Remedial Law Jurisprudence 2016.pdf

JURISTS BAR REVIEW CENTER™ UPDATES ON REMEDIAL LAW JURISPRUDENCE

Prof. Manuel R. Riguera

15 July 2016 5 pm to 9 pm CIVIL PROCEDURE

Jurisdiction MTC has exclusive jurisdiction over action for enforcement of an amicable settlement executed before the Barangay regardless of amount involved pursuant to Sec. 417 of the LGC. (Sebastian v. Lagmay, 22 April 2015). In civil action for damages arising from malicious prosecution, the SC held that the other forms of damages being prayed for by the plaintiff, e.g., exemplary damages, attorney’s fees, and litigation expenses, are not merely incidental to or consequences of the main action but constitute the primary relief prayed for by the complaint. (Sante v. Claravall, 22 February 2010). Family Courts have authority and jurisdiction to consider the constitutionality of a statute. (Garcia v Drilon, 25 June 2013) Under Sec. 34 of B.P. Blg. 129 re delegated jurisdiction in cadastral cases, the value of the lot is not to be determined from the selling price in the deed of sale annexed to the petition but rather from the value indicated in the tax declaration. (Republic v. Bantigue Point Dev‟t Corp, 14 March 2012). Action for cancellation of TCT is a real action and jurisdiction depends upon assessed value. (Padlan v. Dinglasan, 20 March 2013). Action for annulment of extrajudicial partition is incapable of pecuniary estimation even if ultimate relief sought is to recover possession/title of undivided shares. (Genesis Investment v. Heirs of Ebarasabal, 20 November 2013). An action to redeem land subject of a free patent pursuant to S119 of the Public Land Act is incapable of pecuniary estimation and not a real action. (Heirs of Bautista v Lindo, 10 March 2014). In an action for recovery of possession filed with the RTC, the failure to allege the assessed value of the land meant that the RTC did not acquire jurisdiction. The failure to allege the assessed value may be raised even in the CA as lack of jurisdiction may be raised at any time. (Heirs of Julao v. Sps. De Jesus, 29 September 2014). The factual allegations in a complaint should be considered in tandem with the statements and inscriptions on the documents attached to it as annexes or integral parts. The RTC should have considered the facts contained in the Declaration of Real Property attached to the complaint in determining whether the RTC had jurisdiction over the petitioner‟s case. A mere reference to the attached document could facially resolve the question on jurisdiction and would have rendered lengthy litigation on this point unnecessary. (Tumpag v. Tumpag, 29 September 2014). If an ordinary civil case filed with the RTC is mistakenly raffled to a Special Commercial Court, the latter should refer the case to the Executive Judge for re-docketing as an ordinary civil case rather than dismissing the same. (Gonzales v. GJH Land Inc., 10 November 2015, en banc). This overturns Home Guaranty Corp. v. R-II Builders, Inc., 9 March 2011. Docket fees

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Cases surveyed up to the period ending 31 May 2015, with some selected cases after such period. Recent cases in Special Proceedings and Evidence are in the relevant hand-outs. Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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The docket fees on the supplemental complaint should be paid at the time of the filing thereof and should not be treated as a first lien on the judgment award. Hence the supplemental complaint should be expunged if the docket fees thereon were not paid. The trial court nonetheless does not lose the jurisdiction it had acquired over the case with the filing of the original complaint. (Do-All Metal Industries, Inc. v. Security Bank Corp., 10 January 2011, Abad., J.) Action filed by stockholders to annul the issuance of shares of stock at a price below their par value is incapable of pecuniary estimation where the stockholders do not seek to be declared the owners or transferees of the shares. That the percentage holdings of the stockholders would be diluted does not make the same capable of pecuniary estimation. (Lu v. Lu Ym, G.R. No. 153690, 15 February 2011, e.b.). Having consistently sought the transfer of possession and control of the properties comprising the Asset Pool over and above the nullification of the Deed of Conveyance in favor of HGC, it follows R-II Builders should have paid the correct and appropriate docket fees, computed according to the assessed value thereof. (Home Guaranty Corp. v. R-11 Builders Inc., 22 June 2011). Rule 2. Cause of action S2 R2 defines a cause of action as “the act or omission by which a party violates a right of another.” The cause of action in Civil Case No. 276 and Civil Case No. 573 is the sale of the entire subject property by Basilia, et al., to petitioners without respondent‟s knowledge and consent, hence, depriving respondent of her rights and interests over her pro-indiviso share in the subject property as a co-heir and co-owner. The annulment of the sale of respondent‟s share in the subject property, the legal redemption by respondent of her co-heirs‟ share sold to petitioners, and the claim for damages should not be mistaken to be the causes of action, but they were the remedies and reliefs prayed for by the respondent to redress the wrong allegedly committed against her. Hence the withdrawal by respondent of his appeal from the RTC decision in CC 276 (which did not grant redemption to respondent) with the result that the judgment therein became final and executory precluded the respondent from filing CC 573 for legal redemption since the latter was barred by res judicata. (Selga v. Brar, 21 September 2011). Compulsory heir has cause of action to declare marriage void. (Garcia-Quiazon v. Belen, 31 July 2013). Rule 3. Parties to Civil Actions In an action for declaration of nullity of a free patent by a private person who alleges prior ownership of the property covered thereby, it is the private person and not the State who is the real party-ininterest. This should be distinguished from a reversion case wherein the purpose is to revest title in the State not a private person. (Soquillo v. Tortola, 23 July 2012). Stewards may be allowed to file R65 to enforce environmental laws not in representation of marine mammals but in their own right by way of a citizen suit which allows any Filipino citizen, as a steward of nature, to bring suit to enforce envi laws. (Resident Marine Mammals v. Reyes, 21 April 2015). In a collection suit brought by non-resident plaintiffs as represented by their attorney-in-fact, the real parties-in-interest are the plaintiffs pursuant to S3 R3. Hence the venue should have been laid in the place where the defendant resides and not where the attorney-in-fact resides. (Ang v. Ang, 22 August 2012). The action for reconveyance should have been brought against the registered owner Emmanuel and not his mother Carmencita. The lower courts justified the filing of the action against Carmencita on the ground that she was the attorney-in-fact of Emmanuel. Even assuming that Carmencita was Emmanuel‟s attorney-in-fact, the real party in interest was still Emmanuel who should have been impleaded in the complaint pursuant to S3 R3. Hence the action failed to state a cause of action and must be dismissed. (Guizano v. Veneracion, 12 September 2012). In a suit against the co-owners of JD Grains Center, the daughter Ang and the mother Deyto, the daughter is an indispensable party. Hence summons by publication should be made upon her if she Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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could no longer be located. Otherwise the case cannot proceed. (Pua v. Deyto, 26 November 2012, Brion, J.) In an action for the cancellation of memorandum annotated at the back of a certificate of title, the persons considered as indispensable include those whose liens appear as annotations pursuant to Section 108 of P.D. No. 1529 (Crisologo v JEWM Agro-Industrial Corp., 3 March 2014). In an action for cancellation of a loan contract entered into between a municipality and the Land Bank, filed by a taxpayer against LBP and the municipal officers, the municipality itself is an indispensable party. Hence all decisions up to SC were set aside and case remanded to RTC for disposition on the merits. (LBP v Cacayuran, 22 April 2015). Dismissal of a petition under Rule 42 on the ground that the notice of death was belatedly filed by counsel was uncalled for. The same is a ground not for the dismissal of the case but for disciplinary proceedings against the counsel. The CA should have ordered the representatives to appear and be substituted rather than perfunctorily dismissing the case pursuant to S16 R3. (Regalado v. Regalado, 6 June 2011). Rule 4. Venue An action to recover the deficiency after extrajudicial foreclosure of a real estate mortgage is a personal action since it does not affect title to or possession of real property or any interest therein. (BPI Family Bank v Yujuico, 22 July 2015) A real estate mortgage over a property in Paranaque City contained a stipulation that the exclusive venue is in Makati City. The mortgagors filed their action for annulment of the foreclosure sale in Paranaque and the mortgagee filed its petition for extrajudicial foreclosure also in Paranaque. While the venue of the annulment action was improperly laid, that is not the case with the petition for extrajudicial foreclosure. The extrajudicial foreclosure sale of a real estate mortgage is governed by Act No. 3135. Thus the sale can be made only in Paranaque where the realty is located pursuant to Section 2 of Act No. 3135. The exclusive venue of Makati City, as stipulated by the parties and sanctioned by Section 4, Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial Foreclosure filed by respondent bank because the provisions of Rule 4 pertain to venue of actions, which an extrajudicial foreclosure is not. (Ochoa v. China Banking Corp., 23 March 2011). The venue stipulation in the restructuring agreement, which mentions the real estate mortgage, covers an action to annul the mortgage. The phrase “waiving any other venue” denotes exclusivity. The action was properly filed in Makati although the realty was in Cebu because of the exclusive venue stipulation in the restructuring agreement. (Paglaum Mgt & Dev‟t Corp. v. Union Bank, 18 June 2012). Rule 6. Kinds of pleadings Where the mortgagee after an extrajudicial foreclosure, had filed an action for the deficiency, the mortgagor‟s claim for the nullification of the extrajudicial foreclosure is a compulsory counterclaim which cannot be set up in a separate action. (Sps. Mendiola v. CA, 18 July 2012). In an action filed by a former mortgagor to nullify GSIS‟s bid award of the foreclosed property to a corporation, GSIS‟s claim for the former mortgagor to pay rentals he collected from the corporation over the foreclosed property is a permissive counterclaim. The evidence needed by the former mortgagor to nullify the bid award is different from the evidence needed by GSIS to prove its claim to the rentals. Likewise the issue of the validity of the bid award is not related to GSIS‟s right to collect rentals which is based on its acquisition of ownership after the former mortgagor‟s failure to redeem. Since GSIS did not pay docket fees on the permissive counterclaim, the award thereof was null and void for failure of the trial court to acquire jurisdiction over it. (GSIS v. Caballero, 4 October 2010). Action for deficiency filed by the mortgagee bank. The mortgagor‟s claim for refund of the excess over the bid price was a compulsory counterclaim. On appeal, the CA cannot award refund even if excess was raised as a defense because contrary to S2 R9. (Metrobank v. CPR Promotions, 22 June 2015, Velasco, J.). Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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In a complaint by a distributor against Bayer Phils. for abuse of right in terminating a distributorship contract, the latter‟s counterclaim for unpaid accounts under the distributorship contract is a permissive counterclaim as it involves different issues and evidentiary requirements. Nonetheless the trial court should not have dismissed the counterclaim but should have given Bayer reasonable time but not within the reglementary period to pay the docket fee. This was because Bayer honestly thought that the counterclaim was compulsory by virtue of the trial court‟s earlier order denying the motion to strike out the counterclaim. (Calibre Traders Inc. v. Bayer Phils., 13 October 2010). In an action for breach of contract of carriage commenced by a passenger (Paras) against his common carrier (Inland), the plaintiff can recover damages from a third-party defendant (Philtranco) brought into the suit by the common carrier upon a claim based on tort or quasi-delict. The apparent objective of Inland was not to merely subrogate the third-party defendants for itself, as Philtranco appears to suggest, but, rather, to obtain a different relief whereby the third-party defendants would be held directly, fully and solely liable to Paras and Inland for whatever damages each had suffered from the negligence committed by Philtranco and its driver. In other words, Philtranco and its driver were charged here as joint tortfeasors who would be jointly and severally be liable to Paras and Inland. Thus Philtranco may be held liable in moral damages to Paras. (Philtranco Service Enterprises v. Paras, 25 April 2012). Rule 7. Parts of a Pleading There can be forum shopping even if the violator was a respondent in the earlier case and the petitioner in the latter case where she had sought the same relief (application for protection order) in both cases. (Brown-Araneta v Araneta, 9 October 2013). A violation of the rule against forum-shopping other than a willful and deliberate forum shopping did not authorize the RTC to dismiss the proceeding without motion and hearing. Specifically, the submission of a false certification of non-forum shopping did not automatically warrant the dismissal of the proceeding, even if it might have constituted contempt of court, for Section 5, Rule 7, of the 1997 Rules of Civil Procedure is clear on the matter. (In re: Reconstitution of TCTs 3031684 & 303169, G.R. 156797, 6 July 2010). All the petitioners must sign the petition even if there is a common cause of action. Liberality may be extended if the one signing is a relative of the other petitioners. Here however the one signing the CFS was not a relative of the other petitioners nor did he show any authorization from the other petitioners to sign the CFS. (Formoso v. PNB, 1 June 2011). The certification against forum shopping is required only in a complaint or other initiatory pleading. The ex parte petition for the issuance of a writ of possession filed by the respondent pursuant to Act No. 3135 is not an initiatory pleading. Although the private respondent denominated its pleading as a petition, it is, nonetheless, a motion. (Metrobank v. Abad Santos, 15 December 2009, Brion, J.). Corporate officers who can sign the verification and certification against forum-shopping without need of an authorizing board resolution: (1) Chairperson of the board of directors, (2) President, (3) General Manager or acting general manager, (4) Personnel Officer, and (5) Employment Specialists in a labor case. (Mid-Pasig Land Dev‟t Corp. v. Tablante, 4 February 2010). In ejectment case, the CFS may be executed and signed by attorney-in-fact who had authority to file and did file the complaint. (Monasterio-Pe v. Tong, 23 March 2011). Non-compliance with S5 R7 (no board reso/sec cert to show that Atty. Lat authorized by corp) may be raised for first time during pretrial since issue of jurisdiction may be raised at any stage, even on appeal. (Cosco Phils. Shipping v. Kemper Insurance Co., 23 April 2012). Non-inclusion of phrase “or based on authentic records” does not render verification defective. (Heirs of Mesina v. Heirs of Fian, 8 April 2013). Rule 8

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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S5 R8 requires that in all averments of fraud, the circumstances constituting fraud must be stated with particularity. The mere invocation of the words "surreptitiously and fraudulently" does not make the allegation particular. (Villalon v. Lirio, 3 August 2015) BPI‟s cause of action is not based only on the document containing the Terms and Conditions accompanying the issuance of the BPI credit card in favor of Ledda. Therefore, the document containing the Terms and Conditions governing the use of the BPI credit card is not an actionable document contemplated in Section 7, Rule 8 of the 1997 Rules of Civil Procedure. As such, it is not required by the Rules to be set forth in and attached to the complaint. (Ledda v. BPI, 21 November 2012). Implied admission rule under S8 R8 does not apply to a plaintiff who files a reply not under oath if the verified complaint already traverses the actionable document attached to the answer. (Titan Construction Corp. v. David, 15 March 2010). Rule 9 Under the 1997 Rules, grounds other than lack of subject matter jurisdiction, res judicata, lis pendens, and prescription are deemed waived if not raised either in the motion to dismiss or in the answer. Failure to state a cause of action was deleted as an exception to the waiver rule. Although S2(g) R18 provides that the court during the pretrial may consider the propriety of dismissing the action should a valid ground therefor be found to exist, this applies only to the issues that would govern the trial proper. The issue of failure to state a cause of action can no longer be taken up by the trial court since it had been waived under S1 R9. (Pacana-Contreras v. Rovila Water Supply, Inc., 2 December 2013). A defendant against whom a default judgment was rendered is not precluded on appeal from challenging the judgment on the ground that the same is contrary to the law and the evidence. Hence the defendant on appeal may challenge the evidence received as unauthenticated and as hearsay. (Otero v. Tan, 15 August 2012). The issue of the propriety of the Order of Default had already been adjudicated in Tansipek‟s Petition for Certiorari with the Court of Appeals. As such, this issue cannot be readjudicated in Tansipek‟s appeal of the Decision of the RTC on the main case. Once a decision attains finality, it becomes the law of the case, whether or not said decision is erroneous. Having been rendered by a court of competent jurisdiction acting within its authority, the judgment may no longer be altered even at the risk of legal infirmities and errors it may contain. (Banco de Oro v. Tansipek, 22 July 2009) A judgment by default which awards a relief greater than that prayed for is a nullity as to the excess since the defendant‟s right to due process was violated. Hence the same may be set aside under R47 even if the default judgment had become final and unappealable. (Diona v. Balangue, 7 January 2013). Rule 10 Judicial admission by defendant in answer that she owes P200,000 only was overridden by introduction by defendant of evidence of payment (a receipt) without objection on the part of the plaintiff. The answer was impliedly amended pursuant to S5 R10. (Sps. Dela Cruz v. Concepcion, 11 October 2012). Rule 13 Filing & Service of Pleadings Service and filing of pleadings by courier service is a mode not provided in the Rules. Since there was no motion for reconsideration properly and timely filed, the judgment against the defendant became final and executory. (Palileo v. Planters Dev‟t Bank, 8 October 2014). Service of judgment on security guard of building where counsel‟s office is located is valid and binding. (Mendoza v. Court of Appeals, 15 July 2015). Rule 14. Service of summons Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Under S7(b) R14, it is not necessary that the person in charge of defendant‟s regular place of business be specifically authorized to receive the summons. It is enough that he appears to be in charge. A secretary would be properly considered as a person in charge. (Gentle Supreme Phils. Inc. v. Consulta, 1 September 2010). Substituted service done in one day and in two tries only upheld by SC where the defendants were roving newspapermen who most often were out of the office (Abante Tonite). (Macasaet v Co, 5 June 2013). As a basic principle, courts look with disfavor on piecemeal arguments in motions filed by the parties. Under the omnibus motion rule, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available. The defendant should raise the affirmative defense of lack of jurisdiction over his person in the very first motion to dismiss. Failure to raise the issue of improper service of summons in the first motion to dismiss is a waiver of this defense and cannot be belatedly raised in succeeding motions and pleadings. Such amounted to a voluntary appearance which is equivalent to service of summons under S20 R14. (Tung Ho Steel Enterprises Corp. v. Ting Guan Trading Corp., 7 April 2014). Under S16 R14, extraterritorial service is not mandatory nor is it the sole mode of serving summons. S16 R14 uses the word “may.” Even assuming that there was improper service of summons, the filing of a motion for extension of time to file answer by defendant was a voluntary appearance which is equivalent to service of summons. (Palma v. Galvez, 10 March 2010). The second sentence of S20 R14 merely mentions other grounds in a Motion to Dismiss aside from lack of jurisdiction over the person of the defendant. This clearly refers to affirmative defenses, rather than affirmative reliefs. Hence if Defendant aside from filing a motion to dismiss filed a motion to take deposition and to serve written interrogatories from the court, he is deemed to have submitted to the court‟s jurisdiction because he asked for affirmative reliefs. (NM Rothschild & Sons [Aus] Ltd v Lepanto Consolidated Mining Co., 28 November 2011). Rule 15. Omnibus motion rule (S8 R15) applicable to a motion for reconsideration of a judgment. Hence on appeal, the movant could no longer assign as error a ground which he did not raise in his motion for reconsideration before the RTC. (Home Dev‟t Mutual Fund v. Sps. See, 22 June 2011). Rule 16. Motion to dismiss Where an ejectment complaint was filed in behalf of the plaintiff by a purported attorney-in-fact, but the latter did not show any competent proof of his authority, the court never acquired jurisdiction over the case as it did not acquire jurisdiction over the plaintiff. Since this involves the trial court‟s jurisdiction, such ground may be raised even on appeal. (Palmiano-Salvador v. Angeles, 3 September 2012). Under the 1997 Rules of Civil Procedure, it is now explicitly provided that the dismissal of the complaint due to failure of the plaintiff to prosecute his case is “without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action.” (S3 R17). The effect of this amendment is to abandon previous rulings that the dismissal of a complaint carries with it the dismissal of the counterclaims. While S3 R17 refers to instances covered by Section 3, Rule 17 on dismissal of complaints due to the fault of plaintiff, it does not preclude the application of the same rule when dismissal is at defendant‟s instance. The court‟s jurisdiction over respondent‟s complaint is not to be confused with jurisdiction over petitioner‟s counterclaim. (Padilla v. Globe Asiatique Realty Corp., 6 August 2014). Q May a corporation file a case after its dissolution and the lapse of the 3-year grace period provided for in Section 122 of the Corporation Code? A No. In such a case the corporation petitioner lacks capacity to sue because it no longer possesses juridical personality by reason of its dissolution and lapse of the three-year grace period Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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provided for under Sec. 122 of the Corporation Code. The case was properly dismissed on ground of lack of legal capacity to sue. (Alabang Dev‟t Corp. v. Alabang Hills Village Association, 2 June 2014). (Note: It is believed that the more precise ground for dismissal is failure to state a cause of action since the dissolved corporation cannot be a real party in interest. [S1 & S2 R3]). Rule 17 Q Respondents filed a complaint for declaration of nullity of titles against Petitioner before the RTC Manila which was raffled to Branch 6. Petitioner filed a motion to dismiss on the ground of lack of subject-matter jurisdiction which was granted. Upon motion the Respondents were given 15 days to file the appropriate pleading. They did not do so. Respondents then filed a complaint for annulment of extrajudicial settlement and titles with RTC Manila which was raffled to Branch 20. When Branch 20 was made aware of the first case, it issued an order transferring the case to Branch 6, considering that the case before it involved substantially the same parties and causes of action. In November 2002, before the service of any responsive pleading upon them, the Respondents filed a motion to dismiss their complaint in the second case, praying that it be dismissed without prejudice. The motion was granted and the case dismissed without prejudice. Subsequently the Respondents filed with the RTC Manila a complaint for annulment of extrajudicial settlement and titles. All 3 complaints are based on the same claim. Petitioner filed a motion to dismiss on the ground of res judicata invoking the two-dismissal rule and also S3 R17. The Petitioner argues that when Respondents failed to file the appropriate pleading they violated the order of the court thereby making the dismissal with prejudice pursuant to S3 R17. Should the motion to dismiss be granted? A No. In order for the two-dismissal rule to apply, both dismissals must be at the instance of the plaintiff. Here the first dismissal was at the instance not of the plaintiff but of the defendant (Petitioner). What governs therefore is S2 R17 which provides that the dismissal shall be without prejudice. (Note: Moreover for the two-dismissal rule to apply, the second dismissal must be upon notice [S1 R17]. Here the second dismissal was upon motion not notice; hence the two-dismissal rule was not applicable). Nor does S3 R17 apply. The trial court dismissed the first case by granting the motion to dismiss filed by the defendants. When it allowed Respondents a period of 15 days to file an appropriate pleading, it was merely acquiescing to a request made by the plaintiff‟s counsel that had no bearing on the dismissal of the case and which after all is a right of the Respondents. The nonexercise of a right will not amount to a violation of a court order. (Ching v. Cheng, 8 October 2014). Rule 18 Order of court declaring defendant in default for failure to attend pretrial a mere semantic defect if same procedure (ex parte presentation of evidence) was followed. (Philam Life Ins. Co. v. Enerio, 15 September 2010). A notice of pretrial is mandatory and the absence thereof renders all subsequent proceedings and orders null and void. Here the notice of the trial court merely required PNB to attend and to produce the statements of account of the plaintiff. There was nothing therein that the hearing was for pretrial. Hence the action of the trial court during the hearing declaring it as a pretrial and allowing the plaintiffs to present evidence ex parte was invalid. (PNB v. Sps. Perez, 15 June 2011). Rule 19. Intervention Absent a showing that the corporation has been dissolved and is in the process of liquidation, its stockholders have no personality or interest to intervene in a litigation involving corporate property. (PNB v. Aznar, G.R. 171805, 30 May 2011). It was improper for the trial court to direct the defendant‟s transferee pendente lite to file a motion for intervention. A transferee pendente lite is not a stranger. The proper procedural device is for the transferee to file a motion for substitution or joinder under S19 R3. The case could also have been tried against the original defendant (the transferor) even without the substitution or joinder. (Heirs of Medrano v. De Vera, 9 August 2010). Intervention may not be availed of by a person who is not a stranger but already a party to the proceedings as where it was impleaded and summons served upon it. (Board of Regents of MSU v. Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Osop, 22 February 2012). While undoubtedly, MSU has a legal interest in the outcome of the case, it may not avail itself of the remedy of intervention in CA-G.R. SP No. 82052 simply because MSU is not a third party in the proceedings herein. In Osop‟s Amended Complaint before the RTC, MSU was already impleaded as one of the defendants in Civil Case No. 6381. MSU came under the jurisdiction of the RTC when it was served with summons. It cannot now circumvent the finality of the RTC Orders by seeking to intervene in CA-G.R. SP No. 82052 and thereby, to unduly benefit from the timely action taken by Muslim, who alone, filed the Petition in CA-G.R. SP No. 82052. (Id.) An attorney may intervene to protect his rights under a contingent fee agreement pursuant to S26 R138. (Malvar v Kraft Foods Phils Inc., 9 Sep 2013). Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Otherwise stated, the right of an intervenor should only be in aid of the right of the original party. Where the right of the latter has ceased to exist, there is nothing to aid or fight for; hence, the right of intervention ceases. (Pulgar v. RTC of Mauban, Quezon, 10 September 2014). Discovery The consolidation here was merely for purposes of joint trial but each case retained its separate character and required the entry of a separate judgment. The consolidation did not merge CC No. 0009 and CC No. 0130 into a single action and cause the parties in one to be the parties to another. Thus the deposition was not taken in CC No. 0009 but in a separate or former proceeding, CC No. 0130, in which case the requirements of S47 R130 requiring identity of parties applies. Since the Respondents were not parties to CC No. 0130, the deposition taken therein was hearsay as against them and inadmissible upon proper and timely objection. (Republic v. Sandiganbayan, G.R. 152375, 16 December 2011, Brion, J.). Section 6, Rule 25 of the Rules of Court (Rules) provides that "a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court." Where the adverse party was a corporation, the bar on being compelled to testify extends to the corporation‟s officers. (Sps Afulugencia v Metrobank, 5 Feb 2014). S5 of the Judicial Affidavit Rule expressly excludes from its application adverse party and hostile witnesses. Enough for the party calling the adverse party witness to serve beforehand written interrogatories pursuant to S6 R25. (Ng Meng Tam v. China Banking Corp., 5 August 2015). Assignment of loan and related documents may be subject of request for production by debtor under R27. (Eagleridge Dev‟t Corp. v Cameron Granville 3 Asset Mgt, 10 April 2013). Rule 31. Consolidation and Severance Kinds of consolidation: 1. QUASI-CONSOLIDATION. Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. 2. ACTUAL CONSOLIDATION. Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. 3. CONSOLIDATION FOR TRIAL. Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (See Republic v. Sandiganbayan, 16 December 2011). A consolidated case may be appealed separately, (Republic v Oribello, 6 March 2013). Rule 33. Demurrer to Evidence

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Being considered a motion to dismiss, a demurrer to evidence must clearly be filed before the court renders its judgment. In this case, respondents demurred to petitioners' evidence after the RTC promulgated its decision. While respondents' motion for reconsideration and/or new trial was granted, it was for the sole purpose of receiving and offering for admission the documents not presented at the trial. As respondents never complied with the directive but instead filed a demurrer to evidence, their motion should be deemed abandoned. Consequently, the RTC's original Decision stands. (Gonzales v. Bugaay, 22 February 2012). Q In a demurrer to evidence, may the movant present evidence in support of his motion? A No. What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is entitled to the relief based on the facts and the law. The “facts” referred to should include all the means sanctioned by the Rules of Court in ascertaining matters in judicial proceedings. These include judicial admissions, matters of judicial notice, stipulations made during the pre-trial and trial, admissions, and presumptions, the only exclusion being the defendant’s evidence. (GMA Network Inc. v. Central CATV, Inc., 18 July 2014). Rule 34. Judgment on the Pleadings When what are left are not genuine issues requiring trial but questions regarding the proper interpretation of a contract, a judgment on the pleadings is proper. In the case at bar, the issue of whether the sale of DMCI shares to effectuate the buy back of the KKP shares is valid can be decided by the trial court based on the Securities Dealings Accounts Agreement, Notices of Sale, Sales Confirmation Receipts, the letters of the parties, and other appendages to the pleadings in conjunction with the allegations or admissions contained in the pleadings without need of trial. The Makati City RTC was correct in granting the Motion for Judgment on the Pleadings. (Pacific Rehaus v Export & Industry Bank, 13 October 2010). Rule 35. Summary Judgment A partial summary judgment as a rule is not appealable separately from the judgment in the entire case, unless allowed by the court under S1(g) R41. Hence the failure to appeal separately from a partial summary judgment or to challenge it by a special civil action for certiorari does not make the same final and executory. (Philippine Business Bank v. Chua, 15 November 2010). Rule 36. Judgments A dismissal order tersely read as follows: “For failure of the Plaintiff, to prosecute, the case is hereby dismissed.” The same is an adjudication on the merits and thus should have stated the facts on which it is based pursuant to S1 R36. Failure to comply therewith renders the order null and void. (Shimizu Phils Contractors v. Magsalin, 20 June 2012). Rule 38 Advanced age of counsel (80) does not constitute mistake and excusable negligence. (Madarang v. Sps. Morales, 9 June 2014). Rule 39 Execution pending appeal is not applicable in a land registration proceeding and the certificate of title thereby issued is null and void. (Top Management Programs Corp. v. Fajardo, 15 June 2011). S6 R39 not applicable to ex parte petition for issuance of writ of possession under Sec. 7 of Act No. 3135. (Sps Topacio v. Banco Filipino, 17 November 2010). Q Respondents filed an action for cancellation of title against Petitioner (Civil Case No. 15357). The RTC, in this case, cancelled the titles of the petitioner and his father Jose because they were obtained through the misrepresentation of the petitioner‟s grandfather, Isidro Campit. The judgment became final and unappealable in July 1979. The respondents have long desired to divide the subject property among themselves, but the petitioner adamantly refused to surrender his title to the property to them, or to the Register of Deeds, despite their formal demand. Due to the petitioner‟s continued Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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refusal to surrender the subject TCT, the respondents filed anew an action for annulment and cancellation of title with the RTC in August 2003, docketed as Civil Case No. 18421. The petitioner opposed the respondents‟ action and argued that the August 1978 decision in Civil Case No. 15357, which declared his title null and void, could no longer be enforced because its execution was already barred by the Statute of Limitations, as the said decision was never executed within 10 years from July 19, 1979 - the date of finality of the judgment. Is the petitioner‟s opposition valid? A No. Considering that the action for annulment and cancellation of title filed by the respondents is substantially in the nature of an action for reconveyance based on an implied or constructive trust, combined with the fact that the respondents have always been in possession of the subject property, Civil Case No. 18421 may be treated as an action to quiet title, the filing of which does not prescribe. Thus, the respondents‟ filing of Civil Case No.18421 was proper and not barred by the time limitations set forth under the Rules of Court in enforcing or executing a final and executory judgment. (Campit v. Gripa, 17 September 2014). Even just one of the co-owners, by himself alone, can bring an action for the recovery of the co-owned property, even through an action for revival of judgment, because the enforcement of the judgment would result in such recovery of property. Any which one of said prevailing parties, who had an interest in the enforcement of the decision, may file the complaint for revival of judgment, even just by himself. (Clidoro v. Jalmanzar, 9 July 2014). The “some other person appointed by the court” under S10(a) R39 can be the Branch Clerk of Court, the Sheriff, or even the Register of Deeds, and their acts when done under such authority shall have the effect of having been done by Raymundo himself. A party cannot frustrate execution of a judgment for a specific act on the pretext of inability to do so as the Rules provide ample means by which it can be satisfied. (Raymundo v Galen Realty, 16 October 2013). Section 8(g) of R.A. No. 9262 (VOWCHI), being a later enactment, should be construed as laying down an exception to the general rule that retirement benefits are exempt from execution. The law itself declares that the court shall order the withholding of a percentage of the income or salary of the respondent by the employer, which shall be automatically remitted directly to the woman “[n]otwithstanding other laws to the contrary.” Section 8(g) of R.A. No. 9262 used the general term “employer,”which includes in its coverage the military institution, S/Sgt. Yahon‟s employer. Where the law does not distinguish, courts should not distinguish. Thus, Section 8(g) applies to all employers, whether private or government. (Republic v. Yahon, 16 June 2014). We emphasize that the exception provided under Section 33, Rule 39 of the Rules of Court contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary, who possesses the property in his own right, and is not merely the successor or transferee of the right of possession of another co-owner or the owner of the property. Here, the respondent cannot be said to possess the subject property by adverse title or right as her possession is merely premised on the alleged conditional sale of the property to her by the judgment debtor/mortgagor. The execution of a contract of conditional sale does not immediately transfer title to the property to be sold from seller to buyer. In such contract, ownership or title to the property is retained by the seller until the fulfillment of a positive suspensive condition which is normally the payment of the purchase price in the manner agreed upon. (Cabling v. Lumapas, 18 June 2014). Pursuant to S43 R39, in the examination of a person, corporation, or other juridical entity who has the property of such judgment obligor or is indebted to him, and such person, corporation, or juridical entity denies an indebtedness, the court may only authorize the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt. Nothing in the Rules gives the court the authority to order such person or corporation to pay the judgment oblige and the court exceeds its jurisdiction if it orders the person who denies the indebtedness to pay the same. (Esguerra v Holcim, 2 Sep 2013). A foreign divorce decree cannot be registered in the civil registry unless it is first recognized by a Philippine court. The recognition of the foreign divorce decree however by itself does not authorize the cancellation of the entry in the civil registry. The proper proceeding is a petition for cancellation of

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entry under R108. The recognition of the foreign divorce decree may be made in the same R108 proceeding. (Corpuz v. Sto. Tomas, 11 August 2010, Brion, J.). Appeal S8 R51 not applicable to an appeal under R40 because of S7(c) R40. (Adora v. Zamora, 30 May 2011). Appeal may be allowed from an order of execution where there has been a change in the situation of the parties (in this case, execution of a quitclaim by judgment obligee) making execution inequitable or unjust. (PAGCOR v. Aumentado, 22 July 2010). The mere fact that a trial court had given due notice to the appeal and ordered the transmittal of the records to the CA does not mean that it had lost jurisdiction where the docket fees had not been paid. Hence the trial court could still rule upon the motion to dismiss appeal and to issue a writ of execution. (Gonzales v. Pe, 9 August 2011). P filed cases against A, B, C, and D. D filed a motion to dismiss on the ground that there was no proper service of summons upon her. The RTC granted the motion to dismiss. The SC held that the availment of the special civil action for certiorari was proper since the dismissal order is in the nature of a several judgment under S1(g) R41 which may not be the subject of appeal. (Palma v. Galvez, 10 March 2010). Cruz filed case vs MIAA. MIAA filed motion to dismiss on ground of forum shopping and improper venue. RTC granted motion to dismiss on ground of forum shopping but ruled that venue was properly laid. Cruz appealed to CA. In its appellee‟s brief, MIAA again raised the ground of improper venue. CA reversed saying that while there was no forum shopping, venue was improperly laid. Held: Appellee cannot raise improper venue on appeal as it can argue only to sustain the judgment and not to impugn its correctness. It was therefore reversible error for CA to rule that the case should be dismissed for improper venue. SC ordered remand to RTC. (Cruz v MIAA, 9 Sep 2013) Neypes Rule not applicable to administrative appeals, such as appeal from HLURB Board of Commissioners to the Office of the President. (San Lorenzo Ruiz Builders Inc. v. Bayang, 20 April 2015). Rule 42. An appeal from an RTC decision in a R65 case should be by way of R41 (ordinary appeal) and not by R42 (petition for review), even if the R65 case dealt with an interlocutory order of the MTC. The reason is that in R65, the RTC is acting in the exercise of original not appellate jurisdiction. (Heirs of Garcia v. Mun. of Iba, Zambales, 22 July 2015). An appeal from the decision of the RTC, sitting as a Special Agrarian Court, is made by way of Rule 42 and not Rule 41, pursuant to Section 60 of R.A. No. 6657 or the CARL. (Landbank v. CA, 11 April 2011). Section 119 of the Local Government Code provides that the decision of the sanggunian concerned may be appealed to the RTC having jurisdiction over the area in dispute, within the time and manner prescribed by the Rules of Court. In the case at bar, it is clear that when the case was appealed to the RTC, the latter took cognizance of the case in the exercise of its appellate jurisdiction, not its original jurisdiction. Hence, any further appeal from the RTC Decision must conform to R42 not R41. (Brgy. Sangalang v. Brgy. Maguihan, 23 December 2009). Rule 47. Annulment of judgments In an appealed ejectment case, the RTC acted in excess of its jurisdiction when instead of simply dismissing the ejectment complaint, it ordered the lessors to execute a deed of sale in favour of the lessees. The remedy however of the lessors is to appeal the RTC judgment not to file an action for annulment under R47. Lack of jurisdiction as a ground for annulment of judgment refers to either lack Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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of jurisdiction over the person of the defending party or over the subject matter of the claim. In a petition for annulment of judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an absolute lack of jurisdiction. (Sps. Manila v. Sps. Manzo, 7 September 2011). Rule 57. Preliminary attachment Preliminary attachment not lifted by execution of compromise agreement, even if the same has been approved by the court, especially where the obligations thereunder have not yet been satisfied. (Lim v Sps Lazaro, 3 July 2013) The “deposit” referred to in S2 R57 which the adverse party may make in order to stop the attachment refers to a cash deposit. The remedy of the adverse party in lifting the attachment is through a cash deposit or the filing of the counter-bond. (Luzon Dev‟t Bank v Krishnan, 13 April 2015). Rule 58. Preliminary Injunction. A writ of preliminary injunction is deemed dissolved or lifted upon the dismissal of the main case, even if such dismissal is appealed. Hence the defendants cannot be cited for contempt if they close the right of way. (Buyco v. Baraquia, 21 December 2009). Preliminary injunction proper to restrain registered owner from possessing land where it bought the land with registered adverse claim and lis pendens thereon filed by applicant. (Lukang v Pagbilao Dev‟t Corp., 10 March 2014). Rule 62. Interpleader An adverse claimant in an interpleader case may be declared in default. Under Rule 62, Section 5 of the 1997 Rules of Civil Procedure, a claimant who fails to answer within the required period may, on motion, be declared in default. The consequence of the default is that the court may “render judgment barring [the defaulted claimant] from any claim in respect to the subject matter.” The Rules would not have allowed claimants in interpleader cases to be declared in default if it would “ironically defeat the very purpose of the suit.” (Lui Enterprises v Zuellig Pharma, 12 March 2014). Rule 65. Certiorari, prohibition, and mandamus Although intervention under R19 could have been availed of, failing to use this remedy should not prejudice Spouses Crisologo and preclude them from availing of certiorari under R65. It is the duty of RTC-Br. 14, following the rule on joinder of indispensable parties, to simply recognize them, with or without any motion to intervene. Through a cursory reading of the titles, the Court would have noticed the adverse rights of Spouses Crisologo over the cancellation of any annotations in the subject TCTs. (Crisologo v JEWM Agro-Industrial Corp., 3 March 2014). An aggrieved party under S1 R65 is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65. Although S1 R65 provides that the special civil action of certiorari may be availed of by a "person aggrieved" by the orders or decisions of a tribunal, the term "person aggrieved" is not to be construed to mean that any person who feels injured by the lower court‟s order or decision can question the said court‟s disposition via certiorari. Hence a person not a party to the proceedings subject of certiorari cannot avail of it. (Pascual v. Robles, 22 June 2011). Exception to the foregoing rule was laid down by the SC in the case where the aggrieved parties were indispensable parties. (Crisologo v JEWM Agro-Industrial Corp., 3 March 2014). The Secretary of Justice‟s DOJ Order No. 182 directing all Regional State Prosecutors, Provincial Prosecutors, and City Prosecutors to forward all cases already filed against Delos Angeles, Jr., et al. to the Secretariat of the DOJ Special Panel in Manila for appropriate action may not be the subject of a petition for certiorari under R65. The Secretary of Justice in issuing DOJ Order No. 182 was not exercising any judicial or quasi-judicial functions because his questioned issuances were ostensibly intended to ensure his subordinates‟ efficiency and economy in the conduct of the preliminary

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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investigation of all the cases involving the Legacy Group. The function involved was purely executive or administrative. (Sps. Dacudao v. Secretary of Justice, 8 January 2013). With respect to the SC, certiorari and prohibition may be issued to correct errors of jurisdiction by a person or body even if not exercising judicial, quasi-judicial, or ministerial functions, where the matter is of “transcendental importance to the nation.” (Villanueva v. JBC, 7 April 2015). Judgment declaring presumptive death under Article 41 of the Family Code is immediately final and executory and cannot be appealed, the remedy of the aggrieved party is a special civil action for certiorari under R65. (Republic v Cantor, 10 December 2013). Small-claims decision may be assailed by a special civil action for certiorari under R65. (A.L. Ang Network, Inc. v Mondejar, 22 January 2014). Mandamus suit proper to compel GGIS to continue paying Respondent‟s monthly pension. (GSIS v. de Leon, 17 November 2010). Mandamus does not lie to compel issuance of decree of registration where it appears that there are two titles over the same land. (Rodriguez v. CA, 13 June 2013). Q Petitioners, members of an urban poor organization, filed a petition for prohibition and mandamus with the Supreme Court to stop respondents DILG Secretary and mayors from evicting them pursuant to the Urban Development Housing Act (RA No. 7279) and to compel the respondents to afford them judicial process prior to evictions and demolitions. Section 28 (a) and (b) of RA 7279 provides that evictions and demolitions may be allowed without any court order when: (1) persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy areas where government infrastructure projects with available funding are about to be implemented. Did the Petitioners properly avail of prohibition? A No. Prohibition is available against a respondent exercising judicial, quasi-judicial, or ministerial functions. In exercising the power to demolish and evict illegal structures pursuant to RA 7279 the respondents are clearly not exercising judicial or quasi-judicial powers. Both judicial and quasi-judicial functions involve the determination of what the law is, and what the legal rights of the contending parties are, with respect to the matter in controversy and, on the basis thereof and the facts obtaining, the adjudication of their respective rights. Nor is there a ministerial duty on the part of respondents. Section 28 of RA 7279 in authorizing evictions and demolitions uses the word “may.” Clearly there is discretion on the part of respondents to implement demolitions and evictions and thus there is no ministerial duty. (Kalipunan ng Damayang Mahihirap v. Robredo, 22 July 2014). While the provision in S4 R65, which states that “[n]o extension of time to file the petition shall be granted except for the most compelling reason and in no case exceeding 15 days,” was deleted by A.M. No. 07-12-SC (effective 27 December 2007), this does not mean that the filing of a motion for extension was absolutely prohibited. If such were the intention, the deleted portion could just have been simply reworded to state that “no extension of time to file the petition shall be granted.” Absent such a prohibition, motions for extension of time to file a petition under Rule 65 are allowed, subject to the Court‟s sound discretion but only under exceptional and meritorious cases. (Mid-Islands Power Generation Corporation v. Court of Appeals, G.R. No. 189191, 29 February 2012; Republic v. St. Vincent de Paul Colleges, G.R. 192908, 22 August 2012). Q Private respondent filed an election protest case against the Petitioner before the RTC. The RTC issued an order finding the service of summons against the Petitioner valid and declaring the Petitioner‟s answer as filed out of time and thus authorizing the reception of evidence ex parte. Petitioner filed a petition for certiorari with the Supreme Court. Private Respondent contends that the petition for certiorari should have been filed with the COMELEC pursuant to S4 R65. The Petitioner on the other hand contends that a certiorari proceeding to set aside an interlocutory order is not in aid of appellate jurisdiction. Was the R65 petition properly filed with the SC?

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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A No. If a case may be appealed to a particular court or judicial tribunal or body, then said court or judicial tribunal or body has jurisdiction to issue the extraordinary writ of certiorari, in aid of its appellate jurisdiction. Since it is the COMELEC which has jurisdiction to take cognizance of an appeal from the decision of the regional trial court in election contests involving elective municipal officials, then it is also the COMELEC which has jurisdiction to issue a writ of certiorari in aid of its appellate jurisdiction. (Galang v. Geronimo, 22 February 2011). In a petition for certiorari under R65 filed with the RTC, the failure to implead the private complainant pursuant to S5 R65 will not warrant the dismissal of the petition. Rule 3, Sec. 11 states that neither misjoinder nor non-joinder of parties is a ground for the dismissal of an action. Thus, the trial court should have ordered petitioner to add private complainant as a respondent to the case. (Cuyo v. People, 12 October 2011). The CA should not have dismissed the petition for certiorari for failure to implead private respondent. (Abdulraman v OMB, 19 August 2013). It is believed that the ruling is arguable. In a petition for certiorari with the CA and the SC, the non-joinder of the private respondent shall be sufficient ground for the dismissal of the petition. (S6 R65 in relation to S2 R56 and S3 R46). Rule 67 Expropriation The action to recover just compensation from the State or its expropriating agency differs from the action for damages. The former, also known as inverse condemnation, has the objective to recover the value of property taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. (National Power Corp. v. Heirs of Macabangkit, 24 August 2011). In reverse expropriation, the just compensation should be reckoned as of the time of the taking, even if apparently unjust. Landowner will however be compensated by interest, exemplary damages, and attorney‟s fees. (Sec. of DPWH v Tecson, 21 April 2015 [e.b.]) Under S9 R67, the court may determine the issue of ownership but only for the purpose of determining who is entitled to just compensation. Such determination is not final and binding as to the issue of title. (Republic v Samson-Tatad, 17 April 2013). Rule 69. Partition Q Petitioners and Respondents are siblings. Respondents filed an action for partition against Petitioners. The action was dismissed for failure to prosecute per S3 R17. The dismissal became final and unappealable. Subsequently the Petitioners filed an action for quieting of title against the Respondents over the same lot subject of the partition suit. The court denied the action for quieting of title but granted the Respondents‟ counterclaim for partition. The Petitioners contend that the trial court should not have granted the counterclaim for partition as the same was barred by res judicata. Is the counterclaim for partition barred by res judicata? A No. Dismissal with prejudice under S3 R17 cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet. Between dismissal with prejudice under S3 R17 and the right granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To construe otherwise would diminish the substantive right of a coowner through the promulgation of procedural rules. Such a construction is not sanctioned by the principle that a substantive law cannot be amended by a procedural rule. This finds further support from Art. 496 of the Civil Code which provides that “[p]artition shall be governed by the Rules of Court insofar as they are consistent with this Code.” (Quintos v. Nicolas, 16 June 2014). Rule 70. Ejectment The MTC cannot be ousted of jurisdiction over an unlawful detainer case just because the determination of the issue of possession requires the interpretation of the contract (contract to sell). (Union Bank v. Maunlad Homes, Inc., 15 August 2012, Brion, J.).

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An ejectment court has the power to interpret a contract upon which claim of ownership necessary to decide possession was based. Union Bank v Maunlad Homes reiterated. (Optimum Dev‟t Bank v Sps Jovellanos, 4 Dec 2013). Tolerance or permission must have been present at the beginning of possession; if the possession was unlawful from the start, an action for unlawful detainer would not be the proper remedy and should be dismissed. a case for unlawful detainer alleging tolerance must definitely establish its existence from the start of possession; otherwise, a case for forcible entry can mask itself as an action for unlawful detainer and permit it to be filed beyond the required one-year prescription period from the time of forcible entry. (Jose v. Alfuerto, 26 November 2012, Brion, J.) If upon the expiration of the lease contract, the defendant continued to stay in the premises upon the plaintiff‟s tolerance, the one-year period is counted not from the expiration of the lease contract but from the final demand to vacate. (Republic v. Sunvar Realty, 20 June 2012). The argument of defendants that they subsequently acquired ownership of the subject property cannot be considered as a supervening event that will bar the execution of the questioned judgment, as unlawful detainer does not deal with the issue of ownership. (Holy Trinity Realty v Sps Abacan, 17 April 2013). In an ejectment case, description of how entry was made is a jurisdictional averment only if the timeliness of the complaint is an issue. Where the unlawful detainer complaint against a possessor by tolerance was filed within one year from receipt of demand letter, timeliness is not an issue. (Sps Dela Cruz v Sps Capco, 17 March 2014). To justify an action for unlawful detainer, it is essential that the plaintiff‟s supposed acts of tolerance must have been present right from the start of the possession which is later sought to be recovered. Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy. The complaint failed to allege a cause of action for unlawful detainer as it does not describe possession by the Defendants being initially legal or tolerated by the Plaintiff and which became illegal upon termination by the Plaintiff of such lawful possession. Plaintiff‟s insistence that she actually tolerated Defendants‟ continued occupation after her discovery of their entry into the subject premises is incorrect. As she had averred, she discovered respondents‟ occupation in May 2007. Such possession could not have been legal from the start as it was without her knowledge or consent, much less was it based on any contract, express or implied. The possession of the defendant in unlawful detainer is originally legal but became illegal due to the expiration or termination of the right to possess. Where the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer, the municipal trial court had no jurisdiction over the case. (Zacarias v. Anacay, 24 September 2014). Q In an action for unlawful detainer based on the plaintiff‟s tolerance of defendant‟s possession, when should the back rentals start to run? From the occupation by tolerance or from the time of the demand to vacate? A From the time of the demand to vacate. It is inconsistent to demand payment of rentals during the period of tolerance. (Pro-Guard Security v. Tormil Realty, 7 July 2014). Rule 71. Contempt Use of the phrase “gross ignorance of the law” in a motion for reconsideration of the CTA‟s decision is punishable by direct contempt. (Habawel v. CTA, 7 September 2011). When the court issues motu proprio a show-cause order, the duty of the court (1) to docket and (2) to hear and decide the case separately from the main case does not arise, much less to exercise the discretion to order the consolidation of the cases. There is no petition from any party to be docketed, heard and decided separately from the main case precisely because it is the show-cause order that initiated the proceedings. (Baculi v. Belen, 24 September 2012). CRIMINAL PROCEDURE

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Preliminary considerations While custody of the law is required for a court to act upon a bail application, it is not required for the adjudication of other reliefs (e.g. motion for redetermination of probable cause) where the mere application constitutes a submission of one‟s person to the court‟s jurisdiction. (David v. Agbay, 18 March 2015). Jurisdiction The head of the legal department of the AFP-RSBS is a manager within the purview of Sec. 4(a)(1)(g) of R.A. 8249 and hence the charge for violation of Sec. 3(e) of the Anti-Graft Law and falsification of public documents against him would fall within the SB‟s jurisdiction. (People v. Bello, 29 August 2012). Venue in libel cases where the complainant is a private individual is where he actually resides at the time of the commission of the offense or where the defamatory article was printed and first published. In criminal prosecution for libel where defamatory article was posted on a website, an allegation that the defamatory article was first published and accessed in Makati is not sufficient to vest jurisdiction upon the Makati RTC. There is no way of determining the situs of the article‟s first printing and publication. The place where the article was first accessed cannot be equated to the first publication. (Bonifacio v RTC of Makati, 5 May 2010). Rule 110 A crime is an offense against the State, and hence is prosecuted in the name of the People of the Philippines. The participation of the private offended party is not essential to the prosecution of crimes, except in the crimes stated above, or in the prosecution of the civil action deemed instituted with the criminal action. A complaint for purposes of preliminary investigation by the prosecutor need not be filed by the “offended party” but may be filed by any competent person, unless the offense subject thereof cannot be prosecuted de oficio. (Francisco v. People, 18 February 2009). Filing of the complaint with the Prosecutor‟s office already tolls the running of the prescriptive period even if the offense is for the violation of a special law (in this case, B.P. 22). The phrase “proceedings” in Section 2 of Act. 3326 by which prescription is interrupted should be deemed to refer to proceedings judicial or executive in character. (Panaguiton v. DOJ, G.R. 167571, 25 November 2008). Zaldivia v. Reyes, 3 July 1992, overturned. Zaldivia ruling applicable to violations of ordinances, prescriptive period tolled only upon filing of information in court. (Jadewell Parking Systems, Corp. v. Lidua, 7 October 2013). The contention that PLDT had no personality to question the quashal of the search warrants without the conformity of the public prosecutor pursuant to S5 R110 is misplaced. An application for a search warrant is a “special criminal process” rather than a criminal action. (Worldwide Web Corp. v. Pp, 13 January 2014). Q An information for libel was filed against accused for putting up a website allegedly defaming the Yuchengco family. The RTC quashed the criminal information for libel and dismissed the case for lack of jurisdiction, holding that the criminal information failed to allege where the article was printed and first published or where the offended parties reside. The People of the Philippines, through the private prosecutors, and with the conformity of public prosecutor filed a Notice of Appeal to the Court of Appeals. The CA dismissed the appeal on the ground that the Office of the Solicitor General had not given its conformity to the said appeal. Was the dismissal proper? A Yes. The CA correctly dismissed the notice of appeal interposed by petitioners against the order of the RTC because they, being mere private complainants, lacked the legal personality to appeal the dismissal of the criminal case. It is well-settled that the authority to represent the State in appeals of criminal cases before the Supreme Court and the CA is vested solely in the OSG which is the law office of the Government. (Malayan Insurance Co. v. Piccio, 6 August 2014).

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Q Criminal complaints for falsification of commercial documents were filed in the RTC upon complaint of the PDIC against the respondent bank officers. Trial was delayed allegedly due to the fault of the prosecution. Respondents filed a motion to dismiss on the ground of violation of their right to a speedy trial which was denied. This prompted them to file a petition for certiorari before the Court of Appeals docketed as CA-G.R. SP No. 108319. A copy of said petition was served, however, only on the private complainant, i.e., the PDIC, and not the People of the Philippines (the People), through the Office of the Solicitor General (OSG), as it was not even impleaded as party to the case. In a Decision dated September 28, 2011, the CA annulled and set aside the assailed orders of the RTC, and consequently dismissed the criminal cases against respondents. Did the CA act correctly in annulling and setting aside the RTC order? A No. Respondents‟ certiorari petition in CA-G.R. SP No. 108319 that sought the dismissal of the criminal cases against them should not have been resolved by the CA, without the People, as represented by the OSG, having first been impleaded. This stems from the recognition that the People is an indispensable party to the proceedings. While the failure to implead an indispensable party is not per se a ground for the dismissal of an action, considering that said party may still be added by order of the court, on motion of the party or on its own initiative at any stage of the action and/or such times as are just, it remains essential – as it is jurisdictional – that any indispensable party be impleaded in the proceedings before the court renders judgment. This is because the absence of such indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. Consequently, the CA was directed to (a) reinstate respondents' certiorari petition, and (b) order said respondents to implead the People as a party to the proceedings and thereby furnish its counsel, the OSG, a copy of the aforementioned pleading. (People v. Go, 24 September 2014). Treachery must be sufficiently averred in the information; mere use of term “treachery” is not a sufficient averment for it is a conclusion of law. (People v. Valdez, 13 February 2013). The petition for review of the RTC‟s judgment of conviction filed with the CA must be served upon the OSG not the provincial prosecutor. This is because it is the OSG which represents the People in appeals and special civil actions before the CA and the SC. The CA should have dismissed the petition outright. Its decision acquitting the accused is null and void where the OSG was not given notice of the proceedings and given a chance to comment on the petition. (People v. Duca, 30 October 2009). The offended parties in a criminal case have no legal standing to seek reversal of the trial court‟s order granting bail to the accused on the ground of absence of strong evidence of guilt. Hence the petition for certiorari they filed with the CA should be dismissed. (Heirs of Burgos v. CA, 8 February 2010). Q The accused was charged with the violation of Section 5(b) of R.A. No. 7610 in an information reading as follows: That on or about 1995 up to about June 2001 at Barangay Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and criminally commit acts of lasciviousness upon the person of AAA, a minor subjected to sexual abuse. That accused is the stepfather of AAA who was born on January 29, 1988. Contrary to law.

May the accused be convicted under such an information? A No. A reading of the allegations in the above-quoted Information would show the insufficiency of the averments of the acts alleged to have been committed by appellant. It does not contain the essential facts constituting the offense, but a statement of a conclusion of law. Thus, appellant cannot be convicted of sexual abuse under such Information. (People v. Pangilinan, 14 November 2011).

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Error in the designation of offended party in estafa case, a crime against property, not a ground for acquittal. The rule is different from oral defamation, a crime against honor, where the designation of the offended party is material. (Senador v Pp, 6 March 2013). No irregularity if information said “sometime in October 2001” although the proof showed the crime was committed in November 2001. (Zapanta v Pp, 20 March 2013) Q

The original information charged the accused with failure to file his income tax return thus: That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the CTA] the above named accused, a duly registered taxpayer, and sole proprietor of “Weigh Less Center” with principal office at No. 31 Roces Avenue, Quezon City, and with several branches in Quezon City, Makati, San Fernando and Dagupan City, did then and there, wilfully, unlawfully and feloniously fail to file his Income Tax Return (ITR) with the Bureau of Internal Revenue for the taxable year 2001, to the damage and prejudice of the Government in the estimated amount of P1,089,439.08, exclusive of penalties, surcharges and interest.

The accused pleaded not guilty. Subsequently the prosecution filed a motion for leave to admit an amended information which reads thus: That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the CTA] the above named accused, doing business under the name and style of “Weigh Less Center”/Mendez Medical Group”, with several branches in Quezon City, Muntinlupa City, Mandaluyong City and Makati City, did then and there, wilfully, unlawfully and feloniously fail to file his income tax return (ITR) with the Bureau of Internal Revenue for income earned for the taxable year 2001, to the damage and prejudice of the Government in the estimated amount of P1,089,439.08, exclusive of penalties, surcharges and interest (underscoring and boldfacing in the original).

The accused opposed the motion on the grounds that the amendments sought (in bold print) were substantial. Should the prosecution‟s motion to amend the information be granted? A

Yes. The amendments sought are merely formal and thus may be allowed. Amendments that do not charge another offense different from that charged in the original one; or do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume are considered merely as formal amendments. Here, the amendments sought by the prosecution pertains to (i) the addition of the phrase “doing business under the name and style of Mendez Medical Group;” (ii) the change and/or addition of the branches of petitioner‟s operation; and (iii) the addition of the phrase “for income earned.” We cannot see how these amendments would adversely affect any substantial right of the petitioner as accused. Since the accused operates as a sole proprietor from taxable years 2001 to 2003, the accused should have filed a consolidated return in his principal place of business, regardless of the number and location of his other branches. Consequently, we cannot but agree with the CTA that the change and/or addition of the branches of the accused‟s operation in the information does not constitute substantial amendment because it does not change the prosecution‟s theory that the accused failed to file his income tax return. The accused argues that his rights were prejudiced by an amendment when a defense under the original information would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the Information as amended. At first, a change in the location of branches alleged in the information may appear to deprive the accused of his defense in the original information, i.e., the accused‟s branches in Dagupan and San Fernando were registered only in 2003 and were therefore “inexistent” in 2001. However, this is not the kind of defense contemplated under the Rules of Criminal Procedure, and broadly under the due process of law. To be sure, the jurisprudential test on whether a defendant is prejudiced by the amendment of an information pertains to the availability of the same defense and evidence that the accused previously had under the original information. This test, however, must be read together with the characteristic thread of formal amendments, which is to maintain the nature of the crime or the essence of the offense charged. In the present case, this thread remained consistently under the amended information, alleging the accused‟s failure to file his return and consequently to pay the correct amount of taxes. Accordingly, the accused could not have been surprised at all. Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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In the amended information, the prosecution additionally alleged that accused is “doing business under the name and style of „Weigh Less Center‟/Mendez Medical Group.‟” Given the nature of a sole proprietorship, the addition of the phrase “doing business under the name and style” is merely descriptive of the nature of the business organization established by the accused as a way to carry out the practice of his profession. As a phrase descriptive of a sole proprietorship, the accused cannot feign ignorance of the "entity" "Mendez Medical Group" because this entity is nothing more than the shadow of its business owner - accused himself. We agree with the prosecution that accused has no reason to complain for the inclusion of the phrase "Mendez Medical Group." In the Reply-Affidavit it submitted during the preliminary investigation, the prosecution has attached copies of accused's paid advertisements making express reference to "Mendez Medical Group." (Mendez v. People, 11 June 2014). Prosecutors not bound by political offense doctrine and cannot be compelled to modify charge from multiple murder to rebellion. Accused‟s remedy is to adduce evidence of the political nature of the crimes and then to move for substitution under the last paragraph of S14 R110. (Ocampo v Abando, 11 February 2014) Q What is the proper venue of perjury under Article 183 of the RPC – Makati City, where the Certificate against Forum Shopping was notarized, or Pasay City, where the Certification was presented to the trial court? A Makati where the affiant subscribed and swore to her CFS before the notary public. The crime of perjury committed through the making of a false affidavit under Article 183 of the RPC is committed at the time the affiant subscribes and swears to his or her affidavit since it is at that time that all the elements of the crime of perjury are executed. When the crime is committed through false testimony under oath in a proceeding that is neither criminal nor civil, venue is at the place where the testimony under oath is given. If in lieu of or as supplement to the actual testimony made in a proceeding that is neither criminal nor civil, a written sworn statement is submitted, venue may either be at the place where the sworn statement is submitted or where the oath was taken as the taking of the oath and the submission are both material ingredients of the crime committed. (Union Bank v. People, 28 February 2012, e.b., Brion, J.). Rule 111. Prosecution of Civil Action In a prosecution for B.P. Blg. 22 against the signatory of a corporate check, the offended party cannot move that the corporation be impleaded in the B.P. 22 case since a corporation cannot be held criminally liable under B.P. Blg. 22. (Gosiaco v. Ching, G.R. 173807, 16 April 2009). The last paragraph of S2 R11 which provides that the extinction of the penal action does not carry with it the extinction of the civil action applies even if the civil action ex delicto is instituted with the criminal action. Hence the offended party may appeal from the judgment of acquittal insofar as the civil aspect is concerned. (Co v Munoz, 4 December 2013). Q Rimando issued 3 postdated check to the Sps. Aldaba to accommodate their investment in Multitel Corporation. The checks bounced for insufficiency of funds. Rimando was prosecuted for the violation of B.P. Blg. 22 and for estafa under Article 315(2)(d) of the Revised Penal Code. Rimando was acquitted in the BP 22 cases on the ground of reasonable doubt, with a declaration that the act or omission from which liability may arise does not exist. Later Rimando was acquitted also in the estafa case but with the pronouncement that he was civilly liable to the Spouses Rimando for the value of the postdated checks. On appeal, Rimando contended that her acquittal and exoneration from the civil liability in the BP 22 cases should have barred Sps. Aldaba from claiming civil liability from her in the estafa case. Is Rimando‟s contention correct? A No. Rimando‟s acquittal and subsequent exoneration in the BP 22 cases had no effect in the estafa case, even if both cases were founded on the same factual circumstances. While a BP 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present different causes of action, which, under the law, are considered "separate, distinct, and independent" from each other. Therefore, both cases can proceed to their final adjudication -both as to their criminal and civil aspects -subject to the prohibition on double recovery. Perforce, a ruling in a BP 22 case Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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concerning the criminal and civil liabilities of the accused cannot be given any bearing whatsoever in the criminal and civil aspects of a related estafa case. (Rimando v. Sps. Aldaba, 13 October 2014). Nullification of a marriage under Article 36 not a prejudicial question in criminal case for frustrated homicide. (Pimentel v. Pimentel, 13 September 2010). Rescission of contract of sale not a prejudicial question to B.P. 22 case. February 2013).

(Reyes v. Rossi, 18

Independent civil action based on fraud will not raise a prejudicial question. (Jose-Consing v. People, 15 July 2013). Civil case on garnishment of funds not prejudicial question to BP 22 case. (Sps Gaditano v. San Miguel Corp., 24 July 2013). HLURB administrative case for specific performance a prejudicial question to criminal prosecution under Sec. 25 of P.D. 957 for non-issuance of title. (San Miguel Properties, Inc. v. Perez, 4 Sep 2013). Rule 112. Preliminary Investigation PCGG has no authority to conduct preliminary investigation and to file informations for violation of the Anti-Graft Law. Hence the informations that it filed are null and void. (Pp v. Romualdez, G.R. 166510, 29 April 2009). The judge misapplied the equipoise rule in dismissing the case for lack of probable cause under S6 R112. The equipoise rule may be applied only after the parties have presented their evidence. Notwithstanding the misapplication of the equipoise rule, the judge properly exercised his power to dismiss the case for lack of probable cause under S6 R112. (Pp v Gabo, 3 August 2010). Q May the complaint-affidavits and the supporting affidavits filed with the prosecutor for preliminary investigation be subscribed before a notary public? A Only if there is a showing that a prosecutor or government official authorized to administer oath was unavailable as required by Sec. 3(a) R112. If there is no such showing the investigating prosecutor should not accept such affidavits. (Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007). Q Is the respondent in a preliminary investigation entitled to be furnished with the counteraffidavits of his co-respondents? A No. Both the Rules of Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of these Rules require the investigating officer to furnish the respondent with copies of the affidavits of his co-respondents. The right of the respondent is only “to examine the evidence submitted by the complainant,” as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. (Estrada v. Ombudsman, 21 January 2015). Q What are the four instances in the Rules of Criminal Procedure where probable cause is needed to be established? A (1) In S1 and 3 R112: By the investigating officer, to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to the fine; (2) In S6 and 9 R112: By the judge, to determine whether a warrant of arrest or a commitment order, if the accused has already been arrested, shall be issued and that there is a

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice; (3) In S5(b) R113: By a peace officer or a private person making a warrantless arrest when an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (4) In S4 R126: By the judge, to determine whether a search warrant shall be issued, and only upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Estrada v. Ombudsman, 21 January 2015). Q

Is hearsay admissible in determining probable cause in a preliminary investigation?

A Yes, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is “substantial evidence” which cannot rest entirely or even partially on hearsay evidence. (Estrada v. Ombudsman, 21 January 2015). It was not correct for the prosecutor to argue that rather than dismiss the case, Judge Yadao should have ordered the prosecution to present additional evidence. The judge‟s first option under S5 R112 is for it to immediately dismiss the case if the evidence on record clearly fails to establish probable cause. It is only in case of doubt on the existence of probable cause that the judge may order the prosecutor to present additional evidence within 5 days from notice. (People v. Dela Torre-Yadao, 13 November 2012). Q An information for murder was filed with the Paranaque Regional Trial Court against the PNP Special Action Force and Highway Patrol Group for the murder of a father and his 7-year-old daughter. The HPG officers filed an omnibus motion for judicial determination of probable cause and to hold in abeyance the issuance of arrest warrants. The RTC dismissed the case against the HPG officers for lack of probable cause since none of the witnesses saw them actually taking part in the shooting and on its finding that the HPG acted merely as a blocking force. Fifty days later, the OSG filed a petition for certiorari with the Court of Appeals alleging grave abuse of discretion on the part of the RTC in dismissing the case. How should the CA act on the petition? A The CA should dismiss the petition. The proper remedy that the OSG should have taken was to appeal from the dismissal order rendered under S5 R112. The dismissal for lack of probable cause under S5 R112 is a final order that should have been appealed pursuant to S1 R122. It is a final order since it disposes of the case, terminates the proceedings, and leaves the court with nothing further to do with respect to the case against petitioner HPG officers. Of course, the People may refile the case if new evidence adduced in another preliminary investigation will support the filing of a new information against them. (Cajipe v. People, 23 April 2014). Rule 113 A motorcyclist flagged down by a policeman for not wearing a helmet is not deemed arrested since he was only given a traffic citation and the penalty for the ordinance is only a fine. Hence the subsequent search of the motorcyclist was illegal and the items seized were inadmissible in evidence. (Luz v. People, 29 February 2012). A previous arrest or existing criminal record, even for the same offense, will not suffice to satisfy the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful warrantless arrest. (Pp v Villareal, 18 March 2013). Trying to run away when no crime has been overtly committed, and without more, cannot be evidence of guilt. Considering that the appellant‟s warrantless arrest was unlawful, the search and seizure that resulted from it was likewise illegal. (People v. Edaño, 7 July 2014). Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Q Police officers received a text message that a Marvin Buya would be transporting marijuana. They put up a check-point. A jeepney was stopped and the driver signaled to the policeman two passengers who were carrying marijuana. Accused Victor Cogaed, one of the indicated passengers, was asked to open his bag and when he did, marijuana was found inside. May the marijuana be admitted in evidence against the accused? A No, since there was no valid search. The case would not come under the “stop-and-frisk” exception to the search warrant requirement. A basic criterion of this exception would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act. Here Cogaed was simply a passenger carrying a bag and traveling aboard a jeepney. The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the driver who signalled to the police that Cogaed was “suspicious.” The fact that Cogaed was the one who opened his bag would not amount to a waiver of the Constitutional right against unlawful search. The waiver must be clear and unequivocal. Here the act of opening the bag was brought about by the directive of the police officer, a person in authority and an intimidating figure. (People v. Cogaed, 30 July 2014). Rule 114. Bail Upon conviction of the accused by the RTC imposing a penalty greater than 6 years but which is not death, reclusion perpetua, or life imprisonment, admission to bail is discretionary if none of the circumstances mentioned in Section 5 (flight risk, crime risk, recidivist, habitual delinquency, previous escape, etc.) are present. Admission to bail is not a matter of right as argued by Petitioner. The court may deny bail on considerations other than the absence of the circumstances under S5 R114. On the other hand, if any of the circumstances are present, the court has no option but to deny or revoke bail. (Leviste v. CA, 17 March 2010). Rule 115. Rights of Accused Q Accused police officer was arrested for extortion after an entrapment operation. He was compelled to undergo a drug test by submitting his urine sample. The urine sample tested positive for drugs. Accused was convicted of the crime of use of dangerous drugs under Section 15, Art. II of the Comprehensive Dangerous Drugs Act (R.A. 9165). He challenged the admissibilty of the urine sample on the ground that his drug testing violated his right against self-incrimination. Was the urine sample properly admitted in evidence? A No. The drug testing violated the accused‟s right against self-incrimination. We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest. In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The drug test in Section 15 of RA 9165 covers only those arrested for crimes under Art. II of RA 9165. Here the accused was arrested for extortion not for dangerous drug use. It is thus erroneous to hold that the extraction of petitioner‟s urine for purposes of drug testing was “merely a mechanical act, hence, falling outside the concept of a custodial investigation.” (Dela Cruz v. People, 23 July 2014). There is no showing in the records of this case that accused was assisted by a counsel when he signed the “Receipt for Property Seized.” It is settled that the signature of an accused in the receipt of property seized is inadmissible in evidence if it was obtained without the assistance of counsel. The signature of the accused on such a receipt is a declaration against his interest and a tacit admission of the crime charged; hence, the constitutional safeguard must be observed. (People v. Endaya, 23 July 2014). Rule 116. Arraignment & Plea Conditional or provisional arraignment will not give rise to double jeopardy. The arraignment‟s conditions gave the right to the accused to travel abroad but he cannot object to amendments to

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information that may be “necessary in light of pending incidents.” February 2013).

(Braza v Sandiganbayan, 20

Rule 117. Motion to Quash Order granting a motion to quash on the ground that the facts charged do not constitute an offense is not governed by Section 8 of Rule 117. While the provision on provisional dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to quash results in a provisional dismissal to which S8 R117 applies. Hence the time-bar rule does not apply to the dismissal of the information and the case may be re-opened if the trial court finds that the quashal was improper. (Los Baños v. Pedro, G.R. 173588, 22 April 2009). Q Respondent Jonathan Honrales was charged with parricide before the RTC of Manila for the fatal shooting of his wife Jane. Respondent filed a motion for reconsideration of the prosecutor‟s resolution finding probable cause for parricide. The city prosecutor granted the motion and directed the withdrawal of the information for parricide and the filing of an information for reckless imprudence resulting in homicide. The prosecutor thus filed with the RTC a motion to withdraw the information for parricide. While this motion to withdraw was pending with the RTC, an information for reckless imprudence resulting in homicide was filed against the Respondent with the MeTC. Meanwhile the appeal of Petitioners (Jane‟s heirs) to the DOJ was denied. At the arraignment before the MeTC, Respondent pleaded guilty and was sentenced to imprisonment of one year, 7 months and 11 days to 2 years, 10 months, and 20 days. The RTC issued an order granting the motion to withdraw the information relying upon the DOJ resolution. The Petitioners‟ motion for reconsideration was denied. The Petitioners then filed a petition for certiorari with the Court of Appeals challenging the RTC‟s order granting the motion to withdraw information. The CA dismissed the petition for certiorari. Though it found that the RTC judge had failed to make an independent assessment of the merits of the case and thus abdicated his judicial power and acted as a mere surrogate of the Secretary of Justice, it ruled that the remand of the case to the RTC would violate Respondent‟s right against double jeopardy. Would the remand of the case to the RTC violate the Respondent‟s right to double jeopardy? A No. In this case, the MeTC took cognizance of the information for reckless imprudence resulting in parricide while the criminal case for parricide was still pending before the RTC. Once jurisdiction is acquired by the court in which the Information is filed, it is there retained. Therefore, as the offense of reckless imprudence resulting in parricide was included in the charge for intentional parricide pending before the RTC, the MeTC clearly had no jurisdiction over the criminal case filed before it, the RTC having retained jurisdiction over the offense to the exclusion of all other courts. The requisite of double jeopardy that the judgment is rendered by a court of competent jurisdiction is absent. Hence the remand of the case to the RTC for trial would not amount to double jeopardy. (Heirs of Honrales v. Honrales, G.R. No. 182651, 25 August 2010, Villarama, J.). Under S7 R117, in order that there will be double jeopardy, the conviction, acquittal, or termination must be made by a court of competent jurisdiction. Once the case has been appealed and given due course by the Supreme Court, the lower court or the court of origin could no longer take cognizance of the issue under review. It cannot execute the judgment appealed from because to do so would constitute encroachment on the exclusive appellate jurisdiction of the SC. Since the MTC clearly had no jurisdiction to issue the Order of Dismissal, there can be no double jeopardy. (Quiambao v. People, 17 September 2014). The RTC issued its 5 September 2006 order in defiance of the TRO issued by the CA. The records show that the CA had issued a TRO on April 19, 2006, which should have prohibited the RTC from further proceeding on the case. But the RTC, instead, continued with the presentation of the prosecution‟s evidence and issued the assailed 5 September 2006 order. Under this circumstance, the RTC‟s 5 September 2006 dismissal order was actually without force and effect and would not serve as basis for the petitioners to claim that their right against double jeopardy had been violated. The RTC acted with grave abuse of discretion in issuing its 5 September 2006 order in view of the earlier TRO issued by the CA. (Villalon v. Chan, 24 September 2014).

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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A trial court which granted the prosecution‟s motion to withdraw informations relying solely upon the Secretary of Justice‟s resolution and determination acts with grave abuse of discretion since the trial court abdicates its judicial power. Hence the reinstatement of the criminal cases will not result in double jeopardy. (PNB v. Soriano, 3 October 2012). Double jeopardy where indirect contempt charges had been dismissed. (Digital Telecommunications Phils v Cantos, 25 November 2013). Motion to revive provisionally dismissed criminal case (selling dangerous drugs) may be filed by arresting officer since offense charged a victimless crime. (Saldariega v. Panganiban, 15 April 2015). SC struck down Section 7 of the Cybercrime Law (which provides that prosecution thereunder is without prejudice to liability under the Revised Penal Code and other laws) insofar as it relates to online libel and online child pornography. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Charging the offender under both laws would be a blatant violation of the constitutional proscription against double jeopardy. The same observation also applies to online child pornography which is already penalized under the ACPA. (Disini v Secretary of Justice, 18 February 2014). No double jeopardy where demurrer to evidence was granted not on lack of evidence but on lack of jurisdiction over the offense charged. (Asistio v People, 20 April 2015). An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. When appellant appealed the RTC‟s judgment of conviction for murder, he is deemed to have abandoned his right to invoke the prohibition on double jeopardy since it became the duty of the appellate court to correct errors as may be found in the appealed judgment. Thus, appellant could not have been placed twice in jeopardy when the CA modified the ruling of the RTC by finding him guilty of robbery with homicide as charged in the Information instead of murder. (People v. Torres, 24 September 2014). Although S8 R117 states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. If the offended party is represented by a private counsel the rule is that the reckoning period should commence to run from the time such private counsel was actually notified of the order of provisional dismissal. When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his/her given address. (Co v. New Prosperity Plastic Products, Inc., 30 June 2014). Under the Administrative Code of 1987, a year is composed of 12 calendar months. Hence the fact that February 2004 had 29 days is irrelevant since the law speaks of calendar months. Hence a motion to revive filed on 2 July 2004 was within 12 calendar months from 2 July 2003. (Co v. New Prosperity Plastic Products, Inc., 30 June 2014) Motion to revive provisionally dismissed criminal case (selling dangerous drugs) may be filed by arresting officer since offense charged a victimless crime. (Saldariega v. Panganiban, 15 April 2015). Rule 118. Pre-trial Illness arising from high blood sugar and hypertension a good ground not to appear at pretrial but counsel should inform court. The suggestion of the court that the absenting counsel should coordinate with another counsel to take her place is not well-taken since the new counsel would lack proper preparation and familiarity with the facts of the case. (Garayblas v. Ong, 3 August 2011). Rule 119. Trial

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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A careful reading of S3(a)(5) R119 would show that the only delays that may be excluded from the time limit within which trial must commence are those resulting from proceedings concerning the accused. The time involved in the proceedings in a petition for transfer of venue can only be excluded from said time limit if it was the accused who instituted the same. Hence, in this case, the time during which the petition for transfer of venue filed by the private complainant is pending, cannot be excluded from the time limit of thirty (30) days from receipt of the pre-trial order for the trial to commence imposed in S1 R119. (Mari v. Gonzalez, 12 September 2011). The conditional examination of a witness for the prosecution shall be made before the court where the case is pending, not before a Philippine consular officer abroad, pursuant to S15 R119. (Go v. People, 18 July 2012) The prosecution filed its formal offer of exhibits. On the same day, the accused filed a motion to dismiss on the ground of the violation of his right to a speedy trial and on the ground that the trial court has no evidence to consider, that the charge had no leg to stand on, and that the prosecution witnesses had no knowledge of the accused‟s participation or connection in the crime. The trial court treated the motion to dismiss as a demurrer, denied the same, and deemed the accused to have waived the right to present evidence since he filed the motion without leave of court. The Supreme Court held that the motion to dismiss cannot be treated as a demurrer since a demurrer can only be filed after the prosecution has rested its case pursuant to S23 R119. The prosecution is deemed to have rested its case only after the court shall have ruled on its formal offer. The motion is actually a motion to dismiss based on the violation of the right to a speedy trial. (Cabador v. People, G.R. 186001, 2 October 2009). If an accused files a motion for reconsideration of the court‟s order admitting the prosecution evidence, the 5-day period to file a motion for leave of court to file demurrer is reckoned from the notice of the order denying the motion for reconsideration, not from notice of the order admitting the prosecution evidence. (Reyes v. Sandiganbayan, 5 September 2012). When accused filed a demurrer to evidence without leave of court, the whole case was submitted for judgment on the basis of the evidence presented by the prosecution as the accused is deemed to have waived the right to present evidence. Hence even if the demurrer is granted, the trial court may hold the accused civilly liable and he can no longer adduce evidence on the civil aspect because of his waiver. (Alferez v. People, 31 January 2011). Grant of demurrer to evidence on ground that the prosecution did not present the informant a grave abuse of discretion which may be set aside by certiorari; no double jeopardy. (Pp v Judge Lagos, 6 March 2013). Rule 120. Judgment Where the judgment of frustrated homicide (2 years and 4 months to 6 years and one day) by the RTC was on appeal lowered to attempted homicide (maximum 2 years and 4 months), the accused may on remand to the RTC for execution apply for probation. (Colinares v. People, 13 December 2011, e.b.) Accused could be convicted of possession of marijuana under an information charging sale of marijuana. (Pp v Manansala, 3 April 2013). In case of variance between the allegation and proof, a defendant may be convicted of the offense proved when the offense charged is included in or necessarily includes the offense proved. There is no dispute that a variance exists between the offense alleged against Sevilla and that proved by the prosecution – the Information charged him with the intentional felony of falsification of public document under Article 171(4) of the RPC while the prosecution was able to prove reckless imprudence resulting to falsification of public documents. Parenthetically, the question that has to be resolved then is whether reckless imprudence resulting to falsification of public document is necessarily included in the intentional felony of falsification of public document under Article 171(4) of the RPC. The answer is in the affirmative. (Sevilla v. People, 13 August 2014).

Updates on Remedial Law Jurisprudence by Prof. Manuel R. Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Rule 121. New trial or reconsideration Motion for new trial cannot be granted even by SC after conviction has become final and executor. Cases granting MNT only pro hac vice. (Tadeja v Pp, 20 Feb 2013). Appeal A RTC decision convicting a public officer (