Lecture On Special Proceedings Judge Gener M. Gito

 

PRE-BAR LECTURE IN SPECIAL PROCEEDINGS

 JUDGE GENER GENER M. GIT GITO O, LL.M., D.C.L. Presidingg Judge, Presidin Judge , RTC-206, Muntinlupa City  Professor 1, Philippine Judicial Academy   Member,, Criminal Law Department, PhilJa  Member Law Professor  Bar Reviewer in Political Law and Remedial Law 

 

 What is a special proceeding? special proceeding?

A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact (Sec. (Sec. 3[b], Rule 1, RC). RC).

 

 What is the difference between an action or difference between special proceedings? A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

A special proceeding is a remedy by which a party seeks to establish a

It is a formal demand of a right by one against the other.

It is a petition for a declaration of a status, right or fact.

It is adversarial in nature

It is non-adversarial in nature

status, a right, or a particular fact.

 

 What are matter of special are the subject matter proceedings? (a) Settlement (a)  Settlement of estate of deceased persons;

(h) Habeas (h)  Habeas corpus;

(b) Escheat; (b)  Escheat;

(i) Change (i) Change of name;

(c) Guardianship (c)  Guardianship and custody of children;

(j)  (j) Voluntar oluntaryy di dissolution ssolution of cor corporations; porations;

(d) T (d)  Trus rustee tees; s;

(k) Judicial approval of voluntary recognition of (k) Judicial minor natural children;

(e) Adoptio (e)  Adoption; n;

(l) Constitution (l) Constitution of family home;

(f) Rescission (f)  Rescission and revocation of adoption;

(m) Declaration (m)  Declaration of absence and death;

(g) Hospitalization (g)  Hospitalization of insane persons;

(n) Cancellation (n)  Cancellation or correction of entries in the civil registry.

 

Is the enumeration of special proceedings in Section 1, Rule 72 exclusive?  exclusive? 

NO

 

Give examples of special proceedings which are outside of Section 1, Rule 72 

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Summary proceeding under the Family Code Actions mentioned under the Family Code Proceedings under the Child and Youth Welfare Code, Code , Child Abuse Act, Child Employment Act. Corporate reha rehabilitation bilitation Liquidation Writ of amparo Writ of habeas data

 

Are the rules in ordinary Are ordinary civil action applicable in special proceedings?   proceedings?

Yes, but only in the absence of applicable procedure (Section (Section

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2, Rule 72). 72).

 

Is earnest effort effor t to compromise applicable in special proceedings? 

NO. Since special proceeding is not a suit or ordinary NO. action whereby a party sues another for the enforcement of a right or prevention of a wrong, the requirement that no suit shall be filed between the same members of the same family unless it should appear that earnest efforts toward a compromise have been made, but the same have failed, does not apply to a special proceeding (Vda de Manalo vs. CA, GR No. 129242,

 Janaury 16, 2001) 2001)..

 

Is certification cer tification against forum shopping required in special proceeding proceedings? s? 

YES. Special provisions under Part II of the Rules of Court govern YES. special proceedings; but in the absence of special provisions, the rules provided for in Part of theproceedings, Rules governing civil actions shall be applicable to Ispecial as farordinary as practicable. 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 which includes the requirement of certification of non-forum shopping for complaints and initiatory pleadings (Sheker vs. Estate of Alice Sheker, GR No. 157912, December 13, 2007). 2007) .

 

SETTLEMENT OF ESTATE OF DECEASED PERSONS

 

Does the MTC have jurisdiction over settlement of estate? 

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YES. YES. Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P300,000.00) (P300,000.00)   or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P400,000.00) exclusive (P400,000.00)  exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs ( Section 33, BP, 129).

 

 

 Where should the estate of the deceased settled?

Nonresident

Resident Section 1, Rule 73

The place where the deceased is a resident at the

The place where deceased estate

time of his death.

is located.

 

Please take NOTE: 

Section 1, Rule 73, though it mentions “Court of First Instance” (now RTC) pertains to VENUE  and VENUE  not

 JURISDICTION  (Fule vs. CA,GR  JURISDICTION  No. L-40502, November 29, 1976, 74 SCRA 200). 200).

 

May a motion to dismiss for improper venue be filed in settlement of estate?  estate?  

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IT DEPENDS. If improper venue is apparent on the face of the Petition, then a motion to dismiss may be filed, otherwise, it may only be questioned in an appeal from the court in original case. Please take NOTE NOTE::

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“The assumed a court, so it depends place jurisdiction of residence of the by decedent, or far of as the location on of the his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record” (Section 1, Rule 73). 73).

 

extent xtent of the jurisdiction jurisdiction of the  What is the e probate court? 

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A probate court acting as such exercises limited jurisdiction. The said court is primarily concerned with the administration,, liquidation administration liquidation,, and distribution distribution   of the estate. In fact the main function of a probate court is to settle and liquidate the estate of the deceased either summarily or through the process of administration (Uy vs. CA, March 15, 2006). 2006). Thus it has the authority to: 1) 1) determine  determine heirs; 2) 2) make  make a  just and legal distribution of the estate (Solivio vs. CA, February 12, 1990) 1990)..

 

v s. Ricafor Ricaforte, te, July 8, Heirs of Magdeleno Ypon vs. 2013 

Petitioners, filed a complaint for Cancellation of Title and Reconveyance with Damages (subject complaint) against respondent Ricaforte. In their complaint, they alleged that Magdaleno Ypon (Magdaleno) died intestate leaving behind parcel of land covered by certificates of title. Claiming to be the sole heir of Magdaleno, Ricaforte executed an Affidavit of Self-Adjudication and caused the cancellation of the certificates of title and transferred it to Ricaforte’s name to the prejudice of petitioners who are Magdaleno's collateral relatives and successors-in-interest.

 

v s. Ricafor Ricaforte, te, July 8, Heirs of Magdeleno Ypon vs. 2013 

Ricaforte alleged that he is the lawful son of Magdaleno as evidenced by: (a) his certificate of Live Birth; (b) two (2) letters from Polytechnic School; and (c) a certified true copy of his passport. Further, by way of affirmative defense, he claimed that: (a) petitioners have no cause of action against him; (b) the complaint fails to state a cause of action; and (c) the case is not prosecuted by the real parties-ininterest, as there is no showing that the petitioners have been judicially declared as Magdaleno's lawful lawful heirs.

 

v s. Ricafor Ricaforte, te, July 8, Heirs of Magdeleno Ypon vs. 2013 

While the foregoing allegations, if admitted to be true, would consequently warrant the reliefs sought for in the said complaint, the rule that the determination of a decedent's lawful heirs should be made in the corresponding special proceeding precludes the RTC, in an ordinary action for cancellation of title and reconveyance, from granting the same. In the case of Heirs of Teofilo Gabatan v. CA, the Cou Court, rt, citing several other precedents, held that the determination of who are the decedent's lawful heirs must be made in the proper special proceeding for such purpose, and not in an ordinary suit for recovery of ownership and/or possession, as in this case

 

May y the probate court pass upon title to properties Ma claimed to be part of the estate of the deceased? 

NO. Because the jurisdiction of the probate court is NO. limited (Paciones, Jr., vs. Chuato-Ching, August 9, 2005).. 2005)

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HOWEVER,, however if the purpose is only to determine HOWEVER whether such property should be included in the inventory, then probate court can pass title on the property but the determination of ownership is not conclusive but only provisional (Vda de Rodriguez vs.

CA, July 20, 1979).  

May y the probate court pass upon the title of the Ma property with finality? 

IT MAY. MAY. The probate court may pass upon the issue of ownership where the interested parties are the heirs who have all appeared in the proceeding and the rights of third parties are not impaired (Munsayac-De Villa vs. CA, October 24, 2003). 2003).

 

Summary Settlement of Estate (Rule 74) Methods of summarily settling the estate of deceased person

Extra-judicial settlement of estate

Self adjudication

Agreement in an action for partition

Settlement of small value estate

 

Extra-J Extra-Judicial udicial Settlement of Estate

Requisites: Decedent left no will and no debts

Heirs are all of age or minors are represented by guardians

 

How w effected? effected? Ho Extra-Judicial Settlement

Self-Adjudication

Execution of public instrument

By ex execution ecution of affidavit of selfadjudication

Registration of public instrument with the Register of Deeds

By filing of said affidavit with the Register of Deeds

Posting of bondofequivalent the amount personal to property

Posting of bond equivalent to the amount of personal property

Publication of the Deed

Publication of the affidavit

 

Agreement in an action for partition

Requisites: Decedent left no will and no debts

Heirs are all of age or minors are represented by guardians

 

How Effected? How 

There must be an action for partition filed by any or all of the heirs. In the said action, the parties entered into a compromise agreement to have the estate of the deceased settlement. This compromise agreement will have to be approved by the Court where the action for partition is pending.

 

Question 

Suppose an extra-judicial settlement of estate was executed by the three (3) children of the deceased. The heirs complied with all the requisites of the Rules. Within two (2) years from the settlement and distribution of estate, a person claiming to be an heir surfaced. Can this person still claim from the estate of the deceased? 

 

Answer  

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YES. If it shall appear at any time within two (2) years after the settlement andofdistribution of first an estate in accordance with the provisions either of the two sections of this rule, that an heir or other person has been unduly depriv deprived ed of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation.….. (Section (Section 4, Rule 74)   74)

 

Can a party to an extra-judicial settlement still assail its validity? 

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NO. NO. An heir or interested person who was able to participate either in the extrajudicial or summary settlement of estate of the decedent has a period of two (2) years after the settlement and distribution to assail its validity. prescriptive stated under Section 4 applies onlyThe to persons whoperiod participated, took part in, or had notice of the settlement of the estate provided under Rule 74 (Pedrosa (Pedrosa vs. CA, 353 SCRA 620).  620).  

 

PL PLEA EASE SE TAK AKE E NO NOTE TE:: 

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Under Section 4, Rule 74 is 74 is only applicable to persons  who have have participated or taken taken part or had notice of extra-judicial partition There is nothing in Section 4, Rule 74 which clearly shows a statute of limitation and a bar against third person. It is not a bar of action against third person.

 

 What is the remedy heir who is deprived of one’s one’s remedy of an heir share in the estate because he did not participate, take part, or had no notice of the settlement of estate? 

An heir may file an action for re-conveyance within ten (10) years, which is based on an implied trust (Teves vs. CA, October 13, 1999). 1999). This implied or constructive trust is an obligation created by law, which an interested person may enforce within 10 yearupon prescriptive period. Thistitle prescriptive period shall commence the issuance of a new over the property (Marquez vs. CA, 300 SCRA 653)  653)   or from actual notice in case of unregistered deed (Neri vs. Heirs of Uy, October 10, 2012). 2012).

 

Probate of the Will (Rules 75 to 77)  Why  Wh y is probate probate of the will necessary?

Section 1, Rule 75

“Because no will shall pass either real or personal estate unless it is proved and allowed in the proper court.”

 

 What is the purpose of the probate probate of the will? 

To determine the extrinsic validity of the

 will  will. . The extrinsic of the is determined by its validity compliance withwill the requirements of the Civil Code for the validity of the will and on the determination of whether the testator is of sound mind when he executed the same.

 

 What is “due execution” execution” of the the will? 

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It means the testator’s voluntariness of making the dispositions in the will. The testator’s capacity is also examined on this level, which looks into the soundness of the mind of the testator. Soundness of mind refers to knowledge of: Nature of estate Object of bounty ◦

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Character of testamentary act

 

May a probate court pass upon the intrinsic May validity of the will?  will?  

The general rule is that the probate court cannot inquire into the intrinsic validity of the will

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BUT: BUT: If the intrinsic defect is apparent from the will, say

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for instance absolute thenof the probate may pass upon thepreterition, intrinsic validity the will. (Nepomuceno vs. CA; Nuguid vs Nuguid; Cayetano vs. Leonides)

 

Person who may file for petition for allowance of the will

Executor

Devisee TESTATOR HIMSELF DURING HIS LIFE TIME

Legatee

Or any other person interested in the estate

 

Procedural Flow

Filing of Petition

Issuance of an Order setting the case for hearing

Publication of the Order for three (3) consecutive times in the news paper of general circulation in the province

Heirs , devisee, Heirs, legatees and executors shall be notified

 

How will is proved? If not contested

Notarial will

It may be proved by one subscribing witness

Holographic  will It may be proved by one  witness who knows the handwriting and signature of the testator or expert witness

 

How will is proved?

If contested

Notarial will All subscribing  witnesses and notary public must testify

Section 11, Rule 76 But if the subscribing  witnesses testify against it, the will may still be allowed on the basis of the testimony of other witnesses

 

How will is proved? If contested

Holographic will 3 witnesses  who know that handwriting and signature

Section 11, Rule 76

In the absence of competent  witnesses, expert witness

 

How will is proved? If the testator himself filed

Holographic  will The fact that the testator affirms the will and his signature

Section 12, Rule 76

If opposed, the burden is on the oppositor 

 

How is a lost or destroyed will proved? 

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By proving its execution and validity Will is shown to have been in existence at the time of the death of the testator te stator It was fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge. The provision of the will must be proved by two

credible witnesses.  

Section 9, Rule 76

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Grounds for disallowing a will

(a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, fear, or threats; (d) If it was procured by undue and improper pressure and influence , on the part of the bene influence, beneficiar ficiaryy, or of some other person for his benefit; (e) 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.

 

Allowance of the will proved outside the Philippines Vda. Vd a. De Perez vs vs.. T Tol olete ete,,  June 2, 1994

 What must

Rule 77

be proved:

The due execution of the will in accordance  with foreign foreign law

The laws of a The testator is a resident of the foreign country

The will has been admitted to probate

It was allowed by a probate court

foreignon country procedure and allowance of  will

 

executor or  Who are authorized to serve as executor 

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administrator?

Sec. 1, Rule 78 ONE WHO IS NO NOT T: ◦

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(a) a minor; (b) not a resident of the Philippines; and (c) Is in opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or

integrity,involving integrity , or by reason of conviction of an offense moral turpitude.  

To whom shall letters testamentary be issued? 

SECTION SECTIO N 4. Let Letter terss Test estame amenta ntary ry Issued When Will Allow Allowed ed.. — When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor   therein, if he is competent, accepts the trust, and gives bond as required by these these rules. (Rule 78) 78)

 

To whom shall letters administration be issued? 

If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

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(a) Todiscretion the surviving wife as the case maysurviving be, or next of kin, kin both, in the of thehusband court, or or to wife, such ,person as such husband or, or wife, or next of kin, requests to have appointed, appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglect for thirty days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to

such other person as the court may select. select.

 

PL PLEA EASE SE TAK AKE E NO NOTE TE:: 

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In determining who should be appointed as administrator, the primary consideration is the interest in the said estate of the one to be appointed. THUS, the preference in Section 6, Rule 78 is THUS, not mandatory (De Guzman vs. Licolioc, April 19, 1939). 1939).

 

 When may administrator may a special administrator 

be appointed?

When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and

executors or administrators appointed (Sec. 1, Rule 80). 80).  

Claims against the Estate 

(Rule 86) 

Section 1.  1.  Notice to creditors to be issued by courttestamentary . — Immediately after granting letters or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the

clerk of said court.  

should the claim be filed?  Within what period should 

Section 2.  2. Time within which claims shall be filed . — In the notice provided in the preceding section, the court shall estate the time for the filing of claims against the estate, which shall not be more than twelve (12) not less than six (6) months after the date of the first publication of the notice. notice . However, at any time before an order of distribution is entered, entered , on application of a creditor who has failed to file his claim within the previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed

 within a time not exceeding exceeding one (1) month. month.

 

PL PLEA EASE SE TAK AKE E NO NOTE TE:: 

Section 2, Rule 86 is what we call:

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STATUTES OF NON-CLAIMS

 

statute of non-claims?  What is the statute non-claims? 

It is a period fixed for the filing of claims against the estate, such that claims not filed within said period are barred forever. It is subject to the following guidelines: 1. Period fixed must not be less than 6 months nor more than 12 months from the date of the first ◦

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publication. 2. Such 2.  Such period is mandatory. 3. The statute on non-claims supersedes the statute of

limitation.  

PL PLEA EASE SE TAK AKE E NO NOTE TE:: 

There are two exceptions to the statute of non-claims:

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First, the creditor may apply with the court for a new period not exceeding one month before the entry of order of distribution for good cause shown (Sec. 2, Rule 86). 86). Second , creditor can set up his claim as a

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counterclaim in an action filed by the executor or administrator (Sec. (Sec. 5, Rule 86). 86).  

Problem 1 After an administrator was appointed by the Court, the Court where the settlement of estate was pending, issued an order requiring all claimants to the estate of the deceased to file their claims within seven (7) months from the date of the first publication of said Order. Creditor A was not able to file his claim within said period.  W  Would ould it still

be possible for Creditor A to file his claim?  

ANSWER 

Section 2, Rule 86

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Yes. Under Section 2, Rule 86, at any time before an order of distribution is entered, entered , on application of a creditor who has failed to file his withinshown the previously limited, the as court may,claim for cause and on such terms are equitable, allow such claim to be filed within

a time not exceeding one (1) month. month .  

are the claims that  What are that must be be filed? 

Section 5.  5.  Claims which must be filed under the notice . If not filed , barred ; exceptions. — All claims for money against money against the decedent,thearising contract contract, express or whether same befrom due, not due, or, contingent, all implied, claims for funeral expenses and expenses and expense for the last sickness of the decedent, decedent, and judgment and  judgment for money against the decedent,, must be filed within the time limited in the notice; decedent otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or

administrator may may bring against the claimants.  

 What are are the claims that must be filed? All money claims arising from contract express or implied All claims for funeral expenses Expense for last sickness of the decedent

 Judgement for money against against the decedent

 

Problem 2 

The administrator of the estate of Don Mariano filed a collection suit against Lito. During his lifetime however, Don Mariano was indebted to Lito. Unfortunately, Lito was not able to file his claim within the time set by the Court.  W  Would ould it be possible for Lito to still claim his credit from the estate of

Don Mariano?  Mariano?   

Answer  

Yes, es, it is still possible for Lito to claim his credit the estate Under from Sectio Section n 5, Rule of86,Don the Mariano. claim of the creditor may be set up a counterclaim instead of filing it as an independent claim in the settlement of

estate court.  

Section 5 Rule 86 must be related to Section 20, Rule 3  3  

Section 20.  20.  Action and contractual money claims . When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final  judgment   in the court in which the action was pending at  judgment the time of such death, it shall not be dismissed but dismissed but shall instead be allowed to continue until entry of final judgment. A favourable judgment obtained judgment obtained by the plaintiff therein shall be enforced  enforced  in the manner especially provided in

these Rules for prosecuting claims against the estate of a deceased person person. .  

Problem 3 

D  during his lifetime contracted a loan with PNB. D   was notsuit ableagainst to payD.the loan.the PNB filedwasa collection While case pending, D died.

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Will the collection suit filed by PNB be dismissed on account of the death of D? Should there be a final judgment already,

may this judgment be executed?  executed?   

Answer 1 

NO. Under Section 20, Rule 3, when the action is for NO. recovery of money arising from contract, express or implied, and before of final judgment the courtthein defendant which thedies action wasentry pending at the time ofinsuch death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favourable  judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

 

Answer 2 The judgment may not be executed.

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Under Section 5, Rule 86, a favourable  judgment obtained by the plaintiff shall be enforced in the settlement of estate of the decedent.

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Rule 86, Section 7.  7.  Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or other collateral security, may 1. abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; estate ; or 2.  2.  he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, thethe property pledged, in claim the foreclosure or other proceeding to realize or upon security, he may his deficiency judgment in the manner provided in the preceding section  section   or or   3.  3.  he may rely upon his mortgage or other security alone, and foreclosure the same at any time  within the period of the statute of limitations, and in that event he shall not be admitted as a creditor creditor,, and shall receive no share in the distribution of the other assets of estate; estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the

court adjudge it to be for the best interest of the estate that such redemption shall beshall made.

 

3 remedies available to enforce mortgage against the decedent To waive the mortgage and claim the entire debt from the estate of the mortgago mor tgagor  r  To foreclose the mortgage judicially and prove the deficiency as an ordinary claim against the estate To rely on the mort mortgage gage exclusively, exclusively, or other o ther security s ecurity and foreclose the same at anytime. Here no claim for

deficiency is allowed.

 

Illustration 

The decedent, during his lifetime, obtained a loan from the bank. The loan is secured by a real estate mortgage. Roberto, one of the heirs, was appointed as the administrator of the estate of the decedent. The settlement court issued notice for all the claimants to file their claims. No one filed a claim, including the bank. The heirs of Roberto agreed to a partition without first paying the bank. Later, the bank foreclosed the real estate mortgaged, sold the property in a public auction which declared the bank as the highest bidder. However, there was deficiency. Thus, the bank filed against the estate in the settlement court.



 

Should the claim be entertained?  entertained? 

Heirs of Maglasang vs. Metrobank  (September 23, 2013)

No. because having foreclosed the mortgage, it relied on the security and waived the right to claim the

deficiency.   

 

Rule 86, Section 7.  7.  Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or other colateral security, may 1. abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; estate; or 2.  2.  he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security,, he may claim his deficiency judgment in the manner security provided in the preceding section  section  or or   3.  3.  he may rely upon his mortgage or other security alone, and foreclosure the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of estate; estate; but nothing herein contained shall prohibit the executor or

administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to t o be for the best interest of the  

Actions which may be brought by or against executors ex ecutors or administrator Section 1, Rule 87:

Actions to recover real or personal property or interest therein

Actions for to recover damages an injury to persons or property, whether real

or personal  

Section 1, Rule 87 must be related to Section 16, Rule 3 

Section 16, Rule 3

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

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4  Problem 4  

While D was driving his car, he hit C, a pedestrian causing the latter’s permanent disability. C  filed a case for damages against D. While the case is pending, D died.

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 Will the case case be dism dismissed? issed? Supposing there is already a final judgment, how would you execute the judgment?

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Answer 1 

The case will not be dismissed on account of the death oftoDrecover . This is an action for which as person it is an action damages an survives injury to which may be brought against the executor or administrator under Section 1, Rule 87. Instead of being dismissed, the deceased party will be substituted by the heirs of the decedent if executor

or administrator had not yet been appointed.  

Answer 2 

The judgment may be executed through execution of the same against theclaim estate D. It is not necessary to have such beoffiled in the estate proceedings of the deceased because it is something which may be enforced against the estate through executor or

administrator.  

May May the heirs bring suit for or in behalf of the estate? Borromeo vs. Borromeo doctrine:

If the executor or administrator refuses to bring suit

 When the executor executor or administrator is alleged to have participated in the act

complained of

 

Ma May y a creditor bring action in i n the name of the executor executor or administrator? 

There is deficiency of assets in the hands of the hand of the executor or administrator for the payment of debts



The deceased during his lifetime had made a fraudulent conveyance of his real or personal property 



The subject of the conveyance would be liable to attachment by anyone of them during his lifetime Executor or administrator has no intention to file



Motion for leave is granted



Bond is filed by the creditor



 

Action must be in the name of the executor or administrator (Section 10, Rule 87) 87) 

 When may may distribution and partition be made? (Section1 Rule 90)

 When the debts, funeral expenses, expenses of administration, the allowance of the widow and inheritance tax

have been paid.  

Can there be distribution without payment of the charges and claims against the estate  (Section1 Rule 90)

Yes, when the distributees or any of them gives a bond conditioned upon payment of said obligation

 

Section 1, Rule 90 

Section 1.  1.  When order for distribution of residue made . — When the debts, funeral funeral

charges, and expenses of administration, the allowance to the  widow,, and inheritance tax, if any,  widow any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court

as to who are the lawful heirs of the deceased person or as the distributive shares to which each person is entitled under the law, the controversy controversy shall be heard and decided as in ordinary cases.

 

 When is a settlement deemed settlement of estate deemed terminated?   terminated? 

It is the order of distribution directing the delivery of the residue estate the persons entitled thereto of thatthe brings to atoclose the intestate proceedings, puts an end to the administration and relieves the administrator of his duty.



PCIB vs Escolin, March 29, 1974  1974 

 

Anticipated Bar Problem 

With approval of the project of partition and the distribution of the residue of the estate to the heirs, the court declared the settlement of estate closed and terminated. One of the heirs surfaced. Obviously, he was not included in the project of partition.



 What is the remedy remedy of such such heir? May such heir file an independent action to annul such order of partition?



 

Answer 1 

Such heir may file a motion for the re-opening of intestate proceedings. In held Quion vs. Claridad, 74 Phil. 100, it was 100, that the intestate proceedings although closed and terminated can still be re-opened within the prescriptive period upon petition therefore of

the preterited heir.  

Alternative Answer  

Such heir has lost his remedy. In Divinagracia vs. Rovina, 72 SCRA 307, The SC ruled that the probate court erred in reopening the intestate proceeding, a proceeding in rem of which the petitioner is deemed to have a constructive notice. The order of closing it was

already final and executory. The closure order cannot be disturbed anymore.  

Answer 2 

No. An independent action will not prosper. In

Solivio vs. CA, 182 SCRA 119, 119, the SC ruled that the filing of a separate action is improper. To allow such is to interfere with the probate proceedings with the court of equal  jurisdiction.

 

Instances when the probate court ma may y issue writ of execution 

To satisfy the contributive shares of the devisees, legatees and heirs in possession of the decedent assets (Sec. 6, Rule 88)





To enforce of expenses of partition (Sec. 3, Rulepayment 90) To satisfy the cost when a person is cited for

examination (Sec. 13, Rule 142)  142)   

Rule 91, Escheats 

Escheat is a proceeding whereby the state, by virtue of its sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. (Republic ( Republic vs. Court of

Appeals, and Solano, G.R. No. 143483,  January 31, 2002). 2002).

 

Rule 91, Escheats 

Escheat is a proceeding whereby the state, by virtue of its sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. (Republic ( Republic vs. Court of

Appeals, and Solano, G.R. No. 143483,  January 31, 2002). 2002).

 

Requisites for Escheat 

That the person died intestate



That he left no heirs or persons entitled by law to the estate



That deceased left properties



Section 1, Rule 91

 

3 Kinds of Escheat

Under Section Sect ion 1, Rule 91 Under Section 5, id., - reversion of property alienated in violation of the constitution or law Under Act no. 3936 – unclaimed balances in the

bank

 

 Wher  Where e to file? RTC of the last residence of the deceased, in case of resident of the Philippines

RTC of the place of his estate in case of non-residence

 

 Who may may file the petition? petition? 



It must be initiated by the OSG. All interested parties, such as actual occupants and the adjacent owners shall be personally notified of the proceedings and given the opportunity to present their valid claims. (Tan vs. City of Davao, Sept. 26, 1988)



“Interested party” is any person alleging to have a direct or interest in the property sought to be escheated. ( Republic

vs. Court of Appeals, and Solano, G.R. No. 143483,

 January 31, 2002)

 

Procedural Flow Filing of Petition

Issuance of Order If sufficient in form and substance

Hearing  Jurisdiction facts

 Judgment Assign personal property to Municipality of his last residence

Hearing shall not be more than 6 months

Assign real property where it is situated

Publish once a week for 6 successive weeks

Non-resident – assigned the properties where they are located

 

May the court declare a person presumptively dead in an escheat proceeding? 

YES.



Vicente Tan vs. City of Davao, September 29, 1988



The Court of Appeals Appeals did not err in affirming the trial court's ruling that Dominga Garcia and her heirs may be presumed dead in the escheat proceedings as they are, in effect, proceedings to settle her estate. Indeed, while a petition instituted for the sole  purpose of securing a  judicial declaration that a person is presum presumptivel ptivelyy dead cannot be entertained if that were the only question or matter involved in the case, the courts are not barred from declaring an absentee

presumptively dead as an incident of, or in connection with, an action or proceeding for the settlement of the intestate estate of such absentee.

 



Deceased A’ A’ss proper property ty was e escheate scheated d by the State State.. Within five (5) (5) years from the date of judgment, an heir appeared. 1. What is the remedy of this heir? 2. What will be the the effect effect of his h is appearance?   appearance?





 



  91 If a devisee, Sec. legatee, 4, heir,Rule widow,91  widower or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting reasonable charges

for the care of the estate; but a claim not made within said time shall be forever barred.

 

Sec.. 7, Ar Arti ticl cle e XII XII   Sec 

Save in cases of hereditar hereditaryy successi succession, on, no private lands shall be transferred or conveyed except to individuals, corporations or associations qualified to acquire or hold land of public domain.

 

91  Sec. 5, Rule 91  

Until otherwise provided by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part.

 

Escheat under RA 3936 Who shall file?

Solicitor General

Under whose name the petitioner shall be filed?

Under the name of People of the Philippines

Where to file?

RTC of the place where the bank is located

Who be  join as shall parties?

Bank,depositor creditor and

 

Rule 92 to 97 GUARDIANSHIP

 



Concept  It is a trust relation in which one person called a “guardian” acts for another called “ward” whom the law regards as incapable of managing his own affairs.

 



Purpose To safeguard the rights and interests of minor and incompetent persons such that the Courts should be vigilant to see that the rights of such persons are properly protected.

 

Kinds of Guardian

Legal guard guardian ian Guardian ad litem

 Judicial  J udicial Guar Guardian dian  

Legal Guardian A legal guardian is such by provision of law without need for judicial appointment. •

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision

shall prevail, unless there is a judicial order to the contrary (Family Code). Code).

 

Guardian Ad Litem

Guardian ad litem is a competent person appointed by the court for the purpose of a particular action or proceeding

involving a minor.  

 Judici  Judicial al Guardian Guardian

 Judicial guar  Judicial guardian dian is a person appointed by by the Court for the persons, property or both the ward to represent theof

latter in all acts and litigations.  

Rules Governing Guardianship •

Incompetents

Rules Rule 97of Court, Rule 92 to

•

Minors

A.M. No. 03-02-05-SC, May 1, 2003 – Rule on Guardianship

of Minor   

Guardianship of Incompetents

 

Guardiansh Guardianship ip of Incompetents 

 Who are incompetents? Persons 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 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. ( Sec. 2, Rule 92) 92)    

Venue and Jurisdiction

Sec. 1, Rule 92

Regional Trial Court of the place where the wards resides. Where the ward is NOT A RESIDENT of the Philippines, the RTC of the place where his

property is situated.  

Appointment of Guardian 

 Who may may petition for appointment of of guardian for resident? resident? ◦

1. Any relative, 1.  relative , friend, or o other ther per person son on  on behalf of a (resident minor) or incompetent who has no parent or lawful guardian, 2. 2. or  or (the minor himself if fourteen years of age) age )  or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such (minor) or incompetent. 3. 3.   An officer of the Federal Administration of the United States  States  in the Philippines may also file a petition in favor of a ward thereof, and the 4. 4.  Director of Health, Health, in favor of

an insane person who should be hospitalized, or in favor of an isolated leper. (Sec. (Sec. 1, Rule 93) 93)

 

Appointment of Guardian 

 Who ma may y petition for appointmen appointmentt of guardian for nonresident? ◦

1. Any relative  relative  or 2. 2.   friend of such person, person, or 3. 3.   any one interested in his estate, estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such non-

resident is a (minor) or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate. (Sec. (Sec. 6, Rule 93) 93)

 

Contents of the Petition 









1. Jurisdictio Jurisdictional nal facts 2. Fact of incompeten incompetency cy 3. Names, ages and residences of the relatives of incompetents, incompete nts, or person ha having ving the care of incompete incompetent nt 4. Probable value or charact character er his estate 5. Name of the person for whom letter of guardians guardianship hip are prayed for

(Sec. 2, Rule 93)

 

Procedure



1. Court shall set time for hearing and will issue notice notice.. (Sec. 3, Rule 93)



2. Interested party ma mayy file an oppositi opposition on (Sec. 4)



3. Hearing on the merits (Sec. 5)



4. Issua Issuance nce of letters guardianship. (Sec. 5)

 

Please take Note: “Publication is not required in a Petition for appointmen

t of guardians.”  



Grounds for Opposition

Section 4.  4.  Opposition to petition. — Any interested person may, by filing a written opposition, contest the petition on the ground of (majority of the alleged minor), competency of the alleged incompetent, or the insuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to

any suitable person named in the opposition.

 





Bond of Guardian

1.   Bond to be given before the letters of 1.

guardianship is issued (Sec. issued (Sec. 1, Rule 94) 2.   Bond is subject to the following conditions: 2.  To make and return inventory of property within three (3) months  To faithfully execute the duties of his trust  To render true and just account of all the estate of

his ward.

 



 When new may be requir required ed new bond may

Section 2.  2.  When new bond may be required and old sureties discharged . — Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the

estate (Rule (Rule 94). 94).  

How toinclaim bond executed the guardian case on thethe guardian failed to by perform his obligation for the bond was issued 

Section 3.  3.  Bonds to be filed. Actions thereon. — Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other

person legally interested in the estate (Rule ( Rule 94). 94).

 

Selling and Encumbering the Property of the  Ward  W ard 



The property of the ward can only be sold or encumbered upon petition to be filed by the guardian in the Court which issued letters of guardianship. The sale or encumbrance must be for the

benefit of the ward which benefit must be shown to the Court (Sec. (Sec. 1, Rule 95) 95)  

Please take NOTE: 

It is not necessary for the grant of authority to the guardian to sell the estate of the ward to state that the income “is insufficient to maintain the ward and his family or to maintain and educate the ward when minor.” It is enough, as other alternative of the law provides, that “it appears to the satisfaction of the court that it is for the benefit of the ward and his real estate or some part thereof should be sold, and the proceeds thereof put out at interest, or invested in some

productive (Pardo (Pardo de Tavera vs.). El Hogar Filipino, GRsecurity” No. L-5893, February 28, 1956). 1956

 





Procedure

A Petition should be filed by the guardian (Sec. (Sec. 1, Rule 95) 95) Court shall issue an order directing the next of kin of the ward, or all person interested in the state of the ward to appear on the day and time set by the Court (Sec. ( Sec. 2, Rule 95)) 95





The petitioner and next of kin or any other interested person will be heard (Sec. (Sec. 3, Rule 95) 95)

The Court will either grant or deny the petition (Sec. ( Sec. 4, Rule 95) 95) 

 

Please take NOTE: 

No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had (Sec. (Sec. 4, Rule 95). 95).

 

Powers and Duties of Guardians Guardians







Basic obligation of the guardian is to have care and custody of the person of his ward, and the management of his estate. (Sec. 1, Rule 96) 96) Pay the debts of the ward out of his personal estate (Sec. ( Sec. 2, Rule 96) 96) Settle accounts, collect debts, and prosecute and defend suit for the ward (Sec. (Sec. 3, Rule 96) 96)

To manage the estate frugally (Sec. ( Sec. 4, Rule 96) 96) 

To make inventory and accounting (Sec. ( Sec. 6, Rule 96) 96) 

 

 What action is to be taken if a person is suspected of embezzling or concealing property of the ward? 

Section 6.  6.  Proceedings when the person suspected of embezzling or concealing of ward  . — actual Upon or complaint of the guardian or ward, or ofproperty any person having prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any

money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination  examination  touching such money,

goods, instrument, and make suchconcealment orders as will secure interest, the estateoragainst such embezzlement, or conveyance (Rule (Rule 96). 96).  

Please take NOTE:

A guardianship court only has the power to cite such person to obtain information on the property. Generally, the guardianship court exercising special and limited  jurisdiction cannot actually order the delivery of the property of the ward found to be embezzled, concealed



or conveyed. Only in extreme case where the property of the ward or where his title thereto has been judicially

decided, may the court direct its delivery to the guardian (Parco vs. CA, GR L-33152, January 30, 1982, citing Cui vs. Piccio). Piccio).  

Termination of Guardianship







When the person is no longer incompetent (Sec. ( Sec. 1, Rule 97)) 97 When the guardian is removed or resigned (Sec. ( Sec. 2, Rule 97)) 97 Grounds for removal: Insanity Incapable of discharging his trust or unsuitable therefore ◦

◦

◦

Mismanagement

 

Guardianship of Minor  (A.M. 03-02-05-SC)

 

Guardianship of Minor  (A.M. 03-02-0 03-02-05-SC) 5-SC) 

The Rule is applicable to petition for guardianship of the person or property of the minor (Sec. ( Sec. 1) 1)



Parents are the legal guardians of the minor without necessity of court appointment (Sec. (Sec. 1) 1) But: they have to file bond in accordance with Sec. 16.





Vancil vs. Belmes, June 19, 2001 ◦

Who between the mother and paternal grandmother should be

the guardian of the minor? ◦

It is the mother pursuant to Article 211 of the FC

 

 Who may may file the Petition? Petition?

1. Relative

2. Oth Other er per person son on beh behalf alf of the min minor or 3. Minor, Minor, himself, if fourteen (14) years years or ov over er.. 4. DSWD or DOH for insane minor who needs to be

hospi hospitaliz talized. ed.

Section 2. 2.

 

Venue and Jurisdiction 



Family Court of the province or city where the minor resides If the minor resides in foreign country, in the Family Court of the province or city where his property is located.



Section 3. 3.

 

Grounds 1. Death, continued absence, or incapacity incapacity of his parents; 2. Suspe Suspension nsion,, depriv deprivation ation or termination termination of parental parental authority; 3. Remar Remarriage riage of his his surviving pa paren rent, t, if the latter latter is found unsuitable to exercise parental authority; or

4. When the best inter interests ests of the minor so

requir require. e.

 













Qualifications

1. Mo Mora rall ch char arac acte ter; r; 2. Ph Physic ysical, al, menta mentall and psy psycholo chological gical ccondit ondition; ion; 3. Fi Fina nanc ncia iall st stat atus us;; 4. Rel Relati ations onship hip of ttrus rustt wit with h th the e mi minor; nor; 5. Av Availabi ailability lity to ex exer ercise cise the pow powers ers and dutie dutiess of a guardian for the full period of the guardianship; 6. Lack o off conf conflict lict o off inte intere rest st wit with h the minor; and

7. Abili Ability ty to mana manage ge the pr property operty of th the e minor minor.. (Section 5) 5)



 

Please take NOTE: In Vancil vs. Belmes, G.R. No. 132223, June 19, 2001, 2001, the SC held that courts should not appoint persons as



guardians who are not within the  jurisdiction of our courts for they will

find it difficult to pr protect otect the wards.  

 Who may may be appointed in the absence of parents parents or court-appoint cour t-appointed ed guardian 1. Su Surv rviv ivin ingg ggra rand ndpa parrents ents;; 2. Ol Oldes destt br broth other er or ssist ister er of mino minorr ov over er 21 yyear earss old old;;

3. Ac Actua tuall cu custo stodia dian n of min minor or o ove verr 21 years years old old;;

4. Re Rela lati tion onsh ship ip of of trus trustt with with the the m min inor; or; 5. Any other perso person n in sound discr discretio etion n of the court taking into best interest of the child (Section ( Section 6) 6)

acco account unt the

 

Procedure 

Filing of Petition (Sec. ( Sec. 7) 7)



Setting of time and notice of hearing through the Court’s Court’s Order (Sec. ( Sec. 8) 8)



Order case study Report (Sec. ( Sec. 9) 9)



Opposition to petition (Sec ( Sec 10) 10)



Hearing of Petition and Opposition (Sec. ( Sec. 11) 11)



Filing of bond (Sec. (Sec. 14) 14) Decision (Sec. (Sec. 11) 11)



Final Decision shall be sent to LCR and RD (Sec. ( Sec. 13) 13) 

If non-resident, petition may be(Sec. filed12) with person interested in the estate (Sec. 12 ) any relative or friend or any

 

Grounds for Removal Removal Guardian became insane Incapable of discharging his trust Unsuitable to discharge his trust

Mismanaged the property Failed to render an account (Section (Section 24) 24)

 

Grounds Groun ds for Termina erminati tion on 

Ward is of legal age already Death of the ward 



Motu propio or verified motion

(Section 24) 24) 



 

Rule 102 Habeas Corpus

 

coverage  What is the covera ge of the writ of habeas corpus?   corpus?

Deprivation of liberty Deprivation of the rightful custody

of any person from the person entitled thereto  

 Writ may availed of under exceptional exceptional may be availed circumstances: 





There has been a deprivation of a constitutional right resulting in the restraint of a person The court has no jurisdiction to impose the sentence Imposed penalty has been excessive as to such



excess (Go vs. Dimagiba, June 21, 2005)  2005) 

 

 Who may writ? may grant the writ?



Supreme Court (Section 5, Article VIII, 1987 Constitution) Or any member thereof (Sec. 2, Rule 102) Writ issued by SC is enforceable anywhere in the ◦

◦

◦

Philippines, (id .) Philippines, .) Returnable before the SC, or any member thereof,

or before the CA or any member thereof, or the RTC or any Judge thereof. ( id ..))

 

 Who may writ? may grant the writ? 

Court of Appeals (Section 9, B.P. 129) ◦

◦

◦

Or any member thereof, (Sec. (Sec. 2, Rule 102) 102) Writ issued by CA is enforceable anywhere in the Philippines, (id.) Returnable before the CA or any member

thereof, or the RTC or any Judge thereof. (id .) .)  



 Who may writ? may grant the writ? Regional Trial Court (Section 21, B.P. 129) Or any judge thereof (Sec. (Sec. 2, Rule 102) 102) ◦

◦

Writ issued by RTC is enforceable within its judicial region, (id.)

◦

Returnable Returnabl e before the judge thereof, thereof, (id.)

 

may grant the writ?  Who may writ?



Sandiganbayan (Section 4 (c), par. 4, R.A. 8049, amended by RA10660) ◦

The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction  and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2,

14 and 14-A, issued in 1986: ◦

Provided , that the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

 

Petition?  Who may may file the Petition? Section 3, Rule 102

By a party for

By some person on

whose relief it is intended

behalf of the person in petition whose behalf the is filed

 

 What are the form and contents Petition? contents of the Petition? 

The petition must be signed and verified by a party for whose relief it is intended or some person on behalf of the person in whose behalf the petition is filed.



Must contain the following: ◦

That the person in whose behalf the application is made is imprisoned or restrained

◦

◦

◦

The officer or name of the person by whom he is imprisoned or restrained. The place where he is so imprisoned or restrained, if known Copy of the commitment or cause of detention of such person, if it can it be

procured without impairing the efficiency of the remedy or, if the imprisonment or restraint is without legal authority, such fact must be shown. ◦

 

(Section 3, Rule 102)  102) 

OCA vs. Judge Perello, A.M. No. RTJ-05-1952, December 24, 2008

A judge cannot grantthe a writ of habeas corpus without pertinent copies of detention and judgment of convict conv iction ion.. To do so would be

contrary to the provision provision of Section 3(d), Rule 102. 102.  

Instances where the writ are not allowed 

If the person is under custody by virtue of the process issued by the court or judge



By virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render judgment or make order;



If the person is charged; If the person is convicted;







If the person is suffering imprisonment under lawful judgment. (Section 4, Rule 102)

 

Reason   Reason



Under Section 1, Rule 102, 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 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 habeas corpus lawful,   proceedings (InApril (In the matterthe of Petition for Habeas Corpusterminates of Kunting, 19, 2006). 2006).  

Problem 1 

Carla filed a complaint before the police station for rape against Louie allegedly committed three (3) months ago. Louie was invited for questioning in the police station regarding the complaint filed by Carla, to which Louie acceded. However, instead of being just questioned, Louie was detained. Louie protested the arrest. Consequently, through his lawyer, Louie filed a Petition for Writ of Habeas Corpus before the Regional Trial



Court against the police officers who detained him. Meanwhile, an Information for rape was filed against Louie. Thus, the Court

where the case was raffled issued a commitment order to transfer the custody of the accused from the police station to the BJMP. 

 With this development development,, would it be proper proper for the Court to grant the Petitioner for Writ of Habeas Corpus? Corpus?  

 

Answer 



No. It is not proper for the Court to grant the Petition for Writ of Habeas Corpus.



Section 4, Rule 102 provides for the instances where the writ shall not be allowed. One of which is when the person is under custody by virtue of the process issued by the court or judge. In this case, the Louie is under custody because of the case filed against him in court and the commitment order issued by the same court. Thus, there is legal ground to detain Louie.



"[T]he filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that

detention or at least deny him the right to be released because of such defect.“ (Sanchez (Sanchez vs. Demetriou, 227 SCRA 627 [1993]). [1993] ).

 

Problem 2 

Facts: Atty. Dalaig, head of the legal department of Comelec was Facts: killed. PO1 Ampatuan was identified as the perpetrator. Accordingly, he was arrested and subjected to an inquest proceedings. Meanwhile, an administrative case for grave misconduct was filed against PO1 Ampatuan. The Chief PNP, on account of the administrative complaint filed against him, subjected PO1 Ampatuan to a restrictive custody custody..



Meanwhile, the Prosecutor s Office recommended further investigation on the criminal case filed against PO1 Ampatuan and ordered his release. He was not released by the PNP.  Will writ of habeas corpus lie?  lie?  

 

Answer  



Writ of Habeas Corpus will not lie. The restrictive custody of PO1 Ampatuan is valid and in accordance with law. Restrictive custody of the members of the PNP facing administrative charges may be placed under restrictive custody under RA 6975 as amended by RA 8551.

Therefore, the confinement of PO1 Ampatuan is by virtue of the authority of the law. (Ampatuan vs. Macaraig, G.R. No. 142497,  June 29, 2010)



 

Velasco vs. CA, 245 SCRA 677 

Even granting that a person was illegally arrested, still the petition for a writ of habeas corpus will not prosper because his detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of the order denying the accused’s motion to dismiss or grant bail

and granting the motion of the prosecution for the issuance of awithin hold departure order. The order qualifies as a process the meaning of Section 4, Rule 102.  

 What happen if the petition is sufficient sufficient in form and substance? 

SECTION 5. When 5. When the Writ Must Be Granted and Issued. Issued. — A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of

the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to ser serve ve it.  

“writ” t” is direct directed? ed? To whom “wri •

The writ shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified.

•

The writ shall command the officer to

Officer Section 6, Rule 102

Non-officer

have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified.

 

Duty to make a “return” 

SECTION 8. How Writ Executed and Returned . — The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or  judge; and the officer shall make due return of the writ,

together with the day and the cause of the caption and restraint of such person according to the command thereof .

 

Contents of the Return Section 10 





(a) Whether he has or has n not ot the party in his custody or power power,, or under restraint; (b) If he has the par party ty in his custody or power 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; (c) If the party is in his custody or pow power er or is rrestrained estrained by h him, im, 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; 

(d) If he has had the party in his custody or power 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.

 

 What to do after the “retu “return” rn” is filed 





Hearing in accordance with Section 12. Sufficiency of return When the Return Evidence, and When Only a Plea . — If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any 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. (Section 13)

 

How to appeal the decision? Section 3, Rule 41 •

Period of ordinary appeal; appeal in habeas corpus cases.. — The appeal shall be taken within fifteen (15) days cases from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty

(30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the judgment or final order appealed from from..  

 Writ vs. Privilege of the Writ of Habeas Corpus  

A writ of habeas corpus is issued by the Court after finding that the petition is sufficient in form and substance. It is an order commanding the person who has custody of the person detained or an officer commanding him to bring the person detained before the court on the designated time and place.



The privilege of the writ of habeas corpus is issued after the return is

filed and a hearing was conducted. If the Court finds the person is illegally detained or whose custody is being possessed by a person who is not authorized by law, the petition will be granted and the privilege of the writ of habeas corpus will be issued.

 

Habeas Corpus Involving Custody of Minor 

A.M. A. M. NO NO.. 03 03-0 -044-04 04-S -SC C, APRI APRIL L 22, 2003 •

RULE ON CUSTODY OF MINORS

AND WRIT OF HABEAS CORPUS IN RELA RE LATI TION ON TO CUS CUST TOD ODY Y OF MINORS MINORS  

Cour t’ss Act of 1997 Family Court’ Section 5(b)  The family Court’s Act of 1997” vested the Family Court exclusive

original jurisdiction to hear petitions for custody of minors  

Does the SC, CA have jurisdiction to entertain PWHC involving minors?

Thorn Tho rnton ton vs. Thornt Thornton on,, G.R G.R.. No. 15 1545 4598 98,, August 16, 2004 Madrinan vs. Madrinan, G.R. No. 159374,  July  Jul y 12, 2007

Section 20, A.M. No. 03-04-04-SC  

Section 20 

Petition for writ of habeas corpus. — A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable  within its judicial region to which the Family Court belongs.. belongs



However, the 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.

 

Section 20 

The petition may also be filed with the appropriate regular courts in places where there are no Family Courts.



The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong. The petition may likewise likewise be filed with the Supreme Court, Court



of Appeals, or enfor with a any ny of its members sso o gra granted, nted, The the  writ shall be enforceable ceable anywhe anywhere re inand, theifPhilippines. Philippines. 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.

 

Rule 103 Change of Name

 



SECTION

Venue 1 1.. Venue. — A person

desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in

the City of Manila, to the Juvenile and Domestic Relations Court. (Rule 103). 103).  

Grounds 







(a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since

childhood by a Filipino name, and was unaware of alien parentage;

 

Grounds 



(e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) 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 would prejudice public

interest (Rep (Republi ublic c v. Cour Courtt of Appea Appeals, ls, G.R. No. 9790 97906, 6, 21 May 1992, 209 SCRA 189. See also Republic v. Hernandez, G.R. No. 117209, 9 February 1996, 253 SCRA 509). 509).

 

May illegitimate child use the father’s name? 

YES.. YES



R.A. No. 9255 which effect on March 2004, amended Article 176 took of the Family Code, 19, allowing illegitimate children to use the surname of their father if their filiation has been expressly recognized by the father through a record of birth appearing in the civil

register, or when an admission in a public document or private handwritten instrument is made by the father. father.

 

May y the name of a person be changed by by virtue vir tue of Ma sex reassignment? NO.. NO 



Before a personproper can legally change his given he must present or reasonable cause name, or any compelling reason justifying such change. 19 In addition, he showofficial that he will 20 be prejudiced use to of his must true and name. In this case,byhethefailed

show, or even allege, any prejudice that he might suffer as a result of using his true and official name (Silverio vs. Republic, October 22, 2007). 2007).  

May y the name of a person be changed because of Ma change of gender? 



YES. YES. Ultimately, we are of the view that where the person is biologically or naturally intersex (Congenital Adrenal Hyperplasia, CAH) the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual

development in cases of intersex persons makes the gender classification at development birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. (Republic vs. Cagandahan, September 12, 1 2, 2008) 2008)..

 

RULE 108 Cancellation or Correction of Entries in Civil Registry

 

 What are are entries subject of cancellation or correction? 









(a)  births; (a)  (b)   marriages; (b)



(i)  acknowledgments of (i)  natural children;

(c)  (c)  (d)   (d) (e)   (e)



(j)  naturalization; (j)  (k)   election, (k) election , loss or recovery of citizenship; (l)   civil interdiction; (l) interdiction ; (m) judicial (m)  judicial determination of

deaths; legal separat separations; ions; judgments of annulments of







marriage; (f)   judgments declaring (f)



marriages void from the beginning; 



(g)  legitimations; (g)  (h)   adoptions; (h)





filiation; (n)   voluntary emancipation of a (n) minor; and (o)   changes of name. (o)

 

 What is the nature proceeding under nature of the proceeding Rule108? 



It is adversarial. adversarial. The philosophy behind this requirement lies in the fact that the books making up the civil register and all documents relating thereto shall be prima facie evidence of the facts therein contained. If the entries in the civil register could be corrected or changed through mere summary and not through action wherein all partiesproceedings who may be affected by the appropriate entries are

notified or represented, the door to fraud or other mischief would be set open, the consequence of which might be detrimental and far reaching (Republic (Republic vs Kho, June 29, 2007, citing LabayoRowe v. Republic, 168 SCRA 294, 300-301). 300-301 ).

 

If the indispensable or interested party is not impleaded, will it make the proceedings void? 

Barco, whose minor daughter was allegedly fathered also by Gustilo, however, sought to annul the trial court's decision, claiming that she should have been made a party to the petition for correction. Failure to implead her deprived the RTC of jurisdiction, she contended. In dismissing Barco's

petition, this Court held that the publication of the order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. Thus, publication will cure the defect (Republi (Republic c vs Kho, 2007). 2007 ).  

The procedure for change of name under Rule 103 was not followed but that of Rule 108, may change of name be effected? 

With respect to the correction in Carlito's birth certificate of his name from "Carlito John" to "Carlito", the same was properly granted under Rule 108 of the Rules of Court. As correctly pointed out by the CA, the correction of entries involving changes of name fallscancellation under letteror"o" of the following provision of

Section 2 of Rule 108. Hence, while the jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not complied with, observance of the provisions of Rule 108 suffices to effect the correction sought for (Republic (Republic vs. Kho, 2007). 2007).

 

A. M. No. 07-9-12-SC

Rule on the Writ of

 Amparo  Ampar o

 

To whom shall the remedy of amparo available?

Available to any person whose right to life, liberty and security is violated or threatened  with violation by an unlawful unlawful act or omission of a public official or employee, or of a private individual or entity. entity.





The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Sec. 1)

 

 Amparo o as a Remedy Nature of Ampar

Curative

Preventive  

Coverage Extra-judicial killing & Enforced Enfor ced disappearances It was originally conceive conceived d as a response to the

extraordinary rise in the number of killings and enforced disappearances, and the perceived lack of available and effective remedies to address these extra-ordinary concerns (Rodriguez vs. Arroyo, April 16, 2013) 2013)  

 

Section ion 1, Ampa Amparo ro Rule Rule Sect 

The petition for a writ of amparo  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 disappear ances or or threats thereof.

 

Coverage Canlas vs. Napico Homeowner  s Associat A ssociation, ion,  June 5, 2008

Reyes vs. Gonzales, December 3, 2009

Caram vs. Segui, Segu i, Augu August st 5, 2014

Writ of amparo does not protect property or commercial commerci al rights

It does not protect right to travel

It is not a proper remedy to obtain custody of minor child

 

Canlas vs. Napico Homeowners Assn. June 5, 2008 

Petitioners are being demolished from their dwellings. They filed the petition against the “unprincipled land official” to hold them accountable for their

participation in the issuances of alleged fraudulent and spurious title.  

Canlas vs. Napico Homeowners Assn. June 5, 2008 

The threatened demolition of a dwelling by virtue of a final  judgment of the court, which in this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling,

assuming they still have any despite the final and executory  judgment adverse to them, does not constitute right to life, liberty security. There is, therefore, no legal basis for the issuanceand of the . writ of amparo

 

Reyes vs. Gonzalez, Dec. 3, 2009 





A case for rebellion was filed against Reyes. Consequently, a HDO was issued against him. Later, the case filed against him was dismissed. However, the HDO was not lifted. He filed the petition claiming that his right to travel which is included in the right to liberty is violated. Petition dismissed. dismissed.



The Court, in Secretary of National Defense et al. v. Manalo et al., made a categorical pronouncement that the Amparo Rule in its present form is confined to these two instances of "extralegal killings" and "enfor "enforced ced disappeara disappearances" nces"

 

Caram vs. Segui, August 5, 2014



Petitioner Ma. Christina Yusay Caram (Christina) had an amorous relationship with Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with the latter's child without the benefit of marriage. After getting pregnant, Christina mislead Marcelino into believing that she had an abortion when in fact she proceeded to complete the term of

her pregnancy. During this time, she intended to have the child adopted through Sun and Moon Home for Children (Sun and Moon) in Parañaque City situation to avoid placing her family in a potentially embarrassing for having a second illegitimate son.  

Caram vs. Segui, August 5, 2014



On July 26, 2009, Christina gave birth to Baby Julian at Amang Rodriguez Memorial Medical Center, Marikina City. Sun and Moon shouldered all the hospital and medical expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a Deed of Voluntary Commitment to the DSWD.



On November 26, 2009, Marcelino suffered a heart attack and died without knowing about the birth of his son. Thereafter, during the wake, Christina disclosed to Marcelino's family that she and the deceased had a son that she

gave up for adoption due to financial distress and initial embarrassment. Marcelino's family was taken aback by the revelation and sympathized with Christina. After the emotional revelation, they vowed to help her recover and raise the baby. They filed an amparo case against DSWD.



 

Caram vs. Segui, August 5, 2014 

Petition Petitio n dismissed



His pronouncement on the coverage of the writ was further cemented in the latter case of Lozada, Jr. v.  Macapagal-Arroyo  Macapagal-Arro yo where this Court explicitly declared that as it stands, the writ of amparo is confined only to

cases of extrajudicial killings and disappearances, or to threats thereof.

 

Cases

Pador vs Pador vs.. Arcayan, Arcayan, March 12, 2013

enforced

Intrusion upon petitioner s ampalaya farm is merely violation of property rights, which beyond the protective power pow er of isthe writ of . amparo  

may file?  Who may 





Aggrieved party Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party 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.





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) (Sec

 

Against whom may it be filed? 

SECTION 1. Petiti SECTION etition. on. — The petitio petition n for a writ of amparo  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 .

 

PLE PLEASE ASE TAKE TAKE NO NOTE: TE: Even if a person sought to be accountable 

or responsible in an amparo  petition is a private individual or entity, the

government involvement indispensable element.  

remains

an

There must must be state par participation. ticipation.   Navia vs. Pardico, 673 SCRA 618  618 

 

Navia vs. Pardico, 673 SCRA 618 

•

Enforced disappearance "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by  persons or groups of persons acting with the

authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."  

618  Navia vs. Pardico, 673 SCRA 618  As thus dissected, it is now clear that for the protective writ of amparo  to issue,are allegation and proof that also the persons subject missing not enough. It must be shown and thereof proved are by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed refusal to acknowledge the persons, same or with give information on the fatebyorawhereabouts of said missing

the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo  case has the burden of proving by substantial evidence the indispensable element of government participation.. participation

 

 Where to file? Section 3 

The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ



shall be enforceable anywhere in the Philippines. When issued by a Regional Trial Court or any judge

thereof, the writ shall be returnable before such court or  judge.

 

file? le?  Where to fi Section 3 

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. occurred.



When issued by the Supreme Court or any of its justices, it

may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.  

Contents of the Petition (Section 5) 

(a) The personal circumstances of the petitioner;



(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, omi ssion, or, or, if the name is unknown or o r uncer uncertain, tain, the respondent may be described by an assumed appellation;



(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances circumstances detailed in supporting affidavits;



(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;



(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved aggrieved party and the identity of the the perso person n rresponsible esponsible for the threat, act or omission; and



(f) The relief reli ef prayed for.

 

Effect of Failure to comply with Section 5; DISMISSAL

Canlas vs Napico Homeowners, 554 SCRA 208

Castillo vs. Cruz, 605 SCRA 628

Tapuz vs. Del Rosario, 554 SCRA 768

 

Relaxation of the Section 5

Razon vs Razon vs..Tagi agiti tis, s, 60 606 6 SCRA SCRA 598 598 – failure to attached supporting affidavits

Saez vs. Macapagal-Arroyo, Macapagal-Arroyo, 681 SCRA 678 – 678 – defective verification  

Initial Action of the Court 

Section 6. Issuance of the Writ. — 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; or in case of urgent necessity, the justice or the judge

may issue the writ under his or her own hand, and may deputize any officer or person to serve ser ve it. 

The writ shallpetition also set theshall datenot and for summary hearing of the which be time later than seven (7) days from from the date of its issuance.  

The issuance of the writ sets in motion

the amparo proceedings

 

 What is to be by the respondent? respondent? be filed by 

 Within five (5) working da days ys  - Verified written RETURN RETURN which  which shall contain:



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 omissi omission; on;



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 of the aggrieved; If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:

 

 What is to be filed by by the respondent? respondent? 

(i) to vverif erifyy the iden identity tity o off the agg aggrie rieve ved d part party; y;



(ii) to reco recover ver and pr preserve eserve e evidence vidence rrelated elated to the deat death h or disappea disappearance rance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;



(iii) to identify witnesses and obtain statements fr from om them concerning the death or disappearance;

(iv) to determine the cause cause,, manner manner,, location and ti time me of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; 



(v) to identify and ap apprehend prehend the p person erson or perso persons ns inv involved olved in the dea death th or disappearance; and (vi) to bring the suspected off offenders enders befor before e a competent court.

 

PLE PLEASE ASE TAKE TAKE NO NOTE: TE: 



THE PERIOD TO FILE A RETURN CANNOT BE EXTENDED EXCEPT ON HIGHLY MERITORIOUS GROUND. The return shall also state other matters

relevant to the investigation, its resolution and the prosecution of the case. 

A general the allegations in the petition shalldenial not be of allowed.

 

TAKE NOTE:

RETURN should RETURN  should be filed not

an ANSWER ANSWER  

 

Take Note:

Section 10

Section 12

Return is subject to

Effect of failure

Section 13 The hearing shall be

omnibus motion rule

to file return

summary

Ex-parte of presentation evidence

 

Prohibited (Section Pleadings 11) 

(a) Motion to dismiss;





(b)Motion (b) Motion for extension of time to file f ile return return,, oppositi opposition, on, affidavit, position paper and other pleadings;











(g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k)

Motion for reconsideration reconsideration

(c) Dilatory motion for postponement; 

 

(d) Motion for a bill of (d)Motion particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint;



(k) Motion for reconsideration reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

 

are the interim reliefs?  What are reliefs?

Temporary Protection Order  Inspection Order 

Production Order   Witness Protection Protection Order  Order   

TAKE NOTE:





Inspection Order

Upon verified

Production Order

motion

 

standard of totality  What is standard totality of evidence? evidence? 

It is the consideration of all the pieces of evidence adduced in their totality, 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, it is the reduction of the 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, December 3, 2009, 606 SCRA 598). 598) .

 

Quantum of Evidence and Burden of Proof  

Substantial Evidence





The who is as a private individual or entity must prove that respondent ordinary diligence required by applicable laws, rules and regulations was observed obser ved in the performance of duty duty.. The respondent who is a public official or employee must prove



that extraordinary diligence as required by applicable laws, rules and regulations was observed obse rved in the performance of duty duty.. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

 

 Judgment ment  Judg 

Section 18. Judgment.  Judgment.  — The court shall render within ten (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 grant the privilege of the writ and such reliefs as may be proper and appropriate; privilege shall be denied.

otherwise,

the

 

where to  When and where to appeal? appeal? 



SECTION 19. Appeal Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The





appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases.

 

Consolidation 

SECTION 23.Consolidation. 23.Consolidation. — When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be



consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

 

Effect of Filing a Criminal action 

When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.



The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

 

De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013 

Gatdula filed a Petition for Writ of Amparo before the RTC of Manila. The case was raffl raffled ed to Judge Pampilo. Judge Pampilo issued summons to the respondents and required the latter to file an Answer. Judge Pampilo proceeded with the hearing even without the Answer. Later he ordered the parties to submit





their respective Memorandum. Thereafter, Judge Pampilo rendered a decision granting the issuance of the writ of amparo. De Lima, et.al., filed a Petition for Review under Rule 45 in accordance with Section 19, of the Rule.

 

De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013 



It is initiated through a petition to be filed in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme Court. The judge or justice then makes an "immediate" evaluation of the facts as alleged in the petition and the affidavits submitted "with



the attendant circumstances detailed After evaluation, the judge has the option to issue the Writ of  Amparo or immediately dismiss the case.



The court compels the respondents to appear before a court of law to show whether the grounds for more permanent protection and interim reliefs are necessary.

 

De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013 



The respondents are required to file a Return after the issuance of the writ through the clerk of court. The Return serves as the responsive pleading to the petition. There will be a summary hearing only after the Return is filed to determine the merits of the petition and whether interim reliefs are



warranted. If the Return is not n ot filed, the hearing will be done ex parte. p arte.



After the hearing, the court will render the judgment within ten (10) days from from the time the petition p etition is submitted for decision.



If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate.

 

De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013 



The privilege of the Writ of  Amparo  should be distinguished from theavailment actual order called theprocedure Writ of  Amparo . The privilege includes of the entire outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. After examining the petition and its attached affidavits, the

Return and the evidence presented in the summary hearing, the  judgment should detail the required acts from the respon respondents dents that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty or security.

 

A. M. No. 08-1-16-SC

Rule on theData Writ of Habeas

 

writ of “Habeas Data”?  What is writ Data”? 

SECTI ECTION ON 1. Ha Habe beas as Da Data ta. — The writ of habeas data

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 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. party.  

of the remedy?  What is the nature of remedy? 

The writ of habeas data 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  party  (Vivares vs. STC, September 29, 2014).  

 What is the nature of remedy? of the remedy? 

It is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one's right to the truth and to

informational privacy. It seeks to protect a person's right to control information regarding oneself , particularly in instances in which such information is being through unlawful order to achievecollected unlawful ends. (Vivares vs.means STC, in September 29, 2014). 2014).  

 What is the nature of remedy? of the remedy? 

The writ, however, will not issue on the basis merely of an alleged unauthorized to information about a person. Availment of the access writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life, life , liberty or security se curity on the other .





NOTE: NOTE: The writ of habeas data is not only confined to cases of extralegal killings and29, enforced vs. STC, September 2014). disappearances (Vivares 2014).

 

Three strands of right to privacy Locational or situational privacy •

Refers to the privacy that is felt in physical space, such as that which may be violated by trespass and unwarranted search and seizure.

Decisional privacy

•

Usually defined as the right of individuals to make certain kinds of fundamental choices with respect to their personal and reproductive autonomy.

•

usually defined as the right of individuals to control information about themselves

Informational privacy

 

Coverage of the Rule

RIGHT RIG HT T TO O

INFORMATIONA L PRIVACY

 

Against whom may it be filed? 



Meaning of "engaged" in the gathering, collecting or storing of data or information. The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against unlawful acts or omissions of public officials and of private

individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the 

business of collecting or storing data. (Vivares vs. STC) STC)  

 

may2)file  Who may (Section 





Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings  killings  and enforced disappearances,, the petition may be filed by: disappearances



(a) member of thechildren immediate family of party, Any namely: the spouse, and parents; or the aggrieved (b) 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.

 

to File  Where to 

The petition may be filed with the Regional Trial Court where the petitioner   or respondent resides, resides, or that which has jurisdiction has  jurisdiction over the place where place where the data or information is gathered, collected or stored, at the



option of the petitioner. The petition may also be filed with the Supreme Court  or the Court of Appeals  or the Sandiganbayan  when the action concerns public data files of government offices (Section 3). 3).

 

 Where returnable returnable 

When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge.



When issued by the Court of Appeals or the Sandiganbayan or any of its  justices, it may be returnable befor before e such court or any justice thereof, or to any Regional Trial Court 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. 

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals theplace Sandiganbayan orpetitioner any of its justices, or to any Regional Court oforthe where the or respondent resides, or Trial that which has jurisdiction over the place where the data or information is gathered, collected or stored (Section 4). 4).

 

 Where enfor enforceable (Section 4)ceable

The writ of habeas data

shall be enforceable anywhere in the Philippines.  

Contents(Section of the 6) Petition 

(a) The personal circumstances circumstances petitioner and the respondent;



(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved aggriev ed party; par ty;



of

the the



(e (e)) The The rrel elie iefs fs p pra raye yed d for for,, wh which ich may include the updating, rectification, suppression or destruction of the database or Information or files kept by the respondent.



(c) The actions recourses recourses taken petitioner to and secure the taken databy the or information; (d) 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;

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other rrelevant elevant reliefs reliefs as are  just and equitable.

◦



 

Action of the Court upon filing  

SECTION 7. Issuance of the Writ.  — Upon the filing of the

petition, thethe court, judge shall immediately issuance of writjustice if on itsorface it ought to issue. Theorder clerkthe of court shall issue the writ under the seal of the court and cause it to be served within three (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 ten (10) work days days from the date of its issuance.

 

 What should respondent file? respondent file? 





SECTIO SECT ION N 10 10.. Re Retu turn rn;; Co Cont nten ents ts. — The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which

period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a)The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (b) In case case of respondent respondent in in charge, charge, in possessi possession on or in in control control of the data data or inform information ation

subject of the petition: ◦

◦

◦





(i) a disclosure of the data or information about the petitioner petitioner,, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensur ensure e the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and

(c)Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed.

 

Prohibited Pleadings (Section 13) 

(a) Moti Motion on to dismiss; dismiss;





(b) for extension of time time to Motion file opposition, affidavit, position paper and other pleadings; 







(h) Motion to declare declare respondent in default; (i) (i) Inte Interve rvent ntio ion; n; (j) Memora Memorand ndum; um; (k) Motion for for re reconsideration consideration









(c) Dilat Dilatory ory motion motion for for postponement; (d) Motion for a bill of particulars; particulars; (e) Counterc Counterclaim laim or cross-claim; cross-claim; (f) Thi Third rd-pa -party rty compla complaint int;; (g (g)) Re Repl ply; y;



of interlocutory orders or interim relief orders; and (l) Petitio Petition n fo forr certi certiorari orari,, mandamus or prohibition against any interlocutory order.

 

Nature of Hearing 

SECT SE CTIO ION N 15. 15. Su Summ mmary ary H Hea eari ring  ng . — The

hearing on the petition shall be summary. However, the court, justice or judge may call

for a preliminary conference simplify the issues and determine the topossibility of obtaining stipulations and admissions from the parties.

 

 Judgment ment  Judg 

SECTIO SEC TION N 16 16.. Judg Judgme ment nt  — The court shall render judgment

within ten If(10) from the in timethethepetition petition are is submitted decision. thedays allegations proven for 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. 

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or  judge within five (5) work days. days.

 

Appeal 

SECTIO SEC TION N 19 19.. Appeal Appeal.. — Any party may appeal from

the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.





The period of appeal shall be five (5) work days from the date of notice of the judgment or final order. The appeal shall be given the same priority as habeas corpus and amparo cases.

 

Consolidation 



SECTION 21. Consolidation. — When a criminal crimin al action act ion is

filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed

subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall



continue to govern the disposition of the reliefs in the petition.

 

Effect of Filing of a criminal action 

SECTION 22. Effect of Filing of a Criminal Action .

 — When a criminal action has been commenced, 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. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeass da habea data. ta.

 

Lee vs. Ilagan, October 8, 2014 

Facts:: Ilagan and Lee were live-in-partners. Lee was able to obtain Facts the digital camera of Ilagan. founddemanded a sex video in it. Lee confronted Ilagan about it but Lee the latter for the return of his digital camera. Lee refused. Consequently, Ilagan banged Lee’s head against the wall. Lee filed a criminal case for violation of RA

9262. Still, Ilagan is demanding for the return of the digital camera. Lee refused. Ilagan filed a petition for habeas data against Lee to compel Lee to





produce thereof. the camera, as well as the negative and reproductions  Will the petition petition pr prosper? osper?

 

Lee vs. Ilagan, October 8, 2014 

NO.. NO



As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as "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."

 

Lee vs. Ilagan, October 8, 2014 

Thus, in order to support a petition for the issuance of such writ, Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among others, "[t]he manner the right to privacy is violated or

threatened and how it affects the right to life, liberty or security of the aggrieved party." In other words, the petition must adequately show that there exists a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other .  

A. M. No. 09-6-8-SC

Rules of Procedure for Environmental Environment al Cases

 

Coverage 

SECTION 2. Scope. — These Rules shall govern the

procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Cour ts, Municipal Trial Cour Courts ts in Cities, Municipal Municipal Trial

Courts and Municipal Circuit Trial Courts involving enforcement enforcem ent or violations of environmental and other related laws, rules and regulations such as but not limited to the following:

 

Procedure Rule II –Civil Pleadings and Parties 

SECTION 1. Pleadings SECTION Pleadings and Motions Allowed  Allowed . — The pleadings and motions that may be filed are complaint, answer which may include compulsory counterclaim and cross-claim, motion for intervention, motion for discovery

and motion for reconsideration of the judgment. Motion for postponement, motion for new trial and petition for relief from judgment shall be allowed in highly meritorious cases or to prevent a manifest miscarriage of  justice.



 

Procedure Rule II –Civil Pleadings and Parties 





SECTIO SEC TION N 2. Pr Prohi ohibit bited ed Plea Pleadin dings gs o orr M Moti otions ons. — The

following pleadings or motions shall not be allowed: (a) Motion to dismiss the complaint; (b)Motion for a bill of particulars;









(c)Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days; (d)Motion to declare the defendant in default; (e) Reply and rejoinder; and (e)Reply (f) Thi Third rd p party arty ccomp omplai laint. nt.

 

Procedure Rule II –Civil Pleadings and Parties 

SECTION 3. Verified Complaint.  — The verified complaint shall contain the names of the parties, their addresses, the cause of action and the reliefs prayed for.



The plaintiff shall attach to the verified complaint all evidence proving pro ving or supporting the cause of action consisting of the affidavits

of witnesses, documentary evidence and if possible, object evidence. The affidavits shall be in question and answer form and shall comply with the rules of admissibility of evidence evidence.. 

The complaint shall state that it is an environmental case and the law involved. The include a certification forum shopping. If thecomplaint complaint shall is notalso an environmental complaint,against the presiding  judge shall refer it to the executive executive judge for re-raffle. re-raffle.

 

Procedure Rule II –Civil Pleadings and Parties 

SECTION 4. Who May File. — Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law.



SECTION 5. Citizen Suit. — Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce

rights orcourt obligations under laws.contain Upon athe filing of a citizen suit, the shall issue anenvironmental order which shall 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 fifteen (15) days from noticeof thereof. plaintiffin may publish the order once in a newspaper a general The circulation the Philippines or furnish all affected barangays copies of said order.

 

Procedure Rule II –Civil Pleadings and Parties 

SECTION 6. Service of the Complaint on the Government Go vernment or Its Agencies.  — Upon the filing of the complaint, the plaintiff is required to

furnish the government or the appropriate agency, although not a party, a copy of the complaint. Proof of service upon the government or the appropriate agency shall be attached to the complaint.  

Procedure Rule II –Civil Pleadings and Parties 

SECTION 8. Issuance of Temporary Environmental Protection Order (TEPO).  — If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) 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 may be, may issue ex pa parte rte a TEPO effective for only seventy-two (72) hours  hours  from date of the receipt of the TEPO by the party or person enjoined. 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 ttermination ermination of the case. case .

 

Procedure Rule II –Civil Pleadings and Parties 

SECTION SECTI ON 10. Prohi Prohibit bition ion Ag Again ainst st Temporary Restraining Order (TRO) and Preliminary Injunction. — Except the

Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof.  

Procedural Flow Filing of

Trial – continuous; use of judicial affidavit; one

Submitted for decision within 60

Complaint

day examination rule

days

Issuance of summon s; Answer summons; should be filed

Pre-trial Conference; Consent Decree; Effect of failure to

Decision

 within 15 days

appear 

Filing of verified answer; subject to omnibus motion rule; Effect of failure to answer 

Preliminary Conference

Notice of Pre-trial; numerous pre-trial  within 2 months; Filing of pre-trial brief 

Referral to mediation

 

 JudgmentRule and 5Execution Execution 

SECTION 1. Reliefs in a Citizen Suit . — If warranted,

the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorney's fees,

costs of suit and other litigation expenses. 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 totocontribute toofa the special trust fund for that purpose subject the control court.

 

 JudgmentRule and 5Execution Execution

SECTION 2. Judgment Not Stayed by  Appeal. — Any judgment directing the performance of acts for the protection,



preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court.  

 JudgmentRule and 5Execution Execution 

SECTION 3. Permanent EPO; Writ of Continuing Mandamus.   —

In the or judgment, courtofmay convert the TEPO todirecting a permanent EPO issue athewrit continuing mandamus the performance of acts which shall be effective until the judgment is fully satisfied.



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.

 

Rule 6Public Participation Strategic Law Lawsuit suit Against 

SECTION 1. Strategic Lawsuit Against Public Participation (SLAPP). — 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 shall be treated as a SLAPP and shall be governed by these Rules.  

Rule 6Public Participation Strategic Law Lawsuit suit Against 

SECTION 2. SLAPP as a Defense; How Alleged . — In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights, 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.



The court shall direct the plaintiff or adverse party to file an opposition showing the suit is not a SLAPP, attaching evidence in support thereof, within a nonextendible period of five (5) days from receipt of notice that an answer has been filed.



The defense of a SLAPP shall be set for hearing by the court after issuance of the order to file an opposition within fifteen (15) days from filing of the comment or the lapse of the period.

 

Rule 6Public Participation Strategic Law Lawsuit suit Against 

SECTION 4. Resolution of the Defense of a SLAPP.  — The affirmative defense of a SLAPP shall be resolved within thirty (30) days after the summary hearing. 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 preju prejudice. dice. If the court rejects the defense of a SLAPP, the evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case. The action shall proceed in accordance with the Rules of Court.

 

Rule 7  Writ of Kalikasan 

SECTION 1. Nature of the Writ. — The writ is a remedy available to a natural or juridical person, entity authorized by law, people's organization, non-governmental 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. provinces .  

may file?  Who may 

Natural or juridical person, entity authorized by law, people's organization, non-governmental 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  

Rule 7  Writ of Kalikasan 



SECTION 2.Contents of the Petition. — The verified petition shall contain the following: (a)) Th (a The ep per erso sona nall ccir ircu cums msta tanc nces es of th the ep pet etit itio ione ner; r;



(b) Th (b) The e n nam ame e aand nd pe pers rson onal al ci cirrcu cums msta tanc nces es of th the e respondent or if the name and personal circumstances are unknown and uncertain, the respondent appellation; may be described by an assumed

 

Rule 7  Writ of Kalikasan 



SECTIO SEC TION N 2. Con Conten tents ts of the P Peti etitio tion. n. — The vveri erifie fied d peti petitio tion n shall contain the following: (c) The environmental law law,, rule or regulation viol violated ated or threatened to be violated, the act or omission complained of,



and the the environmental damage of of such magnitude as or to prejudice life, health or property inhabitants in two more cities or provinces. (d)All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence;

 

Rule 7  Writ of Kalikasan 



SECTION 2. Contents of the Petition. — The verified petition shall contain the following: (e) The certification certification of petitioner under oath that: (1) pet petitioner itioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim

is pending therein; (2) if there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days 

therefrom; and (f) The reliefs reliefs prayed prayed for for which may may include a pra prayer yer ffor or the issuance issuance of a TEP T EPO. O.

 

Rule 7  Writ of Kalikasan 

SECTION 3. Where to File. — The petition shall be filed with the

Supreme Court or with any of the stations of the Court Cour t of Appeals. 

May the writRTC? of kalikasan be filed  with RTC?  

Rule 7  Writ of Kalikasan 



SECTION 5. Issuance of the Writ . — Within three (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 Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of court includingreliefs the issuance a cease andorder. desist order andthe other temporary effectiveofuntil further

 

Rule 7  Writ of Kalikasan 

SECTION 8. Return SECTION Return of Responde Respondent; nt; Conte Contents. nts. —  — Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not violate or threaten to violate, or allow the violation of any environmental law, rule or regulation or commit any act resulting to

environmental envir onmental damage of such magnitude as to prejudice the life life,, health 





or property of inhabitants in two or more cities or pro provinces vinces.. All defenses not raised in the return shall be deemed waived. The return shall include affidavits of witnesses, docum documentary entary evidence, scientific or other expert studies, and if possible, object evidence, in support of the defense of the respondent. A general denial of allegations in the petition shall be considered as an admission thereof.

 

Rule 7  Writ of Kalikasan 





SECTION 9. Prohibited Pleadings and Motions. Motions . — The following pleadings and motions are prohibited: (a) Moti Motion on to dismi dismiss; ss; (b)Motion for extension of time to file return;













(c) Motion for for postp postponement; onement; (d)Motion (d) Motion for a bill of particul particulars; ars; (e)Counterclaim or cross-claim; (f) Thir Third-pa d-party rty com compla plaint; int; (g) Reply; and (h)Motion to declare respondent in default.

 

Rule 7  Writ of Kalikasan 

SEC ECT TION 1 11 1. Hearing. — Upon receipt of the return of the respondent, the court may call a preliminary conference to simplify the issues, determine the

possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing. The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.



 

Rule 7  Writ of Kalikasan

SECTION 15.Judgment. 15.Judgment. Within sixty (60) days from the time the



petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.  

Rule 7  Writ of Kalikasan 

SECTION 15. Judgment. Judgment. —



Relief may be granted: (a)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 envir onmental destruction or damage; (b) Dir Direct ecting ing the respo responde ndent nt public public offici official, al, gove governm rnment ent agency, private person or entity to protect, preserve, rehabilitate or restor restore e the environment; environment;

 

Rule 7  Writ of Kalikasan 

SECTION 15. Judgment. —





Relief may be granted: (c) Directing Directing the respon respondent dent public public officia official, l, governme government nt agency, private person or entity to monitor strict compliance with the decision

and orders of the court; 



(d) Directing the respondent public public official, government agency, agency, or private person or entity to make periodic reports on the execution of the final judgment; and (e) Such other other reliefs w which hich relat relatee to the right of the peo people ple 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.

 

Rule 7  Writ of Kalikasan 

SECTION 17. Institution of Separate Actions. — The filing of a

petition for the issuance of the writ of kalikasan  shall not preclude the filing of separate civil, criminal or administrative actions.  

Rule 8  Writ of Continuing Continuing Mandamus 

SECTION 1. Petition SECTION etition for Conti Continuing nuing Man Mandamus damus.. — When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specificall specificallyy 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, or unlawfully excludes

another from the use or enjoyment of such right and there is no other plain, speedy remedypetition in the ordinary coursecourt, of law,alleging the person aggrieved therebyand mayadequate file a verified in the proper the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the  judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping.  

Rule 8  Writ of Continuing Continuing Mandamus 

SECTION 2. Where to File the Petition.. — The petition shall be filed with Petition

the Regional Trial Court exercising  jurisdiction ov over er the territory where where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.  

Rule 8  Writ of Continuing Continuing Mandamus 

SECTION 4. Order to to Comment. — If the petition is sufficient in form and substance, the court shall issue the writ and require the

respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Such order 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.

 

Rule 8  Writ of Continuing Continuing Mandamus 

SECTION 5.Expediting Proceedings; TEPO.. — The court in which the petition TEPO

is may issue and suchitorders to expedite thefiled proceedings, may also grant a TEPO for the preservation of the rights of the parties pending such proceedings.

 

Rule 8  Writ of Continuing Continuing Mandamus 

SECTION 6. Proceedings After Comment is Filed.. — After the comment is filed or the time Filed for the filing thereof has expired, the court may

hear the case which shall be summary in nature or require the parties to submit memoranda. The petition shall be resolved without delay  within sixty (60) days days from from the date of the submission of the petition for resolution. resolution .  

Rule 8  Writ of Continuing Continuing Mandamus 

SECTION 7. Judgment. Judgment. — If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted

resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the  judgment, and the court may may, by itself or through a commissioner or the compliance. appropriate government evaluate and monitor compliance . The petitioner mayagency, submit its comments or observations on the executi execution on of the judgment.

 

 Writ of Kalikasan vs.Writ of C. Mandamus 

As to subject matter 



As to subject matter 



Directed against unlawful act or omission of any person or entity involving environmental damage



Directed against the unlawful neglect in the performance of an act which the law enjoins as

a duty from an office, trust or station in connection with the enforcement enforceme nt or violation of environmental law or unlawful

of such magnitude as to in two prejudice the inhabitants or more cities or provinces.

exclusion of another from the use or enjoyment of such right.

 

 Writ of Kalikasan vs.Writ of C. Mandamus 



As to who may file It is available to a broad range of persons such as natural or  juridical person, entity





As to who may file It is available to one

who is personally authorized law, people’s organization, bynon-governmental organization, or any public interest group accredited with

aggrieved by the unlawful unla wful act or

government agency, on behalf of persons whose right to balance and healthful ecology is violated.

omission

 

 Writ of Kalikasan vs.Writ of C. Mandamus 

As to respondent



As to who may file



Respondent may be private individual



Respondent is only the government or its officers

 

 Writ of Kalikasan vs.Writ of C. Mandamus  



As to venue A petition for the

As to venue It may be filed



issuance of a writ of kalikasan can only be filed in the SC or any stations of CA.

with the RTC, CA, SC

 

 Writ of Kalikasan vs.Writ of C. Mandamus 



As to discovery measure The rule incorporates



As to discovery measure

the procedural

The Rule does not

environmental right of environmental access to information through discovery

contain any provision for

measures such as ocular inspection order and production order

discover discov eryy measures

 

 Writ of Kalikasan vs. Writ of C. Mandamus 



As damages for to personal



Damages for personal injury It allows pa p ayment of



injury It does not allow payment of damages.

damages neglect offor themalicious performance of legal duty of the respondent

 

Rule 12 Custody and disposition of Seized Items, Equipment, Paraphernalia, Conveyances and Instrument 

SECTION 1. Custody and Disposition of

Seized Items. Items. — The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated by the concerned government agency.

 

Rule 12 Custody and disposition of Seized Items, Equipment, Paraphernalia, Conveyances and Instrument 

SECTION 2. Procedure. Procedure. — In the absence of applicable laws

or rules promulgated by the concerned government agency, the following procedure procedure shall be obser observed: ved: ◦

(a) 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.

 

Rule 12 Custody and disposition of Seized Items, Equipment, Paraphernalia, Conveyances and Instrument 

SECTION 2. Procedure. Procedure. — In the absence of applicable laws or rules promulgated by the concerned government agency, the

following procedure procedure shall be obser observed: ved: ◦

(b) 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 five (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.

 

Rule 12 Custody and disposition of Seized Items, Equipment, Paraphernalia, Conveyances and Instrument 

SECTION 2. Procedure. Procedure. — In the absence of applicable laws or rules promulgated by the concerned government agency, the following procedure

shall be observed: ◦

◦

(c) 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. (d) auction shallorbethe withowner noticethereof to the accused, person from whom the The items were sale seized, and the the concerned government agency.

 

Rule 12 Custody and disposition of Seized Items, Equipment, Paraphernalia, Conveyances and Instrument 

SECTION 2. Procedure. Procedure. — In the absence of applicable laws or rules promulgated by the concerned government agency, the

following procedure procedure shall be observed: obser ved: ◦

◦

(e) The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. (f) The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the  judgment.

 

Rule 19 Strategic Lawsuit Against Public Participation in Criminal C riminal Cases 

SECTION 2. Summary Hearing. Hearing . — The hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all the available evidence in support of their

respective positions. The party seeking the dismissal of the case must prove by substantial evidence that evidence that his acts for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP.  

Rule 19 Strategic Lawsuit Against Public Participation in Criminal C riminal Cases 

SECTION 3. Resolution. Resolution. — 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