When the original record of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case (Jumamil v. Cafe, G.R. No. 144570, September 21, 2005). 3. When the action is closely interrelated to another case pending between the same parties; 4. Where the interest of the public in ascertaining the truth are of paramount importance; 5. In cases seeking to determine what is reasonable exercise of discretion or whether or not the previous ruling is applicable in a case under consideration; or 6. Where there is finality of a judgment in another case that was previously pending determination and therefore, res judicata (Herrera, 1999).

NOTE: When foreign law refers to law of nations, said law is subject to mandatory judicial notice under Sec. 1 Rule 129. Under the Constitution, the Philippines adopts the generally accepted principles of International Law as part of the law of the land (Sec. 2, Art. II, 1987 Constitution). Being part of the law of the land, they are in nature of local laws (Riano, 2013).

When foreign law is part of a published treatise, periodical or pamphlet When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his profession or calling as expert in the subject, the court, it is submitted, may take judicial notice of the treatise containing the foreign law (Rule 130, Sec. 46). When a foreign law refers to the law of nations When the foreign law refers to the law of nations, said law is subject to mandatory judicial notice under Sec. 1 of Rule 129. Under the Philippine Constitution, the Philippines adopt the generally accepted principles of international law as part of the law of the land (Sec. 2, Art. II, 1987 Constitution of the Philippines). Being part of the law of the land, they are therefore, technically in the nature of local laws and hence, are subject to mandatory judicial notice under Sec. 1 of Rule 129.

Q: Anna and Badong were accused of killing Cathy. However, only Anna was arrested since Badong went into hiding. After trial, Anna was acquitted of the charge in a decision rendered by Judge Santos. Subsequently, Badong was arrested and brought to trial. After trial, Badong was found guilty of homicide in a decision rendered by Judge Yantok, the judge who replaced Judge Santos after the latter retired. On appeal, Badong argues that Judge Yantok should have taken judicial notice of the acquittal of Anna rendered by Judge Santos. Is Badong correct?

Rules with regard to judicial notice of ordinances 1.

MTCs are required to take judicial notice of the ordinances of the municipality or city wherein they sit.

2.

RTCs must take judicial notice of ordinances in force in the municipalities within their jurisdiction only: a. When expressly authorized to do so by statute; or b. In case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in the same case.

3.

Appellate courts may also take judicial notice of ordinances not only because the lower courts took judicial notice thereof but because these are facts capable of unquestionable demonstration (Riano, 2013).

A: No. The appreciation of one judge of the testimony of a certain witness is not binding on another judge who heard the testimony of the same witness on the same matter. Each magistrate who hears the testimony of a witness is called upon to make his own appreciation of the evidence. It is, therefore, illogical to argue that because one judge made a conclusion in a certain way with respect to one or more of the accused; it necessarily dictates that the succeeding judge who heard the same case against the other accused should automatically make the same conclusion (People v. Langit, G.R. Nos. 134757-58, Aug. 4, 2000). OBJECT (REAL) EVIDENCE NATURE OF OBJECT EVIDENCE

Rule on judicial notice of records of another case previously tried

Object Evidence Object as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court (Sec. 1, Rule 130).

GR: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge

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Object evidence, also known as real evidence, demonstrative evidence, autoptic preference and physical

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EVIDENCE evidence, is that evidence which is addressed to the senses of the court (Sec. 1, Rule 130). It is not limited to the view of an object. It extends to the visual, auditory, tactile, gustatory, and olfactory.

A: No. While the paraffin test was negative, such fact alone did not ipso facto prove that Ron is innocent. A negative paraffin result is not conclusive proof that a person has not fired a gun. It is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards. Here, since Ron submitted himself for paraffin testing only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom (People v. Brecinio, G.R. No. 138534, March 17, 2004).

NOTE: When physical evidence runs counter to testimonial evidence, conclusion as to physical evidence must prevail (People vs. Aguinaldo, 316 SCRA 819).

Five senses 1. Visual 2. Auditory 3. Gustatory 4. Olfactory 5. Tactile

REQUISITES FOR ADMISSIBILITY Requisites for admissibility of object evidence 1. 2.

Examples of object evidence 1. 2. 3. 4. 5.

6.

Any article or object which may be known or perceived by the use of the senses; Examination of the anatomy of a person or of any substance taken therefrom; Conduct of tests, demonstrations or experiments; and Examination of representative portrayals of the object in question (e.g. maps, diagrams) Documents, if the purpose is to prove their existence or condition, or the nature of the handwriting thereon or to determine the age of the paper used, or the blemishes or alterations (Regalado,Vol. II, p. 717, 2008 ed.). A person’s appearance, where relevant (People vs. Rullepa, 398 SCRA 567).

It must be relevant and competent; Authenticated; NOTE: To authenticate the object, it must be shown that the object is the very thing that is either the subject matter of the law suit or the very one involved to prove an issue in the case.

3.

The authentication must be made by a competent witness who should identify the object to be the actual thing involved.

Purposes of authentication of object evidence 1. 2.

Paraffin test

Prevent the introduction of an object different from the one testified about; and Ensure that there have been no significant changes in the object’s condition.

Circumstances when the court may refuse the introduction of object or real evidence and rely on testimonial evidence alone

A test which can establish the presence or absence of nitrates or nitrites on the hand but the test alone cannot determine whether the source of the nitrates or nitrites was discharge of a firearm.

1.

Its exhibition is contrary to public morals or decency; NOTE: But if the exhibition of such object is necessary in the interest of justice, it may still be exhibited, and the court may exclude the public from such view. Such exhibition may not be refused if the indecent or immoral objects constitute the very basis of the criminal or civil action. (Moran, 1980)

NOTE: The paraffin test is merely corroborative evidence, neither proving nor disproving that a person did indeed fire a gun. The positive or negative results of the test can be influenced by certain factors such as the wearing of gloves by the subject, perspiration of the hands, wind direction, etc. (People v. Buduhan, G.R. 178196, August 6, 2008).

2.

Polygraph test An electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinee’s conscious attempt to deceive the questioner (West’s legal thesaurus dictionary, 1986).

3.

4.

Q: Ron was charged with murder for shooting Carlo. After trial, Ron was found guilty as charged. On appeal, Ron argued that the trial court should have acquitted him as his guilt was not proved beyond reasonable doubt. He argues that the paraffin test conducted on him 2 days after he was arrested yielded a negative result. Hence, he could not have shot Carlo. Is Ron correct?

To require its being viewed in court or in ocular inspection would result in delays, inconvenience, or unnecessary expenses which are out of proportion to the evidentiary value of such object; Such object evidence would be confusing or misleading, as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in said condition; or The testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary (Regalado, 2008).

Q: In a criminal case for murder, the prosecution offered as evidence, photographs showing the accused mauling the victim with several of the latter’s companions. The person who took the photograph was not presented as a witness. Be that as it may, the prosecution presented the

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REMEDIAL LAW companions of the victim who testified that they were the ones in the photographs. The defense objected to the admissibility of the photographs because the person who took the photographs was not presented as witness. Is the contention of the defense tenable?

CATEGORIES OF OBJECT EVIDENCE Categories of authentication 1.

A: No. Photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime.

2.

3.

The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses who can testify to its exactness and accuracy, after which the court can admit it subject to impeachment as to its accuracy. Here, the photographs are admissible as evidence inasmuch as the correctness thereof was testified to by the companions of the victim (Sison v. People, G.R. Nos. 108280-83, November 16, 1995).

object

evidence

for

purposes

of

Unique objects – Those that have readily identifiable marks (e.g. a calibre 40 gun with serial number XXX888). Objects made unique – Those that are made readily identifiable (e.g. a bolo knife used to hack a victim which could be identified by a witness in court). Non-unique objects – Those which have no identifying marks and cannot be marked (e.g. drops of blood) (Riano, 2013). DEMONSTRATIVE EVIDENCE

Real evidence Tangible object that played some actual role in the matter that gave rise to the litigation Intends to prove that the object is used in the underlying event

Q: Appellant Thor was charged with and convicted of the special complex crime of robbery with homicide by the trial court. On his appeal, he asseverates that the admission as evidence of victim's wallet together with its contents, violates his right against self-incrimination. Likewise, Thor sought for their exclusion because during the custodial investigation, wherein he pointed to the investigating policemen the place where he hid the victim's wallet, he was not informed of his constitutional rights (Miranda rights). Decide the case.

Demonstrative Evidence Tangible evidence that merely illustrates a matter of importance in the litigation Intends to show that the demonstrative object fairly represents or illustrates a real evidence Illustration : Where a drawing is presented to illustrate the relative positions of the protagonists and witnesses to the killing, the foundation for demonstrative evidence will normally consist of the testimony of an eyewitness or investigator stating that the drawing was indeed fairly represents the position of those present in the event (Francisco, 1996).

A: The right against self-incrimination guaranteed under our fundamental law finds no application in this case. This right is simply a prohibition against legal process to extract from the [accused]'s own lips, against his will, admission of his guilt. It does not apply to the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Infractions on the socalled “Miranda rights” render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence is not affected even if obtained or taken in the course of custodial investigation. Concededly, Thor was not informed of his rights during the custodial investigation. Neither did he execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional shortcuts do not affect the admissibility of the victim's wallet and its contents (People v. Malimit, G.R. No. 109775, November 14, 1996).

VIEW OF AN OBJECT OR SCENE Where the object in question cannot be produced in court because it is immovable or inconvenient to remove, it is proper for the tribunal to go to the object in its place and there observe it (Francisco, 1996). An ocular inspection conducted by the judge without the presence of the parties or due notice is not valid, as an ocular inspection is part of the trial (Regalado, 2008 citing Adan vs. Abucejo-Luzano, etc., A.M. No. MTJ-00-1298, August 3, 2000). CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Chain of custody It is the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,

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EVIDENCE 1. 2. 3. 4.

From the time of seizure/confiscation to Receipt in the forensic laboratory to Safekeeping to Presentation in court for destruction.

Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence and the final disposition (Sec. 1, DDB Reg. No. 1, Series of 2002). Purpose of establishing a chain of custody To guarantee the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic but where the exhibit is positively identified the chain of custody of physical evidence is irrelevant. Necessity of establishing a chain of custody It is necessary when the object evidence is non-unique as it is not readily identifiable, was not made identifiable or cannot be made identifiable, e.g. drops of blood or oil, drugs in powder form, fiber, grains of sand and similar objects (Riano, 2013). Discuss the principle of “chain of custody” with respect to evidence seized under RA 9165. (2012 Bar Question) In prosecutions involving narcotics and other illegal substances, the substance itself constitutes part of the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court (People v. Sitco, G.R. No. 178202, May 14, 2010). Ergo, the existence of the dangerous drug is a condition sine qua non for conviction (People v. De Guzman Y Danzil, G.R. No. 186498, March 26, 2010). The failure to establish, through convincing proof, that the integrity of the seized items has been adequately preserved through an unbroken chain of custody is enough to engender reasonable doubt on the guilt of an accused (People v. De Guzman Y Danzil). NOTE: In cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary suggesting illmotive on the part of the police officers (People vs. Unisa, 368 SCRA 305).

Procedure to be followed in the handling and custody of seized dangerous drugs The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized or his/her representative or counsel, a representative from media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

Importance of marking requirement as to preservation of chain of custody Crucial in proving chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use the markings

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REMEDIAL LAW as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence (People v. Coreche, G.R. No. 182528, August 14, 2009).

As long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team, the failure to issue a receipt will not render the items seized/confiscated inadmissible as evidence (People v. Magbanua, G.R. No. 170137, August 27, 2009). Presentation of informant is not a prerequisite in drug cases

Non-compliance with the procedure Non-compliance with Sec. 21, Art. II of RA 9165 is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him or her inadmissible. What is material is the proof that the transaction actually took place, coupled with the presentation before the court of a specimen of the seized object as part of the corpus delicti.

The presentation of an informant is not a requisite in the prosecution of drug cases. The failure of the prosecution to present the informant does not vitiate its cause as the latter's testimony is not indispensable to a successful prosecution for drug-pushing, since his testimony would be merely corroborative of and cumulative with that of the poseur-buyer who was presented in court and who testified on the facts and circumstances of the sale and delivery of the prohibited drug (People v. Naquito, G.R. No. 180511m July 20, 2008).

Non-compliance with the procedure shall not render void and invalid the seizure of and custody of the drugs only when: 1. Such non-compliance was under justifiable grounds; and 2. The integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. (People v. Dela Cruz, G.R. No. 177222, October 29,2008; People v. Rivera, G.R. No. 182347, October 17, 2008; Sec. 21 (a), Art. II, IRR of RA 9165).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5- SC) Application of Rule on DNA Evidence It shall apply whenever DNA evidence is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings (Sec. 1, AM No. 06-11-5-SC).

NOTE: What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction. The chain of custody requirement performs the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed (People v. Rivera, supra.).

MEANING OF DNA Deoxyribonucleic Acid (DNA) DNA (deoxyribonucleic acid) is the chain of molecules found in every nucleated cell of the body (Sec. 3, AM No. 06-11-5SC). It is the fundamental building block of a person’s entire genetic make-up, which is found in all human cells and is the same in every cell of the same person (People v. Umanito, G.R. No. 172607, October 26, 2007).

When no physical inventory or photograph of the confiscated evidence

DNA profile

Generally, non-compliance with Secs. 21 and 86 of RA 9165 does not mean that no buy-bust operation against appellant ever took place. The prosecution’s failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Sec. 21, Art. II of RA 9165 will not discharge the accused from the crime. Non-compliance with said section is not fatal and will not render an accused’s arrest illegal or the items seized or confiscated from him admissible (People v. Dela Cruz, G.R. No. 185717, June 8, 2011).

It is the genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person [Sec. 3(d), AM No. 06-11-5-S]. DNA evidence It constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples [Sec. 3(c), AM No. 06-11-5-SC].

Failure of apprehending officer/team to issue receipt

DNA testing

The non-issuance of a receipt for the confiscated drugs weaken the prosecution's case, since such a receipt is not essential to establishing a criminal case for selling or possessing drugs as it is not an element of either crime (People v. Faizal Askalani, G.R. No. 196257, February 8, 2012).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

It means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or

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EVIDENCE more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (Kinship Analysis) [Sec. 3(e), AM No. 06-11-5-SC].

5.

NOTE: The scientific basis of this test comes from the fact that our differences as individuals are due to the differences in the composition of our genes. These genes comprise a chemical substance, the deoxyribonucleic acid or DNA (The Court Systems Journal, 1999).

Finding that the above requirements have been complied with, the court shall now issue an order, if appropriate to: 1. 2.

Significance of DNA The significance lies in the uniqueness of the totality of the DNA of a person. It is a scientific fact that the totality of individual’s DNA is unique for the individual, except identical twins (Sec. 3, AM No. 06-11-5-SC).

The Rules on DNA Evidence allows a testing without prior court order if done before a suit or proceeding is commenced at the behest of any party including law enforcement agencies. This also means that a litigation need not exist prior to DNA testing. Thus, a court order shall be required only if there is a pending litigation but not before the litigation (Sec. 4, AM No. 06-11-5-SC). Order granting DNA testing immediately executory An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Sec. 5, AM No. 06-11-5-SC).

A: The DNA evidence should be admitted. It is not in violation of the constitutional right against selfincrimination or his right of privacy and personal integrity. The right against self-incrimination is applicable only to testimonial evidence. Extracting a blood sample and cutting a strand from the hair of the accused are purely mechanical acts that do not involve his discretion nor require his intelligence.

Admissibility of a grant of a DNA testing application The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof (Sec. 5, AM No. 06-11-5-SC).

APPLICABLE FOR DNA TESTING ORDER

Factors that the courts must consider in evaluating DNA testing results

DNA Testing Order A person who has a legal interest in the litigation may file an application before the appropriate court, at any time (Sec. 4, AM No. 06-11-5-SC).

1.

2.

The order for a DNA testing shall not however, be issued as a matter of course and from the mere fact that the person requesting for the testing has a legal interest in the litigation. For the order to be issued, there must be a further showing that:

3. 4.

Take biological samples from any person or crime scene evidence; Impose reasonable conditions on the testing to protect integrity of the biological sample and the reliability of the test results (Sec. 5, AM No. 06-11-5-SC).

DNA Testing without prior court order

Q: During Alexis’ trial for rape with murder, the prosecution sought to introduce DNA evidence against him, based on forensic laboratory matching of the materials found at the crime scene and Alexis’ hair and blood samples. Alexis’ counsel objected, claiming that DNA evidence is inadmissible because the materials taken from Alexis were in violation of his constitutional right against self-incrimination as well as his right of privacy and personal integrity. Should the DNA evidence be admitted or not? Reason. (2004 Bar Question)

1. 2.

The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing (Sec. 4 AM No. 06-11-5SC).

3.

A biological sample exists that is relevant to the case; The biological sample: a. Was not previously subjected to the type of DNA testing now requested; or b. Was previously subjected to DNA testing, but the results may require confirmation for good reasons; The DNA testing uses a scientifically valid technique; The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; The results of the DNA testing in the light of the totality of the other evidence presented in the case; and DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity (Sec. 9, AM No. 06-11-5-SC).

Possible results of DNA testing 1.

2.

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The samples are similar, and could have originated from the same source (Rule of Inclusion). In such a case, the analyst proceeds to determine the statistical significance of the similarity. The samples are different hence it must have originated from different sources (Rule of Exclusion). This conclusion is absolute and requires no further analysis;

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3.

The test is inconclusive. This might occur due to degradation, contamination, failure of some aspect of protocol, or some other reasons. Analysis might be repeated to obtain a more conclusive result (People v. Vallejo, G.R. No. 144656, May 9, 2002).

court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. The petition shall be filed in the court of origin as a rule. However, the rule also allows the petition to be filed either in the CA or in the SC, or with any member of said courts. A hearing may be conducted by the latter courts or by any member thereof or instead of conducting a hearing, may instead remand the petition to the court of origin and issue the appropriate orders (Sec. 10, A.M. No. 06-11-5-SC).

Confidentiality of DNA profiles DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court: 1. Person from whom the sample was taken; 2. Lawyers of private complainants in a criminal action; 3. Duly authorized law enforcement agencies; and 4. Other persons as determined by the court (Sec.11, A.M. No. 06-11-5-SC).

ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY Matters that the court should consider in determining the probative value of DNA evidence 1.

NOTE: Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented (Ibid.).

2.

DNA TESTING IN DETERMINING PATERNITY 1. 2.

3.

3.

DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of Probability of Paternity is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of Probability of Paternity is 99.9% or higher, then there is refutable presumption of paternity.

4.

Vallejo Standard

This refutable presumption of paternity should be subjected to the Vallejo standards (Herrera v. Alba, G.R. No. 148220, June 15, 2005)

In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: 1. How the samples were collected, 2. How they were handled, 3. The possibility of contamination of the samples, 4. The procedure followed in analyzing the samples, 5. Whether the proper standards and procedures were followed in conducting the tests, and 6. The qualification of the analyst who conducted the tests (People vs. Vallejo, G.R. No. 144656, May 9, 2002).

POST-CONVICTION DNA TESTING; REMEDY Availability of post-conviction DNA testing Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment (Sec. 6, A.M. No. 06-11-5-SC). Requisites for the applicability of the post-conviction DNA testing 1. 2. 3.

RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGY

Existing biological sample; Such sample is relevant to the case; and The testing would probably result in the reversal or modification of the judgment of conviction (Sec. 6, A.M. No. 06-11-5-SC).

Matters to consider in evaluating reliability of DNA testing methodology 1.

Remedy of the convict if the result is favorable to him

2.

Either the convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. In case the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and The reliability of the testing result (Sec. 7, AM No. 0611-5-SC).

3.

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The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; The subjection to peer review and publication of the principles or methods; The general acceptance of the principles or methods by the relevant scientific community;

EVIDENCE 4. 5. 6.

The existence and maintenance of standards and controls to ensure the correctness of data generated; The existence of an appropriate reference population database; and The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles (Sec. 8, ibid.).

REQUISITES FOR ADMISSIBILITY Requisites for admissibility 1. 2.

3. 4.

DOCUMENTARY EVIDENCE MEANING OF DOCUMENTARY EVIDENCE Documentary Evidence

Q: When Linda died, her common law husband, Lito and their alleged daughter, Nes, executed an extrajudicial partition of Linda’s estate. Thereafter, the siblings of Linda filed an action for partition of Linda’s estate and annulment of titles and damages with the RTC. The RTC dismissed the complaint and ruled that Nes was the illegitimate daughter of the decedent and Lito based solely on her birth certificate, which on closer examination, reveals that Nes was listed as “adopted” by both Linda and Lito. Is the trial court correct?

Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols, or other modes of written expressions, offered as proof of their contents (Sec. 2, Rule 130). Document A document is a deed, instrument or other duly notarized paper by which something is proved, evidenced or set forth (Regalado, 2008).

A: No. A record of birth is merely a prima facie evidence of the facts contained therein. It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. Nes should have adduced evidence of her adoption, in view of the contents of her birth certificate. The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts to simulation of the child's birth or falsification of his or her birth certificate, which is a public document. The records however are bereft of any such evidence (Rivera v. Heirs of Villanueva, G.R. No. 141501, July 21, 2006).

NOTE: Any instrument notarized by a notary public or a competent public official, with the solemnities required by law, is a public document. Pleadings filed in a case and in the custody of the clerk of court are public documents. All other documents are private documents (Bermejo vs. Barrios, 31 SCRA 764).

2 categories of documentary evidence 1. 2.

The document should be relevant. The documents should be authenticated and proved in the manner provided in the Rules of Court (Chua v. CA, G.R. No. 88383, February 19, 1992); Such authentication must be done by a competent witness. The documents should be indentified and marked; and They should be formally offered to the court and shown to the opposing party so that the latter may have the opportunity to object thereto (Ramcar, Inc. vs. Hi-power Marketing, 495 SCRA 375).

Writings; Any other material containing modes of written expressions – the material contains letters, words, numbers, figures, symbols or other modes of written expression and offered as proof of their contents (Riano, 2009).

Tape-recording as documentary evidence

Theory of indivisibility (rule on completeness)

If a tape recording is played in order to show that particular words were uttered it will constitute a documentary evidence. However if it is played to simply show that words were uttered in a particular accent, then it is an object evidence (Francisco, 1996).

When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other; and when a detached act, declaration, conversation, writing, or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence (Sec. 17, Rule 132).

Q: May a private document be offered and admitted in evidence both as documentary evidence and object evidence? (2005 Bar Question)

BEST EVIDENCE RULE

A: Yes. It is object evidence, when it is addressed to the senses of the court or when it is presented in order to establish certain physical evidence or characteristics that are visible on the paper and the writings that comprise the document. It is considered as documentary evidence when it is offered as proof of its contents.

MEANING OF THE RULE GR: It provides that when the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original document itself.

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REMEDIAL LAW XPNs: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; 4. When the original is a public record in the custody of a public officer or is recorded in a public office (Sec. 3, Rule 130).

photocopies are inadmissible in evidence; at the very least, it has no probative value (Office of the Ombudsman, vs. Manuel P. Valencia, G.R. No. 183890, April 13, 2011).

NOTE: Where the issue is only as to whether such a document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution or delivery (external facts), the best evidence rule does not apply and testimonial evidence is admissible (Moran, 1980).

Subject of inquiry

WHEN APPLICABLE Requisites for the applicability of the Best Evidence Rule 1. 2.

NOTE: When the truth of the document is in issue and not the contents thereof, the best evidence rule will not be applicable. In such case, it is the hearsay rule that will apply (Riano, 2009).

When the best evidence rule comes into operation, it is presumed that the subject of the inquiry is the contents of the document, thus the party offering the document must present the original thereof and not any other secondary evidence.

The Best Evidence Rule, applied to documentary evidence, operates as a rule of exclusion, that is, secondary evidence cannot be inceptively be introduced as the original writing itself must be produced in court, except in the four instances mentioned in Sec. 3 (Regalado, 2008).

Collateral Facts Rule A document or writing which is merely “collateral” to the issue involved in the case on trial need not be proved. Where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented.

Best Evidence Rule different from best evidence The best evidence rule is often described as a misnomer. Despite the word “best,” the rule does not proclaim itself as the highest and most reliable evidence in the hierarchy of evidence. The term “best” has nothing to do with the degree of its probative value in relation to other types of evidentiary rules. It is not intended to mean the “most superior” evidence. More accurately, it is the “original document” rule, or primary evidence rule (Riano, 2013).

Q: At a trial for violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked P100.00 bills used in the “buy-bust” operation. The accused objects to the introduction of the photocopy on the ground that the best evidence rule prohibits the introduction of secondary evidence in lieu of the original. 1. Is the photocopy real (object) evidence or documentary evidence? 2. Is the photocopy admissible in evidence? (1994 Bar Question)

Q: What is the reason underlying the adoption of the best evidence rule? (1998 Bar Question) A: There is a need to present to the court the exact words of a writing where a slight variation of words may mean a great difference in rights. It is also for the prevention of fraud or mistake in the proof of the contents of a writing.

A: 1.

Q: Valencia was charged with dishonesty, it was alleged that his SALN was not reflective of his actual net worth. In the proceedings with the Office of the Ombudsman, the evidence that were presented were photocopies of his credit card transactions. He was dismissed by the Ombudsman. Can photocopies be the basis of his conviction in the administrative case to establish substantive evidence?

2.

A: In an administrative proceeding, the law does not require evidence beyond reasonable doubt or preponderance of evidence. Substantial evidence is enough. This presupposes, however, that the evidence proffered is admissible under the rules. With respect to photocopied private documents, the rule is that before it can be considered admissible in evidence, its due execution or genuineness should first be shown. Failing in this, the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The subject matter must involve a document; and The subject of the inquiry is the contents of the document.

It is real (object) evidence, because the contents of the marked bills are not in issue. Yes, it is admissible in evidence, because the best evidence rule does not apply to object or real evidence. The best evidence rule is inapplicable since such secondary evidence is only intended to establish the existence of a transaction and not the contents of the document. MEANING OF ORIGINAL DOCUMENT

Original document 1.

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The original of a document is one the contents of which are the subject of inquiry;

EVIDENCE 2.

When a document is in two or more copies executed at or about the same time, with identical contents, including signed carbon copies, all such copies are equally regarded as originals; or

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE Secondary evidence

NOTE: When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others (Trans-pacific Industrial Supplies v. CA, G.R. No. 109172 August 19, 1994).

3.

It refers to evidence other than the original instrument or documents itself. It is the class of evidence that is relevant to the fact in issue, it being first shown that the primary evidence of the fact is not obtainable. It performs the same functions as that of primary evidence (EDSA Shangri-La Hotel and Resort, Inc., v. BF Corporation, GR 145873, June 27, 2008; Francisco, 1992). NOTE: All duplicates or counterparts of such document must first be accounted before one can resort to secondary evidence. It must appear that all of them have been lost or destroyed or cannot be produced in court. The non-production of the original document, unless it falls under any of the exceptions in Sec. 3, Rule 130, gives rise to the presumption of suppression of evidence (De Vera, et al. vs. Aguilar, et al. G.R. No. 83377, February 9, 1993).

When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, including entries in journals and ledgers, all the entries are likewise equally regarded as originals (Sec. 4, Rule 130).

When original document is unavailable

NOTE: Writings with identical contents made by printing, mimeographing, lithography and other similar methods executed at the same time are considered as original document. Thus, each newspaper sold in the stand is an original in itself (Riano, 2013).

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 (Sec. 5, Rule 130).

Q: When Anna loaned a sum of money to Blair, Anna typed a single copy of the promissory note, which they both signed. Anna made two photocopies of the promissory note, giving one copy to Blair and retaining the other copy. Anna entrusted the typewritten copy to his counsel for safekeeping. The copy with Anna's counsel was destroyed when the law office was burned. 1. In an action to collect on the promissory note, which is deemed to be the "original" copy for the purpose of the best evidence rule? 2. Can the photocopies in the hands of the parties be considered "duplicate original copies"? 3. As counsel for Anna, how will you prove the loan given by Anna to Blair? (1997 Bar Question) A: 1.

Requisites before the contents of the original document may be proved by secondary evidence The offeror must prove the following: 1. Execution or existence of the original document; 2. The cause of its unavailability; and 3. The unavailability of the original is not due to bad faith on his part. (Sec. 5, Rule 130) NOTE: Accordingly, the correct order of proof is as follows: existence, execution, loss, and contents. This order may be changed if necessary at the sound discretion of the court (Citibank N.A. Mastercard v. Teodoro, G.R. No. 150905, September 23, 2003).

The copy that was signed and lost is the only "original" copy for purposes of the best evidence rule [Sec. 4 (b), Rule 130].

2.

No, because they are merely photocopies which were not signed (Mahilum v. CA, G.R. No. L-17970, July 10, 1966). They constitute secondary evidence (Sec. 5, Rule 130).

3.

It may be proved by secondary evidence through the photocopies of the promissory note. When the original document is lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated (Sec. 5, Rule 130).

Due execution of the document It may be proved through the testimony of: 1. The person who executed it; 2. The person before whom its execution was acknowledged; 3. Any person who was present and saw it executed and delivered; 4. Any person who thereafter saw and recognized the signature; 5. One to whom the parties, thereto had previously confessed the execution thereof; or 6. By evidence of the genuineness of the signature or handwriting of the maker (Sec. 20, Rule 132). NOTE: The promissory note is an actionable document and the original or a copy thereof should have been attached to the complaint (Sec. 7, Rule 8). In such a case, the genuineness and due

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW execution of the note, if not denied under oath, would be deemed admitted (Sec. 8, Rule 9).

a lost notarial will should consist of a testimony of at least two credible witnesses who can clearly and distinctly establish its contents (Sec. 6, Rule 76; Regalado, 2008).

Intentional destruction of original document

Q: May the presentation or the offer of the original be waived?

Intentional destruction of the originals by a party who acted in good faith does not preclude the introduction of secondary evidence of the contents thereof (Regalado, 2009).

A: Yes, if the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence. But even admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Its admissibility should not be confused with its probative value (Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384, October 21, 1998).

Proof of loss or destruction It may be proved by: 1. Any person who knew of such fact; 2. Anyone who, in the judgment of the court, had made sufficient examination in the places where the document or papers of similar character are usually kept by the person in whose custody the document was and has been unable to find it; or 3. Any person who has made any other investigation which is sufficient to satisfy the court that the document is indeed lost.

When original document is in adverse party’s custody or control If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss (Sec. 6, Rule 130).

NOTE: A reasonable probability of its loss is sufficient, and this may be shown by a bona fide and diligent search, fruitlessly made, in places where it is likely to be found (Paylago v. Jarabe, 22 SCRA 1247).

Requisites in order that secondary evidence may be admitted when the original document is in the custody or control of the adverse party

All duplicates or counterparts of a lost or destroyed document must be accounted for before using copies thereof since all duplicates are parts of the writing to be proved (De Vera et. al. vs. Aguilar et. al, G.R. No. 83377; February 9, 1993).

1.

The original is in the possession or under the control of the opponent;

2.

Demand or notice is made to him by the proponent signifying that the document is needed;

Order of presentation of secondary evidence Upon proof of its execution and loss of the original document, its contents may be proved by: 1. Copy of the original; 2. Recital of the contents of the document in some authentic document; or 3. By the testimony of witnesses (Sec. 5, Rule 130)

NOTE: No particular form of notice is required, to be given to the adverse party, as long as it fairly appraises the other party as to what papers are desired. Even an oral demand in open court for such production at a reasonable time thereafter will suffice. Such notice must, however, be given to the adverse party, or his attorney, even if the document is in the actual possession of a third person (Regalado, 2008).

NOTE: The hierarchy of preferred secondary evidence must strictly be followed.

3.

Who may prove the contents of a document 1. 2. 3. 4.

5.

Any person who signed the document; Any person who read it; Any person who heard when the document was being read; Any person who was present when the contents of the document were talked over by the parties to such an extent as to give him reasonably full information of the contents; or Any person to whom the parties have stated or confessed the contents thereof.

NOTE: A justified refusal or failure of the adverse party to produce the original document will not give rise to the presumption of suppression of evidence, or create an unfavorable inference against him. It only authorizes the presentation of secondary evidence (Regalado, 2008).

4.

Satisfactory proof of existence of original document (Sec. 6, Rule 130).

Q: Paula filed a complaint against Lynette for the recovery of a sum of money based on a promissory note executed by the latter. During the hearing, Paula testified that the original note was with Lynette and the latter would not surrender to Paula the original note which Lynette kept in a place about one day's trip from where she received the notice to produce the note and in spite of such notice to produce the same within 6 hours from receipt of such

Definite Evidentiary Rule Where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling. E.g. Evidence of UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Failure or refusal of opponent to produce document in court; and

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EVIDENCE notice, Lynette failed to do so. Paula presented a copy of the note which was executed at the same time as the original and with identical contents. Over the objection of Lynette, can Paula present a copy of the promissory note and have it admitted as valid evidence in her favor? Why? (2001 Bar Question)

Requisites for the admissibility of secondary evidence when the original consists of numerous accounts

A: Yes. Although the failure of Lynette to produce the original of the note is excusable since she was not given reasonable notice, a requirement under the Rules before secondary evidence may be presented, the copy in possession of Paula is not a secondary evidence but a duplicate original because it was executed at the same time as the original and with identical contents. Hence, being the best evidence, the rule on secondary evidence need not be complied with.

3.

1. 2.

NOTE: Voluminous records must be made accessible to the adverse party so that the correctness of the summary of the voluminous records may be tested on cross-examination (Compania Maritima v. Allied Free Workers Union, et. al, G.R. No. L-28999, May 24, 1977).

When original document is a public record

When a document produced is not offered in evidence

When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof (Sec. 7, Rule 130).

If the party who calls for the production of a document does not offer the same in evidence, no unfavorable inference may be drawn from such failure. This is because a party who calls for the production of a document is not required to offer it (Sec. 8, Rule 130).

Proof of the contents if the original document is a public record

Production of documents under Sec. 8, Rule 130 v. Rule 27 (mode of discovery) Sec. 8, Rule 130 Procured by mere notice to the adverse party, which is a condition precedent for the subsequent introduction of secondary evidence by the proponent. Presupposes that the document to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents.

The original must consist of numerous accounts or other documents; They 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 [Sec. 3(c), Rule 130].

The contents may be proved by: 1. A certified copy issued by the public officer in custody thereof (Sec. 7, Rule 130); and 2. Official publication (Herrera, 1999).

Rule 27 The production of document is in the nature of a mode of discovery and can be sought only by proper motion in the trial court and is permitted only upon good cause shown. Contemplates a situation wherein the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same.

NOTE: Public records are generally not to be removed from the places where they are recorded and kept (Sec. 26, Rule 132). Hence, proof of the contents of a document which forms part of a public record may be done by secondary evidence.

RULES ON ELECTRONIC EVIDENCE A.M. No. 01-7-01-SC SCOPE; COVERAGE; MEANING OF ELECTRONIC EVIDENCE; ELECTRONIC DATA MESSAGE Scope of Rules on Electronic Evidence It shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases (Sec. 2, Rule 1). NOTE: The SC issued a resolution on September 24, 2002, which took effect on October 14, 2002, to include criminal proceedings in the coverage of A.M. No. 01-7-01-SC.

When the original consists of numerous accounts When the production of the original writings and their examination in court would result in great loss of time considering that the evidence desired from the voluminous accounts is only the general result of the whole [Sec. 3(c), Rule 130].

In the case of Ang v. Court of Appeals, G.R. No. 182835, April 20, 2010, it held that the Rules on Electronic Evidence is not applicable to criminal actions. However, the RTC decided the case in 2001. Thus, following the maxim that laws and rules should be interpreted in favor of the accused, the SC did not apply the amendment which took effect on October 2002.

NOTE: A witness may be allowed to offer a summary of a number of documents, or summary of the contents may be admitted if documents are so voluminous and intricate as to make an examination of all of them impracticable. They may also be presented in the form of charts or calculations (Riano, 2013).

Electronic Evidence It is information stored in electronic form that is relevant to the issues in a particular litigation (Overly, 2002). Evidence is "any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the

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REMEDIAL LAW parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc. for the purpose of inducing belief in the minds of the court or jury as to their contention." Electronic information (like paper) generally is admissible into evidence in a legal proceeding (Black’s Law Dictionary).

Proof of electronic documents Matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein (Sec. 1, Rule 9).

Electronic Document Refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document [Sec. 1(h), Rule 2].

Factors to be considered in assessing evidentiary weight of an electronic document

NOTE: Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules (Sec. 1, Rule 3).

3.

1.

2.

4.

Electronic documents are the functional equivalents of paperbased documents (Ibid.).

Electronic Data Message

5.

Electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means [Sec.1 (g), Rule 2].

6.

Q: May a facsimile transmission be considered as electronic evidence?

Q: When is electronic evidence regarded as being the equivalent of an original document under the best evidence rule? (2003 Bar Question)

A: No. In enacting R.A. 8792 (E-Commerce Act of 2000), Congress intended virtual or paperless writings to be the functional equivalent and to have the same legal function as paper-based documents. The terms “electronic data message” and “electronic document,” as defined under R.A. 8792, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the best evidence rule and is not admissible as electronic evidence (MCC Industrial Sales Corporation v. Sangyong Corp., G.R. No. 170633, October 17, 2007).

A: If it is a printout or output readable by sight or other means, shown to reflect the data accurately (Sec. 1, Rule 4). As to copies equivalent of the originals, electronic evidence is an original document when it is: 1. In 2 or more copies executed at or about the same time with identical contents; 2. A counterpart produced by the same impression as the original; 3. From the same matrix; 4. By mechanical or electronic re-recording; 5. By chemical reproduction; or 6. By other equivalent techniques which accurately reproduces the original (Sec. 2, Rule 4).

PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD OF PROOF Admissibility of electronic evidence

NOTE: In all matters not specifically covered by the rules on evidence, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply. Thus the confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document (Sec. 3, Rule 3).

An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules (Sec. 2, Rule 3). NOTE: The authenticity of any private electronic document must be proved by evidence that it had been digitally signed and other appropriate security measures have been applied (Sec. 2, Rule 5).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; The reliability of the manner in which its originator was identified; The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; The familiarity of the witness or the person who made the entry with the communication and information system; The nature and quality of the information which went into the communication and information system upon which the electronic data message document was based; or Other factors which the court may consider as affecting accuracy or integrity of the electronic document or electronic data message (Sec. 1, Rule 7).

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EVIDENCE When a copy of an electronic document equivalent to an original

what it is or for what it is claimed to be without regard to whether or not it is authentic (Riano, 2009).

When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: 1. A genuine question is raised as to the authenticity of the original; or 2. In the circumstances it would be unjust or inequitable to admit a copy in lieu of the original (Sec. 2, Rule 4).

Authentication of electronic or digital signature 1. 2. 3.

Effect of authentication of an electronic signature Upon authentication, it shall be presumed that: 1. The electronic signature is that of the person to whom it correlates; 2. The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; and 3. The methods or processes utilized to affix or verify the electronic signature operated without error or fault (Sec. 3, Rule 6).

Q: During the hearing of a case, Jeff, a party litigant therein, offered as evidence photocopies of documents with information most of which were originally manually written and signed. The court ordered Jeff to present the original of the documents but he refused to do so. Jeff argued that the photocopies of documents he presented are considered as electronic documents and, hence, equivalent to original ones. Is Jeff correct?

Effect of authentication of digital signatures

A: No. Photocopies of documents do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence. Here, the information in the photocopies of documents offered by Jeff was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated, which Jeff failed to do. Finally, the required affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence was not executed, much less presented in evidence (NPC v. Codilla, G.R. No. 170491, April 4, 2007).

Upon authentication, it shall be presumed that: 1. The information contained in a certificate is correct; 2. The digital signature was created during the operational period of a certificate; 3. No cause exists to render a certificate invalid or revocable; 4. The message associated with a digital signature has not been altered from the time it was signed; and 5. A certificate had been issued by the certification authority indicated therein (Sec. 4, Rule 6).

BURDEN OF PROOF IN AUTHENTICITY OF ELECTRONIC EVIDENCE

ELECTRONIC DOCUMENTS vis a vis THE HEARSAY RULE A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is exempted from the rule on hearsay evidence (Sec. 1, Rule 8).

Burden of Proof The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule (Sec. 1, Rule 5, REE). Authentication of an electronic document 1. 2.

3.

By evidence that a method or process was utilized to establish a digital signature and verify the same; By any other means provided by law; or By any other means satisfactory to the judge as establishing the genuineness of the electronic signature (Sec. 2, Rule 6).

By evidence that it had been digitally signed by the person purported to have signed the same; By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or By other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2, Rule 5).

NOTE: The presumption provided by the rules may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof (Sec. 2, Rule 8).

NOTE: Sec. 2 Rule 5 applies only when the document is a private electronic document and when it is offered as authentic. It is not applicable when the electronic document is offered simply for

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REMEDIAL LAW Parol Evidence Rule

AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE

When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement (Sec. 9, Rule 130).

Ephemeral electronic communication It refers to telephone conversations, text messages, chat room sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained [Sec. 1(k), A.M. No. 01-7-01-SC].

NOTE: Parol evidence is evidence outside of the agreement of the parties while the parol evidence rule prevents the presentation of such parol evidence.

It shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 regarding Authentication of Electronic Documents shall apply (Sec. 2, Rule 11, ibid).

Rationale for the adoption of the parol evidence rule (1998 Bar Question) It is designed to give certainty to a transaction which has been reduced to writing, because written evidence is much more certain and accurate than that which rests on fleeting memory only (Francisco, 1992). Moreover, it gives stability to written statements, removes the temptation and possibility of perjury and prevents possible fraud.

Audio, photographic or video evidence

Waiver applicable

Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11, ibid).

Failure to invoke the benefits of the rule constitutes as waiver of the rule. Inadmissible evidence may be rendered admissible by failure to object (Riano, 2009). NOTE: However, even if the parol evidence is admitted, it does not mean that the court would give probative value to the parol evidence. Admissibility is not the equivalent of probative value or credibility (Riano, 2009).

Text messages Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof (Vidallon-Magtolis v. Cielito Salud, A.M. No. CA-05-20-P, September 9, 2005).

Condition precedent and a established by parol evidence

condition

subsequent

Condition precedent may be established by parol evidence because there is no varying of the terms of the written contract by extrinsic agreement for the reason that there is no contract in existence. There is nothing in which to apply the excluding rule. Conditions subsequent may not be established by parol evidence since a written contract already exists.

Purposes of presentation of electronic document Electronic document may be presented for the following purposes: 1. To establish a right; 2. To establish an obligation; 3. To prove or affirm a fact.

APPLICATION OF THE PAROL EVIDENCE RULE Requisites for the application of the parol evidence rule

PAROL EVIDENCE RULE 1. 2.

Parol evidence It is any evidence aliunde (extrinsic evidence) which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document (Regalado, 2008). It may refer to testimonial, real or documentary evidence.

NOTE: “Agreement” includes wills.

3. 4.

NOTE: Among the evidentiary rules, it is the parol evidence rule that has direct application to the law on contracts. The rule applies only to contracts which the parties have decided to set forth in writing. Hence, parol evidence does not apply to oral contracts (Riano, 2013).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

There must be a valid contract; The terms of the agreement must be reduced to writing;

The dispute is between the parties or their successorsin-interest; and There is dispute as to the terms of the agreement.

Parties should be privies to the contract The parol evidence rule does not apply, and may not be properly invoked by either party to the litigation against the other, where at least one party to the suit is not a party or

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EVIDENCE privy of a party to the written instrument in question and does not base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he is not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing (Lechugas v. CA, et.al, G.R. Nos. L-39972 & L-40300, August 6, 1986).

may apply

who are or what is referred to

(Regalado, 2008) Mistake The mistake contemplated is one which is a mistake of fact mutual to both parties (Bernardo, 2008, pg. 38 citing Gurango vs. IAC, 215 SCRA 332). Parol evidence may only be allowed, if any of the foregoing matters is put in issue in the pleadings.

WHEN PAROL EVIDENCE CAN BE INTRODUCED Exceptions to Parol Evidence Rule

Failure of the written agreement to express true intent of the parties

A party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleadings the following: 1. 2. 3. 4.

Parol evidence may be admitted to show the true consideration of the contract, or the want or illegality thereof, or the incapacity of the parties, or the fact that the contract was fictitious or absolutely simulated, or that there was fraud in inducement (Regalado, 2008).

An intrinsic ambiguity, mistake or imperfection in the written agreement; Failure of the written agreement to express the true intent of the parties thereto; Validity of the written agreement; or Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement (Sec. 9, Rule 130).

Q: Paula filed a complaint against Lynette for the recovery of a sum of money based on a promissory note executed by the latter. Paula alleged in her complaint that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Paula is willing, she may, upon request of Lynette give the latter up to 120 days to pay the note. During the hearing, Paula testified that the truth is that the agreement between her and Lynette is for the latter to pay immediately after 90 days time. Also, since the original note was with Lynette and the latter would not surrender to Paula the original note which Lynette kept in a place about one day's trip from where she received the notice to produce the note and in spite of such notice to produce the same within 6 hours from receipt of such notice, Lynette failed to do so. Paula presented a copy of the note which was executed at the same time as the original and with identical contents. Over the objection of Lynette, will Paula be allowed to testify as to the true agreement or contents of the promissory note? Why? (2001 Bar Question)

Kinds of ambiguities Intrinsic or Latent On its face, the writing appears clear and unambiguous but there are collateral matters which make the meaning uncertain Curable by evidence aliunde

Where the document refers to a particular person or thing but there are two or more persons having the same name or two or more things to which the description in the writing

Extrinsic or Patent Ambiguity is apparent on the face of the writing and requires that something be added to make the meaning certain Cannot be cured by evidence aliunde because it is only intrinsic ambiguity not extrinsic ambiguity which serves as an exception to the parol evidence rule Where the contract refers to an unidentified grantee or does not particularly identify the subject matter thereof such that, in either case the text does not disclose

Intermediate Ambiguity consists in the use of equivocal words susceptible of two or more interpretation

Curable by evidence aliunde

A: Yes. As an exception to the parol evidence rule, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading the failure of the written agreement to express the true intent and agreement of the parties thereto. Here, Paula has alleged in her complaint that the promissory note does not express the true intent and agreement of the parties. The parol evidence rule may be admitted to show the true consideration of the contract.

Use of terms such as “dollars” “tons” and “ounces”

DISTINCTIONS BETWEEN THE PAROL EVIDENCE RULE AND THE BEST EVIDENCE RULE Parol Evidence Rule Best Evidence Rule Presupposes that the The original document is original document is not available or there is a available in court dispute as to whether said writing is original

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Prohibits the varying of the Prohibits the introduction of terms of a written secondary evidence in lieu agreement of the original document regardless of whether or not it varies the contents of the original Applies only to documents Applies to all kinds of which are contractual in writings nature including wills Can be invoked only when Can be invoked by any party the controversy is between to an action whether or not the parties to the written he has participated in the agreement, their privies, or writing involved any party affected thereby like a cestui que trust (Regalado, 2008)

wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to be entered therein (Sec. 19, Rule 132). As to authenticity and admissibility as evidence Admissible as evidence Before any private without need of further document offered as proof of its genuineness authentic is received in and due execution evidence, its due execution and authenticity must first be proved. As to persons bound Evidence even against third Binds only the parties who persons, of the fact which executed them or their gave rise to its due privies, insofar as due execution and to the date execution and date of the of the latter document are concerned As to validity of certain transactions Certain transactions must be contained in a public document; otherwise they will not be given any validity.

AUTHENTICATION AND PROOF OF DOCUMENTS MEANING OF AUTHENTICATION Authentication It is the process of proving the due execution and genuineness of a document. When authentication is NOT required 1. 2.

The writing is an ancient document (Sec. 21, Rule 132); The writing is a public document or record (Sec. 19, Rule 132);

NOTE: Church registries of births, marriages and deaths are no longer public writings nor are they kept by duly authorized public officials. They are private writings and their authenticity must therefore be proved, as are all other private writings in accordance with the rules (Llemos v. Llemos G.R. No. 150162, January 26, 2007).

NOTE: A private document required by law to be recorded, while it is transformed into a public document by the “public record” thereof, is not included in this enumeration. Such recording does not make the private writing itself a public document so as to make it admissible without authentication. i.e. birth certificate recorded in the NSO is a public record, but it is still a private document

3. 4.

5.

WHEN A PRIVATE WRITING REQUIRES AUTHENTICATION; PROOF OF A PRIVATE WRITING Who may prove the due execution and authenticity of private documents

The writing is a notarial document acknowledged, proved or certified (Sec. 30, Rule 132); The authenticity and due execution of the document has been expressly admitted or impliedly admitted by failure to deny the same under oath; or When such genuineness and due execution are immaterial to the issue.

1. 2.

Any other private document need only be identified as that which it is claimed to be, i.e. ancient documents.

PUBLIC AND PRIVATE DOCUMENTS

NOTE: In addition to the modes of authenticating a private document under Sec. 20, Rule 132, American Jurisprudence also recognizes the doctrine of self-authentication - where the facts in writing could only have been known by the writer; and the rule of authentication by the adverse party - where the reply of the adverse party refers to and affirms the sending to him and his receipt of the letter in question, a copy of which the proponent is offering as evidence (Regalado, 2010).

Public Document Private Document What comprises it 1. The written official acts, All other writings are or records of the official private (Sec. 19, Rule 132). acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2. Documents acknowledged before a notary public except last UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

By anyone who saw the document executed or written; or By evidence of the genuineness of the signature or handwriting of the maker.

Q: Is the testimony of a handwriting expert indispensable to the examination or the comparison of handwritings in cases of forgery? A: No. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must

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EVIDENCE conduct an examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity. The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones (Pontaoe v. Pontaoe, G.R. No. 15958, April 22, 2008).

a. b.

WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE WRITING IS NOT REQUIRED (ANCIENT DOCUMENTS)

NOTE: Upon failure to comply with the above-mentioned requirements, courts will apply the doctrine of processual presumption.

When evidence of authenticity of a private writing is NOT required 1. 2.

3.

The writing is an ancient document (Sec. 21, Rule 132); The authenticity and due execution of the document has been expressly admitted or impliedly admitted by failure to deny the same under oath; When such genuineness and due execution are immaterial to the issue

Inspection of Public Record GR: Any public record must not be removed from the office in which it is kept. XPN: Upon order of a court where the inspection of the record is essential to the just determination of a pending case (Sec. 26, Rule 132).

Requisites of ancient document/authentic document rule 1. 2. 3.

An official publication thereof; or By a copy attested by the officer having the legal custody of the record or by his deputy and accompanied with a certificate that such officer has the custody. The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office (Sec. 24, Rule 132).

That the private document be more than 30 years old; That it be produced from a custody in which it would naturally be found if genuine; and That it is unblemished by any alteration or circumstances of suspicion (Sec. 21, Rule 132).

Probative value of documents consisting of entries in public records They are prima facie evidence of the facts stated therein if entered by a public officer in the performance of a duty. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter (Sec. 23, Rule 132).

NOTE: This rule applies only if there are no other witnesses to determine authenticity.

HOW TO PROVE GENUINENESS OF A HANDWRITING 1. 2.

3. 4.

Q: Is a special power of attorney executed and acknowledged before a notary public in a foreign country authorizing a person to file a suit against certain persons in the Philippines admissible in evidence?

It may be proved by any witness who actually saw the person writing the instrument; By any person who is familiar or has acquired knowledge of the handwriting of such person, his opinion as to the handwriting being an exception to the opinion rule under Secs. 48 & 50 of Rule 130; By a comparison of the questioned handwriting from the admitted genuine specimens thereof; or By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule 130).

A: No, because a notary public in a foreign country is not one of those who can issue the certificate mentioned in Sec. 24, Rule 132 of Rules of Court. Non-compliance with the said rule will render the SPA inadmissible in evidence. Not being duly established in evidence, the SPA cannot be used to file a suit in representation of another. The failure to have the SPA authenticated is not a mere technicality but a question of jurisdiction (Heirs of Medina v. Natividad, G.R. No. 177505, November 27, 2008).

NOTE: Sec. 22 of merely enumerates the methods of proving handwriting but does not give preference or priority to a particular method (Lopez v. CA, et. al, L-31494, January 23, 1978).

ATTESTATION OF A COPY

PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF OFFICIAL RECORD

Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance: 1. That the copy is a correct copy of the original, or a specific part thereof, as the case may be; 2. It must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court (Sec. 25, Rule 132).

Proof of public records Written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, e.g. a written foreign law, may be evidenced by: 1. If it is within the Philippines a. An official publication thereof; or b. By a copy attested by the officer having the legal custody of the record, or by his deputy. 2. If it is kept in a foreign country

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REMEDIAL LAW regularity.

PUBLIC RECORD OF A PUBLIC DOCUMENT

The document may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Sec. 30, Rule 132).

Proof of public record of a private document 1. 2.

By the original record; or By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody (Sec. 27, Rule 132).

NOTE: The identification documents which may be presented as “competent evidence of identity” by signatories to documents or instruments to be notarized include, but are not limited to: passports, driver’s licenses, Professional Regulations Commission identification cards, NBI clearances, police clearances, postal IDs, voter’s IDs, Barangay certifications, GSIS e-cards, SSS cards, Philhealth cards, senior citizen’s cards, Overseas Workers Welfare Administration (OWWA) IDs, OFW IDs, seaman’s books, alien certificate of registrations/immigrant certificate of registrations, government office IDs, certifications from the National Council for the Welfare of Disabled Persons (NCWDP), and DSWD certifications.

PROOF OF LACK OF RECORD Proof of lack of record of a document consists of written statement signed by an officer having custody of an official record or by his deputy. The written statement must contain the following matters: 1. There has been a diligent search of the record; 2. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office.

Evidentiary weight of a notarial document

NOTE: The written statement must be accompanied by a certificate that such officer has the custody of official records (Sec. 28, Rule 132).

Notarial documents celebrated with all the legal requisites under a notarial certificate is evidence of a high character, and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear, convincing and more than mere preponderant evidence.

HOW A JUDICIAL RECORD IS IMPEACHED Impeachment of a judicial record 1. 2. 3.

A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in its favor the presumption of regularity which may only be rebutted by evidence so strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies on the one contesting the same (Pan Pacific Industrial Sales Co. v. CA, G.R. No.125283, August 9, 2005).

Want of jurisdiction in the court or judicial officer; Collusion between the parties; or Fraud in the party offering the record, in respect to the proceedings (Sec. 29, Rule 132).

Q: Lino was charged with illegal possession of firearm. During trial, the prosecution presented in evidence a certification of the PNP Firearms and Explosives Office attesting that the accused had no license to carry any firearm. The certifying officer, however, was not presented as a witness. Is the certification of the PNP Firearm and Explosives Office without the certifying officer testifying on it admissible in evidence against Lino? (2003 Bar Question)

HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT A party producing a document as genuine which has been altered and appears to have been altered after its execution must account for the alteration. He may show that the alteration: 1. Was made by another, without his concurrence; 2. Was made with the consent of the parties affected by it; 3. Was otherwise properly or innocently made; or 4. That the alteration did not change the meaning or language of the instrument.

A: Yes. Section 28, Rule 130 provides that “a written statement signed by an officer having the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.”

NOTE: Failure to do at least one of the above will make the document inadmissible in evidence (Sec. 31, Rule 132).

The records of the PNP Firearm and Explosives Office are a public record. Hence, notwithstanding that the certifying officer was not presented as a witness for the prosecution, the certification he made is admissible in evidence against Lino.

DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE Documents written in an unofficial language shall not be admitted as evidence unless accompanied with a translation into English or Filipino (Sec. 33, Rule 132).

PROOF OF NOTARIAL DOCUMENTS Notarial documents Documents acknowledged before a notary public is considered a public document and enjoys a presumption of UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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EVIDENCE 4.

TESTIMONIAL EVIDENCE It is sometimes called viva voce evidence which literally means “living voice” or by word of mouth. In this kind of evidence, a human being (witness) is called to the stand, is asked questions, and answers the question asked of him (Riano, 2013).

Oath vis-a-vis Affirmation An oath signifies that he is swearing to the Creator to tell the truth and nothing but the truth and that if he does not, he will later on answer for all the lies he is guilty of while an affirmation is a formal declaration of truth in the absence of swearing to a Creator. It is a declaration about something to be true.

QUALIFICATION OF A WITNESS Qualification of a Witness

NOTE: The judge must determine first whether the witness understands the nature of the oath, realizes the moral duty to tell the truth and understands the prospect of being punished for a falsehood. A person is not qualified to be a witness if he is incapable of understanding the duty to tell the truth. (Riano, 2009)

Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. NOTE: Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification.

COMPETENCY VERSUS CREDIBILITY OF A WITNESS Competency v. Credibility of the witness (2004 Bar Question)

Presumption regarding the qualification of a witness Generally, a person who takes the witness stand, is presumed to be qualified to testify. A party who desires to question the competence of a witness must do so by making an objection as soon as the facts tending to show incompetency are apparent (Jones on Evidence, Vol. 3, Sec. 796). A prospective witness must show that he has the following abilities: 1. To observe – The testimonial quality of perception; 2. To remember – The testimonial quality of memory; 3. To relate – The testimonial quality of narration; and 4. To recognize a duty to tell the truth – The testimonial quality of sincerity.

Competency of Witness

Credibility of Witness

Refers to a witness who can perceive, and in perceiving, can make known his perception to others. Is a matter of law or a matter of rule

Refers to a witness whose testimony is believable.

Refers to the weight and trustworthiness or reliability of the testimony.

It also includes the absence of any of the disqualifications imposed upon a witness. NOTE: GR: Inconsistency in the affidavit and those made in the witness stand will not discredit him, because it is a matter of judicial experience that an affidavit being taken ex parte, is almost always incomplete and often inaccurate.

Time when should the witness possess the qualifications The qualifications and disqualifications of witnesses are determined as of the time said witnesses are produced for examination in court or at the taking of their depositions (Regalado, 2008).

XPN: The credibility of a witness will be impaired if: 1. The omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness would not be expected to fail to mention and 2. When the narration in the sworn statement substantially contradicts the testimony in court. The point of inquiry is whether the omission is important or substantial (People vs. Calegan, 233 SCRA 537)

WHO MAY BE WITNESSES Who may be witnesses All persons who: 1. Can perceive and in perceiving; 2. Can make known their perception to others (Sec. 20, Rule 130);

Presumption of Competency GR: A person who takes the witness stand is presumed to possess the qualifications of a witness.

NOTE: The ability to make known the perception of the witness to the court involves two factors: (a) the ability to remember what has been perceived; and (b) the ability to communicate the remembered perception. It is of common reason to realize that a witness is presented to testify on a matter he has perceived. If he cannot remember, he cannot be a competent witness. (Riano, Evidence: A Restatement for the Bar, p. 248-249, 2009 ed)

3.

Must not possess the disqualifications imposed by law or the rules (Riano, 2013).

XPNs: There is prima facie evidence of incompetency in the following: 1. The fact that a person has been recently found of unsound mind by a court of competent jurisdiction; or 2. That one is an inmate of an asylum for the insane (Torres v. Lopez, 48 Phil. 722).

Must take either an oath or an affirmation (Sec. 1, Rule 132; Riano, 2009); and

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REMEDIAL LAW NOTE: The qualifications and disqualifications of witnesses are determined as of the time they are produced for examination in court or at the taking of the depositions. Blood relationship does not disqualify a witness (Bernardo, 2008, citing Angelo vs. CA 210 SCRA 402).

Credibility of a witness A testimony must not only come from a credible witness, but must be credible in itself, tested by human experience, observation, common knowledge and accepted conduct that has evolved through the years (People vs. Mirandilla Jr., G.R. 186417, July 27, 2011).

Absolute disqualification v. Relative disqualification Absolute Disqualification The proposed witness is prohibited to take the witness stand

Q: Does mental unsoundness of the witness, at the time the facts to be testified to occurred, affect his competency? A: No, it only affects his credibility. Nevertheless, as long as the witness can convey ideas by words or signs and give sufficiently intelligent answers to questions propounded, she is a competent witness even if she is feeble-minded or is mental retardate or is a schizophrenic (People v. De Jesus, G.R. No. L-39087, Apr. 27, 1984; People v. Gerones, G.R. No. 91116, Jan. 24, 1991; People v. Baid, G.R. No. 129667, July 31, 2000).

1. Disqualification by reason of mental incapacity or immaturity (Sec. 21, Rule 130). 2. Disqualification by reason of marriage (Sec. 22, Rule 130).

NOTE: Testimony of children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully does not only affect his/her credibility but his/her competence.

Conviction of a crime as a ground for disqualification GR: Conviction of a crime is not a ground for disqualification as a witness

Findings on the credibility of a witness GR: Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court as it is in the best position to observe his demeanor and bodily movements (Llanto v. Alzona, 450 SCRA 288). The findings of the trial courts carry great weight and respect and, generally, the appellate courts will not overturn the said findings.

XPNs: Unless otherwise provided by law, like the following: 1. Those convicted of falsification of document, perjury or false testimony are prohibited from being witnesses to a will (Art. 821, NCC). 2. Those convicted of an offense involving moral turpitude cannot be discharged to become a State witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981). 3. Those who fall under the disqualification provided under Secs. 21-24, Rule 130.

XPNs: 1. The lower court has reached conclusions that are clearly unsupported by evidence, 2. It has overlooked some facts or circumstances of weight and influence which, if considered, would affect the result of the case (People vs. Dalag, G.R. No. 129895. April 30, 2003).

DISQUALIFICATION BY REASON OF MENTAL INCAPACITY OR IMMATURITY (Sec. 21, Rule 130) Disqualification by reason of mental incapacity The following persons cannot be witnesses: 1. Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others [Sec. 21 (a), Rule 130]. 2. Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully [Sec. 21 (b), Rule 130].

DISQUALIFICATION OF A WITNESS Disqualification of a Witness The following are the disqualifications of a witness: 1. Disqualification by reason of mental incapacity or immaturity (Sec. 21, Rule 130); 2. Disqualification by reason of marriage(sec. 22, Rule 130); 3. Disqualification by reason of death or insanity of adverse party (Sec. 23, Rule 130); and 4. Disqualification on the ground cof privileged communication (Sec. 24, Rule 130): a. Marital privilege; b. Attorney-client privilege; c. Doctor-patient privilege; d. Minister-penitent privilege; or e. Public officer as regards communications made in official confidence. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Relative Disqualification The proposed witness is prohibited to testify only on certain matters specified under the Rules 1. Disqualification by reason of death or insanity of the adverse party (dead man’s statute) (Sec. 23, Rule 130). 2. Disqualification by reason of privileged communication (Sec. 24, Rule 130).

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EVIDENCE When incompetence of the witness by reason of mental incapacity or immaturity should exist

Requisites for the applicability of spousal immunity 1.

Mental Incapacity The incompetence of the witness must exist not at the time of his perception of the facts but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived. (Riano, Evidence: A Restatement for the Bar, p. 255, 2009 ed.)

Mental Immaturity 2. 3.

The incompetence of the witness must occur at the time the witness perceives the event including his incapability to relate his perceptions truthfully. (Ibid.)

4.

Exceptions to spousal immunity 1. 2. 3.

Tests considered in determining insanity of a person 1. 2.

That the spouse for or against whom the testimony is offered is a party to the case; That the spouses are validly married; The testimony is one that is given or offered during the existence of the marriage (Riano, 2009); and The case is not one of the exceptions provided in the rule (Herrera, 1999).

4.

The test of cognition, which is a complete deprivation of intelligence; and The test of volition, which is the total deprivation of the freedom of the will.

Consent is given by the party-spouse; In a civil case filed by one against the other; In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Sec. 22, Rule 130); or Where the testimony was made after the dissolution of the marriage.

Waiver of spousal immunity It can be waived just like any other objection to the competency of other witnesses, through failure to interpose timely objection at the time the other spouse is called as a witness (People vs. Francisco, 78 Phil. 694).

NOTE: The test of cognition is the applicable test in the Philippines (People vs. Pascual, 220 SCRA 440).

Q: Cyrus, a deaf-mute, was presented as a witness in a criminal case. The accused objected to the presentation of the testimony of Cyrus on the ground that, being a deafmute, he was not a competent witness. Is the contention of the accused correct?

Extent of prohibition The prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the spouse. It also extends to both criminal and civil cases and not only consists of utterances but also the production of documents (State vs. Bramlet, 114 S.C. 389,103 S.E. 755; Riano, 2009).

A: No. A deaf-mute is not incompetent as a witness. Deafmutes are competent witnesses where they can: 1. Understand and appreciate the sanctity of an oath; 2. Comprehend facts they are going to testify on; and 3. Communicate their ideas through a qualified interpreter (People v. Tuangco, G.R. No. 130331, November 22, 2001).

Who can claim spousal immunity The spouse who can object is the spouse-party and not the spouse-witness.

DISQUALIFICATION BY REASON OF MARRIAGE (MARITAL DISQUALIFICATION RULE; SEC. 22)

Q: May a spouse testify in a trial where the party-spouse is a co-accused?

Marital Disqualification Rule A: Yes. The spouse could testify in a murder case against the other co-accused, which was jointly tried with accusedspouse’s case. This testimony cannot, however, be used against accused-spouse directly or through the guise of taking judicial notice of the proceedings in the murder case without violating the marital disqualification rule, if the testimony is properly objected (People v. Quidato, 297 SCRA 1).

During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendant or descendants (Sec. 22, Rule 130). Purpose of the Rule

Q: Ivy was estranged from her husband Bob for more than a year due to Bob’s suspicion that she was having an affair with Jeff, their neighbor. Ivy was temporarily living with her sister in Pasig City. For unknown reasons, the house of Ivy’s sister was burned, killing the latter. Ivy survived. Ivy saw her husband in the vicinity during the incident. Later, Bob was charged with arson in an Information filed with the RTC, Pasig City. During the trial, the prosecutor called Ivy to the witness stand and offered her testimony to prove that her husband committed arson. Can Ivy testify

The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than the exigencies of the lawsuits which authorize domestic peace to be disregarded for the sake of ferreting out facts within the knowledge of strangers (Alvarez vs. Ramirez, G.R. No. 143439, October 14, 2005).

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REMEDIAL LAW over the objection of her husband on the ground of marital privilege? (2006 Bar Question)

or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind (Sec. 23, Rule 130).

A: Yes. The marital disqualification rule is aimed at protecting the harmony and confidences of marital relations. Hence, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the marital disqualification no longer applies.

Purpose of Dead Man’s Statute If death has closed the lips of one party, the policy of the law is to close the lips of the other party (Goni v. CA, G.R. No. L-77434, September 23, 1986). This is to prevent the temptation to perjury because death has already sealed the lips of one party.

The act of Bob in setting fire to the house of his sister-inlaw, knowing fully well that his wife was there, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that that there is no more harmony, peace or tranquility to be preserved (Alvarez v. Ramirez, G.R. No. 143439, Oct. 14, 2005).

NOTE: As the statutes are designed to protect the interest of a deceased or insane person, they do not exclude testimonies, which are favorable to the representative of such person.

Requisites for the applicability of Dead Man’s Statute

1.

Q: Alex and Bianca are legally married. Alex is charged in court with the crime of serious physical injuries committed against Carding, son of Bianca and step-son of Alex. Bianca witnessed the infliction of the injuries on Carding by Alex. The public prosecutor called Bianca to the witness stand and offered her testimony as an eyewitness. Counsel for Alex objected on the ground of the marital disqualification rule under the Rules of Court. 1. Is the objection valid? 2. Will your answer be the same if Bianca’s testimony is offered in a civil case for recovery of personal property filed by Carding against Alex? (2000, 2004 Bar Question) A: 1.

2.

2. 3.

4.

Extent of disqualification by reason of death or insanity of the adverse party It constitutes a partial disqualification of a witness wherein he is prohibited from testifying as to any matter of fact occurring before the death or insanity of a party to the transaction (Regalado, 2008).

No. While neither the husband nor the wife may testify against each other without the consent of the affected spouse, one exception is if the testimony of the spouse is in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. Here, Carding is the direct descendant of Bianca, the wife of Alex. Hence, the testimony of Bianca falls under the exception to the marital disqualification rule.

Who may invoke the protection of Dead man’s Statute The persons entitled to invoke the protection of the Dead Man’s Statute are the executor, administrator and any other representative of a deceased person, when they are the defendants in a claim against the estate of the deceased. The protection may likewise be invoked by a person of unsound mind in a claim filed against them. (Riano, 2009)

No. The marital disqualification rule applies this time. The exception provided by the rules is in a civil case by one spouse against the other. Here, the case involves a case by Carding for the recovery of personal property against Bianca’s spouse Alex.

Waiver of the privilege to invoke the Dead Man’s Statute is when the defendant:

DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF THE ADVERSE PARTY (DEAD MAN STATUTE/SURVIVING PARTY RULE)

1.

Dead Man’s Statute

2.

Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim

3.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The defendant in the case is the executor or the administrator or a representative of the deceased or the person of unsound mind; The suit is upon the claim by the plaintiff against the estate of said deceased or person of unsound mind; The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and The subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind (Sec. 23, Rule 130).

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does not timely object to the admission of such evidence or testifies on prohibited matters (Asturias vs. CA, L-17895, September 30, 1963); cross-examines the plaintiff (Tongco v. Vianzon, 50 Phil 698); or files a counter claim against the plaintiff (Goni v. CA, G.R. No. L-77434, September 23, 1986).

EVIDENCE Cases not covered by the Dead Man’s Statute

Dead Man’s Statute v. Marital Disqualification Rule

1.

Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to officers and stockholders of a plaintiff corporation (Lichauco v. Atlantic Gulf & Pacific Co. of Manila, G.R. No. L-2016, August 23, 1949); 2. Where a counterclaim has been interposed by the defendant as the plaintiff would thereby be testifying in his defense (Sunga-Chan v. Chua, G.R. No. 143340, August 15, 2001); 3. Where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent (Goni et. al. v. CA et. al., G.R. No. L-27434, September 23, 1986); 4. Land registration cases instituted by the deceased’s representative, where the oppositor is considered as defendant (Nanagas v. Mun. of San Francisco, et.al., 53 Phil. 719) or in cadastral cases where there are no oppositors (Tongco v. Vianzon, G.R. No. 27498, September 20, 1927); 5. When there is waiver as the defendant does not timely object to the admission of such evidence or testifies on the prohibited matters (Asturias v. CA et. al., G.R. No. L-17895, September 30, 1963) or cross-examines thereon; 6. If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind; (Razon v. IAC, G.R. No. 74306, March 16, 1992) 7. When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule (Ong Chua v. Carr, G.R. No. L-29512, Jan, 17, 1929), provided such fraud is first established by evidence aliunde (Babao v. Perez, G.R. No. L-8334, December 28, 1957); 8. Negative testimony, that is, testimony that a fact did not occur during the lifetime of the deceased (Mendezona v. Vda. De Goitia, G.R. No. L-31739, March 11, 1930); 9. Testimony on the present possession by the witness of a written document signed by the deceased because such fact exists even after the death of decedent (4 Martin, op. cit., p. 164); 10. When the defendant/s, though heirs of the deceased, are sued in their personal and individual capacities; and 11. In actions against a partnership.

Dead Man’s Statute Only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified Applies only to a civil case or special proceeding over the estate of a deceased or insane person

The rule prohibits testimony that is against the estate of the deceased.

Marital Disqualification Rule A complete and absolute disqualification

GR: Applies to a civil or criminal case. XPN: In a civil case by one spouse against the other or in a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants The rule prohibits testimony that is against or for the party-spouse.

DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION Scope of disqualification by reason of communication

privileged

The disqualification by reason of privileged communication applies to both civil and criminal cases except as to the doctor-patient privilege, which is applicable only in civil cases. Unless waived, the disqualification under Sec. 24 remains even after the various relationships therein have ceased to exist. Who may assert the privilege The holder of the privilege, authorized persons and persons to whom privileged communication were made can assert the privilege. Marital Privilege Disqualification by reason of marital privilege The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants (Sec. 24 (a), Rule 130).

Q: True or False. The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose had said to her, in a claim filed by Pedro against the estate of Jose. Explain. (2001, 2007 Bar Question) A: False. For the survivorship disqualification rule or the dead man’s statute to apply, one of the requisites is that the witness being offered is either a party plaintiff, or his assignor or a person in whose behalf a case is prosecuted. Here, Maria is a mere witness. Hence, Maria does not fall within the prohibition and is not barred from testifying.

Purpose of marital privilege The society has a deeply rooted interest in the preservation for peace of the families and its strongest safeguard is to preserve with jealous care any violations of those hallowed

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REMEDIAL LAW confidences inherent in, and inseparable from the marital status. The law insures absolute freedom of communication between the spouses by making it privileged (Francisco, 1996; Zulueta v. CA, 253 SCRA 699, Feb. 20, 1996).

Q: In June 1998, A told B that he killed C. After a year, A married B. Upon the offer of testimony of B for the alleged killing of C, can A validly make an objection? A: Yes. Irrespective of the fact that B was informed of the killing before her marriage to A, still, the testimony was offered during their marriage, which brings it into the ambit of the marital disqualification rule under Sec. 22.

Requisites for the application of marital privilege 1. 2. 3. 4.

There must be a valid marriage; There is a communication received in confidence by one from the other; The confidential communication was received during the marriage; and There is no consent to disclose the information [Sec. 24(a), Rule 130].

Q: Supposed in the above problem, the testimony was offered at the time the marriage between A and B was already terminated, can A still validly object, this time on the ground of marital privilege rule under Sec. 24? A: No. The testimony even if confidential was not communicated to B during the time of marriage, but before the marriage.

Cases when marital privilege is inapplicable 1. 2.

3.

In a civil case by one against the other; or In a criminal case for a crime committed by one against the other or the latter’s direct ascendants or descendants [Sec. 24(a), Rule 130]. Information acquired by a spouse before the marriage even if received confidentially will not fall squarely with the privilege.

Q: Supposed in the above problem, the information received by B was communicated to A during their marriage, can A validly object to the testimony of B if it was offered after the dissolution of their marriage on the ground of marital disqualification rule under Sec. 22? A: No. He can only object based on the marital disqualification rule if the testimony was offered during their marriage and not to testimony offered after the dissolution of the marriage. The proper objection must be based on marital privilege rule under Sec. 24 because such defense is applicable even after the dissolution of marriage provided that the communication was made confidentially to B during their marriage.

Sec. 22 v. Sec. 24 (a) Disqualification By Reason of Marriage (Sec. 22) Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Applies to information received prior to marriage as long as such is offered during the marriage The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse, the spousewitness cannot testify

Disqualification By Reason of Marital Privilege (Sec. 24, (a)) Can be claimed whether or not the other spouse is a party to the action Can be claimed even after the marriage is dissolved

Q: A was prosecuted and convicted for bigamy for allegedly contracting a second marriage with C. Thereafter, C was presented as a witness to testify against A for the alleged killing of D. A objected on the ground that the matters to be testified by C were communicated to her during their marriage. Is he correct?

Applies only to confidential communications received during the marriage between the spouses The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into

A: No. The law requires that both the marital disqualification rule under Sec. 22 and the marital privilege rule under Sec. 24 can only be invoked by spouses who are validly married to each other. In this case, the bigamous marriage between A and C is void. Q: James, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual abuses under R.A. 7610. The principal witness against him was his Filipina wife, Conching. Earlier, she had complained that James’ hotel was being used as a center for sex tourism and child trafficking. The defense counsel for James objected to the testimony of Conching at the trial of the child prostitution case and the introduction of the affidavits she executed against her husband as a violation of spousal confidentiality and marital privilege rule. It turned out that Patring, the minor daughter of Conching by her first husband who was a Filipino, was molested by James earlier. Thus, Conching had filed for legal separation against James since last year. May the court admit the testimony and affidavits of the wife, Conching, against her husband, James, in the criminal case involving child prostitution? Reason (2004 Bar Question)

Q: Are third persons who overheard the communication between the spouses bound by the privilege? A: GR: Third persons who, without the knowledge of the spouses, overhear the communication are not disqualified to testify. XPN: When there is collusion and voluntary disclosure to a third party, that third party becomes an agent and cannot testify.

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EVIDENCE A: Yes. The court may admit the testimony and affidavits of the wife against her husband in the criminal case where it involves child prostitution of the wife's daughter. It is not covered by the marital privilege rule. One exception is where the crime is committed by one against the other or the latter's direct descendants or ascendants (Sec. 24, Rule 130). A crime by the husband against the daughter is a crime against the wife and directly attacks or vitally impairs the conjugal relation (Ordono v. Daquigan, G.R. No. L39012, Jan. 31, 1975).

Confidential communication It refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given (Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005). Waiver of Attorney-Client Privilege

Attorney-Client Privilege The privilege is personal and belongs to the client. If the client waives the privilege such as client reveals the confidential communication during cross-examination and if the client does not object to his attorney’s testimony on the communication, no one else including the attorney can invoke it (In Re Young’s Estate, 33 Utah 382; Riano, 2009).

Disqualification by reason of attorney-client relationship An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity [Sec. 24 (b), Rule 130].

Cases when the attorney-client privilege is inapplicable 1. 2. 3. 4.

NOTE: This rule shall apply to similar communications made to or received by a law student, acting for the legal clinic (Sec. 3, Rule 138-A). Communication in furtherance of crime or fraud is not privileged (8 Wigmore, Evidence) or for the purpose of committing a crime or a tort or those made in furtherance of an illicit activity.

5.

Purpose of Attorney-Client Relationship

Applicability of the rule with regard to the identity of the client

To encourage full disclosure by client to his attorney of all pertinent matters as to further the administration of justice and to protect the client from possible breach of confidence as a result of a consultation with a lawyer (Hadjula v. Mdianda A.C. No. 6711, July 3, 2007).

GR: Lawyers may not invoke the privilege and refuse to divulge the name or identity of their client. XPNs: 1. Where a strong possibility exists that revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advice; 2. Where disclosure would open the client to civil liability; or 3. Where the prosecutors have no case against the client unless by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual for a crime (Regala vs. Sandiganbayan, G.R. No. 105938, September 20, 1996).

Requisites for the application Attorney-Client privilege: 1. 2.

3.

Intended to be made public; Intended to be communicated to others; Intended for an unlawful purpose; Received from third persons not acting in behalf or as agents of the client; or Made in the presence of third parties who are strangers to the attorney-client relationship (Regalado, 2008).

Attorney-client relation; The privilege is invoked with respect to a confidential communication or advice between them in the course of or with a view to professional employment; and The client has not given his consent to the attorney’s testimony; or if the attorney’s secretary, stenographer or clerk is sought to be examined, that both the client and the attorney have not given their consent (Regalado, 2008).

Q: On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of 3 million pesos. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second August 16, 2008; and that both visits concerned the swindling of Edgardo.

Test in applying the attorney-client privilege The test is whether the communication made is with the view of obtaining from the lawyer his professional assistance or advice regardless of the existence or absence of a pending litigation. NOTE: This rule does not require a perfected attorney – client relationship. It is enough that the communication or advice be with a view to professional employment [Sec. 24(b), Rule 130].

During the trial, the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify the conversations during their first and second meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (2008 Bar Question)

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW A: No. The subpoena may not be simply quashed on the allegation that the testimony to be elicited constitutes privileged communication. It may be noted that the accused committed the crime swindling on August 15, 2008, whereas he first visited his lawyer on August 14, 2008 or before he committed the swindling.

Physician and Patient Privilege Physician and Patient Privilege A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient (Sec. 24(c), Rule 130).

Clearly the conversations the accused had with his lawyer during such first visit, before he committed the swindling cannot be protected by the privilege between attorney and client because the crime had not been committed yet and it is no part of a lawyer’s professional duty to assist or aid in the commission of a crime; hence not in the course of professional employment.

Purpose of this privilege

The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after the swindling was committed may also suffer from the same infirmity as the conversations had during their first meeting inasmuch as there could not be a complaint made immediately after the estafa was committed. The privilege covering a lawyerclient relation under Sec. 24(b), Rule 130, may not be invoked, as it is not a ground for quashal of a subpoena ad testificandum under Sec. 4, Rule 21 of the Rules of Court.

The privilege is intended to facilitate and make safe, full and confidential disclosure by patient to doctor of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. Requisites for the applicability of physician and patient privilege

Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping to tow another vessel, drowning 5 of the crew in the resulting shipwreck. At the maritime board inquiry, the 4 survivors testified. SPS engaged Atty. Ely to defend against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the 5 victims filed an action for damages against SPS.

1.

NOTE: This privilege cannot be claimed in a criminal case presumably because the interest of the public in criminal prosecution should be deemed more important than the secrecy of the communication. (Riano, 2009)

2.

3.

The counsel of the heirs of the 5 victims sent written interrogatories to Ely, asking whether statements of the witnesses may be obtained – if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. (2008 Bar Question)

4. 5.

The relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; The advice or treatment given by him or any information was acquired by the physician while professionally attending to the patient; The information was necessary for the performance of his professional duty; and The disclosure of the information would tend to blacken the reputation of the patient.

Information which cannot be disclosed

A: Yes, the contention of Ely, as counsel for SPS, is tenable considering that he was acting in his professional capacity in bringing about the statement he obtained from the witnesses and the memoranda he made. The notes, memoranda, and writings made by the counsel in pursuance of his professional duty, form part of his private and confidential files in the cases handled by him; hence privileged (Air Philippines Corp v. Penswell, Inc., G.R. No. 172835, Dec. 13, 2007).

1. 2. 3.

4.

NOTE: The weight of authority supports the view that when the client and attorney become embroiled in a controversy between themselves, as in action filed for payment of attorney’s fee, the privilege is removed from the attorney’s lips. (Riano, 2009)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The action involves a civil case;

Any advice given to the client; Any treatment given to the client; Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity; and That the information sought to be disclosed would tend to blacken the reputation of the patient (Sec. 24(c), Rule 130).

Waiver of Privilege The waiver may be made expressly or impliedly. The waiver may be by a contract as in medical or life insurance. When there is disclosure by the patient of the information, there is necessarily, a waiver. When the patient answers

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EVIDENCE questions under cross-examination on matters which are supposedly privileged, the waiver also exists. There could also be waiver by operation of law (Sec. 4, Rule 28).

disease, would be sufficient to blacken the reputation of any patient (Gonzales v. CA, G.R. No. 117740, October 30, 1998).

Cases when Physician and Patient Privilege is inapplicable: 1. 2. 3. 4. 5.

2.

Not given in confidence; Irrelevant to the professional employment; Made for an unlawful purpose; Intended to be made public; or Waived either by contract or law (Regalado, 2008).

Q: Is it necessary that the professional relationship exists between the doctor and patient when the communication was made? A: Yes. It is essential that at the time the communication was made, the professional relationship is existing, that is, while the doctor was attending to the patient for curative, preventive or palliative treatment. It is not however necessary that the relationship was created through the voluntary act of the patient. The treatment may have been given at the behest of another, the patient being in extremis (Ibid.).

Priest-Penitent Privilege Priest-penitent privilege A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs (Sec. 24 (d), Rule 130).

Q: In a proceeding for annulment of marriage on the ground of psychological incapacity, the husband presented a confidential psychiatric report prepared by a physician after examining his wife, but without the knowledge of the physician. Can the wife invoke the physician patient privilege?

Purpose of the priest-penitent privilege To allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential disclosures to religious practitioners (Peralta, Jr., 2005, citing Evidence, Oregon State Bar Committee on Continuing Legal Education).

A: No. The person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery, or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. The proper objection should be hearsay and not privileged communication. (Krohn v. Court of Appeals, 233 SCRA 146)

Requisites for the applicability of the priest-penitent privilege 1.

2. Q: Aimee sought to offer as evidence the testimony of Dr. Naval to prove that Bob is not the illegitimate son of Yuring as the latter was sterile. Bob objected to the admissibility of the said testimony arguing that the same is covered by the physician-patient privilege because the testimony would blacken the reputation of Yuring. It was alleged that Yuring became sterile because he contracted gonorrhea. Aimee argues that Yuring is long dead and, as such, the privilege may not be invoked. 1. Is the testimony of Dr. Naval covered by the physician-patient privilege? 2. Does the fact that Yuring is long dead bar the application of the physician-patient privilege? A: 1.

No. The privilege of secrecy is not abolished or terminated because of death. The purpose of the law would be thwarted and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy, from the communications and disclosures which a patient should make to his physician. After one has gone to his grave, the living are not permitted to impair his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute (Gonzales v. CA, G.R. No. 117740, October 30, 1998).

The confession must have been made to the priest in his professional character according to the discipline of the church to which the priest or minister belongs [Sec. 24(d)]; and Communications made must be confidential and must be penitential in character e.g., under the seal of the confessional (Regalado, 2008)

NOTE: This rule is not limited to confessions made by a penitent but also to any advice given by the minister or priest (Riano, 2009). The advice given as a result of confession must be made in the minister’s professional character (ibid.).

Extent of the priest-penitent privilege When the communication is not penitential in character as when what is divulged is the plan to commit a crime or where the penitent discussed business arrangements with the priest (ibid.).

Yes. Yuring's sterility arose when he contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a sexually-transmitted

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW A: No. As held in the case of Senate of the Philippines vs. Ermita, G.R. No. 169777, April 25, 2006), the Court upheld the doctrine of executive privilege but it found E.O. 464 partly constitutionally defective, specifically Secs. 2(b) and 3 which required government officials below the heads of executive departments to secure consent from the President before appearing in congressional hearings and investigations. The Court noted that E.O. 464 covers persons, which is a misuse of the doctrine because the privilege is to be properly invoked in relation to specific categories of information and not categories of persons (Riano, 2013).

Public Officer as Regards Communications made in Official Confidence Public officer as regards communication made in official confidence A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure (Sec. 24(e), Rule 130). Purpose and scope of the privilege

Parental and Filial Privilege

The privilege only applies to communications to such officers who have a responsibility or duty to investigate or to prevent public wrongs, and not to officials in general (Francisco, 1992).

Rule on filial privilege A person may not be compelled to testify against his/her parents or other direct ascendants (Sec. 25, Rule 130). It is therefore a privilege granted and which can be invoked only by the child or other direct descendant.

Requisites for its application of the privilege 1. 2. 3. 4.

The communication was given to the public officer in official confidence; The public interest would suffer by the disclosure of the communication; The holder of the privilege is the government, acting through a public officer; The communication was given during the term of office of the public officer but the privilege may be invoked not only during the term of office of the public officer but also after (Regalado, 2008)

NOTE: Under the Family Code, the general rule is that no descendant shall be compelled, in a criminal case, to testify against his parents and grandparents. As an exception, a descendant may be compelled to give his testimony in the following instances: 1. When such testimony is indispensable in a crime committed against said descendant or 2. In a crime committed by one parent against the other (Art.215, Family Code; Riano, 2009)

Q: A was convicted of raping his own daughter. His son, an 8 year old boy testified against him. Can he object to the testimony on the ground of filial privilege and invoke the incompetence of the child?

Cases when the privilege is inapplicable If what is asked: 1. Is useful evidence to vindicate the innocence of an accused; 2. Lessen the risk of false testimony; 3. Is essential to the proper disposition of the litigation; or 4. The benefit to be gained by a correct disposition of the litigation was greater than any injury which could inure to the relation by a disclosure of the information (Francisco, 1992).

A: No. The competency of his son is not affected by the filial privilege Rule. The Rule is not strictly speaking a disqualification but refers to a privilege not to testify, which can be invoked and waived like other privileges. The son was not compelled to testify against his father but chose to waive that filial privilege when he voluntarily testified against the accused (People v. Invencion, 398 SCRA 592). Q: A married to B killed the latter. One of the witnesses was C, the mother of B, who was being compelled to testify against A. Can A object on the ground of parental privilege?

NOTE: The court, not the witness, will determine the necessity of regarding the communication as privileged (Francisco, 1992).

Executive privilege

A: No. C is not a direct ascendant of A but that of B, being the mother of the latter. Thus, the privilege does not belong to A.

Certain types of information like military, diplomatic and other national security matters may be withheld from the public.

Q: C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on W's objections which are the following: 1. H cannot testify against her because of the rule on marital privilege; 2. C cannot testify against her because of the doctrine on parental privilege; and

Q: Secretary of Fisheries Nenito Abesamis received an invitation for questioning in a hearing from the Senate of the Philippines regarding the Fish Feeds Scam. During the hearing, Abesamis didn’t answer the questions propounded to him by Senator Renato Pamintuan claiming that his position entitles him to invoke the executive privilege. Is his contention correct?

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EVIDENCE 3.

A: 1.

D cannot testify against her because of the doctrine of privileged communication between patient and physician. (1998 Bar Question)

Q: Can a privileged information be otherwise disclosed upon a production order issued by the court pursuant to Rule 27 of the Rules of Court? A: No. Rule 27 sets an unequivocal proviso that the documents, papers, books, accounts, letters, photographs, objects or tangible things that may be produced and inspected should not be privileged. On the ground of public policy, the rules providing for production and inspection of books and papers do not authorize the production or inspection of privileged matter; that is, books and papers which, because of their confidential and privileged character, could not be received in evidence. Such a condition is in addition to the requisite that the items be specifically described, and must constitute or contain evidence material to any matter involved in the action and which are in the party’s possession, custody or control (Air Philippines Corporation v. Pennswell Inc., G.R. No. 172835, December 13, 2007).

The rule of marital privilege cannot be invoked in the annulment case under Rule 36 of the Family Code because it is a civil case filed by one against the other (Sec. 22, Rule 130).

2.

The doctrine of parental privilege cannot likewise be invoked by W because she is not being compelled to testify. It is filial privilege which can be invoked only by C, not W, who may not be compelled to testify but is free to testify against her (Sec. 25, Rule 130; Art. 215, FC).

3.

D, as a doctor who used to treat W, is disqualified to testify against W over her objection as to any advice or treatment given by him or any information which he may have acquired in his professional capacity [Sec. 24 (c), Rule 130].

EXAMINATION OF A WITNESS Examination of a witness

Other Privileged Matters GR: The examination of witnesses presented in a trial or hearing shall be done in open court and under oath or affirmation. The answers of the witness shall be given orally unless the witness is incapacitated to speak, or the question calls for a different mode of answer (Sec. 1, Rule 132).

Other privileged matters 1.

2.

3. 4.

5.

6.

7.

8.

The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child [Sec. 5 (e), Rule on Examination of a Child Witness]; Editors, publisher, or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or any information given to him in confidence, unless a court or a House or a committee of Congress finds that such revelation is demanded for State security (R.A. 1477); Voters may not be compelled to disclose for whom they voted; Trade secrets cannot be disclosed although this is not absolute as the court may compel disclosure where it is indispensable for doing justice (Francisco, 1992); Bank deposits are absolutely confidential in nature except upon written permission of the depositor, or in cases of impeachment, or upon lawful order of a competent court (R.A. 1405; Francisco, 1992); Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them (Art. 233, Labor Code); and Informers, for the protection of their identity, cannot be compelled to testify by the prosecutor when their testimony would merely be cumulative and corroborative (Herrera, 1999). Information in tax census returns (Air Philippines Corporation v. Pennswell Inc., G.R. No. 172835, December 13, 2007).

NOTE: The reason for the requirement that the examination of the witnesses would be given in open court orally is to enable the court to judge the credibility of the witness by witness’ manner of testifying, their intelligence, and their appearance.

XPNs: The testimony of the witness may not be given in open court in the following case: 1. 2.

3.

4.

5. 6.

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In civil cases, by depositions pursuant to and under the limitations of Rules 23 and 24; In criminal cases, by depositions or conditional examination, pursuant to Secs. 12-15, Rule 119, and Sec. 1, Rule 123, or by the records of the preliminary investigation, under the circumstances of Sec. 1(f) of Rule 115; In criminal cases covered by the Rule on Summary Procedure where the affidavits of the parties’ witnesses constitute their direct testimonies subject however to cross-examination, re-direct or re-cross examination; In civil actions covered by the Rule on Summary Procedure where no examination of witnesses is even required or allowed; and In agrarian cases where the parties submit affidavits of their witnesses subject to cross-examination. In cases falling under the judicial affidavit rule where the direct examination is substituted for the affidavit of the party and witnesses, without prejudice to cross examination by the opposing party and re direct examination. In every case, the court shall take active part in examining the witness to determine his

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues.

Q: May a judge exclude a witness during the course of the trial?

Oath A: GR: Yes, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined (Sec. 15, Rule 132).

It is an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of responsibility to God. NOTE: The purpose is to affect the conscience of the witness to compel him to speak the truth, and for the witness to be punished for perjury should he willfully falsify the truth.

XPN: The following may not be excluded: 1. Parties in a civil case; 2. Expert witness; 3. Agent of the party, when the presence of such agent is necessary, as when the agent has gained such familiarity with the facts that this presence is necessary for the proper management of the action or defense; 4. Complaining witness; or 5. Accused (Francisco, 1992)

In order that one may be competent as a witness, it is not necessary that he has a definite knowledge of the difference between his duty to tell the truth after being sworn and before, or that he is able to state it, but it is necessary that he be conscious that there is a difference (People v. Bisda, 406 SCRA 454).

Affirmation It is a substitute for an oath and is solemn and formal declaration that the witness will tell the truth.

Recantation of a witness

NOTE: The option to take either an oath or affirmation is given to the witness and not to the court.

The court must not automatically exclude the original statement based solely on the recantation. It should determine which statement should be given credence through a comparison of the original and the new statements, applying the general rules of evidence (PLDT v. Bolso, G.R. No. 159701, August 17, 2007).

Q: May the right to have the witness sworn be waived? A: Yes. If a party admits proof to be taken in a case without an oath, after the testimony has been acted upon by the court, and made the basis of a judgment, such party can no longer object to the admissibility of the testimony. He will be deemed to have waibved the objection. (People v. Bisda, 406 SCRA 454).

RIGHTS AND OBLIGATIONS OF A WITNESS Rights of a witness

Matters to be recorded during trial

1.

The entire proceedings of a trial or hearing, including: 1. Questions propounded to a witness and his answers thereto; and 2. The statements made by the judge or any of the parties, counsel, or witness with reference to the case (Sec. 2, Rule 132).

2. 3. 4.

NOTE: These shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court (Ibid.).

NOTE: This refers to immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the law providing for the forfeiture of unlawfully acquired property; and under P.D. 749, in prosecutions for bribery and graft.

Q: How should the questions be propounded to the witness? A: Questions propounded to a witness should not be: 1. Irrelevant; 2. Indefinite or uncertain; 3. Argumentative; 4. Calling for conclusion of law; 5. Calling for opinion or hearsay evidence; 6. Calling for illegal answer; 7. Calling for self-incriminating testimony; 8. Leading; 9. Misleading; 10. Degrading to the reputation of witness; 11. Repetitious; and 12. Calling for a narration. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; Not to be detained longer than the interests of justice require; Not to be examined except only as to matters pertinent to the issue; Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law (right against self-incrimination)

5.

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Not to give an answer, which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense (Sec. 3, Rule 132).

EVIDENCE Classifications of immunity statutes Use and Fruit Immunity Prohibits the use of the witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. It is immunity from using the testimony of the witness.

cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be required either for the prosecution, for co-accused or even for himself.

Transactional Immunity Grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. It is an immunity from prosecution by reason or on the basis of the testimony (Galman v. Pamaran, 138 SCRA)

Refusal of a witness to take the witness stand GR: A witness may not refuse to take the witness stand. XPNs: 1. An accused in a criminal case; or 2. In civil and administrative cases that partake the nature of or analogous to a criminal proceeding. As long as the suit is criminal in nature, the party thereto can decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls (Rosete, et. al. v. Lim, et. al., G.R. No. 136051, June 8, 2006).

Obligation of a witness in open court GR: The witness has the obligation to answer questions, although his answer may tend to establish a claim against him (Sec. 3, Rule 132). XPNs: A witness may validly refuse to answer under the following: 1.

Q: Is the right against self-incrimination available to a witness who has been admitted to the Witness Protection Program?

Right against self-incrimination – If his answer will tend to subject him to punishment for an offense; or NOTE: The constitutional assurance of the right against selfincrimination is a prohibition against the use of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against legal process to extract from the accused’s own lips, against his will, admission of his guilt (Ong v. Sandiganbayan & Office of the Ombudsman, G.R. No. 126858, September 16, 2005).

2.

A: Any witness admitted into the program of the Witness Protection, Security and Benefit Act cannot refuse to testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the offense or offenses for which he has been admitted into the Program on the ground of the constitutional right against selfincrimination but he shall enjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents, records and writings produced (Sec. 14, R.A. 6981).

Right against self-degradation – If his answer will have a direct tendency to degrade his character. XPNs to the XPNs: A witness may not invoke the right against self-incrimination nor the right against selfdegradation if: 1. Such question is directed to the very fact at issue or to a fact from which the fact at issue would be presumed; or 2. If it refers to his previous final conviction for an offense (Regalado, 2008).

Persons eligible to the Witness Protection, Security and Benefit Program Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority may be admitted provided that: 1. The offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or its equivalent under special laws; 2. His testimony can be substantially corroborated in its material points; 3. He or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and 4. He is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under the Act (Sec. 3, R.A. 6981).

NOTE: A witness invited by the Senate who refused to testify and arrested for contempt, cannot invoke right against selfincrimination in a petition for certiorari and prohibition. The said right may only be invoked when the incriminating question is being asked, since he has no way of knowing in advance the nature or effect of the questions to be asked. That this right may possibly be violated or abused is no ground for denying respondent senate committees their power of inquiry (In Re: Sabio, G.R. No. 174340, October 17, 2006).

Right against self-incrimination of the accused v. Right against self-incrimination of an Ordinary witness Accused Cannot be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused, he

question at the time it is put to him.

Ordinary Witness May be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminating

379

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Q: Can a State witness be liable for contempt or criminal prosecution?

c. d.

A: Yes, if he fails or refuses to testify or to continue to testify without just cause when lawfully obliged to do so, he shall be prosecuted for contempt. If he testifies falsely or evasively, he shall be liable to prosecution for perjury. If a State witness fails or refuses to testify, or testifies falsely or evasively, or violates any condition accompanying such immunity without just cause, as determined in a hearing by the proper court, his immunity shall be removed and he shall be subject to contempt or criminal prosecution. Moreover, the enjoyment of all rights and benefits under R.A. 6981 shall be deemed terminated. The witness may, however, purge himself of the contumacious acts by testifying at any appropriate stage of the proceedings (Sec. 13, R.A. 6981).

To elicit admissions; and To clarify certain matters.

3.

Redirect examination a. To afford opportunity to the witness to explain or amplify his testimony during cross-examination; and b. To explain any apparent contradiction or inconsistency in his statements.

4.

Re-cross examination a. To overcome the proponent’s attempt to rehabilitate the witness; and b. To rebut damaging evidence brought out during redirect examination.

Q: Tony states on direct examination that he once knew the facts being asked but he cannot recall them now. When handed a written record of the facts, he testifies that the facts are correctly stated, but that he has never seen the writing before. Is the writing admissible as past recollection recorded? Explain. (1996 Bar Question)

ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS

A: No, because for the written record to be admissible as past recollection recorded, it must have been written or recorded by Tony or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded (Sec. 16). But in this case Tony has never seen the writing before. When the witness may refer to memorandum Present Recollection Revived A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or later so long as the fact was fresh in his memory and he knew that it was correctly recorded Memory is obscure but there is still memory The main evidence is the testimony of the witness No need to swear since the witness simply testifies that he knows that the memorandum is correctly written by him or under his direction

Purposes of each stage of the examination 1.

Direct examination – To establish the case of the proponent of the witness.

2.

Cross examination a. To impeach the credibility of the testimony; b. To impeach the credibility of the witness; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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Past Recollection Recorded A witness may also testify from such writing or record, though he retains no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made, but such evidence must be received with caution There is no recollection The main evidence is the memorandum Witness must swear that the writing correctly states the transaction

EVIDENCE Right of the adverse party when a writing is shown to a witness

3.

The adverse party has a right to inspect it to enable him to cross-examine the witness (Sec. 18, Rule 132).

The absence of a witness is not sufficient to warrant the striking out of his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, and the matter on which cross-examination is sought is not in controversy (Ibid.).

Scope of a cross-examination 1.

2.

Q: Is the party who offered the testimony of a witness bound by such testimony?

American rule – Cross-examination is restricted to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness. English rule – Where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination.

A: GR: Yes, he is bound by the testimony. XPNs: When the witness is the: 1. adverse party; 2. hostile witness; 3. unwilling witness; or 4. a witness required by law to be presented (forced witness).

NOTE: The English rule is observed in our jurisdiction, except with respect to cross-examination of the accused, or a hostile witness.

Recalling GR: A witness cannot be recalled without leave of court as the recalling of a witness is a matter of judicial discretion (Sec. 9, Rule 132).

Cross-examination as an absolute right of the party against whom he is called

XPNs: 1. The examination has not been concluded; or 2. If the recall of the witness was expressly reserved by a party with the approval of the court. In these two cases the recall of a witness is a matter of right (Regalado, 2008).

Cross-examination of a witness is the absolute right, not a mere privilege, of the party against whom he is called; and with regard to the accused, it is a right granted by the Constitution. Sec. 14(2), Art. III thereof provides that the accused shall enjoy the right to meet the witnesses face to face.

NOTE: Something more than the bare assertion of the need to propound additional questions is essential before the court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall of any witness (People v. Rivera, G.R. No. 98376, August 16, 1991).

Doctrine of Incomplete Testimony GR: When cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record. XPN: Where the prosecution witness was extensively crossexamined on the material points and thereafter failed to appear and cannot be produced despite a warrant of his arrest (People v. Gorospe, G.R. No. 51513, May 15, 1984).

LEADING AND MISLEADING QUESTIONS

Effect of death or absence of a witness after the direct examination by the proponent 1.

2.

Leading question It is one which suggests to the witness the answer which the examining party desire. Leading question not allowed.

If the witness was not cross-examined because of causes attributable to the cross-examining party and the witness had always made himself available for cross-examination, the direct testimony of the witness shall remain on record and cannot be stricken off because the cross-examiner is deemed to have waived his right to cross-examine (Dela Paz v. IAC, G.R. No. 75860, September 17, 1987). If the witness was partially cross-examined but died before the completion of his cross-examination, his testimony on direct may be stricken out but only with respect to the testimony not covered by the crossexamination (People v. Señeris, G.R. No. L-48883, August 6, 1980).

When is leading question allowed 1.

On cross-examination; NOTE: The witness is not the cross-examining party’s witness in cross-examination. Thus, he is expected to be adverse or hostile to the cross-examiner. He is not expected to cooperate.

2.

On preliminary matters; NOTE: A question is preliminary if it does not touch on any issue.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW 3.

4.

When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind or a deaf-mute; To unwilling witness or hostile witness;

By contradictory evidence

NOTE: A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify or his having misled the party into calling him to the witness stand. (Sec. 12, Rule 132)

5.

6.

Refers to the prior testimony of the same witness or other evidence presented by him in the same case, but not the testimony of other witness

Witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party (Sec. 10, Rule 132); or In all stages of examination of a child if the same will further the interests of justice (Sec. 20, AM 004-07-SC).

Misleading question It is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed (Sec. 10, Rule 132) unless waived or when asking hypothetical questions to an expert witness.

By evidence that his general reputation for truth, honesty, or integrity of the witness is bad Since the weight of the witness’ testimony depends on his credibility, he may be impeached by impairing his credibility by showing his not pleasing reputation but only as regards his reputation for truth, honesty or integrity.

By prior inconsistent statements “laying the predicate"

Refer to statements, oral or documentary made by the witness sought to be impeached on occasions other than the trial in which he is testifying

NOTE: The adverse party should object thereto or ask the court to expunge the answer from the records, if he has already given his answer.

Impeachment of a witness by evidence of particular wrongful acts

METHODS OF IMPEACHMENT OF ADVERSE PARTY’S WITNESS

GR: A witness may not be impeached by evidence of particular wrongful acts.

Impeachment of a witness

XPN: If it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense (Sec. 11, Rule 132).

It is a technique employed usually as part of crossexamination to discredit a witness’ testimony by attacking his credibility (Riano, 2013).

Impeachment by a party of his own witness

Ways of impeaching an adverse party’s witness

GR: By calling a witness, the party certifies his credibility.

1. 2.

XPN: The witness is an: 1. Unwilling or adverse witness so declared by the court; 2. Adverse party; or 3. Officer of the adverse party who is a juridical person (Sec. 12, Rule 132).

3.

By contradictory evidence; By evidence that the general reputation for truth, honesty or integrity of the witness is bad and By prior inconsistent statements (Sec. 11, Rule 132).

NOTE: The other modes of impeaching a witness are: 1. By showing improbability or unreasonableness of testimony; 2. By showing bias, prejudice, and hostility; 3. By prior inconsistent acts or conduct; 4. By showing intent and motive; 5. By showing social connections, occupation and manner of living; or 6. By showing interest (Francisco, 1992).

Proponent may impeach his own witness when: 1. 2.

When the witness is the adverse party himself When the witness turned hostile. (Proponent must ask the court that he would treat the proponent as hostile)

NOTE: In these instances, such witnesses may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character.

Q: What is meant by impeachment of the adverse party as a witness? A: That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. He is not bound only in the sense that he may contradict UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

382

EVIDENCE him by introducing other evidence to prove a state of facts contrary to what the witness testifies. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted (Gaw v. Chua, G.R. No. 160855, April 16, 2008).

Laying the predicate v. Laying the foundation or basis Laying the Predicate Refers only to impeachment of a witness through prior inconsistent statements

HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS Laying the predicate It means that it is the duty of a party trying to impugn the testimony of a witness by means of prior or subsequent inconsistent statements, whether oral or in writing, to give the witness a change to reconcile his conflicting declaration.

EVIDENCE OF THE GOOD CHARACTER OF A WITNESS Admissibility of evidence on the good moral character of a witness

Elements of laying the predicate 1.

2.

Evidence of the good character of a witness is not admissible except when such character has been impeached (Sec. 14, Rule 132).

The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him He must be asked whether he made such statements and also to explain them if he admits making those statements (Riano, 2009).

NOTE: Not every good or bad moral character of the offended party may be proved under this provision but only those which would establish the probability or improbability of the offense charged.

ADMISSIONS AND CONFESSIONS

Procedure in impeaching a witness by evidence of prior inconsistent statements 1.

2. 3.

Laying the Foundation or Basis Refers to a situation where evidence which is otherwise incompetent will be introduced into evidence because it falls under the rules of exclusion. e.g. under the best evidence rule, a party must first prove that a writing was duly executed and that the original has been lost or destroyed. Without first laying the foundation, secondary evidence will not be admitted by the court.

Admissions v. Confessions Admission A statement of fact which does not involve an acknowledgment of guilt or liability May be made by third persons and in certain cases, are admissible against a party Applies to both criminal and civil cases May be express or implied

The witness must be confronted with such statements with the circumstances of the times, places and the persons present in which they were made; The witness must be asked whether he made such statements, and if so, allowed to explain them; and If the statement be in writing it must be shown to the witness before any question is put to him concerning them (Sec. 13, Rule 132).

Inapplicability of the rule It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party (Regalado, 2008).

Confession A statement of fact which involves an acknowledgment of guilt or liability Can be made only by the party himself and, in some instances, are admissible against his co-accused Applies only to criminal cases Always express

NOTE: An admission, in general sense, includes confessions, the former being a broader term because, accordingly, a confession is also an “admission by the accused of the fact charged against him or of some fact essential to the charge” (4 Wigmore, Sec. 1050). A confession is a specific type of admission which refers only to an acknowledgement of guilt. As used, the term admission refers to an acknowledgement of facts which, although may be incriminating, falls short of an admission of guilt.

NOTE: The reasons for such inaplicability are: 1. To avoid unfair surprise to the adversary; 2. To save time, as an admission by the witness may make the extrinsic proof necessary; and 3. To give the witness, in fairness to him, a chance to explain the discrepancy.

Judicial admission v. Extrajudicial admission JUDICIAL ADMISSIONS Those made in the course of the proceeding in the same case

383

EXTRAJUDICIAL ADMISSIONS Those made out of court or in a judicial proceeding other than the one under

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Q: What is the underlying reason for the adoption of the rule against the admission of an offer of compromise in civil cases? (1998 Bar Question)

consideration Do not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made (Sec. 4, Rule 129). Judicial admissions need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established. Conclusive upon the admitter Admissible even if selfserving Subject to crossexamination

Regarded as evidence and must be offered as such, otherwise the court will not consider it in deciding the case.

A: The reason for the rule against the admission of an offer of compromise in civil case as an admission of any liability is that parties are encouraged to enter into compromises. Courts should endeavor to persuade the litigants in a civil case to agree upon some fair compromise (Art. 2029, NCC). During pre-trial, courts should direct the parties to consider the possibility of an amicable settlement [Sec. 2(a), Rule 18].

Requires formal offer for it to be considered

Offer of compromise v. Ordinary admission Rebuttable

Offer of Compromise Tentative only; any statement made in connection with the proposal is merely hypothetical; it is in contemplation of mutual concessions

Not admissible if selfserving Not subject to crossexamination

Offer of compromise as admission of liability CIVIL CASE It is NOT an admission of any liability and is NOT admissible against the offeror.

Ordinary Admission To admit the liability and to seek or secure relief against a liability recognized as such.

CRIMINAL CASE GR: It may be received in evidence as an implied admission of his guilt.

Q: Berting was accused of having raped Lisa. Rule on the admissibility of an offer of Berting to marry Lisa. (1998 Bar Question)

XPNs: 1. In quasi-offenses where there is no criminal intent (negligence) such as reckless imprudence

A: Berting's offer to marry Lisa is admissible in evidence as an implied admission of guilt because rape cases are not allowed to be compromised (Sec. 27, Rule 130). Q: Accused was charged with rape. Among the witnesses of the prosecution was the father of the complainant who testified that the relatives of the accused sought a compromise agreement of the case. Is the offer admissible in evidence?

2. In criminal cases allowed by law to be compromised such as: a. NIRC (Sec. 7c) – The CIR has the power to compromise minor criminal violations as may be determined by the Secretary of Finance

A: Yes, the offer of settlement made by the relatives of the accused to the complainant’s father militates against the innocence of the accused. Indeed, an offer of compromise by the accused in criminal cases, except those involving quasi-offenses or those allowed by law to be compromised may be received in evidence as an implied admission of guilt (People v. Salvador, 396 SCRA 298).

b. LGC (Sec. 408) – Allowed in minor offenses whose penalties do not exceed one year c. RPC (Art. 266-C) – In cases of marital rape, where subsequent forgiveness by the wife extinguishes the criminal action or penalty (Suarez and De la Banda, Evidence: A Lawyer’s Companion, 2006 ed.)

NOTE: An offer of compromise made by the parents of the accused without his participation cannot be considered as an implied admission. Following the principle of res inter alios acta, the actions of his parents cannot prejudice accused, since he was not a party to the conversation nor was it shown that he was privy to the offer of compromise. They cannot be considered as evidence against the accused (People v. Gaudia, 423 SCRA 520).

NOTE: No compromise is valid in the following cases: 1. Civil status of persons; 2. Validity of a marriage or legal separation; 3. Any ground for legal separation; 4. Future support; 5. Jurisdiction of courts; 6. Future legitime; 7. Habeas corpus; and 8. Election cases.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Q: Lloydie, while driving his car, ran over Bea. Lloydie visited Bea at the hospital and offered to pay for her hospitalization expenses. After the filing of the criminal case against Lloydie for serious physical injuries through reckless imprudence, Lloydie’s insurance carrier offered to pay for the injuries and damages suffered by Bea. The offer was rejected because Bea considered the amount offered as inadequate.

384

EVIDENCE 1. 2.

A: 1.

Is the offer by Lloydie to pay the hospitalization expenses of Bea admissible in evidence? Is the offer by Lloydie's insurance carrier to pay for the injuries and damages of Bea admissible in evidence? (1997 Bar Question)

Two (2) branches of res inter alios acta rule 1. 2.

It is not admissible in evidence to prove his guilt in both the civil and criminal cases [Sec. 27(4), Rule 130].

The rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28, Rule 130). Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time (Sec. 34, Rule 130).

Exceptions to the res inter alios acta rule (first branch): 2.

It is irrelevant. The obligation of the insurance company is based on the contract of insurance and is not admissible in evidence against the accused because it was not offered by the accused but by the insurance company which is not his agent.

1. 2. 3.

NOTE: The rule has reference to extrajudicial declarations. Hence, statements made in open court by a witness implicating persons aside from him are admissible as declarations from one who has personal knowledge of the facts testified to.

Admissibility of plea or offer Offer or Plea Plea of guilty later withdrawn by the accused Offer by the accused to plead guilty to a lesser offense but unaccepted by prosecution Offer to pay or payment of medical, hospital or other expenses occasioned by injury (Good Samaritan Rule)

Admission by a co-partner or agent (Sec. 29, Rule 130); Admission by a co-conspirator (Sec. 30, Rule 130); and Admission by privies (Sec. 31, Rule 130).

Admissibility Not admissible in evidence agains tthe accused who made the plea Not admissible in evidence agains tthe accused who made the offer

Q: Mau sued Kenstar Travel Corporation for breach of contract on the ground that when she went on a European tour, there was no European tour manager, the Filipino guide was a first timer, and the hotels where they were billeted were not first class. Kenstar contended that the tour was satisfactory because out of 18 participants, only Mau actually complained. Can the fact that the other participants in the tour filed no case against Kenstar be used as evidence to show that B has no cause of action?

Not admissible in evidence as proof of civil or criminal liability for the injury (Suarez and De la Banda, Evidence: A Lawyer’s Companion, 2006 ed.)

A: No. Rule 130, Sec. 28 of the Rules of Court provides that the rights of a party cannot be prejudiced by an act, declaration or omission of another. The failure of the other participants to file and action should not prejudice Mau (Geraldez v. Court of Appeals, 230 SCRA 320).

Unaccepted offer An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property (Sec. 35, Rule 130).

ADMISSION BY A PARTY Admission of a party The act, declaration or omission of a party as to a relevant fact may be given in evidence against him (Sec. 26, Rule 130).

RES INTER ALIOS ACTA RULE Res inter alios acta alteri nocere non debet

Requisites for the admissibility of an admission

This principle literally means “things done between strangers ought not to injure those who are not parties to it.”

1. 2. 3. 4.

Reason for the rule on res inter alios acta

Must involve matters of fact and not of law; Must be categorical and definite; Must be knowingly and voluntarily made; and Must be adverse to the admitter’s interests (Ibid.).

Self-serving declaration

On principle of good faith and mutual convenience, a man’s own acts are binding upon himself and are evidence against him. So are his conduct and declarations. It would not only be rightly inconvenient but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him (People v. Vda. De Ramos, 403 SCRA 167).

It is one which has been made extra-judicially by the party to favor his interest. It is not admissible in evidence because they are inherently untrustworthy, and would open the door to fraud and fabrication of testimony. NOTE: Self-serving evidence are inadmissible because the adverse party is not given the opportunity for cross-examination, and their admission would encourage fabrication of testimony (Hernandez vs. CA, 228 SCRA 429).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Statements in affidavits are not sufficient to prove the existence of agricultural tenancy. It is self-serving. It will not suffice to prove consent of the owner. Independent evidence is necessary (Rodriguez vs. Salvador, G.R. No. 171972, June 8, 2011).

ADMISSION AGAINST INTEREST Admission against interest It is made by a party to a litigation or by one in privity with or identified in legal interest with such party.

Q: After working as a laborer for 43 years, A resigned from Rufina Patis Factory. Thereafter, he availed of his pension from the SSS and executed an affidavit stating that he was never re-employed. However, when he filed a claim for retirement benefits from his employer before the NLRC, he alleged that he continued working for Rufina Patis Factory for 4 more years. Can Rufina Patis Factory use A’s affidavit executed before the SSS as an admission against his interest?

NOTE: The rationale for the rule is based on the presumption that no man would declare anything against himself unless such declaration was true. Thus, it is fair to presume that the declaration corresponds to the truth, and it is his fault if it is not (Rufina Patis Factory v. Alusitain, 434 SCRA 419).

Q: Anabelle Gutierrez borrowed money from Ligaya Santos for which she issued 5 checks as guarantee for the loan; however, these were dishonored for the reason closed account. Later, Anabelle executed a document which states that: “I, Anabelle Rama Gutierrez certify that I received all my old checks from Mrs. Ligaya Santos in exchange to the new ones I gave her. In agreement, Mrs. Ligaya agreed to drop her case against me”. The replacement checks were subsequently honored except for one check. Thus, trial ensued and Anabelle was found guilty for violation of BP 22 based solely on the document she executed. Did the trial court acted correctly?

A: Yes. The document is the best evidence which affords greater certainty of the facts in dispute. While the affidavit may have facilitated the release of the retirement benefits from SSS, hence, beneficial to him at that time, it may still be considered as admission against interest since the disserving quality of the admission is judged as of the time it is used or offered in evidence and not when such admission was made. Thus, it matters not that the admission was self serving at the time it was made, so long as it is against A’s present claim (Rufina Patis Factory v. Alusitain, 434 SCRA 419).

A: No. the trial court misconstrued and misapplied the rule with regard to admissions in criminal cases. An admission is a mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the speaker, but not in itself sufficient to establish guilt beyond reasonable doubt. By itself, the letter acknowledging that Anabelle issued the checks and that she was replacing them does not prove beyond reasonable doubt her culpability under BP 22. It is indispensable that the checks she issued be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds (Gutierrez v. Palattao, 292 SCRA 26).

Classifications of admissions Express Implied

It is a positive statement or act. It is one which may be inferred from the declarations or acts of a person.

Judicial

When made in the course of a judicial proceeding.

Extrajudicial

When made out of court or even in a proceeding other than the one under consideration. It is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. A third person’s statement becomes the admission of the party embracing or espousing it. Adoptive admission may occur when a party: 1. Expressly agrees to or concurs in an oral statement made by another; 2. Hears a statement and later on essentially repeats it; 3. Utters an acceptance or builds upon the assertion of another; 4. Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; or 5. Reads and signs a written statement made by another (Riano, 2009; Republic v. Kendrick Development Corp., G.R. No. 149576, August 8, 2006).

Adoptive

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

ADMISSION BY A THIRD PARTY Admission by a third party GR: The act, declaration or omission made out of court of a party as to a relevant fact may be given in evidence against him but may not be given in evidence against another person. XPN: The act or omission of one party made out of court may be used as evidence against another when its admission is made by: 1. A partner 2. An agent 3. A joint owner 4. A joint debtor 5. A person jointly interested with the party 6. A conspirator 7. A privy or successor in interest (Suarez and De la Banda, 2006). Q: Francisco was charged with violating PD No. 1612 or the Anti Fencing Decree. Among the evidence submitted against him was the testimony of Jovita in a previous

386

EVIDENCE criminal case wherein the accused therein, Pacita, was convicted of theft and where she stated that Francisco bought stolen jewelries from her. Can the admission in the previous case be used against Francisco?

admissions in their pleadings. What is the value of these admissions? A: The individual and separate admissions of each respondent bind all of them pursuant to Sec. 29, Rule 130 of the Rules of Court. The declaration of a party is admissible against a party whenever a “privity of estate” exists between the declarant and the party. It generally denotes a succession of rights. Without doubt, privity exists among the respondents in this case. Where several coparties exists who are jointly interested in the subject matter of the controversy, the admission of one is competent against all (Republic v. Sandiganbayan, 406 SCRA 190).

A: No. It bears stressing that Francisco was not a party to the previous criminal case where Pacita was the accused. The rule is that the acts, or declarations of a person are not admissible against a third party. Only parties to a case are bound by a judgment of the trial court (Francisco v. People, 434 SCRA 122). Without presenting Jovita to testify on her admission during the previous criminal case, even if made in a previous judicial proceeding, it remains an extrajudicial admission without any effect, insofar as the present action against Francisco is concerned.

ADMISSION BY A CONSPIRATOR ADMISSION BY A CO-PARTNER OR AGENT Admission by a conspirator Admission by a co-partner or agent The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration (Sec. 30, Rule 130).

The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party (Sec. 29, Rule 130).

Conspiracy A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.

Requisites for an admission of a partner to bind his copartners or for an agent to bind his principal 1. 2. 3.

NOTE: Once conspiracy is proven, the act of one is the act of all. The statement therefore of one may be admitted against the other co-conspirators as an exception to the rule of res inter alios acta.

The act or declaration of a partner or agent of the party must be within the scope of his authority; The admission was made during the existence of the partnership or agency; and The existence of the partnership or agency is proven by independent evidence other than such act or declaration (ibid.). The Articles of Incorporation or a Special Power of Attorney may be presented for such purpose (Suarez and De la Banda, 2000.

Requisites of an admission by a conspirator 1. 2. 3.

NOTE: The same rule applies to an act or declaration of a joint owner, joint debtor or other person jointly interested with the party.

The declaration or act be made or done during the existence of the conspiracy; The declaration or act must relate to the purpose and object of the conspiracy; and The conspiracy must be shown by evidence other than the declaration or act (evidence aliunde) (Sec. 30, Rule 130).

NOTE: This rule applies only to extrajudicial acts or admission and not to testimony at trial where the party adversely affected has the opportunity to cross-examine the witness (People vs. Baharan, January 10, 2011).

Dissolved Partnership GR: Admissions made after a partnership has been dissolved do not fall within the exception because such are made when the partnership ceased to exist.

Q: A was convicted of robbery with homicide. Among the evidence used to convict her was the extrajudicial confession of her co-accused, an alleged co-conspirator, which confession was made with the assistance of counsel. Can such admission be used against A?

XPN: Where the admissions are made in connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partner in said winding up (Regalado, 2008).

A: No. In order for such admission to be admissible in evidence, there must be independent evidence aside from the extrajudicial confession to prove conspiracy. There being no independent evidence to prove conspiracy, A’s culpability was not sufficiently established (People v. Vda. De Ramos, 403 SCRA 167).

Q: The Republic of the Philippines filed a forfeiture case against the heirs of the late former President Marcos. In one of her manifestations before the Sandiganbayan, Imelda Marcos admitted that she owned 90% of the Swiss bank deposits and only 10% belongs to the estate of the late President Marcos. The other heirs also made separate

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REMEDIAL LAW Q: Are extrajudicial admissions made by a conspirator after the conspiracy had been terminated and even before trial, be admissible against the co-conspirator?

A: No. The admission of a former owner of a property must have been made while he was the owner thereof in order that such admission may be binding upon the present owner. Hence, Lucero’s act of executing the 1968 document have no binding effect on Del Monte, the ownership of the land having passed to it in 1964 (Gevero v. IAC, 189 SCRA 201).

A: No, except in the following cases: 1. If made in the presence of the co-conspirator who expressly or impliedly agreed therein; 2. Where the facts in said admission are confirmed in the individual extrajudicial confessions made by the coconspirator after their apprehension; 3. As a circumstance to determine the credibility of the witness; or 4. As circumstantial evidence to show the probability of the co-conspirator’s participation in the offense. (Regalado, 2008) When extrajudicial admission

admission

becomes

a

ADMISSION BY SILENCE Admission by silence There is admission by silence when a party does or says nothing when he hears or observes an act or declaration made in his presence when such act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so. Such may be given in evidence against him (Sec. 32, Rule 130).

judicial

While it is true that statements made by a conspirator against a co-conspirator are admissible only when made during the existence of the conspiracy, if the declarant repeats the statement in court, his extrajudicial confession becomes a judicial admission, making the testimony admissible as to both conspirators (People v. Baharan, 639 SCRA 157, January 10, 2011).

Requisites of an admission by silence 1. 2. 3. 4.

ADMISSION BY PRIVIES

5. 6.

Admission by privies Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former (Sec. 31, Rule 130).

NOTE: The rule on admission by silence does not apply when a person is under an official investigation. For the silence of a person under a custodial investigation for the commission of an offense should not be construed as an admission by silence because a person has the right to remain silent and to be informed of that right (Sec. 12, Art. III, 1987 Constitution; Riano, 2009). However, if it is not the police investigators who confronted the accused but the owner of a carnapped vehicle, the silence of one after being implicated by the other accused serves as an admission by silence as he did not refute the statements of his co-accused despite having heard of them (People v. Garcia, 400 SCRA 229).

Privies They refer to those who have mutual or successive relationship to the same rights of property or subject matter such as personal representatives, heirs, devisees, legatees, assigns, voluntary guarantees or judgment creditors or purchasers from them with notice of the facts.

Principle of adoptive admission

Requisites of an admission by privies 1.

2.

3.

It states that a party may, by his words or conduct, voluntarily adopt or ratify another’s statement. Where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him (Riano, 2013).

One (successor in interest) derives title to property from another (predecessor in interest) through any legal means of transfer A statement, act or declaration is made by the predecessor in interest in relation to the property and while holding the title thereof Said statement, act or declaration is evidence against his successor in interest (Sec. 31, Rule 130; Suarez and De la Banda, 2006).

It is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. The basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made (Estrada v. Desierto, G.R. Nos. 146710-15, April 3, 2001).

Q: Del Monte Development Corporation filed a case to be adjudged owner of a piece of land against Ababa claiming that it acquired a lot from Lucero in 1964. As a defense, Ababa presented a document executed by Lucero in 1968 to settle the controversy. Can the document bind Del Monte as successor in interest of Lucero?

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

He must have heard or observed the act or declaration of the other person; He must have had the opportunity to deny it; He must have understood the statement; He must have an interest to object, such that he would naturally have done so, if the statement was not true; The facts were within his knowledge; and The fact admitted or the inference to be drawn from his silence is material to the issue (Sec. 32, Rule 130; People v. Paragsa, G.R. No. L-44060, July 20, 1978).

NOTE: One good example of adoptive admission is the alleged admissions made by President Estrada when his options had dwindled when, according to the Angara Diary, the Armed Forces

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EVIDENCE withdrew its support from him as President and Commander-inChief. Thus, Angara had to allegedly ask Senate President Pimentel to advise Estrada to consider the option of “dignified exit or resignation.” Estrada did not object to the suggested option but simply said he could never leave the country. According to the court, his silence on this and other related suggestions can be taken as adoptive admissions by him (Estrada v. Desierto, G.R. Nos. 146710-15, April 3, 2001).

admissible against his co-accused. It is governed by Sec. 33 of Rule 130 (Regalado, 2008). NOTE: If the accused admits having committed the act in question but alleges a justification therefor, such as absence of criminal intent, the same is merely an admission (Ibid.).

CONFESSIONS Confessions

Admissibility of extrajudicial confessions

The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him (Sec. 33, Rule 130).

GR: An extrajudicial confession is not admissible against the confessor’s co-accused. Said confession is hearsay evidence and violative of the res inter alios acta rule. XPN: It may be admitted in evidence against his co-accused in the following cases: 1. In case of implied acquiescence of the co-accused to the extrajudicial confession; 2. In case of interlocking confessions; 3. Where the accused admitted the facts stated by the confessant after being apprised of such confession; 4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; 6. When the confessant testified for his co-defendant; and 7. Where the co-conspirator’s extrajudicial confession is corroborated by other evidence on record (Regalado, 2008).

Requisites for the admissibility of a confession 1. 2. 3. 4.

5.

It must involve an express and categorical acknowledgement of guilt; Facts admitted must be constitutive of a criminal offense; It must have been given voluntarily; It must have been intelligently made, the accused realizing the importance or legal significance of his act; and There must have been no violation of Sec. 12, Art. III, 1987 Constitution NOTE: A confession to a person, who is not a police officer, is admissible in evidence. The declaration acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against the declarant. Such admissions are not covered by Secs. 12 (1) and (3), Article III, 1987 Constitution, because they were not extracted while he was under custodial investigation (People v. Davao, et. al, G.R. No. 174660, May 30, 2011).

6.

Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the last person seen with the woman when she was still alive, Carlito was arrested within 5 hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (2008 Bar Question)

It must be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor or priest or minister of the gospel as chosen by him (Sec. 2d, R.A. 7438; Regalado, 2008).

Judicial confession

CLASSIFICATION OF CONFESSIONS One made by the accused before an open court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain conviction and is admissible against one’s co-accused. It is governed by Secs. 1, 3 & 4 of Rule 116.

Extrajudicial confession

A: No. The oral confession is not admissible as evidence of guilt of Carlito because he was already under arrest and in police custody when he made the extrajudicial confession and he was not informed of the Miranda rights particularly the right to remain silent. Additionally, it does not appear that the counsel present is his counsel of his choice.

One made in any other place or occasion other than the court where the case is pending and cannot sustain a conviction unless corroborated by evidence of corpus delicti. It is generally binding only upon the confessant and is not

Q: What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence? (2006 Bar Question)

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW A: 1. 2. 3. 4. 5.

SIMILAR ACTS AS EVIDENCE 2nd Branch of the Res Inter Alios Acta Rule (Sec. 34, Rule 130)

The admission must be voluntary. The admission must be in writing. The admission must be made with the assistance of competent, independent counsel. The admission must be express (People vs. Prinsipe, G.R. No. 135862, May 2, 2002). In case the accused waives his rights to silence and to counsel, such waiver must be in writing, executed with the assistance of competent, independent counsel.

2nd Branch of the res inter alios acta rule GR: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; (Sec. 34, Rule 130).

Q: What is the reason for the adoption of the rule against the admission of illegally obtained extrajudicial confession? (1998 Bar Question)

XPNs: Evidence of similar or previous acts may be received to prove the following: 1. Specific Intent 2. Knowledge 3. Identity 4. Plan 5. System 6. Scheme 7. Habit 8. Custom 9. Usage and 10. The like (Ibid).

A: An illegally obtained extrajudicial confession nullifies the intrinsic validity of the confession and renders it unreliable as evidence of the truth (Moran, 1980). It is the fruit of a poisonous tree. DOCTRINE OF INTERLOCKING CONFESSIONS Doctrine of Interlocking Confessions It states that extrajudicial confessions independently made without collusion which are identical with each other in their essential details and corroborated by other evidence against the persons implicated, are admissible to show the probability of the latter’s actual participation in the commission of the crime.

Purpose of the rule Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. Hence, the evidentiary rule guards the practical inconvenience of trying collateral issues and protracting the trial, and prevents surprise or other mischief prejudicial to litigants (Cruz v. CA, G.R. No. 126713, July 27, 1998).

Q: 4 of the 6 suspects in the crime of kidnapping with double murder executed separate extrajudicial statements confessing to the crime and implicating the others. The statements were independently executed but are identical with each other in their material details. There are also distinct similarities in the narration of events leading to the killings. Is the extrajudicial confession admissible against the others?

It prohibits the admission of the so-called “propensity evidence” and decrees that 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 a similar thing at another time.

A: Yes. The rule that an extrajudicial statement is evidence only against the person making it, also recognizes various exceptions. One such exception is the rule on interlocking confessions where several extrajudicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions bu the fact that the statements are in all material respects identical, is (1) confirmatory of the confession of the co-defendants and is admissible against other persons implicated therein. (2) They are also admissible as circumstantial evidence against the person implicated therein to show the probability of the latter’s actual participation in the commission of the crime and (3) may likewise serve as corroborative evidence if it is clear from other facts and circumstances that other persons had participated in the perpetration of the crime charged and proved (People v. Lising, 285 SCRA 595)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Q: Accused was charged with 2 counts of kidnapping. Since the 2 incidents happened almost simultaneously, the cases were consolidated and joint trial ensued. In the first case, accused tied the hands of the 2 victims and pointed their guns at them. In the second case, however, it appears that the 2 victims were not physically threatened or tied. Can evidence in the first case be used in the second to prove that accused had the intent to deprive the victims of liberty? A: Yes. The evidence shows the intent of the accused. That the victim’s hands were not tied nor guns poked at their sides when they were taken by the accused in the second case do not conclusively preclude the deprivation of liberty. The circumstances surrounding the taking of the victims in the first case, particularly the previous conduct of accused in kidnapping them, plainly demonstrates their intent to likewise deprive the victims in the other case, of their liberty (People v. Dadles, 278 SCRA 393).

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EVIDENCE statements of another person, spoken in a language not understood by him, but translated for him by an interpreter, such witness is not qualified, because he does not speak from personal knowledge. All that he can know as to the testimony is from the interpretation thereof which is in fact given by another person.

HEARSAY MEANING OF HEARSAY Hearsay evidence It signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited and which consequently does not depend for its credibility and weight upon the confidence which the court may have in him. It is information relayed from another person to the witness before it reaches the court (Go v. CA, G.R. No. 112550, February 5, 2001). It also includes all assertions where, though derived from personal knowledge, the adverse party is not given an opportunity to cross-examine.

XPNs: In cases where the interpreter had been selected: 1. By common consent of the parties endeavoring to converse; 2. By a party against whom the statements of the interpreter where offered in evidence (Principal-Agent Rule). Q: Counsel Oliva objected to a question posed by opposing Counsel Diesta on the grounds that it was hearsay and it assumed a fact not yet established. The judge banged his gavel and ruled by saying “Objection Sustained”. Can Counsel Diesta ask for a reconsideration of the ruling? (2012 Bar Question)

It includes: 1. Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand (Regalado, 2008). 2. It also includes all assertions which have not been subjected to cross-examination by the adverse party at the trial in which they are being offered against him (Herrera, 1999).

A: Yes, Counsel Diesta may ask the Judge to specify the ground/s relied upon for sustaining the objection and thereafter move its reconsideration thereof (Sec. 38, Rule 132, Rules of Court). REASON FOR EXCLUSION OF HEARSAY EVIDENCE

NOTE: The testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement.

There is no opportunity for cross-examination hence, it is not subject to the test of truth since the declarant is not available and available for cross-examination. In criminal cases, its admission would be a violation of the constitutional provision that the accused shall enjoy the right of being confronted with the witnesses testifying against him and to cross-examine them. Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them.

Hearsay Rule It states that a witness can testify only to those facts which he knows of based on his personal knowledge or those which are derived from his own perception (Sec. 36, Rule 130).

DOUBLE HEARSAY

Elements of hearsay evidence 1. 2.

Double hearsay

There must be an out-of-court statement; and The statement made out of court, is repeated and offered by the witness in court to prove the truth of the matters asserted by the statement (Riano, 2013).

It is a testimony based on third hand information related to the witness by someone who heard it from others. Q: Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident. Julieta, a witness in court, testifies that Romeo told her that he heard Antonio, a witness to the accident, gives an excited account of the accident immediately after its occurrence. Is Julieta’s testimony admissible against Romeo over proper and timely objection? Why? (2002 Bar Question)

NOTE: Newspaper clippings are hearsay and of no evidentiary value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted (Feria v. CA, 325 SCRA 525) Medical certificates cannot be admitted in the absence of the testimony of the physician who examined the complaint for alleged torture wounds.

A: No, because while the excited account of Antonio, a witness to the accident, was told to Romeo, it was only Romeo who told Julieta about it, which makes it hearsay.

Affidavits are inadmissible unless the affiants themselves are placed in the witness stand to testify therefrom.

Statements made through an interpreter GR: Statements made through an interpreter are considered hearsay if a witness is offered to testify to the

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REMEDIAL LAW A: Yes. The testimony of Annie is admissible in evidence as an independently relevant statement. It is offered in evidence only to prove the tenor thereof, not to prove the truth of the facts asserted therein. Independently relevant statements include statements which are on the very facts in issue or those which are circumstantial evidence thereof. The hearsay rule does not apply.

OUT-OF-COURT STATEMENTS Classification of out-of-court statements: 1.

2.

3.

Hearsay – Its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. It is inadmissible as evidence when the purpose for introducing the out-of-court statement is to prove the truth of the facts asserted therein (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, April 3, 2001).

NON-HUMAN EVIDENCE It is the testimony of a witness as to statements made by a non-human declarant (e.g. machines and computers). It does not violate the rule on hearsay, hence not covered by the Rule. Machines and animals, unlike humans, lack conscious motivation to tell falsehoods. The workings of the machines can be explained by human witnesses who may then be cross-examined (Herrera, 1999).

Non-hearsay – This occurs when the purpose for introducing the statement is not to prove the truth of the facts asserted therein but only the making of the statements and are admissible in evidence when the making of the statement is relevant. These are the socalled independently relevant statements.

EXCEPTIONS TO THE HEARSAY RULE Exceptions to the hearsay rule (1999 Bar Question)

Exceptions to the hearsay rule – Those which are hearsay but are considered as exceptions to the hearsay rule and are therefore admissible (Secs. 37-47, Rule 130).

1. 2. 3. 4. 5.

These are statements which are relevant independently of whether they are true or not. They are neither hearsay nor an exception to the hearsay rule as the purpose thereof is not to prove the truth of the declaration or document (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, April 3, 2001).

Dying declaration (Sec. 37); Declaration against interest (Sec. 38); Act or declaration about pedigree (Sec. 39); Entries in the course of business (Sec. 43); Testimony or deposition at a former proceeding (Sec. 47); 6. Family reputation or tradition regarding pedigree (Sec. 40); 7. Common reputation (Sec. 41); 8. Parts of Res gestae (Sec. 42); 9. Entries in official records (Sec. 44); 10. Commercial lists and the like (Sec. 45); 11. Learned treatises (Sec. 46);

Classification of independently relevant statements

NOTE: Items 1 to 5 requires death or unavailability of declarant.

1. 2.

It is not correct to say that the exceptions to the hearsay rule are not hearsay. They are hearsay evidence but they are deemed admissible by reason of necessity and trustworthiness.

INDEPENDENTLY RELEVANT STATEMENTS Independently relevant statements

Those statements which are the very facts in issue; Those statements which are circumstantial evidence of the fact in issue. It includes the following: a. Statements of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill-will and other emotions; b. Statements of a person which show his physical condition, as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, i.e., the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness (Estrada v. Desierto, etc. et al., G.R. Nos. 146710-15, April 3, 2001).

Reason for admissibility They are admissible by reason of relevancy, necessity and trustworthiness (Estrada vs. Desierto, G.R. No. 146710-15, April 3, 2001). DYING DECLARATION 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 (Sec. 37, Rule 130).

Q: Annie overheard Billy call Rocky a thief. In an action for defamation filed by Rocky against Billy, is the testimony of Annie offered to prove the fact of utterance i.e., that Billy called Rocky a thief, admissible in evidence? Explain. (1999 Bar Question)

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

These are ante mortem statements made by a person after the mortal wound has been inflicted under the belief that the death is certain, stating the fact concerning the cause of and the circumstances surrounding the attack.

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EVIDENCE NOTE: Where the elements of both a dying declaration and a statement as part of the res gestae are present, the statement may be admitted as a dying declaration and at the same time as part of res gestae (People vs. Gado, 298 SCRA 466).

11 hours after the crime, while Kitchie was being brought to the hospital in a jeep, with his brother and a policeman as companions, Kitchie was asked certain questions which she answered, pointing to Sam as her assailant. Her answers were put down in writing, but since she was in a critical condition, her brother and the policeman signed the statement. Is the statement admissible as a dying declaration? Explain. (1999 Bar Question)

Reason for admissibility The reasons for admissibility are necessity and trustworthiness. Necessity, because the declarant’s death renders it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it prevents a failure of justice. Trustworthiness, because the declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth (Riano, 2009; People v. Cerilla).

A: Yes. The statement is admissible as a dying declaration if the victim subsequently died and her answers were made under the consciousness of an impending death. The fact that she did not sign the statement pointing to the accused as her assailant because she was in a critical condition does not affect its admissibility as a dying declaration (People v. Viovicente, G.R. No. 118707, February 2, 1998). NOTE: A dying declaration may be oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down (People v. Boller, G.R. Nos. 144222-24, April 3, 2002).

Requisites for the admissibility of a dying declaration 1. 2. 3.

4. 5.

6.

7.

The declaration is one made by a dying person; The declaration was made by said dying person under a consciousness of his impending death; The declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else; The declaration is offered in a case wherein the declarant’s death is the subject of the inquiry; and The declarant is competent as a witness had he survived (Geraldo v. People, G.R. No. 173608, November 20, 2008). That the statement is complete in itself – “Doctrine of Completeness” (People vs. De Joya, G.R. No. 75028, November 8, 1991) The declarant should have died (if he survives, his declaration may be admissible as part of the res gestae).

Assailing a dying declaration The declaration may be attacked in the same manner as one would do a testimony in open court. The declarant himself may be impeached through the normal methods provided for under the rules. DECLARATION AGAINST INTEREST Declaration against interest The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons (Sec. 38, Rule 130).

Time interval GR: The intervening time from the making of a dying declaration up to the time of death is immaterial in its admissibility, as long as it was made under the consciousness of death.

These are ante litem motam statements made by a person who is neither a party nor in privity with a party to the suit. Such are considered secondary evidence and admissible only when the declarant is already dead or unavailable to testify as a witness and may be admitted against himself or successors-in-interest and against third persons.

XPN: If there is retraction made by the declarant before he died or his declaration is ambiguous. However, the interval of time between the declaration and the death of the declarant may be taken into account where the declaration is ambiguous as to whether the declarant believed that his death was imminent when he made such declaration.

Requisites for the admissibility of declaration against interest

Factors in determining whether the declarant is conscious of his impending death 1. 2. 3.

Necessity, as such declaration, act, or omission is frequently the only mode of proof available and trustworthiness, because of the first presumption that men will neither falsify nor commit mistakes when such falsehood or mistake would be prejudicial to their own pecuniary interest, and because of the fact that any fraudulent motive for making the statement may be shown.

Utterances; Actual character and seriousness of his wounds; and By the declarant’s conduct and the circumstances at the time he made the declaration, whether he expected to survive his injury (Regalado, 2008).

Q: Sam was charged with robbery and homicide. Kitchie, the vcictim, suffered several stab wounds. It appears that

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Requisites of declaration against interest: 1.

2. 3. 4.

ACT OR DECLARATION ABOUT PEDIGREE

The declarant is dead or unable to testify;

Act or declaration about pedigree

NOTE: The inability to testify must be serious.

The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration (Sec. 39, Rule 130).

Declaration relates to a fact against the interest of the declarant; At the time he made said declaration, he was aware that the same was contrary to his interest; and Declarant had no motive to falsify and believed such declaration to be true.

Pedigree

Q: Alejandro Cuenca was charged with the crime of kidnapping Hector Ocampo. One of the testimonies presented by the prosecution was that of Maribelle Magdayao, who testified that Hector confided to her that he and Alejandro’s wife Rubi were having an affair. Undoubtedly, his wife's infidelity was ample reason for Alejandro to contemplate revenge. Consequently, the trial court convicted Alejandro based on the testimonies of the witnesses. Was the testimony of Maribelle admissible as evidence?

It includes relationship, family genealogy, birth, marriage, death, the dates when and the places where the facts occurred and the names of the relatives. It also embraces facts of family history intimately connected with pedigree (Ibid.). NOTE: The relationship between the declarant and the person subject of the inquiry must be legitimate unless the issue is the legitimacy itself. There is no provision as to the extent of degree of relationship.

A: Yes. Hector’s revelation to Maribelle regarding his illicit relationship with Alejandro’s wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. Hector having been missing since his abduction, cannot be called upon to testify. His confession to Maribelle, definitely a declaration against his own interest, since his affair with Rubi was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment (People v. Bernal, G.R. No. 113685, June 19, 1997).

Reason for admissibility Necessity and trustworthiness. Necessity since the facts about pedigree are usually those which occurred many years before the trial and known only to a few persons. Trustworthiness since these are matters which members of a family are presumed to be interested in ascertaining the truth. Requisites for the admissibility of acts or declarations about pedigree 1. 2. 3.

Declaration against interest v. Admission against interest Declaration against Interest Made by a person who is neither a party nor in privity with a party to the suit is a secondary evidence Secondary evidence and admissible only when the declarant is already dead or unavailable to testify as a witness. Exception to the hearsay rule Must have been made ante litem motam, i.e. before the controversy May be admitted against himself or successors-ininterest and against third persons

4.

Admission against Interest

5.

Made by a party to a litigation or by one in privity with or identified in legal interest with such party. Primary evidence and admissible whether or not the declarant is available as a witness.

NOTE: Such declarations are natural expressions of persons who must know the truth. Although hearsay, it is best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission.

FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Covered by the hearsay rule May be made at any time, before or during the trial.

Family reputation or tradition regarding pedigree The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits

Used only against the party admitting

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The declarant is dead or unable to testify; The pedigree should be in issue; The declarant must be a relative of the person whose pedigree is in question, either by birth or marriage; The declaration must be made ante litem motam or before the controversy occurred; and The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration (Tecson v. COMELEC, G.R. No. 161434, March 3, 2004).

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EVIDENCE and the like, may be received as evidence of pedigree (Sec. 40, Rule 130).

Testimony is about what the declarant has said concerning the pedigree of the family

The declarant is the witness himself and a member of the family. The witness is the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family.

COMMON REPUTATION Common Reputation

Reason for admissibility

Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation (Sec. 41, Rule 130).

These are admissible by reason of necessity since tradition is often the sole method by which proof of matters of pedigree can be obtained. Requisites for the admissibility of family reputation or tradition regarding pedigree 1. 2.

3.

4.

It is the definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous (Regalado, 2008).

There is controversy in respect to the pedigree of any member of the family; The reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and The statement is about the reputation or tradition of the family in respect to the pedigree of any member of the family. The witness testifying to the reputation or tradition regarding pedigree of the person concerned must be a member of the family of said person either by consanguinity or affinity (Sec. 40, Rule 130).

NOTE: As a general rule, the reputation of a person should be that existing in the place of his residence; it may also be that existing in the place where he is best known (Ibid.). Character is what a man is, and reputation is what he is supposed to be in what people say he is (Lim vs. CA, 214 SCRA 273).

Reasons for admissibility 1.

How to establish family reputation or tradition with respect to one’s pedigree 1.

2.

2.

Through testimony in open court of a witness who must be a member of the family either by consanguinity or affinity; Through entries in: a. Family bible; b. Family books or charts; c. Engravings on rings; or d. Family portraits and the like.

Act or declaration about pedigree Witness need not be a member of the family Relation of the declarant and the person subject of the inquiry must be established by independent evidence

Necessity arising from the inherent difficulty of obtaining any other evidence than that in the nature of common reputation; and Trustworthiness of the evidence arising from: a. The supposition that the public is conversant with the subject to be proved because of their general interest therein; and b. The fact that the falsity or error of such evidence could be exposed or corrected by other testimony since the public are interested in the same (Francisco, pp. 296-297, 1992 ed.).

Requisites for admissibility of common reputation

Sec. 39 (act or declaration about pedigree) v. Sec. 40 (family reputation regarding pedigree) Section 39 Act or declaration about pedigree

Testimony is about family reputation or tradition covering matters of pedigree

1.

Section 40 Family reputation or tradition regarding pedigree Family reputation or tradition regarding pedigree Witness is a member of the family The witness is the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family (Francisco, p. 292, 1992 ed.)

2. 3.

4.

The facts must be of public or general interest and more than 30 years old; The common reputation must have been ancient, i.e. 30 years old; The reputation must have been one formed among a class of persons who were in a position to have some sources of information and to contribute intelligently to the formation of the opinion; and The common reputation must have been existing previous to the controversy.

Matters that may be established by common reputation 1. 2. 3.

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Matters of public and general interest more than 30 years old; Matters respecting marriage or moral character and related facts; and Individual moral character.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW NOTE: Marriage, if not proven through an act or declaration about pedigree may be proven through common reputation (Trinidad v. CA, G.R. 118904).

3.

Difference between matters of public interest and matters of general interest

NOTE: The test for the admissibility of evidence as part of the res gestae is whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded a part of the principal fact or event itself, and also whether it clearly negates any premeditation or purpose to manufacture testimony (People vs. Villarico Sr., April 4, 2011).

Matters of public interest involve those which are common to all citizen of the state or to the entire people while matters of general interest involve those which are common only to a single community or to a considerable number of persons forming part of the community.

Part of res gestae v. dying declaration.

PART OF RES GESTAE

Part of Res Gestae It is the event itself which speaks

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 (Sec. 42, Rule 130).

May be made by the killer after or during the killing or that of a third person May precede, or accompany or follow the principal act Justification is the spontaneity of the statement

It is a Latin phrase which literally means "things done." As an exception to the hearsay rule, it refers to those exclamations and statements by either the participants, victims, or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as spontaneous reactions or utterances inspired by the excitement of the occasion, and there was no opportunity for the declarant to deliberate and fabricate a false statement (Capila v. People, G.R. No. 146161, July 17, 2006).

Verbal Acts Utterances which accompany some act or conduct to which it is desired to give legal effect; When such act has intrinsically no definite legal significance, or only an ambiguous one, its legal purport or tenor may be ascertained by considering the words accompanying it, and these utterances thus enter merely as verbal part of the act. The res gestae is the equivocal act. Verbal act must be contemporaneous with or must accompany the equivocal act to be admissible. Requisites: 1. There must be a startling occurrence; 2. The statement must relate to the circumstances of the startling occurrence or that the statement must

The reason for the rule is human experience. It has been shown that under certain external circumstances of physical or mental shock, the state of nervous excitement which occurs in a spectator may produce a spontaneous and sincere response to the actual sensations and perceptions produced by the external shock. As the statements or utterances are made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, such statements or utterances may be taken as expressing the real belief of the speaker as to the facts he just observed. The spontaneity of the declaration is such that the declaration itself may be regarded as the event speaking through the declarant rather than the declarant speaking for himself. Requisites for the admissibility of res gestae

2.

That the principal act, the res gestae, be a startling occurrence; That the statements were made before the declarant had time to contrive or devise; and

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Dying Declaration A sense of impending death takes the place of an oath and the law regards the declarant as testifying Can be made by the victim only Confined to matters occurring after the homicidal act Justification is the trustworthiness, being given by the person who was aware of his impending death

Two types of res gestae

Reason for admissibility

1.

That the statements must concern the occurrence in question and its immediately attending circumstances (Sec. 42, Rule 130; People vs. Balbas, 122 SCRA 859).

396

Spontaneous Statements Statements or exclamations made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him.

The res gestae is the startling occurrence. May be prior to, simultaneous with, or subsequent to the startling occurrence. Requisites: 1. The principal act to be characterized must be equivocal; 2. The equivocal act must be material to the issue; 3. The statement must accompany the

EVIDENCE concern the occurrence in question and its immediate attending circumstances; 3. The statement must be spontaneous and were made before the declarant had the time to contrive or devise a falsehood. (Talidano v. Falcom Maritime & Allied Services, Inc., G.R. No. 172031, July 14, 2008)

equivocal act; 4. The statement gives a legal significance to the equivocal act. (Talidano v. Falcom Maritime & Allied Services, Inc., G.R. No. 172031, July 14, 2008)

ENTRIES IN THE COURSE OF BUSINESS or THE SHOP-BOOK RULE Entries in the course of business or the Shop-Book Rule Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty (Sec. 43, Rule 130).

NOTE: The reason for the admissibility of verbal acts is that the motive, character and object of an act are frequently indicated by what was said by the person engaged in the act.

Reason for admissibility

NOTE: The reason for the admissibility of spontaneous statements is trustworthiness and necessity, because statements are made instinctively, and because said natural and spontaneous utterances are more convincing than the testimony of the same person on the stand.

What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the court. NOTE: Reliability is furnished by the fact that regularly kept records typically have a high degree of accuracy. The law does not fix any precise moment when the entries should be made. It is sufficient if the entry was made within a reasonable period of time so that it may appear to have taken place while the memory of the facts was unimpaired.

Factors to determine whether statements offered in evidence as part of the res gestae have been made spontaneously 1.

2. 3. 4.

5.

Requisites for the admissibility of entries in the course of business 1. The person who made the entry must be dead or unable to testify; 2. The entries were made at or near the time of the transactions to which they refer; 3. The entrant was in a position to know the facts stated in the entries; 4. The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. The entries were made in the ordinary or regular course of business or duty (Regalado, 2008)

The time that has elapsed between the occurrence of the act and transaction and the making of the statement; The place where the statement was made; The condition of the declarant when he made the statement; The presence or absence of intervening occurrences between the occurrence and the statement relative thereto; and The nature and circumstances of the statement itself (Francisco, 1992).

NOTE: The law does not fix any precise moment when the entries should be made as long as the entry was made within a reasonable period of time so that it may appear to have taken place while the memory of the facts was unimpaired.

Q: Sam raped Reyna. After raping Reyna, Sam fled. Reyna then rushed to the police station and told Police Officer Buloy what had happened. Sam was charged with rape. During the trial, Reyna can no longer be located. If the prosecution presents Buloy to testify on what Reyna had told him, would such testimony of Buloy be hearsay? Explain. (2005 Bar Question)

Proof of regularity of the entries It may be proved by the form in which they appear as entries in the books/ledgers. There is no need to present for testimony the clerk who manually made the entries. The person who supervised such clerk is competent to testify that: 1. The account was prepared under his supervision; and 2. That the entries were regularly entered in the ordinary course of business (Regalado, 2008)

A: No. It is part of res gestae. It is also an independently relevant statement. Buloy testified based on his personal knowledge; that is, he was testifying to the fact that Reyna told him that she was raped by Sam and not to the truth of Reyna’s statement (People v. Gaddi, G.R. No. 74065, Feb. 27, 1989).

NOTE: Baptismal certificates are admissible as entries in the ordinary course of business, even absent the testimony of the officiating priest or official recorder because it is one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the Church during the course of its business (Heirs of Conti vs. Court of Appeals, G.R. No. 118464. December 21, 1998.)

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REMEDIAL LAW When the declarant is alive

Exception to the best evidence rule (irremovability of public records)

GR: Business entries may not be admitted in evidence as an exception to the hearsay rule when the declarant is alive. XPN: They may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein.

Best Evidence Rule applies

Q: Should entries in the police blotter be given probative value? A: No, as they are not conclusive evidence of the truth of the contents but merely of the fact that they were recorded (People v. Cabrera, Jr., G.R. No. 138266, April 30, 2003).

ENTRIES IN OFFICIAL RECORDS Entries in Official Records

COMMERCIAL LISTS AND THE LIKE Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated (Sec. 44, Rule 130).

Commercial lists and the like Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein (Sec. 45, Rule 130).

Official record The original document that is legally recognized and thus ensuring the quality of a fact when it is established. It may be a: 1. Register; 2. Cash book; or 3. An official return or certificate (Regalado, 2008).

Reason for admissibility Because of the usual inaccessibility of the persons responsible for the compilation of matters contained in such lists, it would cause the court inconvenience if it would issue summons to these numerous individuals. Persons responsible for such lists have no motive to deceive and they further realize that unless the list, register or periodical or other published compilation are prepared with care and accuracy, their work will have no commercial or probative value.

Reason for admissibility 1.

2.

Necessity - due to the impossibility of requiring the official’s attendance as a witness to testify to the innumerable transactions occurring in the course of his duty. Trustworthiness – there is a presumption of regularity in the performance of official duty

Requisites for the admissibility of entries in official records

Requisites for the admissibility of commercial lists and the like

1.

Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty especially enjoined by law; Entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and Such entries were duly entered in a regular manner in the official records (Ibid.).

1.

Entries in official record v. Entries in the course of business

1.

2.

3.

Entries in Official Record The entrant, if a private individual, must have acted pursuant to a specific legal duty specially enjoined by law. Entrant need not be dead or unable to testify Need not be authenticated

2. 3. 4.

Statements of matters of interest to persons engaged in an occupation; Statements must be contained in a list, register, periodical, or other published compilation; Compilation is published for use by persons engaged in that occupation; and Such is generally relied upon by them.

Examples of commercial lists

Entries in the Course of Business It is sufficient that the entrant made the entries pursuant to a duty be it legal, contractual, moral or religious. Entrant must be dead or unable to testify. Needs authentication

2. 3. 4.

Trade journals reporting current prices and other market data; Mortality tables compiled for life insurance; Abstracts of title compiled by reputable title examining institutions or individuals; or Business directories, animal pedigree registers, and the like (Francisco, p. 339, 1992 ed.). LEARNED TREATIES

Learned treatises A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

398

EVIDENCE the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject (Sec. 46, Rule 130).

Grounds which make a witness unable to testify in a subsequent case

Reason for admissibility

3.

The learned writers have no motive to misrepresent due to the awareness that his work will be carefully scrutinized by the learned members of the profession and that he shall be subject to criticisms and be ultimately rejected as an authority on the subject matter if his conclusions are found to be invalid.

4.

Requisites for the admissibility of learned treatises

1.

1. 2.

2.

1. 2.

5.

Death Insanity or mental incapacity or the former witness’ loss of memory through old age or disease; Physical disability by reason of sickness or advanced age; The fact that the witness has been kept away by contrivance of the opposite party; or The fact that after diligent search the former witness cannot be found (Francisco, 1992).

Proof of former testimony

When the court can take judicial notice of them; or When an expert witness testifies that the author of such is recognized as expert in that profession (Sec. 46, Rule 130).

If reduced to writing, such writing is the primary evidence thereof and should be used; The stenographic notes or a copy thereof.

NOTE: The judge’s notes are not evidence of what the witness said, and, as a rule, they can be used only to refresh the memory of a witness.

Examples of learned treatises 1. 2. 3.

OPINION RULE

Historical works; Scientific treatises; or Law (Francisco, 1992).

Opinion A person's thought, belief, or inference, especially a witness's view about facts in dispute, as opposed to personal knowledge of the facts themselves (Black’s Law Dictionary, 2004).

TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING Testimony or deposition at a former proceeding

GR: The opinion of a witness is not admissible. The witness must testify to facts within their knowledge and may not state their opinion, even on their cross-examination.

The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him (Sec. 47, Rule 130).

XPNs: 1. Opinion of expert witness 2. Opinion of ordinary witnesses

Requisites for admissibility 1. 2.

3. 4. 5.

NOTE: Opinion testimony involving questions of law or the ultimate fact in issue is not admissible.

Witness whose testimony is offered in evidence is dead or unable to testify; The testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; Former case involved the same subject as that in the present case, although on different causes of action; Issue testified to by the witness in the former trial is the same issue involved in the present case; and Adverse party had an opportunity to cross-examine the witness in the former case (Regalado, 2008).

Hearsay evidence v. Opinion evidence (2004 Bar Question) Hearsay Evidence Consists of testimony that is not based on personal knowledge of the person testifying

Opinion Evidence Expert evidence based on the personal knowledge, skill, experience or training of the person testifying and evidence of an ordinary witness on limited matters.

OPINION OF EXPERT WITNESS

NOTE: What may be admitted as evidence is testimony or deposition. A decision in a previous case involving the same parties and the same subject matter does not fall under the exception. What is considered as a testimony in the former trial is the “transcript of the witness’ testimony.”

Opinion of expert witness The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess may be received in evidence (Sec. 49, Rule 130).

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REMEDIAL LAW NOTE: The use of the word may, signifies that the use of opinion of expert witness is permissive and not mandatory on the part of the courts. It only assists the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law (Tabao v. People, July 20, 2011).

testified that the signatures in the deed of sale and the other sample signatures are the same. However, the PNP handwriting expert declared that the person who signed are not the same person. The lower court gave credit and based the ruling on the testimony of the PNP handwriting expert on the fact that the said witness has better credentials than the NBI witness. Is the ruling valid, because of the fact that the court based the ruling on the credentials?

Expert Witness He is one who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on which he proposes special knowledge to express an opinion (Regalado, 2008). Before one may be allowed to testify as an expert witness, his qualification must first be established by the party presenting him, i.e., he must be shown to possess the special skill or knowledge relevant to the question to which he is to express an opinion (People vs. Fundano, 291 SCRA 356).

A: While credentials of an expert witness play a factor in the evidentiary and persuasive weight of his testimony, the same cannot be the sole factor in determining its value. The judge must conduct his own independent examination of the signatures under scrutiny (Tamani et al vs. Roman Salvador and Filomena Bravo, G.R. No. 171497, April 4, 2011). OPINION OF ORDINARY WITNESS

NOTE: Expert testimony is not admissible as to a matter not in issue.

Ordinary Opinion That which is given by a witness who is of ordinary capacity and who has by opportunity acquired a particular knowledge which is outside the limits of common observation and which may be of value in elucidating a matter under consideration.

Degree of skill or knowledge There is no definite standard in determining the degree of skill or knowledge that a witness must possess in order to testify as an expert as long as the following are present: 1. Training and education 2. Particularity, first-hand familiarity with the facts of the case 3. Presentation of authorities or standards upon which his opinion is based (People v. Abriol, G.R. No. 123137, October 17, 2001).

The opinion of a witness for which proper basis is given, may be received in evidence regarding: 1. The identity of a person about whom he has adequate knowledge; 2. A handwriting with which he has sufficient familiarity; 3. The mental sanity of a person with whom he is sufficiently acquainted; and 4. The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50, Rule 130).

NOTE: An expert witness may base his opinion either on the firsthand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to him hypothetically and on the assumption that they are true, formulates his opinion on such hypothesis. The probative force of the testimony of an expert does not lie in a mere statement of his theory or opinion, but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon which the logic of his conclusion is founded (Dizon v. Tuazon, G.R. No. 172167, July 9, 2008).

CHARACTER EVIDENCE Character The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of one’s distinguishing attributes (Black’s Law Dictionary, 2004).

Expert evidence It is the testimony of a person (expert witness) possessing knowledge not usually acquired by other persons in a particular subject matter.

Admissibility of Character Evidence

NOTE: It is admissible when the matter to be established requires expertise and the witness have been qualified as an expert.

XPNs: 1. Subject to certain exceptions in criminal cases; 2. In civil cases; 3. In case the character of a witness has been previously impeached.

GR: Character evidence is NOT admissible in evidence.

Test in determining the need to resort to expert evidence Whether the opinion called for will aid the court in resolving an issue.

NOTE: The reason for this is that the evidence of a person’s character does not prove that such person acted in conformity with such character or trait in a particular occasion.

Q: In a case where the issue involves forgery, two expert witness were presented by the plaintiff, the NBI official and a handwriting expert from the PNP. The NBI official UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

400

EVIDENCE establish in any reasonable degree the probability or improbability of the offense charged. In this case, the evidence is not relevant.

EXCEPTIONS ON THE RULE ON CHARACTER EVIDENCE CRIMINAL CASES As to the Accused He may prove his good moral character which is pertinent to the moral trait involved in the offense charged

As to the Prosecution They may not prove the bad moral character of the accused which is pertinent to the moral trait involved in the offense charged, unless in rebuttal when the accused opens the issue by introducing evidence of his good moral character

EXCEPTIONS TO THE EXCEPTION

As to the Offended Party His good or bad moral character may be proved as long as it tends to establish in any reasonable degree the probability or improbability of the offense charged

1.

2.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. No. 004-07-SC) APPLICABILITY OF THE RULE It shall apply in all criminal and non-criminal proceedings involving child witnesses. This Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses of a crime (Sec. 1).

NOTE: In criminal cases, character evidence is inadmissible under the following situations: 1. In rebuttal, proof of the bad character of the victim is not admissible if the crime was committed through treachery and premeditation; and 2. In rape cases, the evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case (Rape shield or Sexual Abuse Shield, Sec. 6, R.A. 8505).

The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character (Sec. 32). MEANING OF CHILD WITNESS Child witness A child witness is any person who at the time of giving testimony is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition [Sec. 4(a)].

CIVIL CASES Character evidence in civil cases The moral character of either party thereto cannot be proved unless it is pertinent to the issue of character involved in the case (Sec. 51, Rule 130).

Child witness v. Ordinary witness

NOTE: Evidence of good moral character of a witness whether in a civil or criminal case is not admissible, unless such character has been impeached (Sec. 14, Rule 132).

Child Witness Only the judge is allowed to ask questions to a child witness during preliminary examination Testimony in a narrative form is allowed Leading questions are allowed The child witness is assisted by a support person

Proof of bad character 1. 2.

Proof of bad character of a victim in a murder case is not admissible if the crime was committed through treachery and premeditation. In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof of his or her reputation shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case.

Cross-examination Independent evidence of bad character

NOTE: Personal opinion as to the moral character of the accused and the specific conduct of the part exhibiting character is excluded as evidence. However, reputation in the community is admissible.

Q: Don was prosecuted for homicide for allegedly beating up Vilma to death with an iron pipe. May the prosecution introduce evidence that Vilma had a good reputation for peacefulness and non-violence? Why? (2002 Bar Question)

Ordinary Witness Opposing counsels are allowed to ask questions during preliminary examination Testimony in a narrative form is not allowed Leading questions are generally not allowed An ordinary witness is not assisted by a support person

In-depth investigative interview or disclosure interview It is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the

A: The prosecution may introduce evidence of the good or even bad moral character of the victim if it tends to

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REMEDIAL LAW testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency. The court may also motu proprio conduct the voir dire examination. In United States v. Buncad, the Court held that when a child of tender age is presented as a witness, it is the duty of the judge to examine the child to determine his competency (People v. Bisda y Gaupo, G.R. No. 140895, July 17, 2003).

purpose of determining whether child abuse has been committed [Sec. 4(i)]. Appointment of guardian ad litem The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified [Sec. 5(a)].

COMPETENCY EXAMINATION Competency Examination A party seeking competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination [Sec. 6(a)].

NOTE: A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem (Ibid.).

Best interest of the child

NOTE: The burden of proof lies on the party challenging the competency of the child [Sec. 6(b)].

It is determined by the totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the child and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child [Sec. 4(g)].

Persons allowed at a competency examination Only the following are allowed at a competency examination: 1. The judge and necessary court personnel; 2. The counsel for the parties; 3. The guardian ad litem, if any; 4. One or more support persons for the child; and 5. The defendant, unless the court determines that competence can be fully evaluated in his absence [Sec. 6(c)].

PRESUMPTION OF COMPETENCY OF A CHILD WITNESS Presumption of Competency of a child witness Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court (Sec. 6).

NOTE: Such competency examination shall be conducted only by the judge but the counsel for the parties can submit questions to the judge that he may, in his discretion, ask the child [Sec. 6(d)].

Questions to be asked to the child during competency examination The questions to be asked are: 1. Appropriate to the age and developmental level of the child; 2. Not related to the issues at trial; and 3. Shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully [Sec. 6(e)].

Examination of a child as to his competence shall be conducted only by the judge. Counsels of the parties can submit questions to the judge that he may, in his discretion, ask the child. Requirements of a child’s competency as a witness 1. 2. 3.

Capacity of observation Capacity of recollection; and Capacity of communication (People v. Nang, 289 SCRA 16).

Developmental level

NOTE: A mere allegation that a witness is of tender age is not sufficient to disqualify him from sitting on the witness stand (People vs. Santos 183 SCRA 25).

It refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities [Sec. 4(h)].

Voir dire examination

Duty of the court regarding the competency of the child

It is a French phrase meaning “to speak the truth”. It may refer to a preliminary examination to ascertain whether he possesses the required qualifications, being sworn to make true answers (State v. Fox, 149 S.E. 735, 1929).

It has the duty of continuously assessing the competence of the child throughout his testimony [Sec. 6(f)].

NOTE: If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility to tell the truth and the consequence of him

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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EVIDENCE Factors to be considered by the court in determining the competency of a child witness

requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS

The court must consider his capacity: 1. At the time the fact to be testified to occurred such that he could receive correct impressions thereof; 2. To comprehend the obligation of an oath; and 3. To relate those facts truly at the time he is offered as a witness. The court should take into account his capacity for observation, recollection and communication (Regalado, 2008).

Q: When may the court order that the testimony of the child be taken by live-link television? Explain. (2005 Bar Question) A: The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Sec. 25).

EXAMINATION OF A CHILD WITNESS How conducted It shall be done in open court and unless the witness is incapacitated to speak or the question calls for different mode of answer, the answers of the witness shall be given orally (Sec. 8).

VIDEOTAPED DEPOSITION OF A CHILD WITNESS Video-taped deposition of a child witness

Facilitator

If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape [Sec. 27(b)].

He is a person appointed by the court to pose questions to a child [Sec. 4(c)]. Support person

NOTE: The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition [Sec. 27(d)]. After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. [Sec. 27(j)].

He is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him [Sec. 4(f)]. Corroboration of testimony of child witness NOT required Corroboration shall not be required for the testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and noncriminal cases (Sec. 22).

Persons allowed to preside and be present in the videotaped deposition The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: 1. The prosecutor; 2. The defense counsel; 3. The guardian ad litem; 4. The accused, subject to sub-section (e);

Q: Budoy was charged with rape of his 10 year old stepdaughter, Angie, to which he pleaded not guilty. For the prosecution, it presented as witnesses the victim and a Medico Legal Certificate issued by Dr. Luna, the results of which showed that the victim suffered hymenal laceration. For the defense, he vehemently denied the charges and presented an alibi. RTC, affirmed with modification by the CA convicted the accused. Should the testimony of the child be given full weight and credit? A: Testimonies of child victims are given full weight and credit, for when a woman or a girl-child says that she has been raped; she says in effect all that is necessary to show that rape was indeed committed. Youth and immaturity are generally badges of truth and sincerity (People v. Sobusa, G.R. No. 181083, January 21, 2010).

NOTE: Sub-section (e) provides that if the order of the court is based on the evidence that the child is unable to testify, the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted.

5.

Exclusion of public from the courtroom 6.

When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that

7. 8.

403

Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; One or both of his support persons, the facilitator and interpreter, if any; The court stenographer; and Persons necessary to operate the videotape equipment [Sec. 27(c)]. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW c. d. e.

HEARSAY EXCEPTION IN CHILD ABUSE CASES A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: 1.

f. 2.

Before such hearsay statement maybe admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. a. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. b. When the child is unavailable, the fact of such circumstance must be proved by the proponent [Sec. 289(a)]. NOTE: When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence [Sec. 28(d)].

2.

In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability [Sec. 28(b)].

Protective order – Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: a. Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem; b. No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial; c. No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court; d. Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: "This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law."

SEXUAL ABUSE SHIELD RULE GR: It states that the following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and 2. Evidence offered to prove the sexual predisposition of the alleged victim [Sec. 30(a)]. XPN: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible [Sec. 30(b)].

e. f.

NOTE: Testimonies of child-victims are given full weight and credit. When a child or woman says that she was raped, she says in effect all that is necessary to show that the rape was indeed committed (People of the Philippines vs. Pulanco, G.R. No. 141186; November 27, 2003).

g.

PROTECTIVE ORDERS

Confidentiality of records – Any record regarding a child shall be confidential and kept under seal. The records may be released only to the following upon written request and order of the court: a. Members of the court staff for administrative use; b. The prosecuting attorney; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

404

No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. Within 30 days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. This protective order shall remain in full force and effect until further order of the court [Sec. 31(b)].

3.

Additional protective orders – The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child [Sec. 31(c)].

4.

Publication of identity contemptuous - Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof,

Other measures provided under the rule for the protection of the privacy and safety of a child witness 1.

Defense counsel; The guardian ad litem; Agents of investigating law enforcement agencies; and Other persons as determined by the court

EVIDENCE or an immediate family of the child shall be liable to the contempt power of the court [Sec. 31(c)]. 5.

3.

Physical safety of child; exclusion of evidence – A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family.

4. 5. 6.

NOTE: The court may, however, require the child to testify regarding personal identifying information in the interest of justice [Sec. 31(e)].

6.

7.

8.

Destruction of videotapes and audiotapes – Videotapes and audiotapes produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after 5 years have elapsed from the date of entry of judgment [Sec. 31(f)].

7.

In summary judgments under Rule 35 where the judge based his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court; Documents whose contents are taken judicial notice of by the court; Documents whose contents are judicially admitted; or Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of cross-examination of the witness who testified on them during the trial (Tabuena vs. CA, 196 SCRA 650; People vs. Napat-a, 179 SCRA 403); Documents and affidavits used in deciding quasijudicial or administrative cases (Bantolino vs. CocaCola Bottlers Inc., 403 SCRA 699).

Q: During the pre-trial of a civil case, the parties presented their respective documentary evidence. Among the documents marked by the plaintiff Rina was the Deed of Absolute Sale of the property in litigation (Exh. "C"). In the course of the trial on the merits, Exh. "C” was identified by Rina, who was cross-examined thereon by Rey's counsel; furthermore, the contents of Exh. "C" were read into the records by Rina. However, Exh. "C" was not among those formally offered in evidence by her. May the trial court consider Exh. "C" in the determination of the action? Why? (1993 Bar Question)

Records of youthful offender: confidential a. Where he has been charged before any prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. b. Where he has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him, all the records of his case shall also be considered as privileged and may not be disclosed except: i. To determine if a defendant may have his sentence suspended under Art. 192 of P.D. 603 or if he may be granted probation under the provisions of P.D. 968; or ii. To enforce his civil liability, if said liability has been imposed in the criminal action.

A: Yes, because not only was the Deed of Absolute Sale marked, identified and Rina was cross-examined by Rey’s counsel. Furthermore, the contents of Exh. "C" were read into the records. Hence, the trial court could properly consider Exh. "C" in the determination of the action even though it was not formally offered in evidence. This is an exception to the rule that the court shall consider no evidence which has not been formally offered. (Sec. 35, Rule 132)

The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose [Sec. 31(g)].

OFFER OF EVIDENCE Purposes of offer of evidence 1.

OFFER AND OBJECTION 2. 3.

GR: The court shall consider only the evidence which has been formally offered. The purpose for which the evidence is offered must be specified (Sec. 34, Rule 132).

To notify the party of possible objection, and for the offeror to make necessary correction at the trial level to meet the objection; To allow the trial judge to rule properly; To lay basis for appeal so that the appellate court can decide intelligently.

NOTE: A formal offer is necessary, since judges are required to base their findings of fact and their judgment solely and strictly upon the evidence offered by the parties at the trial.

XPNs: 1. Marked exhibits not formally offered may be admitted provided it complies with the following requisites: a. Must be duly identified by testimony duly recorded; and b. Must have been incorporated in the records of the case (Ramos v. Dizon, G.R. No. 137247, August 6, 2006); 2. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speedy administration of justice;

To allow parties to attach any documents to their pleadings and then expect the court to consider it as evidence, even without formal offer and admission, may draw unwarranted consequences. Opposing parties will be deprived of their chance to examine the document and to object to its admissibility. On the other hand, the appellate court will have difficulty reviewing the documents not previously scrutinized by the court below (Candido v. Court of Appeals, G.R. No. 107493, February 1, 1996).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Reasons for stating purposes of offer of evidence 1. 2. 3.

1.

For the court to determine whether that piece of evidence should be admitted or not; Evidence submitted for one purpose may not be considered for any other purpose; and For the adverse party to interpose the proper objection.

2.

Rule on the motion for demurrer to evidence on the above grounds.

NOTE: It is basic in the law of evidence that the court shall consider evidence solely for the purpose for which it was offered. (Ragudo vs. Fabella Estate Tenants Asso. Inc., 466 SCRA 136)

A: 1.

Q: Gizel filed a complaint for recovery of possession and damages against Fara. In the course of the trial, Gizel marked his evidence but his counsel failed to file a formal offer of evidence. Fara then presented in evidence tax declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in favor of Fara, saying that Gizel failed to prove sole ownership of the property in the face of Fara’s evidence. Was the court correct? Explain briefly. (2007 Bar Question)

2.

The demurrer to evidence should be denied because the defense counsel did not object to her testimony despite the fact that the prosecutor forgot to state its purpose and offer it in evidence. Moreover, the defense counsel thoroughly cross-examined Matet and thus waived the objection. The res inter alios acta rule does not apply because Matet testified in open court and was subjected to cross-examination.

Stages in the presentation of documentary evidence

A: Yes. The court shall consider no evidence which has not been formally offered. The trial court rendered judgment considering only the evidence offered by Fara. The offer is necessary because it is the duty of the judge to rest his findings of fact and his judgment only and strictly upon the evidence offered by the parties at the trial (People v. Pecardal, G.R. No. 71381, November 24, 1986). Q: Eidene sued ABC, a shipping company, based on a contract of carriage contained in a bill of lading. The bill of lading, an actionable document, was pleaded and attached to the complaint. ABC, without alleging anything else, merely assailed the validity of the agreement in the bill of lading for being contrary to public policy. After presenting evidence, Eidene did not formally offer for the bill of lading’s admission. The court ruled for Eidene. On motion for reconsideration, ABC alleged that Eidene failed to prove his action as the bill of lading was not formally offered. Decide. (1996 Bar Question) A: The motion for reconsideration should be denied. There was no need to formally offer for admission the bill of lading, because the failure of ABC to deny under oath the genuineness and due execution of the bill of lading which was an actionable document constituted an admission thereof. Q: Aiza and Matet were charged with murder. Upon application of the prosecution, Matet was discharged from the Information to be utilized as a State witness. The prosecutor presented Matet as witness but forgot to state the purpose of his testimony much less offer it in evidence. Matet testified that she and Aiza conspired to kill the victim but it was Aiza who actually shot the victim. The testimony of Matet was the only material evidence establishing the guilt of Aiza. Matet was thoroughly crossexamined by the defense counsel. After the prosecution rested its case, the defense filed a motion for demurrer to evidence based on the following grounds:

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The testimony of Matet should be excluded because its purpose was not initially stated and it was not formally offered in evidence; and Matet's testimony is not admissible against Aiza pursuant to the rule on "res inter alios acta".(2003 Bar Question)

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EVIDENCE offer unless a different period is allowed by the court. In any case, the grounds for objection must be specified (Sec. 36).

WHEN TO MAKE OFFER Testimonial Evidence Offer must be made at the time the witness is called to testify. Every time a new witness is called to testify, there must be an offer of evidence.

Documentary and Object Evidence Must be made after the presentation of party’s testimonial evidence, and before resting his case. The evidence is only offered once, after all the testimonial evidence are offered and prior to the resting of the case for a party.

Testimonial Evidence 1st: When the offer was made; 2nd: When an objectionable question is asked of the witness.

NOTE: As a rule, failure to specify the grounds for the objection is in effect a waiver of the objection, except where the evidence could not have been legally admitted for any purpose whatsoever.

Contemporaneous Objection Rule

NOTE: The presentation of a documentary or object evidence for marking and identification during the course of trial is not the offer contemplated in the rules (Riano, 2009).

It requires that a specific and timely objection be made to the admission of evidence. Objections to the admission of evidence must be made seasonably, at the time it is introduced or offered, otherwise they are deemed waived, and will not be entertained for the first time on appeal (People vs. Banares, 145 SCRA 680).

NOTE: The offer shall be done orally unless allowed by the court to be in writing (Sec. 35, Rule 132).

Q: What is the difference between a "broadside" objection and a specific objection to the admission of documentary evidence? (1994 Bar Question)

OBJECTION

A: A broadside objection is a general objection such as incompetent, irrelevant and immaterial and does not specify any ground; while a specific objection is limited to a particular ground.

Ways of impeaching the evidence of the proponent 1.

2.

By objection and without objection, the objection is waived and the evidence is admitted (Sec. 36 Rule 132). By motion to strike (Sec. 39 Rule 132).

Q: What are the two kinds of objections A: 1.

Purposes of objections 1. 2.

3. 4. 5.

6.

Documentary and Object Evidence When the document is offered in evidence.

To keep out inadmissible evidence that would cause harm to a client’s cause; To protect the record, i.e. to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal; To protect a witness from being embarrassed on the stand or from being harassed by the adverse counsel; To expose the adversary’s unfair tactics like his consistently asking obviously leading questions; and To give the trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction (Riano, 2009); To avoid a waiver of the inadmissibility of an otherwise inadmissible evidence.

2.

Irrelevant – The evidence being presented is not relevant to the issue (e.g. when the prosecution offers as evidence the alleged offer of an insurance company to pay for the damages suffered by the victim in a homicide case); and Incompetent – The evidence is excluded by law or rules (Sec. 3, Rule 138) (e.g. evidence obtained in violation of the Constitutional prohibition against unreasonable searches and seizures).

Alternative Answers: 1. Specific objections – e.g. Parol evidence and best evidence rule. 2. General objections – e.g. Continuing objections (Sec. 37). a. objection to a question propounded in the course of the oral examination of the witness; and b. objection to an offer of evidence in writing NOTE: Objections to admissibility of evidence cannot be raised for the first time on appeal. When a party desires the court to reject the evidence offered he must so state in the form of objection. Without objection he cannot raise the question for the first time on appeal (People vs. Salak, March 14, 2011).

Time when objection should be made Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent. An offer of evidence in writing shall be objected to within 3 days after notice of the

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW d. e.

REPETITION OF AN OBJECTION Rules on continuing objections GR: When it becomes reasonably apparent in the course of the examination that the questions asked are of the same class as those to which objection has been made (whether sustained or overruled), it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions (Sec. 37, Rule 132).

f.

XPNs: 1. Where the question has not been answered, it is necessary to repeat the objection when the evidence is again offered or the question is again asked; 2. Incompetency is shown later; 3. Where objection refers to preliminary question, objection must be repeated when the same question is again asked during the introduction of actual evidence; 4. Objection to evidence was sustained but reoffered at a later stage of the trial; 5. Evidence is admitted on condition that its competency or relevance be shown by further evidence and the condition is not fulfilled, the objection formerly interposed must be repeated or a motion to strike out the evidence must be made; and 6. Where the court reserves the ruling on objection, the objecting party must request a ruling or repeat the objection.

i.

g. h.

Q: May a direct testimony given and allowed without a prior formal offer be expunged from the record? A: No. When such testimony is allowed without any objection from the adverse party, the latter is estopped from questioning the non-compliance with the requirement. TENDER OF EXCLUDED EVIDENCE Tender of excluded evidence or offer of proof When an attorney is not allowed by the court to present testimony which he thinks is competent, material and necessary to prove his case, he must make an offer of proof. This is the method properly preserving the record to the end that the question may be saved for purposes of review (Caraig, 2004).

RULING It must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling (Sec. 38, Rule 132).

NOTE: This rule is in preparation in the filing of an appeal. Moreover, the rule is that the offeror must preserve such excluded evidence on his record and stating the purpose of such preservation, i.e. knowing that it is relevant and must be admitted.

Purposes of tender of excluded evidence

STRIKING OUT OF AN ANSWER

1.

Modes of excluding inadmissible evidence 1.

Objection – when the evidence is offered. 2.

NOTE: Objections may be waived because the right to object is merely a privilege which the party may waive (People v. Martin, G.R. No. 172069, Jan. 30, 2008). However, such waiver only extends to the admissibility of the evidence. It does not involve an admission that the evidence possesses the weight attributed to it by the offering party (Riano, 2013).

2.

To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and To create and preserve a record for appeal, should the judge be not persuaded to reverse his earlier ruling (Riano, 2013).

Offer of proof v. Offer of evidence Offer of Proof/Tender of Excluded Evidence Only resorted to if admission is refused by the court for purposes of review on appeal

Motion to strike out or expunge: a. When the witness answers prematurely before there is reasonable opportunity for the adverse party to object, and such objection is found to be meritorious; b. When the answers are incompetent, irrelevant, or improper (Sec. 39, Rule 132); c. When the witness becomes unavailable for crossexamination through no fault of the crossexamining party; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

When the answer is unresponsive; When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled (Riano, 2009); When a witness has volunteered statements in such a way that the party has not been able to object thereto; When a witness testifies without a question being addressed to him; or When a witness testifies beyond the ruling of the court prescribing the limits within which he may answer. Uncompleted testimonies where there is no opportunity for the other party to crossexamination.

408

Offer of Evidence Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision

EVIDENCE Q: How is tender of excluded evidence made? A: 1.

PRESUMPTIONS Presumptions

As to documentary or object evidence: It may have the same attached to or made part of the record.

These are inferences of the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts (In the matter of the Intestate Estates of Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006).

NOTE: The party should ask that evidence ruled out at the trial be attached to the record of case in order that same may be considered on appeal (Banez vs. CA, 59 SCRA 15).

2.

NOTE: A presumption shifts the burden of going forward with the evidence. It imposes on the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption (Bautista, 2004, citing Mueller and Kirkpatrick, §3.4.).

As to oral evidence: It may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

How offer of evidence is made 1.

2.

3.

Presumption v. Inference

Before the court has ruled on the objection, in which case its function is to persuade the court to overrule the objection or deny the privilege invoked; After the court has sustained the objection, in which case its function is to preserve for the appeal the evidence excluded by the privilege invoked; Where the offer of proof includes the introduction of documents, or any of the physical evidence, the same should be marked for identification so that they may become part of the record (Herrera, 1996).

PRESUMPTION It is mandated by law and establishes a legal relation between or among the facts. Is a deduction directed by law

Effect of presumption

When offer of proof is NOT required 1.

2.

3.

A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish a fact in issue. One need not introduce evidence to prove the fact for a presumption is prima facie proof of the fact presumed (Diesel Construction, Inc v. UPSI property Holdings, Inc., GR No. 154937, March 24, 2008).

When the question to which an objection has been sustained clearly reveals on its face the substance, purpose and relevancy of the excluded evidence; When the substance, purpose and relevancy of the excluded evidence were made known to the court either in the court proceedings and such parts appear on record; Where evidence is inadmissible when offered and excluded, but thereafter becomes admissible, it must be re-offered, unless the court indicates that a second offer would be useless (Herrera, 1996).

Presumption of law v. Presumption of fact PRESUMPTION OF LAW (Praesumptiones Juris) It is a deduction which the law expressly directs to be made from particular facts.

English Exchequer Rule v. Harmless Error Rule English Exchequer Rule It provides that a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required new trial.

INFERENCE It is a factual conclusion that can rationally be drawn from other facts (Riano, 2013). It is a permissive deduction (Francisco, 1996 )

Harmless Error Rule The apellate court will disregard an error committed by the trial court in the admission of evidence unless in its opinion, some substantial wrong or miscarriage of justice has been occasioned.

A certain inference must be made whenever the facts appear which furnish the basis of the inference. Reduced to fixed rules and form a part of the system of jurisprudence

NOTE: We follow the harmless error rule, for in dealing with evidence improperly admitted in the trial, courts examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, appellate courts disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced part (People v. Teehankee Jr. G.R. Nos. 111206-08, October 6, 1995).

Need not be pleaded or proved if the facts on which they are based are duly averred and established

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PRESUMPTION OF FACT (Praesumptiones Hominis) It is a deduction which reason draws from the facts proved without an express direction from law to that effect. Discretion is vested in the tribunal as to drawing the inference. Derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind Has to be pleaded and proved

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Kinds of presumptions of law

Effect of estoppel in pais

1.

The effect of an estoppel in pais, is to prevent the assertion of what would otherwise be an unequivocal right or to preclude what would otherwise be a good defense. Such estoppel operates always as a shield, never as a sword.

2.

Conclusive presumptions (presumptions juris et de jure) Disputable presumptions (presumptions juris tantum) (Rule 131; Regalado, 2008) CONCLUSIVE PRESUMPTIONS

Requisites of estoppel in pais

Conclusive Presumptions

1.

They are those which are irrebuttable upon the presentation of the evidence and any evidence tending to rebut the presumption is not admissible. This presumption is in reality a rule of substantive law (Riano, 2009).

2.

Classes of conclusive presumptions 3. 1.

2.

Estoppel in pais (Equitable Estoppel) – Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it [Sec. 2, (par. a), Rule 131].

Requisites for estoppel 1. 2.

Estoppel by deed – A party to a property deed is precluded from asserting, as against another party to the deed, any right or title in derogation of the deed, or from denying the truth of any material fact asserted in the deed e.g. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them [Sec. 2 (par. b), Rule 131]

3.

Lack of knowledge and of the means of knowledge of the truth as to the facts in question; Reliance, in good faith, upon the conduct or statements of the party to be estopped; and Action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice. (Kalalo v. Luz, G.R. No. L-27782, July 31, 1970)

Other forms of estoppel akin to estoppel in pais: 1.

NOTE: Estoppel may attach even though the landlord does not have title at the commencement of the relations. It may inure in favor of the successor (Golden Horizon Realty Corporation vs. St Chuan, 365 SCRA 593 citing Geminiano vs. CA, 259 SCRA 344). If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply (Santos vs. NSO, G.R. No. 171129, April 6, 2011).

2.

Distinguish estoppel from waiver 3.

A waiver is a voluntary and intentional abandonment or relinquishment of a known right. It must be supported by an agreement founded upon a valid consideratipn. An equitable estoppel may arise however, in the absence of any intention on the part of the person estopped to relinquish or change any existing right, and it need not be supported by any consideration, agreement, or legal obligation (Francisco, 1996).

4.

Basis of Estoppel in pais It is founded upon principles of morality and fair dealing and is, intended to promote the ends of justice. It always presupposes error on one side and fault or fraud upon the other and some defect of which it would be equitable for the party against whom the doctrine is asserted to take advantage (19 Am. Jur. 640-642; Francisco, 1996).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; Intent, or at least, expectation, that this conduct shall be acted upon by, or at least influence, the other party; and Knowledge, actual or constructive, of the real facts (Riano, 2013).

Estoppel by silence - where a person, who by force of circumstances is under a duty to another to speak, refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance on which he acts to his prejudice. Silence may support an estoppel whether the failure to speak is intentional or negligent (Pasion vs. Melegrito, G.R. No. 166558, March 28, 2007). Estoppel by laches – is unreasonable delay to seek or to enfore a right at a proper time. A neglect to do something which one should do or to seek to enforce a right at a proper time. Promissory estoppel- may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon and in fact relied upon, and if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice. Estoppel on question of jurisdiction – A party is barred from assailing the legality of an order issued at his own motion since a person cannot be allowed to take advantage of his own wrong when such would work substantial injury to the other party (21 C.J. 1152, Francisco, 1996).

Estoppel by deed The doctrine is founded in public convenience and policy, because it tends to encourage honesty and good faith

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EVIDENCE between landlord and tenant (32 Am. Jur. 109; Francisco, 1996).

d.

Requisites of estoppel by deed

NOTE: Failure of the prosecution to present a certain witness and to proffer a plausible explanation does not amount to willful suppression of evidence since the prosecutor has the discretion/prerogative to determine the witnesses he is going to present (People v. Jalbuena, G.R. No. 171163, July 4, 2007).

1. 2. 3. 4.

The recitals should be clear and unambiguous; There should be distinct and precise admission of facts; The deed must be delivered; and That it must be a valid instrument (Francisco, 1996).

6. 7.

Money paid by one to another was due to the latter. Thing delivered by one to another belonged to the latter. 8. Obligation delivered up to the debtor has been paid. 9. Prior rents or installments had been paid when a receipt for the later ones is produced. 10. A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him.

DISPUTABLE PRESUMPTIONS Disputable Presumptions Those which are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence (Sec. 3, Rule 131). Disputable presumptions under Section 3 of Rule 131 1.

NOTE: In order to raise the presumption, the following must be proved: 1. That a crime was committed; 2. That it was committed recently; 3. That the stolen property was found in the possession of the defendant; and that the defendant is unable to explain his possession satisfactorily (U.S v. Espia 16 Phil 506).

Lack of knowledge and of the means of knowledge of the truth as to the facts in question; NOTE: It applies to both civil and criminal cases. Presumption of innocence of the accused accompanies him until the rendition of judgment and disappears after conviction, such that upon appeal, the appellate court will then presume the guilt of the accused. The prosecution’s case must rise and fall on its own merits and cannot draw strength from the weakness of the defense (People vs. Mingming, G.R. No. 174195, Dec. 10, 2008).

2. 3. 4.

11. That a person in possession of an order for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; 12. Person acting in public office was regularly appointed or elected to it.

Unlawful act is done with an unlawful intent; Person intends the ordinary consequences of his voluntary act; Person takes ordinary care of his concerns.

Ratio: It would cause great inconvenience if in the first instance strict proof were required of appointment or election to office in all cases where it might be collaterally in issue.

NOTE: GR: All people are sane and normal and moved by substantially the same motives. When of age and sane, they must take care of themselves. Courts operate not because one person has been defeated or overcome by another but because that person has been defeated or overcome illegally. There must be a violation of the law (Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).

NOTE: However the presumption of a regular appointment does not apply to a public officer seeking to recover salary attached to the office, or the benefits of a pension system (31 C.J.S, 787-788)

13. Official duty has been regularly performed.

XPN: When one of the parties is unable to read or if the contract is in a language not understood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been fully explained to the former. (Art. 1332, NCC)

5.

Suppression is by virtue of an exercise of privilege.

NOTE: All things are presumed to have been done regularly and with due formality until the contrary is proved (Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium).This presumption extends to persons who have been appointed pursuant to a local or special statute to act in quasi-public or quasi-official capacities and to professionals like lawyers and surgeons.

Evidence willfully suppressed would be adverse if produced. Requisites: a. The evidence is material; b. The party had the opportunity to produce it; and c. The evidence is available only to the said party.

GR: Presumption applies to both civil as well as criminal cases. XPNs: a. Petition for writ of amparo – presumption may not be invoked by the respondent public officer or employee (Rule on the Writ of Amparo, A.M. No. 17-9-12-SC);

The presumption will not be applicable when: a. Suppression of evidence is not willful; b. Evidence suppressed or withheld is merely corroborative or cumulative; c. Evidence is at the disposal of both parties; and

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REMEDIAL LAW b.

c.

The presumption does not apply during incustody investigation (People vs. Camat, 256 SCRA 52); When the official conduct in question is irregular on its face (People v. Obmiranis, GR. No. 181492, Dec. 16, 2008);

purposes including the division of estate among the heirs: i. Person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft; ii. Member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years; iii. Person who has been in danger of death under other circumstances and whose existence has not been known for 4 years; iv. If a married person has been absent for 4 consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already dead; 2 years in case of disappearance where there is danger of death under the circumstances hereinabove provided. Before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of re-appearance of the absent spouse.

14. A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawfu exercise of jurisdiction. NOTE: Lawful exercise of jurisdiction is presumed in all cases, be it superior or inferior courts, whether in the Philippines or elsewhere, unless the record itself shows that jurisdiction has not been acquired or the record itself shows the absence of jurisdiction, in which case jurisdiction to render a judgment may not be presumed.

15. All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them. 16. Private transactions have been fair and regular. 17. Ordinary course of business has been followed. 18. There was a sufficient consideration for a contract. 19. Negotiable instrument was given or indorsed for a sufficient consideration. 20. An endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated.

24. Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact. 25. Things have happened according to the ordinary course of nature and ordinary habits of life. 26. Persons acting as co-partners have entered into a contract of co-partnership. 27. A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. 28. Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. 29. In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. 30. If the marriage is terminated and the mother contracted another marriage within 300 hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

NOTE: Except where an indorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue (Sec. 45, Act. No. 2031).

21. A writing is truly dated. 22. Letter duly directed and mailed was received in the regular course of the mail. NOTE: For this presumption to arise, it must be proved that the letter was properly addressed with postage pre-paid and that it was actually mailed.

23. Presumption of Death a. Absence of 7 years – It being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession b. Absence of 10 years – The absentee shall be considered dead for the purpose of opening his succession only after an absence of 10 years.; and if he disappeared after the age of 75, absence of only 5 years is sufficient. c. The following shall be considered dead for all Presumptions of paternity: 1. 2.

A child born before 180 days after the subsequent marriage is conceived during the former marriage, provided it is born within 300 days after the termination of the former marriage. A child born after 180 days following the subsequent marriage is considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

412

EVIDENCE no presumption of legitimacy or illigitimacy conceived during the subsequent marriage conceived during the former marriage

termination of 1st marriage

subsequent marriage

180 days after the subsequent marriage

300 days after termination of 1st marriage

NOTE: There is no presumption of legitimacy or illegitimacy when a child is born after 300 days following dissolution of marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation (Sec. 4, rule 131).

enhancing substantial justice (Alcantara vs. PCIB, G.R. No. 151349, October 20, 2010). Procedural rules must be liberally interpreted and applied so as not to frustrate substantial justice (Quiambao vs. Court of Appeals, 454 SCRA 17, March 28, 2005). However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required (Barcenas vs Tomas, 454 SCRA 593, March 31, 2005).

31. A thing once proved to exist continues as long as is usual with things of that nature. 32. The law has been obeyed. 33. A printed or published book, purporting to be printed or published by public authority, was so printed or published. 34. A printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases. 35. A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest. 36. Except for purposes of succession, when 2 persons perish in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: First Person

Second Person

Presumed To Have Survived

< 15 yrs old

< 15 yrs old

older

> 60 yrs old

> 60 yrs old

younger

< 15 >15 and < 60 male >15 and < 60 female

> 60 yrs old >15 and < 60 female >15 and < 60 female

< 15

< 15 or > 60

15-60

QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) (RULE 133) Weight of evidence It is the probative value given by the court to particular evidence admitted to prove a fact in issue. Hierarchy of quantum of evidence

The male The older The one between those ages

37. That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time (Sec. 3, Rule 131). LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE The rules of evidence must be liberally construed (Sec. 6, Rule 1). The Rules of Procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application of the rules must always be avoided if it would subvert their primary objective of

NOTE: Evidence, to be worthy of credit, must not only proceed from a credible source but must also be credible in itself. It must be

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REMEDIAL LAW natural, reasonable and probable as to make it easy to believe (People v. Peruelo, G.R. No. 50631, June 29, 1981).

positive and credible (Ceniza-Manantan v. People, G.R. No. 156248, August 28, 2007).

Q: What is the degree of evidence required in order to disprove the prima facie case established by the party having the burden of proof?

Partial credibility of a witness The testimony of a witness may be believed in part and disbelieved in another part, depending on the probabilities and improbabilities of the case (People v. Tan, G.R. No. 176526, Aug. 8, 2007).

A: A prima facie case need not be countered by a preponderance of evidence nor by evidence of greater weight. Defendant's evidence which equalizes the weight of plaintiff's evidence or puts the case in equipoise is sufficient. As a result, plaintiff will have to go forward with the proof. Should it happen that at the trial the weight of evidence is equally balanced or at equilibrium and presumptions operate against plaintiff who has burden of proof, he cannot prevail (People v. Santiago, G. R. Nos. 137542-43, January 20, 2004)

NOTE: If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, the court may disregard all the witness’ testimony. Falsus in uno, falsus in omnibus (Riano, 2013). This is not a mandatory rule of evidence but is applied by the courts in its discretion. It deals only with the weight of evidence and not a positive rule of law. The witnesses’ false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood. The court may accept and reject portions of the witness’ testimony depending on the inherent credibility thereof (Regalado, 2008).

Guidelines in the assessment of credibility of a witness 1.

2.

A witness who testified in clear, positive and convincing manner and remained consistent in crossexamination is a credible witness (People v. Comanda, G.R. No. 175880, July 6, 2007); and Findings of fact and assessment of credibility of a witness are matters best left to the trial court that had the front-line opportunity to personally evaluate the demeanor, conduct, and behavior of the witness while testifying (Sps. Paragas v. Heirs of Balacano, G.R. No. 168220, August 31, 2005).

Falsus in uno, falsus in omnibus (in relation to credibility of witness) Literally, falsus in uno, falsus in omnibus means “false in one thing, false in everything” (Dawson v. Bertolinin, 70 R.I. 325, 38 A.2d 765, 765). The doctrine means that if the testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jury may disregard all the witness’ testimonies (Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820, 823). It is particularly applied to the testimony of a witness who may be considered unworthy of belief as to all parts of his testimony if he is shown to have sworn falsely in one detail.

Q: May the trial court’s findings as to the credibility of witnesses be disturbed on appeal? A: The trial court’s findings of fact will not be disturbed on appeal, unless there is a clear showing that it plainly overlooked matters of substance which, if considered, might affect the results of the review. The credibility of witnesses is best determined by the trial judge, who has the direct opportunity to observe and evaluate their demeanor on the witness stand (People v. Pacuancuan, G.R. No. 144589, June 16, 2003).

The principle of falsus in uno, falsus in omnibus is not strictly applied in this jurisdiction. It deals only with the weight of the evidence and is not a positive rule of law. The rule is not an inflexible one of universal application. Modern trend in jurisprudence favors more flexibility when the testimony of a witness may be partly believed and partly disbelieved depending on the corroborative evidence presented at the trial (People v. Negrosa, G.R. Nos. 14285657, August 25, 2003).

Q: May the uncorroborated testimony of an accused who turned into a State witness suffice to convict his coaccused?

When the maxim falsus in uno, falsus in omnibus applies

A: Yes. It may suffice to convict his co-accused if it is given unhesitatingly and in a straightforward manner and is full of details which by their nature could not have been the result of deliberate afterthought, otherwise, it needs corroboration, the presence or lack of which may ultimately decide the case of the prosecution and the fate of the accused (People v. Sunga, G.R. No. 126029, March 27, 2003).

1. 2.

Extrajudicial confession NOT conviction

sufficient ground for

An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti (Sec. 3, Rule 133).

Sufficiency of evidence In determining the sufficiency of evidence, what matters is not the number of witnesses but the credibility and the nature and quality of their testimonies. The testimony of a lone witness is sufficient to support a conviction if found

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

That the false testimony is as to one or more material points; and That there should be conscious and deliberate intention to falsity (People vs. Pacapac, 248 SCRA 77).

When circumstantial evidence is sufficient for conviction Circumstantial evidence is sufficient for conviction if: 1. There is more than one circumstances;

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EVIDENCE 2. 3.

officers are certain of the identity of the offender, they need not require any police line-up anymore (Tapdasan, Jr. v. People, G.R. No. 141344, November 21, 2002).

The facts from which the inferences are derived are proven; and The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Sec. 4, Rule 133).

Admissibility of out-of-court identification It is admissible and reliable when it satisfies the “totality of circumstances” test. Under the “totality of circumstances” test, the following factors are considered: 1. Witness’ opportunity to view the criminal at the time of the crime; 2. Witness’ degree of attention at that time; 3. Accuracy of any prior description given by the witness; 4. Level of certainty demonstrated by the witness at the identification; 5. Length of time between the crime and the identification; and 6. Suggestiveness of the identification procedure (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, October 6, 1995)

The corollary rule is that the circumstances proven must constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e. the circumstances proven must be consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent and with any other rational hypothes is except of that guilt (Trinidad v. People, G.R. No. 192241, June 13, 2012). Alibi It is a defense where an accused claims that he was somewhere else at the time of the commission of the offense. It is one of the weakest defenses an accused may avail because of the facility with which it can be fabricated, just like a mere denial (People v. Esperanza, G.R. Nos. 139217-24, June 27, 2003). When this is the defense of the accused, it must be established by positive, clear and satisfactory evidence.

Corpus delicti It is the actual commission by someone of the particular crime charged. It refers to the fact of the commission of the crime, not to the physical body of the deceased or to the ashes of a burned building. The corpus delicti may be proven by the credible testimony of a sole witness, not necessarily by physical evidence (Rimorin v. People, G.R. No. 146481, April 30, 2003).

NOTE: A categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over an alibi (People v. Gingos and Margote, G.R. No. 176632, September 11, 2007). For the defense of alibi to prosper, the accused must show that: 1. He was somewhere else; and 2. It was physically impossible for him to be at the scene of the crime at the time of its commission (People v. Gerones, et.al., G.R. No. L-6595, October 29, 1954).

Elements of corpus delicti 1. 2.

Out-of-court identification

NOTE: The identity of the accused is not a necessary element of the corpus delicti.

It is a means of identifying a suspect of a crime and is done thru: 1. Show-ups: where the suspect alone is brought face to face with the witness for identification;

Q: Is a plea of guilty in open court sufficient without proof of corpus delicti? A: Yes. A plea of guilty at the arraignment in open court, which is a confession of guilt by the defendant, is sufficient to support a conviction without necessity of proof aliunde of corpus delicti. In contrast, an extrajudicial confession made by defendant does not warrant a conviction unless corroborated by independent evidence of corpus delicti (Francisco, 1996).

NOTE: Eyewitness identification is often decisive of the conviction or acquittal of an accused. Identification of an accused through mug shots is one of the established procedures in pinning down criminals. However, to avoid charges of impermissible suggestion, there should be nothing in the photograph that would focus attention on a single person. (People v. Villena, G.R. No. 140066, October 14, 2002)

2. 3.

Proof of the occurrence of a certain event; and A person’s criminal responsibility for the act (People v. Corpuz, G.R. No. 148919, December 17, 2002).

Mug shots: where photographs are shown to the witness to identify the suspect; or Line-ups: where a witness identifies the suspect from a group of persons lined up for the purpose (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, October 6, 1995).

Q: Jose Mariposa was charged with violation of Sec. 4, Art. 2 of the Dangerous Drugs Act of 1972. He was apprehended thru a buy-bust operation. During trial the prosecution failed to produce the marijuana sticks that Mariposa sold during the entrapment operation. Is there a need to produce the marijuana sticks in order to convict the accused?

NOTE: A police line-up is merely a part of the investigation process by police investigators to ascertain the identity of offenders or confirm their identification by a witness to the crime. Police officers are not obliged to assemble a police line-up as a condition sine qua non to prove the identity of an offender. If on the basis of the evidence on hand, police

A: Yes. The elements necessary for a charge of illegal sale of marijuana are: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefore. It is indispensable

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW that the identity of the marijuana which constitutes the corpus delicti must be established before the court. During the trial, the sticks of marijuana were never presented as evidence to prove that appellant indeed sold the same during the entrapment operation. It is an entrenched rule in our jurisprudence that indispensable in every prosecution for illegal sale of marijuana, a prohibited drug, is the submission of proof that the sale for the illicit drug took place between the poseur-buyer and the seller thereof, and the presentation further of the marijuana, the corpus delicti, as evidence in court (People v. Rigodon, G.R. No. 111888, November 8, 1994).

Q: Must the identity of the accused be proved beyond reasonable doubt? A: Yes. When the identity of the accused is not established beyond reasonable doubt, acquittal necessarily follows. Conviction for a crime rests on the strength of the prosecution’s evidence, never on the weakness of that of the defense (People vs. Jalon, G.R. No. 93729, November 13, 1992). NOTE: In every criminal prosecution, the prosecution must prove two things: 1. The commission of the crime; and 2. The identification of the accused as the perpetrator of the crime. What is needed is positive identification made with moral certainty as to the person of the offender (People v. Maguing, G.R. No. 144090, June 26, 2003).

Res ipsa loquitur It literally means the thing speaks for itself. This doctrine provides that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of participation by the defendant, that the accident arose from or was caused by the defendant's want of care (Ramos v. CA, G.R. No. 124354, December 29, 1999).

PREPONDERANCE OF EVIDENCE Preponderance of Evidence It is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of the evidence” or “greater weight of the credible evidence”. It is a phrase which, in the last analysis, means probability of the truth, evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto (Philippine Commercial International Bank vs. Balmaceda, 658 SCRA 33).

Q: Does the application of the doctrine dispense with the requirement of proof of negligence?

NOTE: However, even if the evidence adduced by the plaintiff appears to be stronger than that presented by the defendant, a judgment cannot be entered in the plaintiff’s favor if his evidence still does not suffice to sustain his cause of action (Ibid.).

A: No. It is considered merely as evidentiary or in the nature of procedural rule. It is simply in the process of such proof, permitting the plaintiff to present enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and thereby place on the defendant the burden of going forward with the proof to the contrary (Ramos, et. al. v. CA, G.R. No. 124354, December 29, 1999).

Q: What are the matters that the court may consider in determining whether or not there is preponderance of evidence? A:

1. 2.

PROOF BEYOND REASONABLE DOUBT Proof beyond reasonable doubt It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge (People v. Calma, G.R. No. 127126, September 17, 1998).

3.

4.

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind (Sec. 2, Rule 133).

NOTE: To persuade by the preponderance of evidence is not to take the evidence quantitatively but qualitatively (Riano, 2013).

NOTE: Moral certainty is that degree of certainty which will justify the trial judge in grounding on it his verdict. It is a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

All the facts and circumstances of the case; The witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony; The witnesses’ interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial; and The number of witnesses, though the preponderance is not necessarily with the greater number (Sec. 1, Rule 133).

416

EVIDENCE SUBSTANTIAL EVIDENCE That amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion (Sec. 5, Rule 133). CLEAR AND CONVINCING EVIDENCE Clear and convincing evidence It is that degree of evidence that produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established; It is intermediate, being more than preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases (Black’s Law Dictionary, 2004). XPN: Under Art. 1387, NCC, certain alienations of property are presumed fraudulent. Instances when clear and convincing evidence is required 1. When proving forgery (Citibank, N.A. v. Sabeniano, G.R. No. 156132, February 6, 2007); 2. When proving ownership over a land in annulment or reconveyance of title (Manotok Realty, Inc. v. CLT Realty Development Corp., G.R. No. 123346, December 14, 2007); 3. When invoking self-defense, the onus is on the accusedappellant to establish by clear and convincing evidence his justification for the killing (People v. Tomolin, G.R. No. 126650, July 28, 1999); 4. When proving the allegation of frame-up and extortion by police officers in most dangerous drug cases (People v. Boco, G.R. No. 129676, June 23, 1999); 5. When proving physical impossibility for the accused to be at the crime scene when using alibi as a defense (People v. Cacayan, G.R. No.180499, July 9, 2008); 6. When using denial as a defense like in prosecution for violation of the Dangerous Drugs Act (People v. Mustapa, G.R. No. 141244, February 19, 2001); 7. To overcome the presumption of due execution of notarized instruments (Viaje v. Pamintel, G.R. No. 147792, January 23, 2006); 8. When proving bad faith to warrant an award of moral damages (Resolution of the SC in Cual v. Leonis Navigation, G.R. No. 167775, October 10, 2005); 9. When proving that the police officers did not properly perform their duty or that they were inspired by an improper motive (People v. Concepcion, G.R. No. 178876, June 27, 2008); or When a person seeks confirmation of an imperfect or incomplete title to a piece of land on the basis of possession by himself and his predecessors-in-interest, he must prove with clear and convincing evidence compliance with the requirements of the applicable law (Republic v. Imperial Credit Corp., G.R. No. 173088, June 25, 2008; Riano, 2009).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW REVISED RULES ON SUMMARY PROCEDURE

of jurisdiction over the subject matter, or failure to refer the case to the Lupon Tagapamayapa in cases covered by the Katarungang Pambarangay Law. 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for opening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third party complaints; 12. Interventions (Sec. 19, ibid.).

CASES COVERED BY THE RULE Cases covered by the Revised Rules on Summary Procedure 1.

2.

Civil cases: a. All cases of forcible entry and unlawful detainer, irrespective of amount of damages or unpaid rentals sought to be recovered provided when attorney’s fees are awarded, the same shall not exceed Php 20,000.00; and b. All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed Php 100,000 or Php 200,000 in Metropolitan Manila, exclusive of interest and costs (As amended by A.M. No. 02-11-09-SC effective November 5, 2002). Criminal cases: a. Violations of traffic laws, rules and regulations; b. Violations of rental law; c. Violations of municipal or city ordinances; d. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months or a fine not exceeding Php 1,000.00, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising there from. Provided however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed Php 10,000.00; and e. Violation of BP 22 (Sec. 1, Revised Rules on Summary Procedure).

EFFECT OF FAILURE TO ANSWER The court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for (Sec. 6, ibid). NOTE: This is without prejudice to the applicability of Sec. 4, Rule 18 of the Rules of Court, stating that the non-appearance of the party in a pre-trial may be excused if valid cause is shown or a representative authorized in writing appears in his behalf.

PRELIMINARY CONFERENCE AND APPEARANCES OF THE PARTIES Nature of preliminary conference in civil cases Preliminary conference in civil cases is mandatory. A preliminary conference shall be held not later than 30 days after the last answer is filed. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule (Riano, 2005).

Commencement of a criminal case The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided, however, that in Metropolitan Manila and in Chartered Cities, such cases shall be commenced only by information, except when the offense cannot be prosecuted de officio.

Nature of preliminary conference in criminal cases In criminal cases, preliminary conference is mandatory. Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case.

The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus 2 copies for the court's files. If this requirement is not complied with within 5 days from date of filing, the case may be dismissed (Sec. 11, ibid.). Pleadings allowed in civil cases

However, no admission by the accused shall be used against him unless reduced in writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused (Sec. 14, ibid.).

The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims pleaded in the answer, and the answers thereto [Sec. 3(a), ibid.].

NOTE: Trial is necessary only in criminal cases covered by the Rules on Summary Procedure. In civil cases covered by the Rule, there is no trial involved but only the submission of the affidavits of witnesses of the parties and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them which shall be

Prohibited pleadings and motions in both civil and criminal cases 1.

Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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REVISED RULES ON SUMMARY PROCEDURE submitted within 10 days from receipt of the order issued by the court after the preliminary conference (Sec. 9, ibid.).

Duty of the court after conducting the preliminary conference Within 5 days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1. 2. 3.

4. 5.

Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; The stipulations or admissions entered into by the parties; Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; A clear specification of material facts which remain controverted; and Such other matters intended to expedite the disposition of the case (Sec. 8, ibid.).

Plaintiff’s failure to appear in the preliminary conference The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim as may be warranted and limited to what is prayed for therein. All cross claims shall be dismissed (Sec. 7, Ibid.). Defendant’s failure to appear during the preliminary conference If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Sec. 6. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference (Sec. 7, Ibid.).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW Corporation v. Heirs of Angel Teves, G.R. No. 128574, September 18, 2002; Sec. 1, Rule VI, IRR of the Katarungang Pambarangay Law).

KATARUNGANG PAMBARANGAY Katarungang Pambarangay Law It provides for the settlement of disputes between individual residents of the same city or municipality, thru mediation, arbitration, or conciliation, before the Katarungang Pambarangay. Compliance therewith is a condition precedent to the filing of a complaint or information in court or before the Fiscal’s Office, and its absence is a ground for dismissal of the complaint for prematurity or absence of a cause of action (Albano, 2010).

Prohibition against appearance of lawyers as counsel or representative

Q: What is the object of the Katarungang Pambarangay Law? (1999 Bar Question)

Issuance of summons

In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representatives, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers (Sec. 415, RA 7160).

Summons may be issued and a hearing may be conducted in the proceeding. The pangkat shall convene not later than 3 days from its constitution, on the day and hour set by the lupon chairman, to hear both parties and their witnesses, simplify issues, and explore all possibilities for amicable settlement. For this purpose, the pangkat may issue summons for the personal appearance of parties and witnesses (Sec. 410, RA 7160).

A: Its object is to effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion (Preamble of P.D. 1508, the former and the first Katarungang Pambarangay Law). CASES COVERED Cases covered by the Katarungang Pambarangay Law

Proceedings for settlement

Cases involving the following should first be filed before the Katarungang Pambarangay before resorting to courts or government offices: 1. Disputes between persons actually residing in the same barangay; 2. Those involving actual residents of different barangays within the same city or municipality; 3. All disputes involving real property or any interest therein where the real property or the larger portion thereof is situated; 4. Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, where such workplace or institution is located.

GR: All proceedings for settlement shall be public and informal. XPN: The lupon chairman or the pangkat chairman as the case may be, may motu proprio or upon request of a party, exclude the public from the proceedings in the interest of privacy, decency or public morals (Sec. 414, RA 7160). Tolling of the prescriptive period for offenses While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the Punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary; provided however, that such interruption shall not exceed 60 days from the filing of the complaint with the punong barangay (Sec. 410, RA 7160).

NOTE: The compulsory process of arbitration is a pre-condition for the filing of the complaint in court. Where the complaint (a) did not state that it is one of excepted cases, or (b) it did not allege prior availment of said conciliation process, or (c) did not have a certification that no conciliation had been reached by the parties, the case should be dismissed (Agbayani v. Court of Appeals, G.R. No. 183623, June 25, 2012).

Q: Reynold and Franco, brothers and both residents of Marikina, Metro Manila, had opposing and exclusive claims of ownership over a parcel of land located in Morong, Rizal. They consulted with their uncle and requested him to try to amicably settle their dispute. The uncle failed, despite earnest efforts of all concerned to arrive at a compromise. Reynold thereupon filed suit for title or ownership without, however, bringing the dispute to the Lupong Tagapamayapa, for settlement and without alleging in the complaint that previous earnest efforts towards a compromise had been exerted by him but had failed. Franco moved to dismiss on the ground of failure of the complaint to state a cause of action in that: (1) it did not aver that Reynold had previously taken earnest but futile efforts towards a compromise and (2) it did not allege that proceedings for settlement had been filed

Composition of lupong tagapamayapa The lupon is composed of the punong barangay as chairman and 10 to 20 members (Sec. 399, RA 7160). Parties to the proceeding Only individuals may be parties to the proceedings under the Katarungang Pambarangay Law either as complainants or respondents. Further, no complaint by or against corporations, partnerships or other juridical entities may be filed, received or acted upon. Here, being a corporation, defendant cannot be impleaded as a party to a barangay conciliation proceeding (Universal Robina Sugar Milling UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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KATARUNGANG PAMBARANGAY LAW before the Lupon but no settlement reached, both of which, according to Franco, are conditions precedent to a cause of action in favor of Reynold.

admitted his wrongdoings and asked for forgiveness; and while a confrontation about the matter was held before the barangay council, no settlement was reached. Hence, a complaint for illegal dismissal was filed against BTRD. The Labor Arbiter, affirmed by the NLRC, ruled in favor of the BTRD. CA reversed the NLRC ruling that the dismissal of the Francisco was without due process. Does the confrontation before the barangay constitute first notice in compliance with the twin notice rule?

If you were counsel for Reynold, what steps would you take and what arguments will you advance to meet the motion to dismiss based on the asserted: (1) failure to exert efforts at a compromise; and (2) failure to observe the Katarungang Pambarangay Law? Explain. A: Franco's motion to dismiss is well founded because Reynold and Franco are both residents of Marikina and prior recourse to barangay conciliation is a pre-condition to the filing of a complaint (Tavora v. Veloso, G.R. No. L-60367, Sept. 30, 1982)

A: The confrontation before the barangay council did not constitute the first notice – to give the employee ample opportunity to be heard with the assistance of counsel, if he so desires. Hearings before the barangay council do not afford the employee ample opportunity to be represented by counsel if he so desires because Sec. 415 of the LGC mandates that “in all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or his representatives, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers” (Bacolod-Talisay Realty and Development Corporation v. Romeo Dela Cruz, G.R. No. 179563, April 30, 2009).

As counsel of Reynold, I would file an opposition to Franco’s motion to dismiss by submitting an affidavit of their uncle, or presenting him as a witness, to show that earnest efforts were made by all concerned to arrive at a compromise, but without success. I would also argue that prior recourse to barangay conciliation would have been futile in view of the failure of the uncle to amicably settle the dispute. It is not necessary for me to amend the complaint to allege earnest but futile efforts towards a compromise and prior recourse to barangay conciliation, because if the defendant does not raise these grounds in a motion to dismiss or answer, they are deemed waived (Sec. 2, Rule 9; Ebol v. Amin, G.R. No. L-70237, March 18, 1985).

VENUE Venue 1.

SUBJECT MATTER OF AMICABLE SETTLEMENT

2.

Subject matter for amicable settlement The lupon of each barangay shall have authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes, except in cases enumerated in SC AC 14-93.

3.

4. NOTE: The court in which non-criminal cases not falling within the authority of the lupon under the Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement (Sec. 408, LGC).

Q: What is the difference, if any, between the conciliation proceedings under the Katarungang Pambarangay Law and the negotiations for an amicable settlement during the pre-trial conference under the Rules of Court? (1999 Bar Question)

For disputes between residents of the same barangay, the dispute must be brought for settlement in the said barangay; For disputes between residents of different barangays, within the same city or municipality or where any of the respondents reside at the election of the complainant; For disputes involving real property or any interest therein, the dispute shall be brought in the barangay where the real property or larger portion thereof is situated; and For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, they shall be brought in the barangay where such workplace or institution is located (Sec. 409, RA 7160).

Objections to venue Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding (ibid.).

A: Under the conciliation proceedings in the Katarungang Pambarangay Law, lawyers are prohibited from appearing for the parties. The parties must appear in person only except minors or incompetents who may be assisted by their next of kin who are not lawyers.

Q: Riza and Francia entered into a contract of lease. When Francia failed to pay the rent, Riza instituted a complaint for unlawful detainer against Francia. Francia moved to dismiss because Riza failed to refer the issue first to the Lupon and undergo conciliation proceedings before filing a case in court. Riza insisted that P.D. 1508 is inapplicable because at the time of the institution of the action, the plaintiffs are temporarily residing in the place where the

Q: Francisco was dismissed on charges of payroll padding, selling cane points without the knowledge and consent of management and misappropriating the proceeds thereof, and renting out Bacolod-Talisay Realty and Development Corporation (BTRD) tractor for use in another farm and misappropriating the proceeds thereof. Francisco

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW action was instituted and they are permanent residents of another province. Does P.D. 1508 apply in this case?

c.

A: No. P.D. 1508 is not applicable. The primary purpose of P.D. 1508 is to provide conciliation mechanism, as an alternative to litigations in dispute settlement, to members of the corresponding barangays who are actually residing therein. Residence alone, without membership in said barangays would not be an accurate and reliable criterion, considering that such residence may be actual but be merely temporary, transient or categorized into other permutations as in the case of a house guest or a sojourner on a visit of a day or two. On the other hand, mere membership in a barangay, without actual residence therein, should not suffice since absentee membership would not subserve the avowed purpose of P.D. 1508 for lack of the common bond and sense of belonging generally fostered in members of an identified aggroupment (Bejer v. CA, G.R. No. 79404, Jan. 27, 1989).

d.

9.

Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; 10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657); 11. Labor disputes or controversies arising from employeremployee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, LC, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment); 12. Actions to annul judgment upon a compromise, which may be filed directly in court (Sanchez vs. Tupaz, 158 SCRA 459; SC AC 14-93).

NOTE: Even when the parties reside in different cities, barangay conciliation may still be done if the barangays wherein the parties reside are adjacent to one another (Albano, 2010).

NOTE: In conciliation among members of indigenous cultural communities, their customs and traditions shall be applied in settling disputes between members of the cultural communities (Sec. 412, RA 7160).

WHEN PARTIES MAY DIRECTLY GO TO COURT Direct filing of an action in court notwithstanding the fact that said action falls within the authority of the lupon ng tagapamayapa 1. 2.

3.

4.

5.

6.

7. 8.

Q: Spouses Frank and Rona begot a child named James aged 7 years old. Due to irreconcilable differences, the wife Rona filed a Petition for Dissolution of Conjugal Partnership and Partition of Conjugal Partnership Properties in the CFI of Makati. Frank filed a motion to dismiss the petition on jurisdictional grounds, claiming that it should have been filed first in the Lupon Tagapamayapa as provided in P.D. 1508, because both are residents of the same Municipality of Makati. The judge denied the motion to dismiss. Hence, Frank filed a petition for certiorari on the grounds that the judge exceeded its authority in assuming jurisdiction over the case without prior referral to the Lupon and also in declaring that issues of support pendente lite and delivery of personal property belonging to the conjugal partnership of the parties are essentially involved in the petition, hence, the parties could go directly to court without passing through the Lupon, as provided in Section 6 of P.D. 1508. Decide.

Where one party is the government, or any subdivision or instrumentality thereof; Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules); Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; Offenses for which the law prescribes a maximum penalty of imprisonment exceeding 1 year or a fine over Php 5,000.00; Offenses where there is no private offended party; Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: a. Criminal cases where accused is under police custody or detention [Sec. 412 (b)(1), Revised Katarungang Pambarangay Law]; b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of his liberty or one acting in his behalf; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and Actions which may be barred by the Statute of Limitations.

A: The issues of support pendente lite and delivery of personal properties belonging to the conjugal partnership, although not 'coupled' in the strict sense of the word with the instant petition, are essentially involved in the petition because of the minority of the daughter, and because the resolution or decision of the court on the pending petition would be incomplete without a clear cut disposition on the partition of the personal and real properties of the conjugal partnership. Hence, the dispute can proceed directly to the courts even without compliance with PD 1508 (Blardony v. Coscolluela, G.R. No. 70261, February 28, 1990).

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KATARUNGANG PAMBARANGAY LAW party of the terms of the agreement. The lupon concerned refused to execute the settlement/agreement. 1. Is the lupon correct in refusing to execute the settlement/agreement? 2. What should be the course of action of the prevailing party in such a case? (2001 Bar Question)

EXECUTION Period to arrive at a settlement The pangkat shall arrive at a settlement or resolution of the dispute within 15 days from the day it convenes. This period shall, at the discretion of the pangkat, be extendible for another period which shall not exceed 15 days, except in clearly meritorious cases (Sec. 410, RA 7160).

A: 1.

Compliance with the arbitration award

2.

The parties, may, at any stage of the arbitration proceedings, agree in writing that they shall abide by the arbitration award of the lupon chairman or the pangkat chairman. Such agreement to arbitrate may be repudiated within 5 days from the date thereof on the grounds stated in Sec. 418. The arbitration award shall be made after the lapse of the period of repudiation and 10 days thereafter.

Yes. The execution sought is already beyond the period of 6 months from the date of settlement within which the lupon is authorized to execute. After the 6-month period, the prevailing party should move to execute the settlement/agreement in the appropriate city or municipal court. REPUDIATION

Repudiation of settlement Any party to the dispute may, within 10 days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint before the court (Sec. 418, RA 7160).

Enforcement of the arbitration award or amicable settlement The amicable settlement or arbitration award may be enforced by execution by the lupon within 6 months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court (Sec. 417, RA 7160). If the award does not exceed Php 100,000, it may be enforced under the Rules on Small Claims, otherwise, it will fall under the provisions of the Rules of Court.

Q: Randy filed before the Barangay Captain a complaint for reimbursement of expenses. After several hearings, the parties executed an amicable settlement entitled “Kasunduan sa Pagbabayad.” Ten days from the date of its execution passed and neither of the parties repudiated nor sought to repudiate the settlement agreement. A writ of execution was filed to enforce the settlement agreement and was granted. However, the judge, after a few days, recalled the writ of execution. Is the judge correct?

NOTE: The timeline in Sec. 417 should be construed to mean that if the obligation in the settlement to be enforced is due and demandable on the date of the settlement, the six-month period should be counted from the date of the settlement, otherwise, if the obligation to be enforced is due and demandable on a date other than the date of the settlement, the six-month period should be counted from the date the obligation becomes due and demandable (Vidal, et al. v. Escueta, et al., G.R. No. 156228, December 10, 2003).

A: No. The judge was guilty of ignorance of the law and dereliction of duty. Under Sec. 11 of P.D. 1508, the amicable settlement here had the force and effect of a final judgment of a court upon the expiration of ten days from the date thereof, no repudiation of that settlement having been made during that period. It was, therefore, the clear ministerial duty of the judge to implement and enforce the amicable settlement agreement. Enforcement of the writ of execution may, of course, be suspended in certain exceptional circumstances. In the instant case, no exceptional circumstance existed. The contention of the judge that he had suspended execution of the amicable settlement because he merely wanted to mediate between the parties, is completely devoid of merit and quite incomprehensible for the parties had already amicably settled their case on the barangay level, which settlement had resulted in the preparation and execution of the amicable settlement (Santos v. Isidro, A.M. No. MTJ-89-30, August 16, 1991).

Effect of amicable settlement and arbitration award GR: The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. XPN: If a civil case not falling within the authority of the lupon is referred by the court to the lupon concerned for amicable settlement, the compromise settlement agreed upon by the parties before the lupon chairman or the pangkat chairman shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court (Sec. 416 in relation to Sec. 408, RA 7160). Q: An amicable settlement was signed before a lupon tagapamayapa on January 3, 2001. On July 6, 2001, the prevailing party asked the lupon to execute the amicable settlement because of the non-compliance by the other

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW RULE OF PROCEDURE FOR SMALL CLAIM CASES (AM No. 08-8-7-SC)

other court, tribunal or agency through a verification and certification of non-forum shopping.

It is a special rule of procedure adopted by the SC pursuant to its rule-making power to govern small claims. This rule allows a plaintiff to sue a defendant without the need of a lawyer.

The Statement of Claim must be accompanied by certified duplicate photocopies of all supporting documents. The plaintiff then files the Statement of Claim with its accompanying documents with the office of the clerk of court of the small claims court, personally or through mail, and pays the correct docket and filing fees prescribed under Rule 141 of the Revised Rules of Court

NOTE: The Rule on small claim cases did not create new courts. It simply provides a procedure for prosecuting, defending, and adjudicating small claims cases, which by law are already within the jurisdiction of first level courts.

NOTE: No evidence shall be allowed during the hearing which was not attached to the claim unless good cause is shown for the admission of the evidence (Sec. 5, A.M. No. 08-8-7-SC).

SCOPE AND APPLICABILITY OF THE RULE Scope of the Rules for Small Claim Cases

When there are separate small claims The Rule governs the procedure in actions for money claims before the MeTCs, MTCCs, MTCs and MCTCs where the value of the claim does not exceed Php 100,000.00, exclusive of interest and costs.

Plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed Php 100,000 (Sec. 6, A.M. No. 08-8-7-SC).

NOTE: The amount for small claims is jurisdictional.

Indigent party Cases covered by the Rule on Small Claims 1.

2.

3.

If one is an indigent, he may apply to the small claims court to qualify as an indigent, and once qualified, he is exempt from payment of such fees (Sec. 8, A.M. No. 08-8-7-SC).

Those which are purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money; The civil aspect of criminal actions either filed before the institution of the criminal action or reserved upon the filing of a criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure (Sec. 4); and The enforcement of a barangay amicable settlement or an arbitration award involving money claims covered by the Rule, pursuant to Sec. 417, LGC.

NOTE: In no case shall a party, even if declared an indigent, be exempt from the payment of Php 1,000.00 fee for service of summons and processes in civil cases (Ibid.).

Filing of response The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified response within a non-extendible period of 10 days from receipt of summons.

Claims or demands 1.

2.

3.

The response shall be accompanied by certified photocopies of documents, as well as affidavits of witnesses and other evidence in support thereof. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Response, unless good cause is shown for the admission of additional evidence (Sec. 11, A.M. No. 08-8-7-SC).

For money owed under any of following: a. Contract of lease; b. Contract of loan; c. Contract of services; d. Contract of sale; or e. Contract of mortgage. For damages arising from any of the following: a. Fault or negligence; b. Quasi-contracts; and c. Contracts. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this rule pursuant to Sec. 417, LGC (Sec. 4, A.M. No. 08-8-7-SC).

Failure to file a response within the required period The court by itself shall render judgment as may be warranted by the facts alleged in the Statement of Claims limited to what is prayed for. The court however, may, in its discretion reduce the amount of damages for being excessive or unconscionable (Sec. 12, A.M. No. 08-8-7-SC). Counterclaims

COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE

If at the time the action is commenced, the defendant in his response may file as counterclaim a claim against the plaintiff that: 1. Is within the coverage of this Rule, exclusive of interest and costs;

Commencement of small claims action The plaintiff must first accomplish a verified Statement of Claim and certify the information provided, stating that he has not filed any action involving the very same issue in any UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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RULE OF PROCEDURE FOR SMALL CLAIMS CASES 2. 3. 4.

Arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; Does not require for its adjudication the joinder of third parties; and Is not a subject of another pending action (Sec. 13, A.M. No. 08-8-7-SC).

Prohibition against appearance of lawyers Lawyers are not allowed to appear at the hearing unless they are the plaintiff or the defendant. However, since the process is still a legal process, the parties and their authorized representatives can still consult with a lawyer to assist them to prepare for the hearing or for other matters outside the hearing (Sec. 17, A.M. No. 08-8-7-SC).

NOTE: The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid.

NOTE: The court, in its discretion, may allow another individual who is not a lawyer to assist the party (Ibid.).

Non-appearance of a party

Failure to include a counterclaim in the response

1.

If the counterclaim is compulsory, it must be raised in the same case. Otherwise, it will be barred (Ibid.). PROHIBITED PLEADINGS AND MOTIONS 1.

2.

Motion to dismiss the complaint NOTE: the amended rules on small claim removed the exception on motion to dismiss based on lack of jurisdiction. The grounds for the dismissal of the claim, under rule 16 of the rules of court, should be pleaded (Sec. 11, A.M. No. 08-87-SC).

3.

2. 3.

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

If the plaintiff does not appear, the claim shall be dismissed without prejudice. The defendant who appears shall be entitled to judgment on a permissive counterclaim. If the defendant does not appear, the effect will be the same as failure to file a Response. This shall not apply where one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears at the hearing. If both parties do not appear, the claim and counterclaim shall be dismissed with prejudice (Sec. 18, A.M. No. 08-8-7-SC). HEARING; DUTY OF THE JUDGE

Duty of the court at the beginning of the court session At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases (Sec. 20, A.M. No. 08-8-7-SC). Duty of the judge at the hearing The judge shall exert efforts to bring the parties to an amicable settlement of their dispute. Any settlement or resolution of the dispute shall be reduced into writing, signed by the parties and submitted to the court for approval.

APPEARANCES

NOTE: There is no trial under the Rules on Small Claim Cases. Under Sec. 22, if efforts at settlement fail, the hearing shall proceed in an informal and expeditious manner and be terminated within 1 day. Either party may move in writing to have another judge hear and decide the case. The reassignment of the case shall be done in accordance with existing issuances.

Appearance of parties The parties shall appear at the hearing personally or through a representative they may authorize under a Special Power of Attorney to enter into an amicable settlement, to submit to Judicial Dispute Resolution (JDR) and to enter into stipulations or admissions of facts and of documentary exhibits (Sec. 16, A.M. No. 08-8-7-SC).

The referral by the original judge to the Executive Judge shall be made within the same day the motion is filed and granted, and by the Executive Judge to the designated judge within the same day of the referral. The new judge shall hear and decide the case within 5 working days from receipt of the order of reassignment.

Appearance through a representative Appearance through a representative must be for a valid cause. The representative of an individual-party must not be a lawyer, and must be related to or next-of-kin of the individual-party. Juridical entities shall not be represented by a lawyer in any capacity (ibid.).

Postponement of a hearing It may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only 1 postponement (Sec. 19, A.M. No. 08-8-7-SC).

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REMEDIAL LAW FINALITY OF JUDGMENT Finality of Judgment A decision in small claims cases is final and unappealable (Sec. 23, A.M. No. 08-8-7-SC). The declaration that the decision is final and unappealable is in line with the nature of small claims which is designed to preclude unmeritorious appeals that result in long drawn litigation for cases of this nature, pursuant to the SC’s constitutional mandate to enact rules of procedure. Remedy of a party The rule does not preclude a party from filing a petition for certiorari under Rule 65 when there is grave abuse of discretion amounting to lack or excess of jurisdiction in relation to a judgment in a small claims action (such a petition is prohibited with regard to interlocutory orders). Further, the aggrieved party can also file an action for annulment of judgment when the requirements under the Rules of Civil Procedure are complied with.

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources (Sec. 2, Rule 1, AM No. 09-6-8-SC).

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (A.M. No. 09-6-8-SC) SCOPE AND APPLICABILITY OF THE RULE Scope of the Rule on Environmental Cases These Rules shall govern the procedure in civil, criminal and special civil actions before the RTCs, MeTCs, MTCCs, MTCs and MCTCs involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following: 1. 2. 3. 4. 5. 6. 7. 8.

9.

10. 11. 12. 13.

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

NOTE: The rules remain consistent with prevailing jurisprudence regarding the doctrine of exhaustion of administrative remedies and primary jurisdiction (AM No. 09-6-8-SC, Annotation to the Rules of Procedure for Environmental Cases).

Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; P.D. No. 705, Revised Forestry Code; P.D. No. 856, Sanitation Code; P.D. No. 979, Marine Pollution Decree; P.D. No. 1067, Water Code; P.D. No. 1151, Philippine Environmental Policy of 1977; P.D. No. 1433, Plant Quarantine Law of 1978; P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; R.A. No. 4850, Laguna Lake Development Authority Act; R.A. No. 6969, Toxic Substances and Hazardous Waste Act; R.A. No. 7076, People’s Small-Scale Mining Act; R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; R.A. No. 7611, Strategic Environmental Plan for Palawan Act; R.A. No. 7942, Philippine Mining Act; R.A. No. 8371, Indigenous Peoples Rights Act; R.A. No. 8550, Philippine Fisheries Code; R.A. No. 8749, Clean Air Act; R.A. No. 9003, Ecological Solid Waste Management Act; R.A. No. 9072, National Caves and Cave Resource Management Act; R.A. No. 9147, Wildlife Conservation and Protection Act; R.A. No. 9175, Chainsaw Act; R.A. No. 9275, Clean Water Act; R.A. No. 9483, Oil Spill Compensation Act of 2007; and Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value

CIVIL PROCEDURE PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Prohibition against issuance of a writ of preliminary injunction or TRO Only the SC can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof (Sec. 10, Rule 2, AM No. 09-6-8-SC). NOTE: The judge shall report any action taken on a TEPO, EPO, TRO or a preliminary injunction, including its modification and dissolution within 10 days from the action taken to the SC, through the Office of the Court Administrator (Sec. 11, Rule 2, AM No. 09-68-SC).

Q: What is the difference between a TEPO and the prohibition against issuance of TRO? A: A TEPO is premised on the violation of an environmental law or a threatened damage or injury to the environment by any person, even the government and its agencies while the prohibition against the issuance of a TRO or preliminary injunction is premised on the presumption of regularity on the government and its agencies in enforcing environmental laws and protecting the environment (Annotation to the Rules of Procedure for Environmental Cases). PRE-TRIAL CONFERENCE; CONSENT DECREE Issue of notice of pre-trial Within 2 days from filing an answer to the counterclaim of cross-claim, if any, the clerk of court shall issue a notice of pre-trial to be held not later than 1 month from the filing of the last pleading (Sec. 1, Rule 3, AM No. 09-6-8-SC). NOTE: The court shall schedule the pre-trial and set as many pretrial conferences as may be necessary within a period of 2 months counted from the date or the first pre-trial conference (ibid.). The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. Evidence not presented during the pretrial, except newly discovered evidence, shall be deemed waived (Sec. 5, Rule 3).

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REMEDIAL LAW Mediation

the production of documents or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28.

At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the dispute otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for mediation (Sec. 3, Rule 3, AM No. 09-6-8-SC).

NOTE: The sole purpose for the use of depositions at pre-trial is to obtain admissions. This excludes the presentation of evidence.

Duty of the judge during the pre-trial conference 1.

Put the parties and their counsels under oath and they shall remain under oath in all pre-trial conferences; Exert best efforts to persuade parties to arrive at an amicable settlement; or Issue a consent decree (Sec. 5, Rule 3, AM No. 09-6-8SC).

NOTE: If the parties have not settled their dispute at this stage, the provision makes it mandatory for the judge to refer the parties to mediation (Annotation to the Rules of Procedure for Environmental Cases).

2.

Preliminary conference

Failure to appear at pre-trial

If mediation fails, the court will schedule the continuance of the pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference for the following purposes:

The court shall not dismiss the complaint, except upon repeated and unjustified failure of the plaintiff to appear. The dismissal shall be without prejudice, and the court may proceed with the counterclaim. On the other hand, if the defendant fails to appear at the pre-trial, the court shall receive evidence ex parte (Sec. 7, Rule 3, AM No. 09-6-8SC).

1. 2.

3.

4.

5.

6. 7.

8.

3.

To assist the parties in reaching a settlement; To mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison with the originals; To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of the documents marked as exhibits; To require the parties to submit the depositions taken under Rule 23 of the Rules of Court, the answers to written interrogatories under Rule 25, and the answers to request for admissions by the adverse party under Rule 26; To require the production of documents or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28; To consider such other matters as may aid in its prompt disposition; To record the proceedings in the “Minutes of Preliminary Conference” to be signed by both parties or their counsels; To mark the affidavits of witnesses which shall be in question and answer form and shall constitute the direct examination of the witnesses; and

Consent Decree It is a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment [Sec. 4(b), Rule 1, AM No. 09-6-8-SC]. NOTE: The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology (Sec. 5, Rule 3, AM No. 09-6-8SC).

Nature of consent decree A consent decree derives its contractual nature from the fact of their being entered into by the parties themselves through which they arrive at a certain compromise with respect to the issues involved in the case, whereas their judicial feature is acquired through the approval of the court. It has a number of advantages: 1.

NOTE: The parties or their counsel must submit to the branch clerk of court the names, addresses and contact numbers of the affiants. 9.

To attach the minutes together with the marked exhibits before the pre-trial proper.

2. 3.

Submission of depositions

4.

During the preliminary conference, the branch clerk of court shall also require the parties to submit the depositions taken under Rule 23 of the Rules of Court, the answers to written interrogatories under Rule 25 and the answers to request for admissions by the adverse party under Rule 26. The branch clerk of court may also require UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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It encourages the parties (the government and the violators) to come up with comprehensive, mutually acceptable solutions to the environmental problem, and since the agreement was arrived at voluntarily, there is a greater possibility of actual compliance; It is open to public scrutiny; It allows the parties to address issues other than those presented to the court; and It is still subject to judicial approval and can be enforced through a court order.

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES PROHIBITED PLEADINGS AND MOTIONS

NOTE: The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined which the applicant may oppose, also by affidavits (ibid.). A TEPO may be converted into a writ of continuing mandamus should the circumstances warrant.

Prohibited pleadings and motions 1. 2. 3.

4. 5. 6.

Motion to dismiss the complaint; Motion for a bill of particulars; Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days; Motion to declare the defendant in default; Reply and rejoinder; and Third party complaint (Sec. 2, Rule 2, AM No. 09-6-8SC).

JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN’S SUIT Citizen suit It is an action to enforce rights or obligations under environmental laws, which any Filipino citizen in representation of others, including minors or generations yet unborn, may file (Sec. 5, Rule 2, AM No. 09-6-8-SC).

NOTE: Petition for certiorari is permitted since it raises fundamentally questions of jurisdiction and the Supreme Court may not be deprived of its certiorari jurisdiction under Article VIII, § 5(2) of the Constitution (Annotation to the Rule of Procedure for Environmental Cases).

NOTE: It is intended to encourage the protection of the environment. The provision liberalizes standing for all cases filed enforcing environmental laws on the principle that humans are stewards of nature (Annotation to the Rules of Procedure for Environmental Cases).

When motion for postponement, motion for new trial or petition for relief from judgment is allowed

Publication NOT required It shall only be allowed in highly meritorious cases or to prevent miscarriage of justice (Annotation to the Rule of Procedure for Environmental Cases).

Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within 15 days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. This adopts the features of the general rule on publication found in cases in rem, and is meant to reflect the distinct nature of environmental cases. In this Rule, however, publication is permissive and nonjurisdictional and is meant only to encourage public participation.

TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) Issuance of a Temporary Environmental Protection order If it appears from the verified complaint with a prayer for the issuance of a TEPO that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case maybe, may issue ex parte a TEPO effective for only 72 hours from date of the receipt of the TEPO by the party or person enjoined (Sec. 8, Rule 2, AM No. 09-6-8-SC).

Referral to a commissioner The court may motu proprio, or upon motion of the prevailing party, order that the enforcement of the judgment or order be referred to a commissioner to be appointed by the court. The commissioner shall file with the court written progress reports on a quarterly basis or more frequently when necessary (Sec. 4, Rule 5, AM No. 096-8-SC).

NOTE: Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case. The court where the case is assigned shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant (Sec. 8, Rule 2, AM No. 09-6-8-SC).

Reliefs in a citizen suit

Exemption from posting of bond

If warranted, the court may grant to plaintiff proper reliefs which shall include: 1. Protection, preservation or rehabilitation of the environment and the payment of attorney’s fees, costs of suit and other litigation expenses; 2. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator; or 3. Require the violator to contribute to a special trust fund for that purpose subject to the control of the court (Sec. 1, Rule 5, AM No. 09-6-8-SC).

The applicant shall be exempted from the posting of a bond for the issuance of a TEPO (ibid.). Dissolultion of TEPO The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined (ibid.).

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REMEDIAL LAW NOTE: In a citizen suit, the court shall defer the payment of filing and other legal fees that shall serve as first lien on the judgment award (Sec. 12, Rule 2, AM No. 09-6-8-SC).

Issuance of TEPO in a petition for a writ of continuing mandamus The court in which the petition for a writ of continuing mandamus is filed may: 1. Issue such orders to expedite the proceedings; and 2. Grant a TEPO for the preservation of the rights of the parties pending such proceedings (Sec. 5, Rule 8, AM No. 09-6-8-SC).

Award of damages in a citizen suit A party or person who suffers damage or injury arising from an environment prejudice, which is also the same subject of citizen suit, cannot claim for damages in a citizen suit since it is the environment that is vindicated in the action. Based on this, a citizen suit can take place simultaneously with the filing of an individual complaint (Annotation to the Rules of Procedure for Environmental Cases).

NOTE: A writ of continuing mandamus is issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied [Sec. 4 (c), Rule 1, AM No. 09-6-8-SC].

Staying of judgment on appeal

STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION

GR: No. Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court (Sec. 2, Rule 5, AM No. 096-8-SC).

Strategic Lawsuit against Public Participation (SLAPP)

XPN: If the appellate court acted with great abuse of discretion refusing to act on the application for a TRO, a petition for certiorari under Rule 65 can be brought before the SC.

It is a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights (Sec. 1, Rule 6, AM No. 09-6-8-SC).

Execution of judgment

SLAPP as a legal defense

The process of execution shall terminate upon a sufficient showing that the decision or order has been implemented to the satisfaction of the court in accordance with Section 14, Rule 39 of the Rules of Court (Sec. 5, Rule 5, AM No. 096-8-SC).

The defendant may file an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorney’s fees and costs of suit (Sec. 1, Rule 6, AM No. 09-6-8-SC).

PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS

NOTE: The nature of the hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all available evidence in support of their respective positions (Sec. 3, Rule 6, AM No. 09-68-SC).

Environmental Protection Order

Hearing

It is an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment [Sec. 4(d), Rule 1, AM No. 096-8-SC].

The plaintiff or adverse party has non-extendible period of 5 days from receipt of notice that an answer has been filed, to file an opposition. The defense of a SLAPP shall be set for hearing by the court after issuance of the order to file an opposition within 15 days from filing of the comment or the lapse of the period (Sec. 2, Rule 6, AM No. 09-6-8-SC).

Q: When may the court convert a TEPO to a permanent EPO? When may the court issue a writ of continuing mandamus?

NOTE: This provision applies not only to suits that have been filed in the form of a countersuit, but also to suits that are about to be filed with the intention of discouraging the aggrieved person from bringing a valid environmental complaint before the court.

A: In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied.

Within 30 days, the court shall resolve the question of SLAPP (Sec. 3, Rule 6, AM No. 09-6-8-SC).

NOTE: The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment (Sec. 3, Rule 5, AM No. 09-6-8-SC).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Quantum of proof The party seeking the dismissal of the case must prove by substantial evidence that his act for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment.

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim (ibid.).

2. 3.

Entity authorized by law People’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency

Dismissal of the action NOTE: The petition must be on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

If the court dismisses the action, the court may award damages, attorney’s fees and costs of suit under a counterclaim if such has been filed. The dismissal shall be with prejudice (Sec. 4, Rule 6, AM No. 09-6-8-SC). The dismissal of the SLAPP suit constitutes res judicata and is a bar to the refiling of a similar case.

Persons against whom a petition for a writ of kalikasan is filed

When the court rejects the defense of a SLAPP The evidence adduced shall be treated as evidence of the parties on the merits of the case, and the action shall proceed in accordance with the Rules of Court (ibid.).

1.

SLAPP as a defense in criminal cases

Contents of a verified petition

The accused may file a motion to dismiss on the ground that the action is a SLAPP upon the filing of an information in court and before arraignment (Sec. 1, Rule 19, AM No. 09-6-8-SC).

1. 2.

NOTE: The court shall grant the motion if the accused establishes in the summary hearing that the criminal case has been filed with intent to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights (Sec. 3, Rule 19, AM No. 09-6-8-SC).

3.

2.

4. 5.

6. If the court denies the motion, it shall immediately proceed with the arraignment of the accused (ibid.).

SPECIAL CIVIL ACTION

7.

WRIT OF KALIKASAN

8.

Writ of kalikasan

The government, as represented by a public official or employee; or A private individual or entity.

Personal circumstances of the petitioner Name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation The environment law, rule or regulation violated or threatened to be violated The act or omission complained of The environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces All relevant and material evidence consisting of affidavit of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence. Should be accompanied by certification against forum shopping The reliefs prayed for which may include a prayer for the issuance of a TEPO (Sec. 2, Ibid.).

NOTE: A verified petition is jurisdictional.

It is an extraordinary remedy which may be issued depending on the magnitude of environmental damage. The environmental damage must be on which prejudices the life, health or property of inhabitant in two or more cities or provinces, or that which transcends political and territorial boundaries.

Exemption from payment of docket fees The petitioner is exempt from payment of docket fees (Sec. 4, Rule 7, AM No. 09-6-8-SC). The exemption encourages public participation of availing the remedy.

Court which has jurisdiction

Issuance of the writ of kalikasan

The verified petition should be filed with the SC or with the CA (Sec. 3, Rule 7, A.M. No. 09-6-8-SC).

Within 3 days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Sec. 8 of Rule 8 (Sec. 5, Rule 7, AM No. 09-6-8-SC).

Magnitude of environmental damage It must be of environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Sec. 1, Rule 7, AM No. 09-68-SC). Persons who may file a petition for a writ of kalikasan 1.

Failure to file a verified return Failure to file a return shall make the court to proceed to hear the petition ex parte (Sec. 10, ibid.).

Natural or juridical person

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REMEDIAL LAW Contempt

Reliefs that may be granted under the writ

After hearing, the court may punish the respondent who refuses or unduly delays the filing of a return or who makes a false return or any person who disobeys or resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court (Sec. 13, ibid.).

1.

Preliminary conference

3.

After receipt of the return, the court may call for a preliminary conference; the hearing including the preliminary conference shall not extend beyond 60 days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data (Sec. 11, ibid.).

4.

2.

5.

NOTE: After hearing, the court shall issue an order submitting the case for decision and may require the filing of memoranda.

Procedure

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Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction and damage; Directing respondent to protect, preserve, rehabilitate or restore the environment; Directing respondent to monitor strict compliance with the decision and orders of the court; Directing respondent to make periodic reports on the execution of the final judgment; Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners (Sec. 15, ibid.).

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES Appeal Contents of the motion

That the order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces; 2. Description of the place or places to be inspected; 3. The supporting affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. Contents 1. Specify the of the authorized order person or persons to make the inspection; 2. The date, time, place, and manner of making the inspection; 3. Other conditions protecting the constitutional right of all parties. (Philippine Judicial Academy, 2011)

Within 15 days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the SC under Rule 45. This is an exception to Rule 45 since it may raise question of facts on appeal under Rule 45 (Sec. 16, ibid.). Institution of separate actions The filing of the petition for the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions (Sec. 17, ibid.). Prohibited Pleadings and Motions 1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss Motion for extension of time to file a return Motion for postponement Motion for a bill of particulars Counterclaim or cross-claim Third-party complaint Reply Motion to declare respondent in default (Sec. 9, ibid.).

NOTE: A motion for intervention is not a prohibited pleading since the magnitude of the environmental damage entails a large number of parties that may avail of the writ of kalikasan.

DISCOVERY MEASURES Interim reliefs available to the petitioner upon filing a verified motion 1. 2.

Ocular inspection; or Production or inspection of documents or things (Sec. 12, Rule 7, AM No. 09-6-8-SC).

Order for Ocular inspection v. Order for the production or inspection of documents or things Order for Ocular Inspection

Purpose

To order any person in possession or control of designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon.

Order for the Production or Inspection of Documents or Things To order any person in possession, custody or control of any designated documents,papers,bo oks, accounts,letters, photographs, objects or tangible things, or objects in digitized form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying, photographing by or on behalf of the

1.

movant. That the order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

1.

2.

3.

Specify the authorized person or persons to make production; The date, time, place, and manner of making the inspection or production; Other conditions protecting the constitutional right of all parties.

WRIT OF CONTINUING MANDAMUS Writ of continuing mandamus It is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied [Sec. 4 (c), Rule 1, AM No. 09-6-8SC]. NOTE: The writ of continuing mandamus was first introduced in Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay (G.R. Nos. 171947-48, December 18, 2008), as a special civil action that may be availed of to compel the performance of an act specially enjoined by law. The petition

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REMEDIAL LAW should mainly involve an environmental and other related law, rule or regulation or a right therein. A writ of continuing mandamus is, in essence, a command of continuing compliance with a final judgment as it “permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court’s decision” (Dolot v. Paje, G.R. No. 199199, August 27, 2013).

4.

5.

Payment of docket fees NOT required

When a writ of continuing mandamus may be availed of

The petitioner is exempt from payment of docket fees (Sec. 3, Rule 8, AM No. 09-6-8-SC).

A person may file a verified petition for a writ of continuing mandamus when any of the following instances are present: 1. When the respondent either a. unlawfully omits to perform a duty specifically enjoined by law, arising from an office, trust or station, in relation to the enforcement or violation of an environmental law, rule or regulation or a right, or b. unlawfully excludes another from the use or enjoyment of such right and 2. There is no other plain, speedy and adequate remedy in the ordinary course of law (Sec. 1, Rule 8, ibid.).

Issuance of the writ of continuing mandamus If the court finds the petition to be sufficient in form and substance, it shall issue the writ and require the respondent to comment on the petition within 10 days from receipt of a copy thereof (Sec. 4, Rule 8, AM No. 09-6-78-SC). NOTE: The order to comment shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto (Sec. 4, Rule 8, AM No. 09-6-8SC).

Expediting proceedings

NOTE: The verified petition should also contain a sworn certification of non-forum shopping.

The court in which the petition is filed may: 1. Issue such orders to expedite the proceedings; and 2. Grant a TEPO for the preservation of the rights of the parties pending such proceedings (Sec. 5, Rule 8, AM No. 09-6-8-SC).

Where to file the petition 1. 2. 3.

RTC which has territorial jurisdiction over the unlawful act or omission; CA, or SC (Sec. 2, Ibid.).

Nature of the hearing It is summary in nature. The court, after the comment is filed or the time for the filing thereof has expired, shall require the parties to submit memoranda (Sec. 6, Rule 8, AM No. 09-6-8-SC).

Contents of a verified petition 1. 2. 3.

Allegation of facts; Specific allegation that the petition concerns an environmental law, rule or regulation; Prayer that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied;

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Prayer for payment of damages sustained by the plaintiff due to malicious neglect to perform legal duties; and Sworn certification of non-forum shopping (Sec. 1, Rule 8, AM No. 09-6-8-SC).

Resolution of the petition The petition shall be resolved without delay within 60 days from the date of the submission of the petition for resolution (Sec. 6, Rule 8, AM No. 09-6-8-SC).

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES Procedure

(Philippine Judicial Academy, 2011)

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REMEDIAL LAW Judgment If granted: 1. The court shall require the respondent to perform an act or series of acts until judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. 2. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment and 3. The court may by itself or through a commissioner or appropriate government agency, evaluate and monitor compliance (Sec. 7, ibid.). 4. Periodic reports submitted by respondent detailing compliance with the judgment shall be contained in partial returns of the writ (Sec. 8, ibid.).

The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance (Sec. 7, Rule 8, AM No. 09-6-8-SC).

Respondent

Public or private entity or individual Exempted

SC and CA

Ocular inspection order Production order Damages for None; the party personal must institute a injury separate action for the recovery of damages. (Philippine Judicial Academy, 2011)

Final return of the writ Upon full satisfaction of judgment a final return of the writ shall be made by the respondent (Sec. 8, Rule 8, AM No. 096-78-SC).

Exempted

SC, CA and RTC that has jurisdiction over the territory where the actionable neglect or omission occurred None

Allow damages for malicious neglect of the performance of the legal duty of the respondent.

CRIMINAL PROCEDURE WHO MAY FILE

NOTE: If the court finds that judgment has been fully implemented, the satisfaction of judgment shall be entered in the court docket (ibid.).

Who may file a criminal complaint

Writ of kalikasan v. Writ of continuing mandamus

Any offended party, peace officer or any public officer charged with the enforcement of an environmental law (Sec. 1, Rule 9, AM No. 09-6-8-SC).

Writ of Continuing Mandamus Unlawful neglect in the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation, or a right therein.

When there is no private offended party In criminal cases, where there is no private offended party, a counsel whose services are offered by any person or organization may be allowed by the court as special prosecutor, with the consent of and subject to the control and supervision of the public prosecutor (Sec. 3, Rule 9, AM No. 09-6-8-SC). INSTITUTION OF CIVIL AND CRIMINAL ACTIONS Institution of civil and criminal actions 1.

The unlawful exclusion of another from the use or enjoyment of such right and both UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

is

Discovery Measures

NOTE: The petitioner may submit its comments or observations on the execution of the judgment (ibid.).

Subject Matter

One who personally aggrieved

Exemption from docket fees Venue

Submission of periodic reports

Writ of Kalikasan An unlawful act or omission of a public official or employee, or private individual o, entity, of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces.

Who may file

instances, there is no other plain, speedy and adequate remedy in the ordinary course of law. One who is personally aggrieved by the unlawful act or omission Government and its officers

2.

Complainant can institute civil action for recovery of damages before the criminal action. Complainant can reserve right to separately institute the civil action from the criminal action.

NOTE: This right may be waived by the complainant (Sec. 1, Rule 10, AM No. 09-6-8-SC).

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES When reservation should be made During arraignment except when the civil action has been instituted prior to the criminal action (ibid.).

6.

Award of damages The private offended party. If there is none, the damages less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated (ibid.).

Two aspects of seizure 1.

NOTE: The awarded damages shall be used for the restoration and rehabilitation of the environment adversely affected (ibid.).

2.

ARREST WITHOUT WARRANT, WHEN VALID An arrest without warrant is valid: 1. When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or 2. 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.

Where filed It is filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any RTC of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases (Sec. 1, Rule 14, AM No. 09-6-8-SC).

PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS Procedure in the custody and dispositions of seized items

2.

3.

4.

5.

The first aspect concerns the chain of custody of the seized items, equipment, paraphernalia, conveyances, and instruments. Subparagraphs (a) and (b) are meant to assure the integrity of the evidence after seizure, for later presentation at the trial. The second aspect deals with the disposition of the seized materials. This addresses the concern of deterioration of the materials, most of which are perishable, while in custodia legis (Annotation to the Rules of Procedure for Environmental Cases). BAIL

NOTE: Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Sec. 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws (Sec. 1, Rule 11, AM No. 09-6-8-SC).

1.

the items, equipment, paraphernalia, tools or instruments of the crime were seized. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment (Sec. 2, Rule 12, AM No. 096-8-SC).

The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within 5 days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. The notice of auction shall be posted in three conspicuous places in the city or municipality where

Duty of the court before granting the application for bail The judge must read the information to the accused in a language known to and understood by the accused (Sec. 2, Rule 14, AM No. 09-6-8-SC). Contents of the written undertaking which the accused must sign 1.

2. 3.

To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; To appear whenever required by the court where the case is pending; and To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia (ibid.).

NOTE: A key innovation in this section is the execution of an undertaking by the accused and counsel, empowering the judge to

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REMEDIAL LAW enter a plea of not guilty, in the event the accused fails to appear at the arraignment (Annotation to the Rules of Procedure for Environmental Cases).

2.

ARRAIGNMENT AND PLEA 3.

Arraignment of the accused The court shall set the arraignment of the accused within 15 days from the time it acquires jurisdiction over the accused (Sec. 1, Rule 15, AM No. 09-6-8-SC).On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements (Sec. 2, Rule 15, AM No. 096-8-SC).

4. 5.

NOTE: The notice that plea-bargaining will be entertained on the date of arraignment must be sent to the public prosecutor, the offended party and the government agency concerned.

Duty of the court when the prosecution and offended party or concerned government agency agree to the plea offered by the accused 1. 2. 3.

6.

Issue an order which contains the plea-bargaining arrived at; Proceed to receive evidence on the civil aspect of the case, if any; and Render and promulgate judgment of conviction, including the civil liability for damages (ibid.).

7.

Manner of questioning

PRE-TRIAL

All questions or statements must be directed to the court (Sec. 14, Rule 16, AM No. 09-6-8-SC).

Pre-trial conference

Agreement or admissions

It shall take place within 30 days from arraignment. The court may also refer the case to the branch clerk of court for preliminary conference at least 3 days before the pretrial conference (Sec. 1, Rule 16, AM No. 09-6-8-SC).

All agreements and admission made or entered during the pre-trial conference shall be reduced into writing and signed by the accused and counsel; otherwise, they cannot be used against the accused (Sec. 5, Rule 16, AM No. 09-68-SC).

Purposes of the preliminary conference 1. 2. 3. 4.

5. 6.

7.

8.

To assist the parties in reaching a settlement of the civil aspect of the case; To mark the documents to be presented as exhibits; To attach copies thereof to the records after comparison with the originals; To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits; To consider such other matters as may aid in the prompt disposition of the case; To record the proceedings during the preliminary conference in the Minutes of Preliminary Conference to be signed by the parties and counsel; To mark the affidavits of witnesses which shall be in question and answer form and shall constitute the direct examination of the witnesses; and To attach the Minutes and marked exhibits to the case record before the pre-trial proper.

NOTE: The agreements covering the matters referred to in Sec. 1, Rule 118 of the Rules of Court shall be approved by the court. Record of proceedings All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties or their counsels (Sec. 6, Rule 16, AM No. 09-6-8-SC). Contents of the pre-trial order Within 10 days after termination of the pre-trial, the court shall issue a pre-trial order containing: 1. The actions taken during the pre-trial conference; 2. The facts stipulated; 3. The admissions made; 4. Evidence marked; 5. Number of witnesses to be presented; and 6. Schedule of trial (Sec. 7, Rule 16, AM No. 09-6-8-SC).

Duty of the court during pre-trial 1.

Place the parties and their counsels under oath; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Adopt the minutes of the preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents, and list object and testimonial evidence; Scrutinize the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation together with other documents identified and marked as exhibits to determine further admissions of facts as to: a. The court’s territorial jurisdiction relative to the offense(s) charged; b. Qualification of expert witnesses; and c. Amount of damages; Define factual and legal issues; Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision; Require the parties to submit to the branch clerk of court the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and Consider modification of order of trial if the accused admits the charge but interposes a lawful defense (Sec. 13, Rule 16, AM No. 09-6-8-SC).

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES SUBSIDIARY LIABILITIES Under Art. 102 and 103 of the RPC, liability may be enforced the person or corporation subsidiarily liable upon motion of the person entitled to recover such award in case of conviction of the accused (Sec. 1, Rule 18, AM No. 09-68-SC). NOTE: This provision codifies the ratio decidendi in Philippine Rabbit Bus Lines v. Court of Appeals (G.R. No. 147703, April 14, 2004) and applies the principle therein to environmental criminal cases, to facilitate recovery of damages and other relief from persons subsidiarily liable in the event of insolvency of the accused (Annotation to the Rules of Procedure for Environmental Cases).

EVIDENCE PRECAUTIONARY PRINCIPLE Precautionary principle The court in upholding the constitutional right of the people to a balanced and healthful ecology shall give the evidence presented the benefit of the doubt even when there is a lack of full scientific certainty in establishing a causal link between human activity and the environmental effect (Sec. 1, Rule 20, AM No. 09-6-8-SC). NOTE: For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff (Annotation to the Rules of Procedure for Environmental Cases).

Factors to consider in applying the precautionary principle 1. 2. 3.

Threats to human life or health; Inequity to present or future generations; or Prejudice to the environment without legal consideration of the environmental rights of those affected (Sec. 2, Rule 20, AM No. 09-6-8-SC). DOCUMENTARY EVIDENCE

Admissibility of photographs, videos and other similar evidence Photographs, videos and similar evidence of events, acts, transactions of wildlife, wildlife by-products or derivatives, forest products or mineral resources subject of a case shall be admissible when authenticated by the person who took the same, by some other person present when said evidence was taken, or by any other person competent to testify on the accuracy thereof (Sec. 1, Rule 21, AM No. 096-8-SC). Entries in official records Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated (Sec. 2, Rule 21, AM No. 09-6-8-SC).

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REMEDIAL LAW money claimed, in criminal cases, its application is limited to those offenses punishable by a maximum of 6 years or less, unless the accused agrees to its use.

JUDICIAL AFFIDAVIT RULE A.M. No. 12-8-8-SC SCOPE

Requirements of the JAR which the parties are bound to follow

Effect of the Judicial Affidavit Rule (JAR) in the Philippine judicial system

The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than 5 days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: 1. The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and 2. The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant (Sec. 2).

It signals a dramatic shift from a dominantly adversarial system to a mix adversarial and inquisitorial system (Associate Justice Roberto Abad, UST Law Review Chief Justice Andres Narvasa Honorary Lecture, February 15, 2013). Notable changes by the JAR 1.

Testimonies are now allowed to be taken and kept in the dialect of the place provided they are subsequently translated into English or Filipino. These will be quoted in pleadings in their original version with the English or Filipino translation in parenthesis provided by the party, subject to counter translation by opposing side.

2.

In civil actions, the judicial affidavit rule requires the parties to lay their cards on the table before pre-trial by submitting the judicial affidavits and documents of the parties and their witnesses and serving copies on the adverse party at least 5 days before the pre-trial. No further stipulations of facts are needed at the pretrial since, by comparing the judicial affidavits of the opposing sides, the court will already see what matters they agree and on what matters they dispute.

3.

The court will already take active part in examining the witnesses. The judge will no longer be limited to asking clarificatory questions; he can also ask questions that will determine the credibility of the witness, ascertain the truth of his testimony and elicit the answers that the judge needs for resolving issues (Associate Justice Roberto Abad, supra).

Attachment of the original document as documentary evidence A party or a witness may keep the original document or object evidence in his possession after the same has been identified, marked as exhibit, and authenticated, but he must warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted (Sec. 2). CONTENTS AND PROCEDURE Contents of a judicial affidavit A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following:

Applicability of the JAR It shall be applicable to all actions, proceedings, and incidents requiring the reception of evidence before: 1. The MeTCs, MTCCs, MTCs, MCTCs, and the Shari'a Circuit Courts;

1. 2.

NOTE: It shall not apply to small claims cases.

2. 3. 4. 5.

3.

The RTCs and the Shari' a District Courts; The Sandiganbayan, the CTA, the CA, and the Shari' a Appellate Courts; The investigating officers and bodies authorized by the SC to receive evidence, including the IBP; and The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the SC, insofar as their existing rules of procedure contravene the provisions of this Rule (Sec. 1).

4.

NOTE: While in civil cases (with the exception of small claims) the application of the JAR is mandatory regardless of the amount of

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440

The name, age, residence or business address, and occupation of the witness; The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; Questions asked of the witness and his corresponding answers, consecutively numbered, that: a. Show the circumstances under which the witness acquired the facts upon which he testifies; b. Elicit from him those facts which are relevant to the issues that the case presents; and c. Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court;

JUDICIAL AFFIDAVIT RULE 5. 6.

NOTE: Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit (Ibid.).

The signature of the witness over his printed name; and A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same (Sec. 3).

APPLICATION TO CRIMINAL ACTIONS

Duty of the lawyer who conducted the examination of a witness

Applicability to criminal actions

The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: 1. He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and 2. Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers (Sec. 4).

The judicial affidavit rule shall apply to all criminal actions: 1. Where the maximum of the imposable penalty does not exceed six years; 2. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or 3. With respect to the civil aspect of the actions, whatever the penalties involved are (Sec. 9). Q: Can a party filing a criminal action cognizable by the Regional Trial Court be mandated to follow the JAR?

Trial

A: No. The jurisdiction of the RTC in criminal cases includes offenses where the imposable penalty exceeds 6 years, thus, as a rule the JAR has no application except when the accused agrees to its use.

After submitting to the court and serving the adverse party a copy of the judicial affidavits of the witnesses of a party and attaching therein documentary or object evidence not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents trial shall commence as follows: 1.

2.

Submission by the prosecution of the judicial affidavit The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial (Sec. 9).

The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness (Sec. 6). The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. NOTE: The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to the tender of excluded evidence under Sec. 40, Rule 132.

3.

4.

Q: Is it likewise mandatory on the part of the accused to submit a judicial affidavit? A: No. If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify (Sec. 9).

The adverse party shall have the right to crossexamine the witness on his judicial affidavit and on the exhibits attached to the same (Sec. 7). The party who presents the witness may examine him on re-direct (Sec. 7). NOTE: In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues.

5.

6.

Q: The JAR took effect last January 1, 2013, but with some modification as to its applicability to criminal cases. What are these modifications?

Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of documentary evidence, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit (Sec. 8). After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit (Ibid.).

A: The JAR is modified until December 31, 2013 only with respect to actions filed by public prosecutors, subject to the following conditions: 1.

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For the purpose of complying with the Judicial Affidavit Rule, public prosecutors in the first and second level courts shall use the sworn statements that the complainant and his or her witnesses submit UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

REMEDIAL LAW during the initiation of the criminal action before the office of the public prosecutor or directly before the trial court. 2.

3.

Upon presenting the witness, the attending public prosecutor shall require the witness to affirm what the sworn statement contains and may only ask the witness additional direct examination questions that have not been amply covered by the sworn statement. This modified compliance does not apply to criminal cases where the complainant is represented by a duly empowered private prosecutor. The private prosecutor shall be charged in the applicable cases the duty to prepare the required judicial affidavits of the complainant and his or her witnesses and cause the service of the copies of the same upon the accused (AM No 12-8-8-SC, Judicial Affidavit Rule, January 8, 2012). EFFECT OF NON-COMPLIANCE WITH THE JUDICIAL AFFIDAVIT RULE

1.

2.

The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by crossexamination the witnesses there present.

3.

The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Sec. 3 and the attestation requirement of Sec. 4 above. The court may, however, allow only once the subsequent submission of the complaint replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than Php 1,000.00 nor more than Php 5,000.00, at the discretion of the court (Sec. 10). EFFECT ON OTHER RULES

As to Rules of Court and rules of procedure governing investigating officers and bodies authorized by the Supreme Court to receive evidence

A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than Php 1,000.00 nor more than Php 5,000.00, at the discretion of the court.

They are repealed or modified insofar as they are inconsistent with the provisions of the judicial affidavit rule (Sec. 11). As to Rules of procedure governing quasi judicial bodies which are inconsistent with it They are thereby disapproved (ibid.).

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JUDICIAL AFFIDAVIT RULE bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court's e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary.

EFFICIENT USE OF PAPER RULE A.M. No. 11-9-4-SC Purpose of the Rule The Rule, which took effect on January 1, 2013 after its publication in two newspapers of general circulation, aims to cut the judicial system’s use of excessive quantities of costly paper, save the forests, avoid landslides, and mitigate the worsening effects of climate change.

2. 3.

Applicability of the Rule

In the CA and the Sandiganbayan, one original (properly marked) and two copies, with their annexes; In the CTA, one original (properly marked) and two copies, with annexes. On appeal to the En Banc, one original (properly marked) and eight copies with annexes; and In other courts, one original (properly marked) with the stated annexes attached to it (Sec. 5).

It shall apply to all courts and quasi-judicial bodies under the administrative supervision of the SC (Sec. 2).

4.

Format and style

NOTE: In preparation for the eventual establishment of an e-filing paperless system in the Judiciary, the Supreme Court, through its Management Information System Office, has set up the e-mail address [email protected]. E-filing, under the Rule, requires parties before the SC to submit, simultaneously with their courtbound papers, soft copies of the same and their annexes (the latter in PDF format) either by e-mail to the Court’s e-mail address or by compact disc (CD).

A pleading, motion or similar papers (court bound papers) filed before the court shall be written in: 1. Single space with a one and- a-half space between paragraphs, 2. Easily readable font style of the party's choice, 3. 14-size font, and 4. on a 13-inch by 8.5-inch white bond paper (Sec. 3). 5. Every page must be consecutively numbered with the parties observing the following margins: a. a left hand margin of 1.5 inches from the edge; b. an upper margin of 1.2 inches from the edge; c. a right hand margin of 1.0 inch from the edge; d. a lower margin of 1.0 inch from the edge (Sec. 4).

Service of annexes on the adverse party A party required by the rules to serve a copy of his courtbound paper on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession. In the event a party requests a set of the annexes actually filed with the court, the party who filed the paper shall comply with the request within five days from receipt (Sec. 6).

Other documents covered by the Rule aside from pleadings filed by a party All decisions, resolutions, and orders issued by courts and by quasi-judicial bodies under the administrative supervision of the Supreme Court shall comply with these requirements. Similarly covered are the reports submitted to the courts and transcripts of stenographic notes (Sec. 3). Number of copies of court bound papers Unless otherwise directed by the court, the number of court bound papers that a party is required or desires to file shall be as follows: 1. In the SC, one original (properly marked) and four copies, unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies. (It is therefore a total of 14 copies and one original.) For the Division and En Banc, the parties need to submit only two sets of annexes, one attached to the original and an extra copy. All members of the Court shall share the extra copies of annexes in the interest of economy of paper. Parties to cases before the SC are further required, on voluntary basis for the first 6 months following the effectivity (it took effect last January 1, 2013) of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-

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BIBLIOGRAPHY

Civil Procedure

Special Proceeding

Albano (2010). Remedial Law Reviewer. Quezon City: Rex Printing Company, Inc.

Herrerra (2005). Remedial Law Volume III-A (Special Proceedings). Quezon City: Rex Printing Company, Inc.

De Leon (2013). Appellate Remedies. Quezon City: Rex Printing Company, Inc.

Rabuya (2009). Civil Law Reviewer. Quezon City: Rex Printing Company, Inc.

Feria & Noche (2001). Civil Procedure, Annotated. Quezon City: Central Lawbook Publishing.

Annotation on the Writ of Amparo, A.M. NO. 07-9-12-SC, retrieved from

Herrera (2006). Remedial Law Volume IV (Civil Procedure). Quezon City: Rex Printing Company, Inc. Regalado (2012). Remedial Law Compendium Volume I. Caloocan City: Philippine Graphic Arts, Inc.

Criminal Procedure Albano (2010). Remedial Law Reviewer. Quezon City: Rex Printing Company, Inc.

Riano (2011). Civil Procedure Volume I. Quezon City: Rex Printing Company, Inc.

Gorospe (2006). Constitutional Law: Notes and readings on the Bill of Rights, Citizenship and Suffrage. Quezon City: Rex Printing Company, Inc. Provisional Remedies Hererra (2007). Remedial Law Volume IV (Criminal Procedure). Quezon City: Rex Printing Company, Inc.

Regalado (2012). Remedial Law Compendium Volume I. Caloocan City: Philippine Graphic Arts, Inc.

Pamaran (2010). Revised Rules of Criminal Procedure. Quezon City: Central Lawbook Publishing.

Riano (2012). Civil Procedure Volume II. Quezon City: Rex Printing Company, Inc.

Riano (2011). Updated Criminal Procedure (The Bar Lecture Series). Quezon City: Rex Printing Company, Inc. Special Civil Action Albano (2010). Remedial Law Reviewer. Quezon City: Rex Printing Company, Inc.

Evidence Regalado (2008). Remedial Law Compendium Volume II. Caloocan City: Philippine Graphic Arts, Inc.

Riano (2012). Civil Procedure Volume II. Quezon City: Rex Printing Company, Inc.

Riano (2013). Evidence (The Bar Lecture Series). Quezon City: Rex Printing Company, Inc.

Regalado (2012). Remedial Law Compendium Volume I. Caloocan City: Philippine Graphic Arts, Inc.

Special Rules Philippine Judicial Academy (2011). Access to Environmental Justice: A Sourcebook on Environmental Rights and Legal Remedies.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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