Up Law Boc Remedial Law 2016

2016

University of the Philippines College of Law Bar Reviewer

Dean Dean Danilo L. Concepcion

Overall Head Eleanor Zosa

Associate Dean Prof. Concepcion L. Jardeleza

Subject Heads Eleanor Zosa Chris Nuevo

Academics Committee Heads Evert Callueng Paulo Faustino Carlos Hernandez Audrey Ng Desiree Sokoken

4TH WEEK

REMEDIAL LAW

UP Law Bar Operations Commission 2016

UP Law Bar Operations Commission 2016

UP LAW BAR OPS 2016

UP LAW BOC

TABLE OF CONTENTS

A. ACTIONS ................................... 20 A.1 KINDS OF ACTIONS ............................ 20 A.2 CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS ...........................................21 A.3 PERSONAL ACTIONS AND REAL ACTIONS......................................................21 A.4 LOCAL AND TRANSITORY ACTIONS 22 A.5 ACTIONS IN REM, IN PERSONAM, OR QUASI IN REM ........................................... 22 A.6 INDEPENDENT CIVIL ACTIONS [SEC. 3, RULE 111] ..................................................... 23 B. CAUSE OF ACTION ..................... 23 B.1 RIGHT OF ACTION VERSUS CAUSE OF ACTION ....................................................... 24 B.2 FAILURE OF THE COMPLAINT TO STATE A CAUSE OF ACTION .................... 24 B.3 SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS ..................................... 25 B.4 JOINDER AND MISJOINDER OF CAUSES OF ACTION ................................. 26 C. PARTIES .................................... 26 C.1 REAL PARTY-IN-INTEREST ................ 27 C.2. INDISPENSABLE AND NECESSARY PARTIES .....................................................28 C.3 INDIGENT PARTIES .............................28 C.4 ALTERNATIVE DEFENDANTS ............ 29 C.5 COMPULSORY AND PERMISSIVE JOINDER OF PARTIES ............................... 29 C.6 MISJOINDER AND NON-JOINDER OF PARTIES .....................................................30 C.7 CLASS SUIT ..........................................30 C.8 SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY ......................... 31 C.9 EFFECT OF DEATH OF A PARTYLITIGANT ..................................................... 31 D. VENUE ...................................... 32 D.1 VENUE VERSUS JURISDICTION ......... 33 D.2 VENUE OF REAL ACTIONS ................ 33 D.3 VENUE OF PERSONAL ACTIONS ...... 33 D.4 VENUE OF ACTIONS AGAINST NONRESIDENTS ................................................ 33 D.5 WHEN THE RULES ON VENUE DO NOT APPLY ................................................ 34 D.6 EFFECTS OF STIPULATION ON VENUE ..................................................................... 34 E. PLEADINGS ............................... 34 E.1 KINDS OF PLEADINGS ........................ 34 E.2 PLEADINGS ALLOWED IN SPECIAL RULES........................................................ 40 E.3 PARTS OF A PLEADING ...................... 41 E.4 ALLEGATIONS IN A PLEADING .........44 SPECIFIC DENIALS ....................................45 E.5 EFFECT OF FAILURE TO PLEAD ........46 E.6 DEFAULT .............................................46 E.7 FILING AND SERVICE OF PLEADINGS .....................................................................49

Table of Contents Civil Procedure

REMEDIAL LAW

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I. GENERAL CONCEPTS ....................... 2 A. CONCEPT OF REMEDIAL LAW ...... 2 A.1 SOURCE ................................................. 2 A.2 APPLICABILITY ..................................... 2 A.3 PROSPECTIVITY/ RETROACTIVITY ..... 2 B. SUBSTANTIVE LAW VIS-À-VIS REMEDIAL LAW ............................... 2 C. RULE MAKING POWER OF THE SUPREME COURT ............................ 3 C.1 POWER OF THE SC TO AMEND PROCEDURAL RULES .................................3 C.2 POWER OF SC TO SUSPEND ...............3 D. NATURE OF PHILIPPINE COURTS . 4 D.1 MEANING OF A COURT........................ 4 D.2 CLASSIFICATION OF PHIL. COURTS .. 4 D.3 PRINCIPLE OF JUDICIAL HIERARCHY 5 D.4 DOCTRINE OF NON-INTERFERENCE 6 II. JURISDICTION ................................. 6 A. ASPECTS OF JURISDICTION [BOSTON EQUITY RESOURCES, INC. V. CA, G.R. NO. 173946 (2013)] ............. 6 A.1 JURISDICTION OVER THE SUBJECT MATTER ....................................................... 6 A.2 JURISDICTION OVER THE PARTIES ... 9 A.3 JURISDICTION OVER THE ISSUES ...... 9 A.4 JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION ........................ 10 B. JURISDICTION OF COURTS ......... 10 B.1 SUPREME COURT ................................ 10 B.2 COURT OF APPEALS ........................... 11 B.3 COURT OF TAX APPEALS .................. 12 B.4 SANDIGANBAYAN [P.D. 1606, AS AMENDED BY R.A. 7975 AND R.A. 10660] ..................................................................... 13 B.5 REGIONAL TRIAL COURTS ................ 14 B.6 FAMILY COURTS [RA 8369] ............... 17 B.7 METROPOLITAN TRIAL COURTS/ MUNICIPAL TRIAL COURTS ...................... 17 B.8 SHARI’A COURTS ................................ 18 C. JURISDICTION OVER SMALL CLAIMS .......................................... 18 D. CASES COVERED BY RULES ON SUMMARY PROCEDURE .................. 19 E. CASES COVERED BY BARANGAY CONCILIATION ................................ 19 F. TOTALITY RULE ......................... 20 III. COMMENCEMENT OF ACTIONS TO TRIAL ............................................... 20

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E.8 AMENDMENT AND SUPPLEMENTAL PLEADINGS ............................................... 52 F. SUMMONS ................................. 55 F.1 NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM .................................................................... 55 ACTIONS IN PERSONAM ......................... 55 ACTIONS IN REM AND QUASI IN REM ... 55 F.2 VOLUNTARY APPEARANCE .............. 55 F.3 MODES OF SERVICE OF SUMMONS 56 PERSONAL SERVICE ................................ 56 SUBSTITUTED SERVICE OF SUMMONS . 56 SERVICE BY PUBLICATION (CONSTRUCTIVE SERVICE) ......................57 SPECIAL CLASSES OF DEFENDANTS .....................................................................57 F.4 RETURN AND PROOF OF SERVICE .. 58 RETURN [SEC. 4, RULE 14] ...................... 58 ALIAS SUMMONS [SEC. 5, RULE 14] ...... 58 PROOF OF SERVICE [SEC. 18, RULE 14] . 59 G. MOTIONS IN GENERAL .............. 59 G.1. CONTENTS AND FORM OF MOTION59 G.2 KINDS OF MOTIONS .......................... 59 G.3 NOTICE OF HEARING AND HEARING OF MOTIONS ............................................. 60 G.4. OMNIBUS MOTION RULE ................ 60 H. MOTION FOR BILL OF PARTICULARS ............................... 60 H.1. PURPOSE AND WHEN APPLIED FOR ..................................................................... 61 H.2 ACTION OF THE COURT ..................... 61 H.3 COMPLIANCE WITH THE ORDER ...... 61 H.4 EFFECT ON THE PERIOD TO FILE RESPONSIVE PLEADING........................... 61 J. MOTION TO DISMISS .................. 62 J.1. GROUNDS ........................................... 62 J.2. RESOLUTION OF MOTION ................ 66 J.3. BAR BY DISMISSAL ............................ 66 J.4. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED ...................... 66 J.5. REMEDIES OF DEFENDANT WHEN THE MOTION IS DENIED ...........................67 J.6. WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES .........................67 J.7. DISTINGUISHED FROM DEMURRER TO EVIDENCE [RULE 33] ...........................67 K. DISMISSAL OF ACTIONS ............. 67 K.1. DISMISSAL UPON NOTICE BY PLAINTIFF ...................................................67 K.2. DISMISSAL UPON MOTION OF PLAINTIFF .................................................. 68 K.3. DISMISSAL DUE TO FAULT OF THE PLAINTIFF .................................................. 68 K.4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY COMPLAINT............................................... 69

REMEDIAL LAW

L. PRE-TRIAL ................................. 70 L.1. NATURE AND PURPOSE .................... 70 L.2. NOTICE OF PRE-TRIAL ...................... 70 L.3. APPEARANCE OF PARTIES ................ 71 L.4. PRE-TRIAL BRIEF ................................ 71 L.5. PROCEEDINGS DURING AND AFTER PRE-TRIAL ................................................. 72 L.6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND IN CRIMINAL CASE ....... 72 L.7. ALTERNATIVE DISPUTE RESOLUTION ..................................................................... 73 M. INTERVENTION ......................... 76 M.1. REQUISITES FOR INTERVENTION ... 76 MEANING OF LEGAL INTEREST .............. 76 M.2. TIME TO INTERVENE ........................ 76 M. 3. PLEADINGS-IN-INTERVENTION ..... 76 M.4. REMEDIES OF THE PARTIES ........... 76 N. SUBPOENA ................................. 77 N.1. SUBPOENA DUCES TECUM .............. 77 N.2. SUBPOENA AD TESTIFICANDUM..... 77 N.3. SERVICE OF SUBPOENA .................. 77 N.4. COMPELLING ATTENDANCE OF WITNESS .................................................... 78 N.5. QUASHING OF SUBPOENA .............. 78 GROUNDS .................................................. 78 O. MODES OF DISCOVERY .............. 78 O.1 DEPOSITIONS ...................................... 78 TAKING OF DEPOSITION .......................... 78 USES AND SCOPE OF DEPOSITION ........ 79 OBJECTIONS TO ADMISSIBILITY ............ 80 TERMINATION OF TAKING OF DEPOSITION OR LIMITATION OF SCOPE .................................................................... 80 O.2. WRITTEN INTERROGATORIES OF ADVERSE PARTIES [RULE 25] .................82 SERVICE OF INTERROGATORIES TO PARTIES .....................................................82 ANSWERS .................................................. 83 OBJECTIONS TO INTERROGATORIES..... 83 CONSEQUENCES OF FAILURE TO ANSWER..................................................... 83 EFFECT OF FAILURE TO SERVE .............. 83 O.3. REQUEST FOR ADMISSION [RULE 26] ..................................................................... 83 IMPLIED ADMISSION BY ADVERSE PARTY ..................................................................... 83 CONSEQUENCES FOR FAILURE TO ANSWER REQUEST ................................. 84 EFFECT OF ADMISSION ........................... 84 EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION .................... 84 O.4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS [RULE 27] ..... 84 PRODUCTION OF DOCUMENTS VS SUBPOENA DUCES TECUM ......................85 O.5. PHYSICAL OR MENTAL EXAMINATION OF PERSONS [RULE 28] 85

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O.6. CONSEQUENCES OF REFUSAL TO COMPLY [RULE 29] .................................. 86 P. TRIAL ........................................ 86 P.1. ADJOURNAMENTS AND POSTPONEMENTS ................................... 87 P.2. AGREED STATEMENT OF FACTS .... 87 P.3. ORDER OF TRIAL .............................. 87 P.4. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL .................................. 88 P.5. DELEGATION OF RECEPTION OF EVIDENCE .................................................. 89 P.6. TRIAL BY COMMISSIONERS............. 89 Q. DEMURRER TO EVIDENCE ......... 90 Q.1. EFFECT OF DENIAL ............................ 91 Q.2. EFFECT OF GRANT ............................ 91 Q.3. WAIVER OF RIGHT TO PRESENT EVIDENCE ................................................... 91 Q.4. DEMURRER IN CIVIL AND CRIMINAL CASES ......................................................... 91 IV. JUDGMENTS AND FINAL ORDERS . 92 A. JUDGMENTS IN GENERAL .......... 92 A.1. REQUISITES OF A VALID JUDGMENT [RIANO] ...................................................... 92 A.2. KINDS OF JUDGMENT ...................... 92 A.3. JUDGMENT WITHOUT TRIAL ........... 93 B. CONTENTS OF A JUDGMENT ...... 93 B.3. DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE COURT ................ 93 B.4. CONFLICT BETWEEN DISPOSITION AND OPINION OF THE COURT................ 93 C. JUDGMENT ON THE PLEADINGS . 94 D. SUMMARY JUDGMENTS ............. 94 D.1 WHEN THE CASE IS NOT FULLY ADJUDICATED........................................... 95 D.2 AFFIDAVITS AND ATTACHMENTS ... 95 E. SUMMARY JUDGMENT V. JUDGMENT ON THE PLEADINGS V. JUDGMENT BY DEFAULT ................ 96 F. RENDITION OF JUDGMENTS AND FINAL ORDERS .............................. 96 G. ENTRY OF JUDGMENT AND FINAL ORDER .......................................... 97 H. AMENDMENTS TO JUDGMENT .... 97 V. POST-JUDGMENT REMEDIES ......... 98 A. MOTION FOR NEW TRIAL OR RECONSIDERATION ....................... 98 A.1. GROUNDS .......................................... 98 A.3. FORM AND CONTENTS .................... 98 A.4 RESOLUTION AND COURT ACTION 99 B. APPEALS .................................. 100 MODES OF APPEAL ................................. 102 PERIOD OF APPEAL ................................ 102 FLOWCHART: APPEALS TO THE SUPREME COURT ............................. 117 COMPARATIVE TABLE ON THE MODES OF APPEAL ....................................... 118 FLOWCHART: .................................... 119

REMEDIAL LAW

POST-JUDGMENT REMEDIES WITHIN THE LOWER COURT .......................... 119 C. RELIEF FROM JUDGMENTS. ORDERS, AND OTHER PROCEEDINGS ..................................................... 121 D. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS .................................................... 123 E. COLLATERAL ATTACK OF JUDGMENTS ................................. 124 VI. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS ................... 126 A. FINALITY FOR PURPOSES OF APPEAL AND FOR PURPOSES OF EXECUTION .................................. 126 B. WHEN EXECUTION SHALL ISSUE127 C. HOW JUDGMENT IS EXECUTED . 130 D. PROPERTIES EXEMPT FROM EXECUTION .................................. 134 E. PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSONS ....... 135 F. RULES ON REDEMPTION ........... 137 G. REMEDIES OF JUDGMENT CREDITOR IF JUDGMENT NOT SATISFIED [SECS. 36-43, RULE 39] 139 H. EFFECT OF JUDGMENT OR FINAL ORDERS ....................................... 140 I. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENT OR FINAL ORDERS ....................................... 142 VII. PROVISIONAL REMEDIES ........... 143 A. PRELIMINARY ATTACHMENT ..... 143 B. PRELIMINARY INJUNCTION ....... 148 C. RECEIVERSHIP ......................... 152 D. REPLEVIN ................................. 155 D.1. WHEN WRIT MAY BE ISSUED ......... 155 D.2. REQUISITES ..................................... 156 D.3. AFFIDAVIT AND BOND; REDELIVERY BOND ........................................................ 156 D.4. SHERIFF’S DUTY IN IMPLEMENTATION ...................................157 D.5. WHEN PROPERTY CLAIMED BY THIRD PARTY............................................157 A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES ................. 158 VIII. SPECIAL CIVIL ACTIONS ............ 160 A. IN GENERAL ........................... 160 A.1 NATURE .............................................. 160 A.2 ORDINARY CIVIL ACTIONS V. SPECIAL CIVIL ACTIONS ......................................... 160 A.3 JURISDICTION AND VENUE ............. 160 B. INTERPLEADER ......................... 161 B.1 NATURE ............................................... 161 B.2 REQUISITES FOR INTERPLEADER .. 161 B.3 WHEN TO FILE.................................... 161 C. DECLARATORY RELIEFS AND SIMILAR REMEDIES ...................... 162

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C.1. NATURE ............................................. 162 C.2.WHO MAY FILE THE ACTION [SEC. 1, RULE 63] ................................................... 163 C.3 REQUISITES OF ACTION FOR DECLARATORY RELIEF ........................... 163 C.4. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION ............. 163 C.5. CONVERSION TO ORDINARY ACTION [SEC. 6, RULE 63] ..................................... 163 C.6. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES ................................. 163 D. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA ............... 164 D.1 APPLICATION OF RULE 65 UNDER RULE 64 .................................................... 164 D.2 DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS ................................................................... 165 E. CERTIORARI, PROHIBITION, MANDAMUS ................................. 165 E.1 DEFINITIONS AND DISTINCTIONS ... 165 E.2 REQUISITES ....................................... 167 E.3 WHEN PETITION FOR CERTIORARI, PROHIBITION, AND MANDAMUS IS PROPER .................................................... 167 E.4 INJUNCTIVE RELIEF .......................... 168 E.5 EXCEPTIONS TO FILING MOTION FOR RECONSIDERATION BEFORE FILING PETITION .................................................. 169 E.6 RELIEFS PETITIONER IS ENTITLED TO ................................................................... 169 E.7 ACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES .................................... 170 E.8 WHEN AND WHERE TO FILE PETITION ................................................................... 170 F. QUO WARRANTO ...................... 170 F.1. NATURE ............................................. 170 F.2. AGAINST WHOM MAY THE ACTION BE BROUGHT .................................................. 171 JURISDICTION ........................................... 171 F.3. DISTINGUISHED FROM QUO WARRANTO IN THE OMNIBUS ELECTION CODE .......................................................... 171 F.4. WHEN GOVERNMENT MAY COMMENCE AN ACTION AGAINST INDIVIDUALS ............................................ 172 F.5. WHEN INDIVIDUAL MAY COMMENCE AN ACTION ............................................... 172 F.6. PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE REDUCED ....... 172 F.7. JUDGMENT IN QUO WARRANTO ACTION ..................................................... 172

REMEDIAL LAW

F.8. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE ................ 173 G. EXPROPRIATION ..................... 173 G.1. NATURE ............................................. 173 G.2. REQUISITES FOR THE VALID EXERCISE OF THE RIGHT ........................ 173 G.3. MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION ............................. 173 G.4. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION ......................................174 G.5. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO R.A. NO. 8974 ...........................................................174 G.6. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION ......................................175 G.10. APPOINTMENT OFCOMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON REPORT .................................................................... 177 G.12. EFFECT OF RECORDING OF JUDGMENT ...............................................178 H. FORECLOSURE OF REAL ESTATE MORTGAGE .................................. 178 H.1. NATURE .............................................178 H.5. DISPOSITION OF PROCEEDS OF SALE ......................................................... 180 H.7. JUDICIAL FORECLOSURE VS. EXTRAJUDICIAL FORECLOSURE ........... 181 H.8. EQUITY OF REDEMPTION VS. RIGHT OF REDEMPTION ..................................... 181 I.1. NATURE .............................................. 182 I.2. WHEN CAN PARTITION BE MADE ... 182 I.3. WHEN PARTITION CANNOT BE MADE: ................................................................... 182 I.5. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION ................ 182 I.6. TWO STAGES IN EVERY ACTION FOR PARTITION ............................................... 183 I.7. ORDER OF PARTITION AND PARTITION BY AGREEMENT .................. 183 I.8. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT .................................................... 183 I.10. PARTITION OF PERSONAL PROPERTY ............................................... 185 I.11. PRESCRIPTION OF ACTION ............. 185 J. FORCIBLE ENTRY AND UNLAWFUL DETAINER .................................... 185 J.1. NATURE .............................................. 185 J.2. DEFINITIONS AND DISTINCTIONS [RIANO] ..................................................... 185

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J.3. DISTINGUISHED FROM ACCION PUBLICIANA, ACCION REINVINDICATORIA, AND ACCION INTERDICTAL ................... 186 J.4. TO DETERMINE JURISDICTION IN ACCION PULICIANA, ACCION REINVINDICATORIA, AND ACCION INTERDICTAL ........................................... 186 J.5. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED ............... 186 J.6. PLEADINGS ALLOWED ..................... 187 J.7. ACTION ON COMPLAINT .................. 187 J.8. WHEN DEMAND NECESSARY ......... 188 J.9. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION ................................................................... 188 J.10. RESOLVING DEFENSE OF OWNERSHIP............................................. 189 J.12. SUMMARY PROCEDURE, PROHIBITED PLEADINGS .......................190 K. CONTEMPT ............................... 190 K.1. NATURE .............................................190 K.2. KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH ..........................190 K.3. DIRECT CONTEMPT .......................... 191 K.4. INDIRECT CONTEMPT ..................... 192 K.5. WHEN IMPRISONMENT SHALL BE IMPOSED .................................................. 193 THE SPECIAL CIVIL ACTIONS ............ 194 IX. SPECIAL RULES .......................... 196 A. REVISED RULES ON SUMMARY PROCEDURE ................................. 196 FLOWCHART: SUMMARY PROCEDURE ....................................................... 197 B. KATARUNGANG PAMBARANGAY LAW (PD 1508; RA 7160, AS AMENDED) ................................... 199 B.1. SCOPE AND APPLICABILITY OF THE RULE ......................................................... 199 B.2. CASES COVERED ............................. 199 B.4. WHEN PARTIES MAY GO DIRECTLY TO COURT ................................................ 199 B.6. EXECUTION ...................................... 199 B.7. REPUDIATION ..................................200 B.8. FLOWCHART ...................................200 C.1. SCOPE AND APPLICABILITY OF THE RULE ......................................................... 201 C.2. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE................................ 201 C.4. APPEARANCES ............................... 203 C.5. HEARING; DUTY OF THE JUDGE ... 203 C.6. FINALITY OF JUDGMENT ............... 203 FLOWCHART: .......................................... 204 SMALL CLAIMS CASES ........................... 204 D.1. FORMAT AND STYLE....................... 205 D.2. MARGINS AND PRINTS .................. 205 D.3. COPIES TO BE FILED ...................... 205

REMEDIAL LAW D.4. ANNEXES SERVED ON ADVERSE PARTY ...................................................... 205 D.5. APPLICABILITY ............................... 205

Special Proceedings

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I. SPECIAL PROCEEDINGS ............... 207 A. SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES ................................................... 207 II. SETTLEMENT OF ESTATE OF DECEASED PERSONS ...................... 208 A. MODES OF SETTLEMENT OF ESTATE ....................................... 208 B. JURISDICTION ......................... 208 C. VENUE .................................... 209 D. EXTENT OF JURISDICTION OF PROBATE COURT ......................... 209 E. POWERS AND DUTIES OF A PROBATE COURT ......................... 209 III. SUMMARY SETTLEMENT OF ESTATES .......................................... 210 A. EXTRAJUDICIAL SETTLEMENT OF ESTATES ...................................... 210 TWO-YEAR PERIOD ................................. 211 B. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE ............ 211 PROCEDURE............................................ 212 COMPARISON .......................................... 212 C. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE ................................... 212 WITHIN REGLAMENTARY PERIOD OF TWO YEARS: ............................................ 212 OTHERS: ................................................... 213 IV. PRODUCTION AND PROBATE OF WILL ................................................ 214 A. NATURE OF PROBATE PROCEEDINGS .............................. 214 V. ALLOWANCE OR DISALLOWANCE OF WILL ................................................ 214 A. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE ........................................ 215 TIMING AND WHO MAY PETITION ........ 215 MEANING OF INTEREST IN ESTATE ...... 215 B. CONTENTS OF PETITION FOR ALLOWANCE OF WILL ................... 215 JURISDICTION, HOW ACQUIRED .......... 215 EVIDENCE REQUIRED IN SUPPORT OF A WILL .......................................................... 215 C. GROUNDS FOR DISALLOWING A WILL ............................................. 217 D. REPROBATE ............................. 217 F. EFFECTS OF PROBATE .............. 217

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VI. LETTERS TESTAMENTARY AND OF ADMINISTRATION ............................ 218 A. WHEN AND TO WHOM LETTERS OF ADMINISTRATION ARE GRANTED .. 218 WHO ARE INCOMPETENT TO SERVE AS EXECUTOR OR ADMINISTRATOR.......... 218 B. ORDER OF PREFERENCE .......... 219 30-DAY PERIOD MAY BE WAIVED ......... 219 C. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION ................. 219 D. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS . 220 D.1. GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS ........................ 221 HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY AT ALL TIMES .............. 221 KEEP BUILDINGS IN TENANTABLE REPAIR...................................................... 221 RIGHT TO POSSESSION AND MANAGEMENT OF THE REAL AND PERSONAL PROPERTIES ....................... 221 D.2. RESTRICTIONS ON POWERS OF EXECUTORS AND ADMINISTRATORS .................................................... 221 EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE AND INCOME .................................................... 221 PROHIBITED FROM PROFITING BY INCREASE OR LOSING BY DECREASE IN VALUE ...................................................... 222 ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM ............................ 222 ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY ...... 222 ONLY NECESSARY EXPENSES SHALL BE ALLOWED ................................................ 222 EXECUTOR OR ADMINISTRATOR TO MAKE INVENTORY AND RENDER ACCOUNT ................................................ 222 ACCOUNTING MANDATORY ................. 223 EXAMINATION ON OATH BY COURT ... 223 E. APPOINTMENT OF SPECIAL ADMINISTRATOR .......................... 223 POWERS AND DUTIES OF SPECIAL ADMINISTRATOR.................................... 224 WHEN SPECIAL ADMINISTRATOR CEASES DUTIES ..................................................... 224 F. REVOCATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS ................................................... 224 EFFECT OF REMOVAL, DEATH, OR RESIGNATION ......................................... 225

REMEDIAL LAW

VII. CLAIMS AGAINST THE ESTATE ... 225 ESTATE BURDENED WITH LIEN OF CREDITORS ............................................. 225 PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE ................................... 225 A. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS ..... 225 ALTERNATIVE REMEDIES OF A MORTGAGE CREDITOR UPON DEATH OF DEBTOR ................................................... 227 B. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE ........................................ 227 C. PAYMENT OF DEBTS ................ 228 PAYMENT OF CONTINGENT CLAIM ..... 228 POSSESSION BY HEIRS, DEVISEES OR LEGATEES BEFORE DEBTS AND EXPENSES ARE PAID ............................. 228 LIABILITY OF HEIRS AND DISTRIBUTEES .................................................................. 229 REQUISITES ............................................ 230 VIII. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS 231 A. ACTIONS BY AND AGAINST EXECUTORS ................................. 231 B. RECOVERY OF PROPERTY CONCELEAD, EMBEZZLED OR FRADULENTLY CONVEYED ............ 231 WHEN RECOVERY BY CREDITOR OF PROPERTY FRAUDULENTLY CONVEYED MAY BE DONE ............ 232 C. SALES, MORTGAGES, AND OTHER ENCUMBRANCES ......................... 232 FLOWCHART: SETTLEMENT OF ESTATE OF DECEASED PERSONS .......................234 IX. DISTRIBUTION AND PARTITION .. 236 BEFORE THERE COULD BE A DISTRIBUTION OF ESTATE, THE FOLLOWING STAGES MUST BE FOLLOWED: .............................................236 A. LIQUIDATION .......................... 236 B. PROJECT OF PARTITION .......... 236 C. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE .................................................... 237 D. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION .................................. 237 X. ESCHEAT ..................................... 237 A. WHEN TO FILE .......................... 237 B. REQUISITES FOR FILING OF PETITION ...................................... 237 C. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM. .......................... 238 XI. TRUSTEES ................................. 239

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A. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR ....... 239 B. CONDITIONS OF THE BOND ..... 239 C. PROCEDURAL REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE .................................. 240 D. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE ...... 240 E. EXTENT OF AUTHORITY OF TRUSTEE ..................................... 240 XII. GUARDIANSHIP ......................... 241 A. GUARDIANSHIP OF INCOMPETENT PERSONS NOT MINORS ................ 241 ↓ .................................................. 241 ↓ .................................................. 241 ↓ .................................................. 241 ↓ .................................................. 241 GENERAL POWERS AND DUTIES OF GUARDIANS ............................................. 241 CONDITIONS OF THE BOND OF THE GUARDIAN .............................................. 243 B. RULE IN GUARDIANSHIP OVER MINOR [A.M. NO. 03-02-05-SC] ... 243 XIII. ADOPTION ................................ 247 A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION .................................... 247 B. DOMESTIC ADOPTION ACT ...... 250 INSTANCES WHEN ADOPTION MAY BE RESCINDED; EFFECTS OF RESCISSION OF ADOPTION ................................................ 251 C. INTER-COUNTRY ADOPTION ..... 251 (1) FOREIGN NATIONALS, AND ... 251 FUNCTIONS OF THE RTC ........................ 251 (1) FILING OF PETITION MAY BE MADE WITH THE FAMILY COURT HAVING JURISDICTION OVER THE PLACE WHERE THE CHILD RESIDES OR MAY BE FOUND. [SEC. 28, AM 026-02 SC] ....................................... 251 (2) COURT SHALL DETERMINE WHETHER OR NOT PETITION IS SUFFICIENT IN FORM AND SUBSTANCE AND A PROPER CASE FOR INTER-COUNTRY ADOPTION. 251 (3) TRANSMIT THE PETITION TO THE ICAB FOR APPROPRIATE ACTION. 252 “BEST INTEREST OF THE MINOR” STANDARD.............................................. 252 XIV. WRIT OF HABEAS CORPUS ....... 252 WRIT OF HABEAS CORPUS ............ 252 PROCEDURE ........................................ 254 A. CONTENTS OF THE PETITION ... 254 B. THE RETURN ........................... 254 C. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION .... 255

REMEDIAL LAW

D. WHEN NOT PROPER OR APPLICABLE ................................ 255 E. WHEN WRIT DISALLOWED OR DISCHARGED ............................... 255 F. DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA ....... 256 G. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) .............. 256 XV. WRIT OF AMPARO (A.M. 07-9-12-SC) ...................................................... 260 A. COVERAGE .............................. 260 B. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA ........ 260 C. AMPARO VS SEARCH WARRANT ................................................... 260 D. PETITION ................................ 260 E. THE RETURN ............................ 261 EFFECT OF FAILURE TO FILE RETURN ................................................... 262 OMNIBUS WAIVER RULE .............. 262 F. HEARING ................................. 262 G. OTHER ACTIONS ..................... 263 INSTITUTION OF SEPARATE ACTION ................................................... 263 EFFECT OF FILING A CRIMINAL ACTION ....................................... 263 CONSOLIDATION ......................... 263 H. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT ... 263 I. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO ........................ 264 XVI. WRIT OF HABEAS DATA [A.M. NO. 08-1-16-SC] .................................... 265 A. SCOPE OF THE WRIT ................ 265 B. AVAILABILITY OF WRIT ............ 266 C. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO ................ 266 D. THE PETITION ......................... 266 E. THE RETURN ........................... 266 F. INSTANCES WHEN DEFENSES MAY BE HEARD IN CHAMBERS .............. 267 G. OTHER ACTIONS ...................... 267 CONSOLIDATION .......................... 267 EFFECT OF FILING CRIMINAL ACTION .................................................... 267 INSTITUTION OF SEPARATE ACTION .................................................... 267 XVII. CHANGE OF NAME ................... 267 XVIII. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY 269 A. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION IN RELATION TO R.A. 9048 .............. 269

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RA 9048, AS AMENDED BY RA 10172 ................................................... 270 XIX. ABSENTEES .............................. 271 A. PURPOSE OF THE RULE ............ 271 B. WHO MAY FILE; WHEN TO FILE . 271 XX. APPEALS IN SPECIAL PROCEEDINGS ................................. 272 A. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN ..... 272 B. WHEN TO APPEAL .................... 272 C. MODES OF APPEAL ................... 272 D. RULE ON ADVANCE DISTRIBUTION .................................................... 272 COMPARATIVE TABLE OF WRITS ...... 273

Criminal Procedure

REMEDIAL LAW

B. WHO MAY FILE; CRIMES THAT CANNOT BE PROSECUTED DE OFICIO ................................................... 286 B.1. WHO MAY FILE COMPLAINT OR INFORMATION ........................................ 286 B.2. EVENTS SUBSEQUENT TO FILING286 B.2.A. DEATH OF OFFENDED PARTY .. 286 B.2.B. DESISTANCE BY OFFENDED PARTY ................................................................... 287 B.2.C. PARDON BY OFFENDED PARTY 287 SUBSEQUENT MARRIAGE ..................... 287 C. CONTROL OF PROSECUTION .... 287 C.1. IN GENERAL ...................................... 287 C.2. BEFORE THE COURT OF APPEALS AND THE SUPREME COURT ................. 288 C.3. EXTENT OF THE PROSECUTOR’S CONTROL ................................................ 288 C.3.A. PRIOR TO FILING OF THE CASE 288 C.3.B. AFTER FILING OF THE CASE ...... 288 C.3.C. LIMITATIONS OF CONTROL BY THE COURT ..................................................... 288 C.3.D. EFFECT OF LACK OF INTERVENTION OF FISCAL ................... 288 D. SUFFICIENCY OF COMPLAINT OR INFORMATION ............................. 288 TEST OF SUFFICIENCY .......................... 289 D.1 NAME OF THE ACCUSED ................ 289 D.2 DESIGNATION OF OFFENSE .......... 289 D.3 CAUSE OF THE ACCUSATION ........ 289 WHERE THE LAW PRESCRIBES EXCEPTIONS: .......................................... 290 RULE ON NEGATIVE AVERMENTS ....... 290 WHERE COMPLEX CRIME IS CHARGED .................................................................. 290 D.4 PLACE OF COMMISSION OF THE OFFENSE ................................................. 290 D.5 DATE OF COMMISSION OF THE OFFENSE ................................................. 290 D.6 NAME OF THE OFFENDED PARTY 290 OFFENSES AGAINST PROPERTY ......... 290 OFFENDED PARTY IS A JURIDICAL PERSON .................................................. 290 E. DUPLICITY OF THE OFFENSE; EXCEPTION ................................. 290 REMEDY ................................................... 291 MODES OF COMMITTING OFFENSE NOT DUPLICITOUS .......................................... 291 F. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION 291 KINDS OF AMENDMENT:........................ 291 F.1. AMENDMENT BEFORE PLEA IN FORM AND SUBSTANCE.................................... 291 F.2. AMENDMENT AFTER PLEA AND DURING TRIAL ........................................ 292 F.2.A. AS TO FORM ................................ 292 F.2.B. AS TO SUBSTANCE ..................... 292 F.3. SUBSTITUTION ................................ 292

281

I. GENERAL MATTERS ..................... 282 CRIMINAL JURISDICTION ...................... 282 A. JURISDICTION OVER SUBJECT MATTER AND JURISDICTION OVER PERSON OF THE ACCUSED DISTINGUISHED .......................... 282 A.1 JURISDICTION OVER SUBJECT MATTER ................................................... 282 STATUTE APPLICABLE ........................... 282 IMPOSABLE PENALTY ............................ 282 PRINCIPLE OF ADHERENCE OF JURISDICTION ......................................... 282 A.2. JURISDICTION OVER THE PERSON OF THE ACCUSED ........................................ 282 B. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION ............. 283 C. JURISDICTION OF CRIMINAL COURTS ...................................... 283 C.1. REGULAR (CIVIL) COURTS .............. 283 C.2. MILITARY COURTS .......................... 285 D. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION ............................. 285 II. PROSECUTION OF OFFENSES ..... 285 A. CRIMINAL ACTIONS; HOW INSTITUTED ................................. 285 A.1. IN GENERAL ..................................... 285 A.2. OFFENSES REQUIRING PRELIMINARY INVESTIGATION ...................................... 285 A.3. OTHER OFFENSES .......................... 285 A.4. IN METROPOLITAN MANILA AND OTHER CITIES ......................................... 285 A.5. EFFECT OF INSTITUTION ON PRESCRIPTIVE PERIOD.......................... 285 SUSPENSION OF PRESCRIPTIVE PERIODS IN CASES FALLING UNDER THE AUTHORITY OF THE LUPON ................. 286

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F.4. AMENDMENT AND SUBSTITUTION DISTINGUISHED...................................... 292 G. VENUE OF CRIMINAL ACTIONS 292 H. INTERVENTION OF OFFENDED PARTY ......................................... 293 III. PROSECUTION OF CIVIL ACTION 294 A. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION ....................................... 294 B. WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY ......... 294 B.1. INDEPENDENT CIVIL ACTIONS ...... 294 B.2. RESERVATION OF RIGHT TO FILE CIVIL ACTION .......................................... 294 B.3. SEPARATE ACTION FILED BY THE ACCUSED ................................................ 294 C. WHEN SEPARATE CIVIL ACTION IS SUSPENDED ................................ 294 D. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION ....................................... 294 E. PREJUDICIAL QUESTION .......... 295 E.1. ELEMENTS ........................................ 295 E.2. EFFECT ............................................. 295 E.3. WHERE TO FILE PETITION FOR SUSPENSION .......................................... 295 F. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION ................ 295 IV. PRELIMINARY INVESTIGATION ... 296 A. NATURE OF RIGHT .................. 296 A.1. DEFINITION ...................................... 296 A.2. RIGHT TO PRELIMINARY INVESTIGATION ...................................... 296 A.3. WAIVER OF RIGHT .......................... 296 A.4. WHEN RIGHT DEEMED WAIVED ... 296 A.5. WHEN RIGHT NOT DEEMED WAIVED .................................................................. 296 B. PURPOSES OF PRELIMINARY INVESTIGATION ........................... 296 C. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE ........................ 297 C.1. PROSECUTOR .................................. 297 C.2. COURT.............................................. 297 C.3. COMELEC ......................................... 297 C.4. OMBUDSMAN ................................. 297 C.5. PROCEDURE FOR PRELIMINARY INVESTIGATION ...................................... 297 D. RESOLUTION OF THE INVESTIGATING PROSECUTOR ..... 298 E. REVIEW ................................... 298 F. WHEN WARRANT OF ARREST MAY ISSUE .......................................... 299 G. CASES NOT REQUIRING PRELIMINARY INVESTIGATION NOR

REMEDIAL LAW

COVERED BY THE RULE ON SUMMARY PROCEDURE ............... 299 H. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION ........................... 299 H.1. EFFECT OF DENIAL OF RIGHT ....... 299 REMEDIES OF THE ACCUSED IF THERE WAS NO PI: ............................................. 300 H.2. RESTRAINING PRELIMINARY INVESTIGATION ...................................... 300 I. INQUEST .................................. 300 PROCEDURE........................................... 300 V. ARREST ....................................... 301 A. IMMUNITY ................................ 301 A.1. PARLIAMENTARY IMMUNITY .......... 301 A.2. DIPLOMATIC IMMUNITY ................. 301 B. HOW MADE ............................... 301 C. ARREST WITHOUT WARRANT, WHEN LAWFUL ............................. 301 C.1. IN FLAGRANTE DELICTO ................. 301 C.2. HOT PURSUIT ARREST .................. 302 C.3. ARREST OF ESCAPED PRISONER 302 C.4. RULES ON ILLEGALITY OF ARREST .................................................................. 302 C.4.A. EFFECT ......................................... 302 C.4.B. WAIVER ........................................ 302 C.4.C. WHEN CURED ............................. 303 D. METHOD OF ARREST ............... 303 D.1. BY OFFICER WITH WARRANT ........ 303 D.1.A. DUTIES OF ARRESTING OFFICER .................................................................. 303 D.1.B. RIGHTS OF THE ARRESTING OFFICER .................................................. 303 D.2. BY OFFICER WITHOUT WARRANT 303 D.3. BY PRIVATE PERSON (CITIZEN’S ARREST) .................................................. 304 E. REQUISITES OF A VALID WARRANT OF ARREST .................................. 304 E.1. ESSENTIAL REQUISITES ................. 304 E.2. WHEN ISSUED ................................. 304 F. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST .................................. 304 G. PROBABLE CAUSE OF FISCAL AND JUDGE DISTINGUISHED ............... 304 VI. BAIL .......................................... 305 A. NATURE .................................. 305 A.1. DEFINITION ...................................... 305 A.2. PURPOSE ........................................ 305 A.3. REQUIREMENT OF CUSTODY ....... 305 B. WHEN A MATTER OF RIGHT; EXCEPTIONS ............................... 305 B.1. CAPITAL OFFENSE .......................... 305 B.2. EXTRADITION PROCEEDINGS ...... 305 B.3. WHEN NOT AVAILABLE ................. 306 C. WHEN A MATTER OF DISCRETION ................................................... 306

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D. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES ......... 306 D.1. IN GENERAL ..................................... 306 D.2. MINORS CHARGED WITH CAPITAL OFFENSE ................................................. 306 D.3. DUTIES OF JUDGE HEARING THE PETITION FOR BAIL ................................ 307 D.4. WHERE APPLICATION FOR BAIL IS FILED ........................................................ 307 E. GUIDELINES IN FIXING AMOUNT OF BAIL ............................................. 307 F. WHEN BAIL NOT REQUIRED ...... 307 G. INCREASE OR REDUCTION OF BAIL ................................................... 308 G.1. INCREASED BAIL ............................. 308 G.2. REDUCED BAIL ............................... 308 H. FORFEITURE AND CANCELLATION OF BAIL ....................................... 308 H.1. FORFEITURE OF BAIL ..................... 308 H.2. CANCELLATION OF BAIL ............... 309 H.2.A. APPLICATION BY BONDSMEN... 309 H.2.B. AUTOMATIC CANCELLATION .... 309 I. APPLICATION NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION ..... 309 J. HOLD/ALLOW DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST ................................. 309 VII. RIGHTS OF THE ACCUSED ........... 311 A. RIGHT TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED BEYOND REASONABLE DOUBT .......................................... 311 EQUIPOSE RULE ....................................... 311 B. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM ........... 311 C. RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STATE OF THE PROCEEDINGS ............................... 311 C.1. RIGHT TO BE PRESENT ..................... 311 REQUIREMENTS OF WAIVER: ................ 312 C.2. TRIAL IN ABSENTIA ......................... 312 C.3. RIGHT TO COUNSEL ........................ 312 C.4. RIGHT TO DEFEND IN PERSON...... 312 D. RIGHT TO TESTIFY AS WITNESS IN HIS BEHALF .................................. 312 E. RIGHT AGAINST SELFINCRIMINATION ............................ 313 F. RIGHT TO CONFRONTATION ..... 313 G. RIGHT TO COMPULSORY PROCESS .................................................... 313 H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL ....................... 313 I. RIGHT TO APPEAL ..................... 314

REMEDIAL LAW

J. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATIONS ....... 314 J.1. RIGHT TO BE ASSISTED BY COUNSEL AT ALL TIMES........................................... 315 J.2. RIGHT TO BE ALLOWED VISITS....... 315 J.3. CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS ............................... 315 J.3.A. FAILURE TO INFORM .................... 315 J.3.B. OBSTRUCTION, PREVENTION OR PROHIBITION OF RIGHT TO VISITS AND CONFERENCES ....................................... 315 VIII. ARRAIGNMENT AND PLEA ......... 316 A. ARRAIGNMENT AND PLEA; HOW MADE ........................................... 316 PLEA ......................................................... 316 A.1. DUTY OF THE COURT BEFORE ARRAIGNMENT ....................................... 316 A.2. PROCEDURE OF ARRAIGNMENT .. 316 A.2.A. HOW MADE .................................... 317 A.2.B. WHEN HELD .................................. 317 A.2.C. SPECIFIC RULES ............................ 317 B. WHEN A PLEA OF NOT GUILTY SHOULD BE ENTERED ................... 317 C. WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO A LESSER OFFENSE ...................................... 318 C.1. DURING ARRAIGNMENT ................. 318 C.2. AFTER ARRAIGNMENT BUT BEFORE TRIAL ........................................................ 318 C.3. AFTER TRIAL HAS BEGUN .............. 318 D. ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE; DUTY OF THE COURT ......................................... 318 E. SEARCHING INQUIRY ................ 318 F. IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE ..................... 319 F.1. WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN ........................................... 319 G. GROUNDS FOR SUSPENSION OF ARRAIGNMENT ............................ 320 G.1. UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE TIME OF THE ARRAIGNMENT ...................................... 320 G.2. EXISTENCE OF PREJUDICIAL QUESTION ............................................... 320 G.3. PENDENCY OF PETITION FOR REVIEW .................................................... 320 G.4 OTHER PENDING INCIDENTS ........ 320 IX. MOTION TO QUASH ..................... 321 A. WHEN FILED ............................. 321 B. GROUNDS ................................ 321 B.1. FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE .................... 321 B.2. COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED ....................... 321 B.3. COURT HAS NO JURISDICTION OVER THE PERSON OF THE ACCUSED ........... 322

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B.4. OFFICER WHO FILED THE INFORMATION HAD NO AUTHORITY TO DO SO ...................................................... 322 B.5. COMPLAINT OR INFORMATION DOES NOT CONFORM SUBSTANTIALLY TO THE PRESCRIBED FORM ............................... 322 B.6. MORE THAN ONE OFFENSE IS CHARGED ................................................ 322 B.7. CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED ............................ 322 B.8. CONTAINS AVERMENTS THAT IF TRUE WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION .................. 323 B.9. ACCUSED HAS BEEN PREVIOUSLY CONVICTED OR ACQUITTED OF THE OFFENSE CHARGED, OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS CONSENT ................................................ 323 C. MOTION TO QUASH AND DEMURRER DISTINGUISHED ........ 325 D. EFFECTS OF SUSTAINING THE MOTION TO QUASH ..................... 326 D.1. FILING ANOTHER COMPLAINT OR INFORMATION ........................................ 326 D.2. DISCHARGE OF THE ACCUSED .... 326 D.3. REMEDIES OF THE PROSECUTION .................................................................. 326 X. PRE-TRIAL ................................... 327 A. NATURE AND OBJECTIVE OF PRETRIAL ........................................... 327 B. PRE-TRIAL AGREEMENT .......... 328 C. PRE-TRIAL ORDER .................. 328 XI. TRIAL ........................................ 330 A. PRESENCE OF PERSONS AS REQUIRED BY LAW ...................... 330 A.1. OF ACCUSED .................................... 330 A.2. OF WITNESSES ................................ 330 B. RESPONSIBILITY OF COUNSEL . 330 C. TRIAL IN ABSENTIA ................. 330 D. DELAY IN CONDUCT OF TRIAL .. 331 E. DISCHARGE OF ACCUSED TO BE STATE WITNESS ........................... 331 F. DEMURRER TO EVIDENCE ......... 332 XII. JUDGMENT ................................ 333 A. REQUISITES ............................. 333 A.1. FORM ................................................ 333 A.2. JUDGE WHO RENDERS DECISION 333 A.3. CONTENTS OF JUDGMENT ............ 333 B. STATE LIABILITY FOR UNJUST CONVICTION ................................. 335 C. PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA .............. 336 C.1. IN GENERAL ..................................... 336 C.2. PROMULGATION IN CERTAIN CIRCUMSTANCES ................................... 336

REMEDIAL LAW

D. FINALITY .................................. 337 XIII. NEW TRIAL OR RECONSIDERATION ....................................................... 337 A. GROUNDS FOR NEW TRIAL ....... 337 A.1. ERRORS OF LAW OR IRREGULARITIES ..................................... 337 A.2. NEW AND MATERIAL EVIDENCE ... 337 B. GROUNDS FOR RECONSIDERATION ................................................... 338 C. EFFECTS OF GRANTING NEW TRIAL OR RECONSIDERATION ............... 338 D. APPLICATION OF THE NEYPES DOCTRINE IN CRIMINAL CASES .... 338 XIV. APPEAL ................................... 339 A. EFFECT OF AN APPEAL ............ 339 B. WHERE TO APPEAL .................. 339 C. HOW APPEAL TAKEN ............... 339 D. WHO MAY APPEAL ................... 339 E. PROCEDURE IN THE LOWER COURTS ...................................... 339 F. PROCEDURE IN THE COURT OF APPEALS ..................................... 340 F.1. PARTIES AND TITLE ........................ 340 F.2. BRIEFS.............................................. 340 F.3. EXTENSION OF TIME FOR FILING BRIEFS ..................................................... 340 F.4. FORM OF BRIEFS ............................ 340 F.5. CONTENT OF BRIEFS ..................... 340 F.6. DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO PROSECUTE; GROUNDS ........................ 341 F.7. PROMPT DISPOSITION OF APPEAL 341 G. THE COURT OF APPEALS .......... 341 G.1. SCOPE OF THE CA’S JUDGMENT ... 341 G.2. CA’S POWER TO RECEIVE EVIDENCE ...................................................................342 G.3. QUORUM IN THE CA .......................342 G.4. POST-CA JUDGMENT......................342 G.5. APPLICABLE CIVIL PROCEDURE RULES....................................................... 343 H. PROCEDURE IN THE SUPREME COURT ........................................ 343 H.1. UNIFORM PROCEDURE .................. 343 H.2. WHAT THE SC MAY DO ON REVIEW ................................................................... 343 H.3. MODES BY WHICH A CASE MAY REACH THE SC ........................................ 343 H.4. REVIEW OF CA DECISIONS ........... 344 H.5. GROUNDS FOR DISMISSAL OF APPEAL ................................................... 345 XV. SEARCH AND SEIZURE .............. 346 A. NATURE OF SEARCH WARRANT 346 A.1. IN GENERAL ..................................... 346 B. APPLICATION FOR SEARCH WARRANT .................................... 347 B.1. WHERE FILED ................................... 347 B.2. SUBSTANCE OF APPLICATION ..... 348

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C. ISSUANCE AND FORM OF SEARCH WARRANT ................................... 348 D. SERVICE OF THE SEARCH WARRANT ................................... 348 E. POST-SERVICE ........................ 349 E.1. RECEIPT OF PROPERTY SEIZED .... 349 E.2. DELIVERY AND INVENTORY OF PROPERTY .............................................. 349 F. PROBABLE CAUSE ................... 349 F.1. PROBABLE CAUSE IN SEARCH WARRANTS ............................................. 349 F.2. PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESSES . 349 F.3. PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED .................................................................. 350 G. EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT ............. 351 G.1. SEARCH INCIDENTAL TO LAWFUL ARREST..................................................... 351 G.2. CONSENTED SEARCH .................... 352 G.3. SEARCH OF A MOVING VEHICLE .. 352 G.4. CHECKPOINTS; BODY CHECKS IN AIRPORT .................................................. 352 G.5. PLAIN VIEW SITUATION ................. 353 G.6. STOP AND FRISK SITUATION ........ 353 G.7. ENFORCEMENT OF CUSTOMS LAW .................................................................. 353 G.8. OTHER EXCEPTIONS ...................... 354 H.1. WHO MAY AVAIL .............................. 354 H.2. MEANS ............................................. 354 H.3. CIVIL AND CRIMINAL LIABILITY..... 355 H.4. WAIVER OF IMMUNITY AGAINST UNREASONABLE SEARCH AND SEIZURE .................................................................. 355 FLOWCHART: .......................................... 356 SEARCH WARRANT PROCESS ............. 356 FLOWCHART: .......................................... 357 POST-ARREST PROCEDURE FOR WARRANTLESS ARRESTS ..................... 357 XIV. PROVISIONAL REMEDIES ......... 358 A. NATURE .................................. 358 B. KINDS OF PROVISIONAL REMEDIES ................................................... 358 B.1. IN GENERAL ..................................... 358 B.2. PRELIMINARY ATTACHMENT ........ 358

Evidence

REMEDIAL LAW

E. FACTUM PROBANS VERSUS FACTUM PROBANDUM .................. 361 F. ADMISSIBILITY OF EVIDENCE ... 362 G. BURDEN OF PROOF AND BURDEN OF EVIDENCE .............................. 364 H. PRESUMPTIONS ...................... 365 I. LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE ................... 368 J. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) 368 J.1. PROOF BEYOND REASONABLE DOUBT..................................................... 368 J.2. PREPONDERANCE OF EVIDENCE . 369 J.3. SUBSTANTIAL EVIDENCE ............... 369 J.4. CLEAR AND CONVINCING EVIDENCE .................................................................. 369 II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS ................................... 370 A. WHAT NEED NOT BE PROVED .. 370 B. MATTERS OF JUDICIAL NOTICE 370 B.1. WHEN MANDATORY ................. 370 B.2. WHEN DISCRETIONARY ................. 370 B.3. WHEN HEARING NECESSARY ......... 371 B.4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE ............................................ 372 C. JUDICIAL ADMISSIONS ............. 373 III. OBJECT (REAL) EVIDENCE ........... 374 A. NATURE OF OBJECT EVIDENCE 374 B. REQUISITES FOR ADMISSIBILITY 374 C. CATEGORIES OF OBJECT EVIDENCE .................................................... 375 C.1. THE “THING ITSELF” ........................ 375 C.2. DEMONSTRATIVE EVIDENCE ........ 375 C.3. EPHEMERAL ELECTRONIC COMMUNICATIONS ................................ 375 D. VIEW OF AN OBJECT OR SCENE 376 E. CHAIN OF CUSTODY IN RELATION TO SEC. 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 .................................................... 376 F. RULE ON DNA EVIDENCE [AM NO. 06-11-5-SC] .................................. 377 F.1. APPLICATION FOR DNA TESTING ORDER ..................................................... 377 F.2. POST-CONVICTION DNA TESTING 377 F.3. ASSESSING DNA EVIDENCE ........... 377 IV. DOCUMENTARY EVIDENCE .......... 378 A. MEANING OF DOCUMENTARY EVIDENCE .................................... 378 B. REQUISITES FOR ADMISSIBILITY .................................................... 378 C. BEST EVIDENCE RULE .............. 378 C.1. APPLICABILITY .................................. 378 C.2. ORIGINAL DOCUMENT ................... 379

359

I. GENERAL PRINCIPLES ................. 360 A. CONCEPT OF EVIDENCE ........... 360 C. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES .... 360 D. PROOF VERSUS EVIDENCE ....... 361

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C.3. EXCEPTIONS [SEC. 3, RULE 130] ... 379 D. RULES ON ELECTRONIC EVIDENCE [AM NO. 01-7-01-SC] .................... 380 D.1. APPLICABILITY ................................. 380 D.2. ADMISSIBILITY OF ELECTRONIC DOCUMENTS .......................................... 380 D.4. METHOD OF PROOF ....................... 381 E. PAROL EVIDENCE RULE ........... 382 E.1. APPLICABILITY ................................. 383 E.2. INTRODUCTION AND PRESENTATION OF PAROL EVIDENCE............................. 383 E.3. COLLATERAL AGREEMENTS ......... 383 F. AUTHENTICATION AND PROOF OF DOCUMENTS ............................... 384 F.1. PUBLIC AND PRIVATE DOCUMENTS .................................................................. 384 F.7. ATTACKING RECORDS .................... 386 F.8. PROOF OF NOTARIAL DOCUMENTS .................................................................. 386 F.9. HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT [SEC. 31, RULE 132]............ 386 V. TESTIMONIAL EVIDENCE .............. 387 A. QUALIFICATIONS OF A WITNESS .................................................... 387 B. COMPETENCY VERSUS CREDIBILITY ................................ 388 C. DISQUALIFICATIONS OF WITNESSES ................................. 388 C.1. BY REASON OF MENTAL CAPACITY OR IMMATURITY ..................................... 389 C.2. BY REASON OF MARRIAGE ........... 389 C.3. BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY (ALSO KNOWN AS “DEAD MAN’S STATUTE” OR “SURVIVORSHIP RULE”) ........................ 390 C.4. BY REASON OF PRIVILEGED COMMUNICATIONS ................................ 390 D. EXAMINATION OF A WITNESS .. 394 D.1. RIGHTS AND OBLIGATIONS OF A WITNESS [SEC. 3, RULE 132] .................. 394 D.2. ORDER OF EXAMINATION OF AN INDIVIDUAL WITNESS ............................ 394 D.3. LEADING AND MISLEADING QUESTIONS [SEC. 10, RULE 132] ........... 395 D.4. IMPEACHING A WITNESS .............. 395 D.5. JUDICIAL AFFIDAVIT RULE [AM 12-88-SC] ........................................................ 396 E. ADMISSIONS AND CONFESSIONS .................................................... 397 E.1. EXTRAJUDICIAL ADMISSIONS ........ 397 E.2. RES INTER ALIOS ACTA RULE ....... 398 E.3. OTHER FORMS OF ADMISSIONS ..400 F. HEARSAY RULE ........................ 401 F.1. GENERAL RULE ON HEARSAY ........ 401 F.2. MEANING OF HEARSAY .................. 401 F.3. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS ....................... 401

REMEDIAL LAW

F.4. REASON FOR EXCLUSION OF HEARSAY EVIDENCE ............................. 402 F.5. EXCEPTIONS TO THE HEARSAY RULE .................................................................. 402 G. OPINION RULE ....................... 406 G.1. OPINION OF EXPERT WITNESS [SEC. 49, RULE 130] .......................................... 406 G.2. OPINION OF ORDINARY WITNESS [SEC. 50, RULE 130] ................................ 407 H. CHARACTER EVIDENCE .......... 408 H.1. CRIMINAL CASES ............................ 408 H.2. CIVIL CASES .................................... 408 I. RULE ON EXAMINATION OF A CHILD WITNESS [AM NO. 004-07-SC] ................................................... 408 I.1. APPLICABILITY OF THE RULE.......... 409 I.2. MEANING OF “CHILD WITNESS” [SEC. 4(A)] ......................................................... 409 CHILD WITNESSES MAY TESTIFY IN A NARRATIVE FORM AND LEADING QUESTIONS MAY BE ALLOWED BY THE TRIAL COURT IN ALL STAGES OF THE EXAMINATION IF THE SAME WILL FURTHER THE INTEREST OF JUSTICE. [PEOPLE V. SANTOS, G.R. NO. 172322 (2006)] ........................................... 409 I.3. COMPETENCY OF CHILD WITNESS 409 I.4. EXAMINATION OF A CHILD WITNESS .................................................................. 409 I.5. HEARSAY EXCEPTION IN CHILD ABUSE CASES [SEC. 28] ......................... 410 I.6. SEXUAL ABUSE SHIELD RULE ........ 410 VI. OFFER AND OBJECTION ............... 411 A. OFFER OF EVIDENCE ................. 411 B.WHEN TO MAKE AN OFFER [SEC. 35, RULE 132] ..................................... 412 C. OBJECTION [SEC. 36, RULE 132] 412 C.1. CONCEPT .......................................... 412 C.2. MANNER ........................................... 412 C.3. PURPOSES OF OBJECTION [RIANO] ................................................................... 413 C.4. CLASSIFICATION OF OBJECTIONS 413 C.5. WHEN TO OBJECT ........................... 413 D. RULING ON THE OBJECTION [SEC. 38, RULE 132] ............................... 413 E. STRIKING OUT AN ANSWER [SEC. 39, RULE 132] ............................... 414 F. TENDER OF EXCLUDED EVIDENCE [SEC. 40, RULE 132] ...................... 414

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E.1. WHEN AVAILABLE ........................... 422 E.2. WHERE TO FILE............................... 422 E.3. PROCEDURE ................................... 422 E.4. DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING MANDAMUS ............................................423 IV. CRIMINAL PROCEDURE .............. 423 A. WHO MAY FILE ........................ 423 B. INSTITUTION OF CRIMINAL AND CIVIL ACTION .............................. 423 C. ARREST WITHOUT WARRANT, WHEN VALID ............................... 423 D. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION [SLAPP] .. 424 E. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS ... 424 F. BAIL ........................................ 424 G. ARRAIGNMENT AND PLEA ....... 425 G.1. WHEN ............................................... 425 G.2. PLEA-BARGAINING ........................ 425 H. PRE-TRIAL .............................. 425 I. SUBSIDIARY LIABILITIES ........... 425 V. EVIDENCE ................................... 425 A. PRECAUTIONARY PRINCIPLE ... 425 B. DOCUMENTARY EVIDENCE ...... 425 B.1. PHOTOGRAPHIC, VIDEO AND SIMILAR EVIDENCE MUST BE AUTHENTICATED 425 B.2. ENTRIES IN OFFICIAL RECORDS AS PRIMA FACIE EVIDENCE........................ 425

206

I. SCOPE AND APPLICABILITY OF THE RULE ............................................... 417 II. CIVIL PROCEDURE ....................... 418 A. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ... 418 B. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) ......... 418 B.1. GROUND FOR ISSUANCE ................ 418 B.2. PERIOD OF EFFECTIVITY ................. 419 B.3. DUTY OF COURT .............................. 419 B.4. GROUND TO DISSOLVE TEPO ........ 419 C. DECLARATION OF DEFAULT MOTU PROPRIO ...................................... 419 D. PRE-TRIAL CONFERENCE; CONSENT DECREE ........................ 419 E. PROHIBITED PLEADINGS AND MOTIONS ..................................... 419 F. PERIOD TO TRY AND DECIDE .... 419 G. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN SUIT ........... 419 G.1. RELIEFS IN A CITIZEN SUIT ............. 419 G.2. NO DAMAGES CAN BE AWARDED IN A CITIZEN SUIT ....................................... 420 G.3. JUDGMENT NOT STAYED BY APPEAL .................................................................. 420 H. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS ............ 420 I. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) .. 420 I.1. SLAPP AS A DEFENSE ...................... 420 I.2. QUANTUM OF EVIDENCE ................. 421 I.3. RESOLUTION OF THE DEFENSE OF A SLAPP ....................................................... 421 III. SPECIAL CIVIL ACTIONS .............. 421 A. WRIT OF KALIKASAN ................ 421 A.1. WHO MAY FILE .................................. 421 A.2. ACTS COVERED BY THE WRIT ........ 421 A.3. WHERE TO FILE ................................ 421 A.4. PROCEDURE .................................... 421 B. PROHIBITED PLEADINGS AND MOTIONS .................................... 422 C. DISCOVERY MEASURES ........... 422 C.1. OCULAR INSPECTION ..................... 422 C.2. PRODUCTION OR INSPECTION OF DOCUMENTS .......................................... 422 D. APPEAL ................................... 422 E. WRIT OF CONTINUING MANDAMUS ................................................... 422

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I. General Concepts

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A.3 PROSPECTIVITY/ RETROACTIVITY GENERAL RULE: Rules of procedure may be modified at any time to become effective at once, so long as the change does not affect vested rights. Moreover, it is equally axiomatic that there are no vested rights to rules of procedure. [Zulueta v. Asia Brewery, , G.R. No. 138137 (2001)]

A. CONCEPT OF REMEDIAL LAW Rem edial law – traditional term given to the rules which prescribe the procedure for the protection and enforcement of all claims arising from the rights and duties created by law [Riano] That branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion [Bustos v. Lucero, G.R. No. L-2068 (1948)].

EXCEPTIONS: as enumerated in Tan, Jr. v. CA (G.R. No. 136368 (2002), citing Agpalo: procedural rules do not apply to pending actions: (1) where the statute itself or by necessary implication provides that pending actions are excepted from its application; (2) if applying the rule to pending actions would impair vested rights; (3) when to do so would not be feasible or would work injustice; (4) if doing so would involve intricate problems of due process or impair the independence of the courts.

A.1 SOURCE Remedial law is mostly in the Rules of Court. Circulars of the Supreme Court implementing the Rules of Court (e.g. Rules on Summary Procedure) are also sources of remedial law. The Rules of Court, do not originate from the legislature and cannot be called laws in the strict sense. However, since they are promulgated by authority of law, they have the force and effect of law, if not in conflict with positive law. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Riano citing Alvero v. Dela Rosa, G.R. No. L-286 (1946); Shioji v Harvey, G.R. No. 18940 (1922)]

B. SUBSTANTIVE LAW VIS-À-VIS REMEDIAL LAW Substantive Law - creates, defines and regulates rights and duties regarding life, liberty or property which when violated gives rise to a cause of action [Bustos v. Lucero, G.R. No. L-2068 (1948)]

A.2 APPLICABILITY The Rules of Court shall apply in all the courts, except as otherwise provided by the SC. [Sec. 2, Rule 1]

SUBSTANTIVE LAW Creates, defines, or regulates rights, concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs Vested rights are possible

It shall govern the procedure to be observed in civil or crim inal actions, and special proceedings. [Sec. 3, Rule 1] It does not apply to the following cases: (1) Election cases, (2) Land registration cases, (3) Cadastral cases (4) Naturalization cases, (5) Insolvency proceedings (6) Other cases not provided for in the Rules of Court

Prospective in application

EXCEPT: by analogy or in a suppletory character and whenever practicable and convenient [Sec. 4, Rule 1]

Cannot be enacted by the SC

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REMEDIAL LAW Legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained; also called Adjective Law It has no vested rights Governs acts and transactions which took place (retroactive) SC is expressly empowered to promulgate procedural rules

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C. RULE MAKING POWER OF THE SUPREME COURT

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The power of the Supreme Court to suspend its own rules or to except a particular case from its operations whenever the purposes of justice require it, cannot be questioned. [De Guzman v. Sandiganbayan, G.R. No. 103276(1996)]

Sec. 5(5), Art. VIII, of the 1987 CONST provides that that the Supreme Court shall have the power to promulgate rules concerning: (1) the protection and enforcement of constitutional rights, (2) pleading, practice, and procedure in all courts; (3) admission to the practice of law; (4) the Integrated Bar; (5) legal assistance to the underprivileged

Compliance with the procedural rules is the general rule, and abandonment thereof should only be done in the most exceptional circumstances. [Pilapil v. Heirs of Briones, G.R. No. 150175 (2007)] Litigation is not a game of technicalities, but every case must be prosecuted in accordance with the prescribed rules of procedure to ensure an orderly and speedy administration of justice. Only for the most persuasive of reasons can such rules be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. [Novateknika v. PNB, G.R. No. 194104 (2013)]

The same section sets forth the limitations to the power: (1) The rules shall provide a simplified and inexpensive procedure for speedy disposition of cases; (2) The rules shall be uniform for courts of the same grade; and (3) The rules shall not diminish, increase or modify substantive rights. The 1987 Constitution, however, took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. The power to promulgate rules is no longer shared by the Court with Congress, more so with the executive. [Echegaray v. Secretary of Justice, G.R. No. 132601 (1999)]

Where strong considerations of substantive justice are manifest in the petition, the strict application of the rules of procedure may be relaxed, in the exercise of its equity jurisdiction. A rigid application of the rules of procedure will not be entertained if it will obstruct rather than serve the broader interests of justice in the light of the prevailing circumstances in the case under consideration. [CMTC Int’l Marketing Corp. v. Bhagis Int’l Trading Corp., G.R. No. 170488 (2012)]

C.1 POWER OF THE SC TO AMEND PROCEDURAL RULES The SC has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. [Neypes v. CA, G.R. No. 141524 (2005)]

Parties praying for the liberal interpretation of the rules must be able to hurdle that heavy burden of proving that they deserve an exceptional treatment. It was never the Court’s intent “to forge a bastion for erring litigants to violate the rules with impunity.” [Prieto v. Alpadi Development Corp., G.R. No. 191025 (2013)]

The constitutional faculty of the Court to promulgate rules necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. [Pinga v. Heirs of Santiago, G.R. No. 170354 (2006)]

Concomitant to a procedure adopting a liberal application of the rules should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules. [Duremdes v. Duremdes, G.R. No. 138256 (2003)]

C.2 POWER OF SC TO SUSPEND The Rules of Court shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. [Sec. 6, Rule 1] 3 OF 425

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What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts. [CIR v. Mirant Pagbilao Corp., G.R. No. 159593 (2006)]

D.2 CLASSIFICATION OF PHIL. COURTS i. Courts of original and appellate jurisdiction [Regalado] Original Appellate Actions or Have the power to proceedings may be review on appeal the originally decisions or orders of commenced a lower court

The reasons which would warrant suspension of the Rules are: (1) The existence of special and compelling circumstances; (2) The merits of the case; (3) A cause not entirely attributable to the fault or negligence of the party favored by the suspension; (4) A lack of any showing that the reviw sought is merely frivolous or dilatory; and (5) The rights of the other party will not be unjustly prejudiced thereby. [Sarmiento v. Zaratan, G.R. No. 167471 (2007)]

Appellate jurisdiction refers to a process which is but a continuation of the original suit, not a commencement of a new action. [Morales v. CA, G.R. No. 126623 (1997)] ii. Courts of general and special jurisdiction [Regalado] General Special Competent to decide their own jurisdiction No power to decide and to take their own jurisdiction cognizance of all and can only try kinds of cases, unless cases permitted by otherwise provided statute by the law or Rules

D. NATURE OF PHILIPPINE COURTS D.1 MEANING OF A COURT Court – an organ of government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it as well as the public administration of justice.

iii. Constitutional and statutory courts Constitutional Statutory Owe creation and existence to the Constitution and Created, organized cannot be legislated and with jurisdiction out of existence or exclusively deprived by law of the determined by law jurisdiction and powers unqualifiedly vested in them

It is also the place where justice is administered. [Riano citing Black’s Law Dictionary, Am. Jur. and C. J. S.] As Distinguished from a Judge: A court is an organ of government with a personality separate and distinct from the judge who sits on it. [People v. Carlos, G.R. No. L-239 (1947)] Court Tribunal officially assembled under authority of law Comparable to corporation

Judge Officer tribunal a

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iv. Courts of law and equity Law Equity Settle cases according to the Settle cases principles of equity, according to law referring to principles of justice, fairness and fair play

such

A physical or natural person

Jurisdiction does not attach to the judge but to the court. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. [ABC Davao Auto Supply v. CA, G.R. No. 113296 (1998)]

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Philippine courts are basically courts of law, not courts of equity. Equity, which has been aptly described as a “justice outside legality,” is applied only in the absence of, and never against, statutory law. Aequetas nunquam contravenit legis. [GF Equity, Inc. v. Valenzona, G.R. No. 156841 (2005)]

D.3 PRINCIPLE OF JUDICIAL HIERARCHY Doctrine of hierarchy of courts: Where courts have concurrent jurisdiction over a subject matter, a case must be filed before the lowest court possible having the appropriate jurisdiction, except if one can advance a special reason which would allow direct recourse to a higher court.

Equity is available only in the absence of law and not as its replacement. [PTA of ST. Matthew Christian Academy v. Metropolitan Bank and Trust Co., G.R. No. (2010)]

The principle of hierarchy of courts requires that recourses should be made to the lower courts before they are made to the higher courts. [Republic v. Caguioa, G.R. No. 174385 (2013)]

NOTE. In Carceller v. CA [G.R. No. 124791 (1999)], the Supreme Court stated immediately preceding the dispositive portion that: “Courts of law, being also courts of equity, may not countenance such grossly unfair results without doing violence to its solemn obligation to administer fair and equal justice for all.” v. Superior [Regalado] Superior

and

Have the power of review or supervision over another and lower court

Inferior

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Parties must observe the hierarchy of courts before they can seek relief directly from the SC – the rationale is two-fold: (1) It would be an imposition upon the limited time of the Court; and (2) It would inevitably result in a delay, in the adjudication of cases, which are remanded or referred to the lower court as the proper forum, or a trier of facts. [People v Azarraga, G.R. No. 187117 (2011)]

Courts

Inferior Are lower in rank, in relation to another court and subject to review and supervision by the latter

A disregard of the doctrine of hierarchy of courts warrants, as a rule, the outright dismissal of a petition. [De Castro v. Carlos, G.R. No. 194994 (2013)]

vi. Courts of record and not of record Of record Not of record Proceedings are enrolled and are bound to keep a written record of all trials and proceedings handled Not required to keep by them [Regalado] a written record or transcript of There is a strong proceedings held presumption as to therein the veracity of its records that cannot be collaterally attacked except in cases of fraud

The SC may disregard the doctrine if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations. Direct resort to the SC has been allowed in the following cases: (1) Where there are special and important reasons clearly stated in the petition; (2) When dictated by public welfare and the advancement of public policy; (3) When demanded by the broader interest of justice; (4) When the challenged orders were patent nullities; (5) When analogous exceptional and compelling circumstances called for and justified the immediate and direct handling by the Court. [Republic v. Caguioa, G.R. No. 174385 (2013)]

All Philippine courts, including inferior courts, are now courts of record. [Riano]

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II. Jurisdiction

D.4 DOCTRINE OF NON-INTERFERENCE Also known as the doctrine of judicial stability

Jurisdiction: authority to decide a cause. [Tolentino v. Leviste, G.R. No. 156118 (2004)]

Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders [Lapu-Lapu Dev’t and Housing Corp. v. Group Management Corp., G.R. No. 141407 (2002)]

Judicial Power includes the duty of the courts of justice: (1) To settle actual controversies involving rights, which are legally demandable and enforceable; and (2) To determine W ON there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government. [Sec. 1, Art. VIII, 1987 Constitution]

The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review. [Villamor v. Salas, G.R. No. 101041 (1991)] The doctrine applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil. Sinter Corp. v. Cagayan Electric Power, G.R. No. 127371 (2002)].

Traditional vs expanded jurisdiction [Araullo v. Aquino, G.R. No. 209287 (2015)] Traditional

The rationale for the rule is founded on the concept of jurisdiction: a court that acquires jurisdiction over the case and renders judgment therein has jurisdiction over its judgment, to the exclusion of all other coordinate courts, for its execution and over all its incidents, and to control, in furtherance of justice, the conduct of ministerial officers acting in connection with this judgment. [Cabili v. Balindong, A.M. No. RTJ-10-2225 (2011)]

Involves controversies brought about by rights – whether public or private – which are demandable and enforceable against one another

GENERAL RULE: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court

Expanded Addresses the relationship of parties to any branch or instrumentality of the government, and allows direct but limited redress against the government – available only when a grave abuse of discretion on the part of government is alleged to have been committed

Judicial review: power of the Court to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional

EXCEPTION: The doctrine of judicial stability does not apply where a third party claimant is involved – this is in consonance with the well-established principle that no man shall be affected by any proceeding to which he is a stranger. [Sps. Crisologo v. Omelio, A.M. No. RTJ-12-2321 (2012), citing Sec. 16, Rule 39, and quoting Naguit v. CA, G.R. No. 137675 (2000)]

A. ASPECTS OF JURISDICTION [BOSTON EQUITY RESOURCES, INC. V. CA, G.R. NO. 173946 (2013)] A.1 JURISDICTION OVER THE SUBJECT MATTER Jurisdiction over the subject matter – the power of a particular court to hear the type of case that is then before it [Riano citing Black’s Law Dictionary] 6 OF 425

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Jurisdiction over the subject matter of a case is conferred by law and determined by the allegations in the complaint which comprise a concise statement of the ultimate facts constituting the plaintiff's cause of action. [City of Dumaguete v. PPA, G.R. No. 168973 (2011)]

It is the power to hear and determine cases of the general class to which the proceedings in question belong. [Reyes v. Diaz, G.R. No. L48754 (1941)] i. Jurisdiction Versus the Exercise of Jurisdiction Jurisdiction refers to the power or authority of the court. [Arranza v. BF Homes, G.R. No. 131683 (2000)] while the exercise of this power or authority is the exercise of jurisdiction.

Jurisdiction over the subject matter is conferred only by the Constitution or law, it cannot be: (1) Fixed by the will of the parties; (2) Acquired, waived, enlarged, or diminished by any act or omission of the parties; or (3) Conferred by the acquiescence of the courts. [De Jesus v. Garcia, G.R. No. L26816 (1967)] (4) Subject to compromise [Art. 2035(5), Civil Code]

Jurisdiction is not the same as the exercise of jurisdiction. As distinguished from the exercise of jurisdiction, jurisdiction is the authority to decide a cause, and not the decision rendered therein. Where there is jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is but an exercise of the jurisdiction. And the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal. [Tolentino v. Leviste, G.R. No. 156118 (2004)] ii. Error of Distinguished from Error of jurisdiction One where the act complained of was (1) without jurisdiction, in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. Correctible only by the extraordinary writ of certiorari. NOTE: Sec. 8, Rule 40 allows an RTC with original jurisdiction over a case brought on appeal from a lower court to decide the case on the merits. Renders a judgment void or voidable.

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Generally, the jurisdiction of a court is determined by the statute in force at the commencement of the action, unless such statute provides for its retroactive application. [Baritua v. Mercader, G.R. No. 136048 (2001)]

Jurisdiction as Error of Judgm ent Error of judgment One which the court may commit in the exercise of its jurisdiction. It includes errors of procedure or mistakes in the court’s findings.

Once vested by the allegations in the complaint, jurisdiction also remains vested irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. [City of Dumaguete v. PPA, G.R. No. 168973 (2011)] Jurisdiction is not affected by the pleas set up by the defendant in his answer or in a motion to dismiss, otherwise, jurisdiction would be dependent on his whims. [Sindico v. Diaz, G.R. No. 147444 (2004)] NOTE: The MTCC does not lose jurisdiction over ejectment cases by mere allegation of a tenancy relationship. However, if after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction. [Hilado v. Chavez, G.R. No. 134742 (2004)]

Correctible by appeal.

Ground for reversal only if it is shown that prejudice has been caused.

iii. How Conferred and Determ ined [Medical Plaza Makati Condominium v. Cullen, G.R. No. 181416 (2013)] 7 OF 425

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iv. Doctrine of Prim ary Jurisdiction The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise, specialized training and knowledge of the proper administrative bodies, relief must first be obtained in an administrative proceeding before a remedy is supplied by the courts even if the matter may well be within their proper jurisdiction. [Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)]

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v. Doctrine of Adherence of Jurisdiction Also known as doctrine of continuity of jurisdiction Once the jurisdiction of a court attaches, it continues until the case is finally terminated. The trial court cannot be ousted therefrom by subsequent happenings or events, although of a character that would have prevented jurisdiction from attaching in the first instance. [Baritua v. Mercader, G.R. No. 136048 (2001)]

The objective of the doctrine of primary jurisdiction is to guide the court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. [Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)]

As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, except: (1) Where there is an express provision in the statute (2) The statute is clearly intended to apply to actions pending before its enactment. [People v. Cawaling, G.R. No. 117970 (1998)]

Exceptions: (1) Where there is estoppel on the part of the party invoking the doctrine; (2) Where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (3) Where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (4) Where the amount involved is relatively small; (5) Where the question involved is purely legal and will ultimately have to be decided by the courts; (6) Where judicial intervention is urgent; (7) When its application may cause great and irreparable damage; (8) Where the controverted acts violate due process; (9) When the issue of non-exhaustion of administrative remedies has been rendered moot; (10) When there is no other plain, speedy, adequate remedy; (11)When strong public interest is involved; and (12) In quo warranto proceedings. [Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)]

vi. Objections to Jurisdiction over the Subject Matter When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. [Sec. 1, Rule 9] The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where the fact is developed. The court has a clearly recognized right to determine its own jurisdiction in any proceeding. [Fabian v. Desierto, G.R. No. 129742 (1998)]. The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. [Sec. 1(b), Rule 16] If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Sec. 16(6), Rule 16]. When the court dismisses the complaint for lack of jurisdiction over subject matter, it is submitted that the court should not remand the case to another court with the proper jurisdiction. Its only has authority to dismiss and not to make any other order. [Riano] 8 OF 425

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vi. Effect of Estoppel on Objections to Jurisdiction

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Jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case only in an action in personam. It is not a prerequisite in an action in rem or quasi in rem, provided that the court acquires jurisdiction over the res. [Alba v. CA, G.R. No. 164041 (2005)]

GENERAL RULE: Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. The reason for this is that jurisdiction is conferred by law, and lack of it affects the very authority of the court to take cognizance of the action. [Asiatrust Development Bank v First Aikka Development, Inc., G.R. No. 179558 (2011)]

An objection to jurisdiction over the person of the defendant may be raised as a ground in a Motion to Dismiss [Sec. 1(a), Rule 16] or as an affirmative defense in an Answer [Sec. 6, Rule 16].

EXCEPTION: Tijam v. Sibonghanoy [G.R. No. L-21450 (1968)] espoused the doctrine of estoppel by laches, which held that a party may be barred from questioning a court’s jurisdiction after invoking the court’s authority in order to secure affirmative relieve against its opponent – laches would prevent the issue of lack of jurisdiction from being raised for the first time on appeal by a litigant whose purpose is to annul everything done in a trial in which it has actively participated. [Francel Realty Corp. v. Sycip, G.R. No. 154684 (2005)]

However, if not raised in such Motion or Answer, it is deemed waived. It is not one of those defenses not deemed waived under Section 1, Rule 9. [Boston Equity Resources, Inc. v. CA, G.R. No. 173946 (2013)] A.3 JURISDICTION OVER THE ISSUES An issue is a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision.

NOTE: Tijam must be construed as an exception to the general rule and applied only in the most exceptional cases whose factual milieu is similar to that in the latter case. [Figueroa v. People, G.R. No. 147406 (2008)]

The SC had occasion to note that in some instances it has been held that the court must also have jurisdiction over the issues – that is, the issue being tried and decided by the court be within the issues raised in the pleadings [Reyes v. Diaz, G.R. No. L-48754 (1941)]

A.2 JURISDICTION OVER THE PARTIES A Court must acquire jurisdiction over the persons of indispensable parties before it can validly pronounce judgments personal to the parties. [Regner v. Logarta, G.R. No. 168747 (2007)]

Generally, jurisdiction over the issues is conferred and determined: (1) by the pleadings of the parties, which present the issues to be tried and determine whether or not the issues are of fact or law [Reyes v. Diaz, G.R. No. L48754 (1941)]; (2) by stipulation of the parties as when, in the pre-trial, the parties enter into stipulations of facts or enter into agreement simplifying the issues of the case [Sec. 2, Rule 18]; (3) by waiver or failure to object to evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent or issues not raised by the pleadings. [Sec. 5, Rule 10]

The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant. Courts acquire jurisdiction over a party plaintiff upon the filing of the complaint. [Regner v. Logarta, G.R. No. 168747 (2007)] Jurisdiction over the person of the defendant is acquired: (1) By his voluntary appearance in court and his submission to its authority; or (2) By service of summons. [Sec. 20, Rule 14; Macasaet v. Co, G.R. No. 156759 (2013)] 9 OF 425

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A.4 JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION “Res,” in civil law is a “thing” or “object.” It is everything that may form an object of rights as opposed to a “persona,” which is the subject of rights. It includes object, subject matter or status. [Riano citing Black’s Law Dictionary]

REMEDIAL LAW Estrada v. Desierto, G. R. No. 156160 (2004)]

The certiorari jurisdiction of the Supreme Court has been rigorously streamlined, such that Rule 65 only admits cases based on the specific grounds provided therein. The Rule applies if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. The independent action for certiorari will lie only if grave abuse of discretion is alleged and proven to exist. [Lagua v. CA, G.R. No. 173390 (2012)]

Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action. Jurisdiction over the res may be acquired: (1) By seizure of the thing under legal process whereby, it is brought into actual custody of the law (custodia legis); or, (2) From the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective (potential jurisdiction over the res). [Biaco v. Philippine Countryside Rural Bank, G.R. No. 161417 (2007); El Banco Español-Filipino v. Palanca, G.R. No. L-11390 (1918)]

NOTE: That in Araullo v. Aquino III, G.R. No. 209287 (2014), the SC held that petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials. “With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.”

As early as Perkins v. Dizon [G.R. No. 46631 (1939)], the Court held: “In order that the court may exercise power over the res, it is not necessary that the court should take actual custody of the property, potential custody thereof being sufficient. There is potential custody when, from the nature of the action brought, the power of the court over the property is impliedly recognized by law.” [Marcos, Jr. v. Republic, G.R. No. 189434 (2014)]

Concurrent Original Jurisdiction (1) With CA (a) Petitions for certiorari, prohibition, and mandamus against: (i) Regional Trial Courts; (ii) Civil Service Commission; (iii) Central Board of Assessment Appeals; (iv) NLRC and other Quasi-Judicial Agencies NOTE: That, although there is concurrent jurisdiction as the 1987 Constitution grants this to the SC, SC A.M. No. 07-7-12 issued on 4 December 2007 provides that if the petition involves an act/omission of a Quasi-Judicial Agency, the

B. JURISDICTION OF COURTS B.1 SUPREME COURT Exclusive Original Jurisdiction Petitions for certiorari, prohibition and mandamus against: (1) Court of Appeals (2) Commission on Elections (3) Commission on Audit (4) Court of Tax Appeals En Banc (5) Sandiganbayan (6) Ombudsman in criminal and nonadministrative disciplinary cases [Ombudsman v. Heirs of Margarita Vda. De Ventura, G.R. No. 151800 (2009), citing 10 OF 425

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petition shall only be cognizable by the CA and must be filed there. (b) Petitions for writ of kalikasan

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the CA, via Rule 43 of the Rules of Court. This constitutes an exception to the general rule that appeals on pure questions of law are brought to the SC. [Santos v. Committee on Claims Settlement, G.R. No. 158071 (2009)]

(2) With RTC in cases affecting ambassadors,

public ministers and consuls.

The SC may resolve factual issues in certain exceptional circumstances:

(3) With CA and RTC (a) Petitions for certiorari, prohibition and

(1) The

conclusion is grounded on speculations, surmises or conjectures (2) The inference is manifestly mistaken, absurd or impossible; (3) There is grave abuse of discretion; (4) The judgment is based on a misapprehension of facts; (5) The findings of fact are conflicting; (6) There is no citation of specific evidence on which the factual findings are based; (7) The finding of absence of facts is contradicted by the presence of evidence on record; (8) The findings of the CA are contrary to those of the trial court; (9) The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) The findings of the CA are beyond the issues of the case; (11) Such findings are contrary to the admissions of both parties. [Josefa v. Zhandong, G.R. No. 150903 (2003)]

mandamus against lower courts and bodies; (b) Petitions for quo warranto; (c) Petitions for writs of habeas corpus. (4) With CA, RTC and Sandiganbayan (a) Petitions for writ of amparo and habeas

data. Appellate Jurisdiction By way of petition for review on certiorari (appeal by certiorari under Rule 45) against: (1) CA (2) Sandiganbayan (3) RTC on pure questions of law (4) CTA in its decisions rendered en banc (5) MetC, MTC, MCTC in the exercise of their delegated jurisdiction, where the decision, had it been rendered by RTC, would be appealable directly to the SC [Sec. 34, BP 129, as amended] Only pure questions of law are involved when no evidentiary matters are to be evaluated by the SC. If the only issue is whether or not the conclusions of the trial court are in consonance with law and jurisprudence, then the issue is a pure question of law. [Urbano v. Chavez, G.R. No. 87977 (1990)]

B.2 COURT OF APPEALS Exclusive Original Jurisdiction (1) Actions for annulment of judgments of the RTC [see: Sec. 9(2), BP 129; Sec. 1, Rule 47]

This appellate jurisdiction applies: (1) In cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court; and (2) All cases in which the jurisdiction of any court is in issue; (3) All cases in which an error or question of law is involved

Concurrent Original Jurisdiction (1) With SC (a) Petitions for certiorari, prohibition, and mandamus against: (i) Regional Trial Courts; (ii) Civil Service Commission; (iii) Central Board of Assessment Appeals; (iv) NLRC and other Quasi-Judicial Agencies NOTE: That, although there is concurrent jurisdiction as the 1987 Constitution grants this to the SC, SC A.M. No. 07-7-12

Note that the SC has held that appeals from quasi-judicial agencies – even only on a question of law alone – may be brought to 11 OF 425

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issued on 4 December 2007 provides that if the petition involves an act/omission of a Quasi-Judicial Agency, the petition shall only be cognizable by the CA. (b) Petitions for writ of kalikasan

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assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; (2) Inaction by CIR in the above-mentioned cases, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial; (3) Decisions, orders or resolutions of the RTCs in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction; (4) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs law or other laws administered by BOC; (5) Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; (6) Decision of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; (7) Decisions of Secretary of Trade and Industry in the case of non-agricultural articles, and the Secretary of Agriculture in the case of agricultural articles, involving dumping duties and countervailing duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties. Exclusive Original Jurisdiction (1) In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties, where the principal amount of taxes and fees claimed, exclusive of charges and penalties, at least P1M.

(2) With SC and RTC (a) Petitions for certiorari, prohibition and

mandamus against lower courts and bodies; (b) Petitions for quo warranto; (c) Petitions for writs of habeas corpus. (3) With SC, RTC and Sandiganbayan (a) Petitions for writ of amparo and habeas

data. Exclusive Appellate Jurisdiction (1) By ordinary appeal: (a) From the RTC and the Family Courts (b) Over decisions of the MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction (2) By petition for review: (a) From judgments of the RTC rendered

in its appellate jurisdiction. (b) From decisions, resolutions, orders or

awards of the Civil Service Commission and other bodies mentioned in R43; and NOTE: The SC has clarified that the enumeration of the quasi-judicial agencies under Sec. 1, Rule 43 is not exclusive – the said Rule is meant to be applied to any quasi-judicial agency and not just those to those quasijudicial agencies listed. [Wong v. Wong, G.R. No. 180364 (2014), quoting Cayao-Lasam v. Sps. Ramolete, G.R. No. 159132 (2008)] (c) From decisions of the Office of the Ombudsman in administrative disciplinary cases. B.3 COURT OF TAX APPEALS UNDER RA 9282 and RULE 5, AM 05-11-07 CTA Exclusive Appellate Jurisdiction: (1) Decisions of Commissioner of Internal Revenue in cases involving disputed 12 OF 425

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(2) Over all criminal cases arising from

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B.4 SANDIGANBAYAN [P.D. 1606, AS AMENDED BY R.A. 7975 AND R.A. 10660]

violation of the NIRC and the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate);

Original Jurisdiction: (1) Violations of RA 3019, or the Anti-Graft and Corrupt Practices Act (2) Violations of RA 1379, or the Anti-IllGotten Wealth Act (3) Sequestration cases, under Executive Order Nos. 1, 2, 14, and 14-A (4) Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity, at the time of the commission of the offense: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (RA 6758), specifically including: (i) Provincial governors, vicegovernors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads (ii) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads (iii) Officials of the diplomatic service occupying the position of consul and higher (iv) Philippine army and air force colonels, naval captains, and all officers of higher rank; (v) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent and higher (vi) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (vii) Presidents, directors or trustees, or managers of governmentowned or controlled corporations,

Exclusive Appellate Jurisdiction (1) In criminal offenses (a) Over appeals from the judgment, resolutions or orders of the RTC in tax cases originally decided by them, in their respective territorial jurisdiction, and (b) Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction. (2) In tax collection cases (a) Over appeals from the judgments, resolutions or orders of the RTC in tax collection cases originally decided by them in their respective territorial jurisdiction; and (b) Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.

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state universities or educational institutions or foundations. (b) Members of Congress and officials thereof classified as G-27 and up under RA 6758 (c) Members of the Judiciary without prejudice to the provisions of the Constitution (d) Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution (e) All other national and local officials classified as Grade 27 and higher under RA 6758 (5) Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a. of section 4 (as amended) in relation to their office. (6) Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249) (7) Petitions for mandamus, prohibition, certiorari, habeas corpus, inunctions, and other ancillary writs and processes in aid of its appellate jurisdiction, and petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

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corresponding to Salary Grade 27 or higher, or military and PNP officers mentioned above. Appellate Jurisdiction over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction as provided. Concurrent Original Jurisdiction with SC, CA, and RTC for petitions for writs of habeas data and amparo NOTE: The requisites that the offender occupies salary Grade 27 and the offense must be intimately connected with the official function must concur for the SB to have jurisdiction B.5 REGIONAL TRIAL COURTS Exclusive Original Jurisdiction (1) The subject matter of the action is incapable of pecuniary estimation [Sec. 19(1), BP 129] Test (Principal Nature of an Action): If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation. On the other hand, where the basic issue is something other than the right to recover a sum of money, and the money claim is purely incidental to, or a consequence of, the principal relief sought, such actions are cases where the subject of the litigation is incapable of pecuniary estimation. [Heirs of Padilla v. Magdua, G.R. No. 176858 (2010), quoting Singson v. Isabela Sawmill, G.R. No. L-27343 (1979)]

NOTE: Without the office, the crime cannot be committed. NOTE: The RTC shall have Exclusive Original jurisdiction where the information – (1) Does not allege any damage to the government or any bribery; or, (2) Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding P1,000,000.

An action to nullify a Deed of Assignment and Conveyance is not one involving a subject m atter incapable of pecuniary estim ation if the plaintiff also seeks to the transfer of possession and control of properties: In Home Guaranty v. R-II Builders [G.R. No. 192649 (2011)], an action that sought the nullification of a Deed of Assignment and Conveyance was characterized by the respondent on an MR before the SC as one involving a subject matter incapable of pecuniary estimation. The SC disagreed and held that since the action was not solely for the annulment of the

Subject to rules promulgated by the SC – the cases falling under the jurisdiction of the RTC shall be tried in a judicial region other than where the official holds office. NOTE: Exclusive Original jurisdiction shall be vested in the proper RTC, MeTC, MTC, and MCTC, as the case may be – where none of the accused are occupying positions 14 OF 425

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Deed of Assignment and Conveyance – indeed, the respondent consistently sought the transfer of possession and control of properties – following the its ruling in Ruby Shelter Builders and Realty Development Corp. v. Formaran III, G.R. No. 175914 (2009), the subject of the action was not incapable of pecuniary estimation.

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(2) Civil

actions involving title to, or possession of real property, or any interest therein, where assessed value exceeds P20,000 outside Metro Manila, or exceeds P50,000 in Metro Manila [Sec. 19(2), BP 129] EXCEPTION: Forcible entry and unlawful detainer cases [Sec. 33(2), BP 129]

However, if the principal nature of an action to cancel a contract to sell, where the defendant has already taken possession of the property, involves a determ ination on whether a suspensive condition has been fulfilled – then the subject m atter involved is one that is incapable of pecuniary estimation: In Olivarez Realty v. Castillo [G.R. No. 196251 (2014)], the action instituted in the trial court was one for the cancellation of a contract to sell, and prior to the institution of the action the defendant had already proceeded to occupy the property involved. In this instance, the SC held that the action involved a subject matter that was incapable of pecuniary estimation. The difference in the ruling of the SC here and in Home Guaranty lies in that fact that in Olivarez Realty, what the plaintiff had principally sought was a determination that a suspensive condition for the perfection of the contract had not been fulfilled: “the trial court principally determined whether Olivarez Realty Corporation failed to pay installments of the property’s purchase price as the parties agreed upon in the deed of conditional sale. The principal nature of Castillo’s action, therefore, is incapable of pecuniary estimation.”

An action "involving title to real property" means that the plaintiff's cause of action is based on a claim that he owns such property or that he has the legal rights to have exclusive control, possession, enjoyment, or disposition of the same. Title is the "legal link between (1) a person who owns property and (2) the property itself." [Heirs of Sebe v. Heirs of Sevilla, G.R. No. 174497 (2009)] (3) If the amount involved exceeds P300,000

outside Metro Manila or exceeds P400,000 in Metro Manila in the following cases [BP 129, as amended by RA 7691]: (a) Actions in admiralty and maritime jurisdiction, where the amount refers to the demand or claim [Sec. 19(3)] (b) Matters of probate (testate or intestate), where the amount refers to the gross value of the estate [Sec. 19(4)] (c) Other actions involving personal property, where the amount refers to the value of the property (d) Demand for money, where the amount refers to the demand exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs [Sec. 19(8)].

SEE ALSO: Heirs of Bautista v. Lindo [G.R. No. 208232 (2014)], where an action to redeem a land subject of a free patent was characterized by the SC as one whose subject matter was incapable of pecuniary estimation since the reacquisition of the land was merely incidental to and an offshoot of the exercise of the right to redeem the land, pursuant to Sec. 119 of CA 141.

The exclusion of “damages of whatever kind” applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered [Admin Circ. No. 09-94]

This also includes expropriation proceedings, which are considered incapable of pecuniary estimation. [Barangay San Roque v. Heirs of Francisco Pastor, G.R. No. 138896 (2000)]

(4) All actions involving the contract of

marriage and family relation [Sec. 19(5), BP 129], and all civil actions falling within 15 OF 425

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the exclusive original jurisdiction of the Juvenile and Domestic Relations Court and of the Court of Agrarian Reform [Sec. 19(7), BP 129]

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See Jurisdiction of Family Courts, infra. In areas where there are no Family Courts, the cases within their jurisdiction shall be adjudicated by the RTC [Sec. 17, RA 8369]

(7) Petitions for Declaratory Relief [Sec. 1,

Rule 63] Concurrent Original Jurisdiction (1) With SC in cases affecting ambassadors, public ministers and consuls. (2) With SC and CA (a) Petitions for certiorari, prohibition and mandamus against lower courts and bodies; (b) Petitions for quo warranto; (c) Petitions for writs of habeas corpus. (3) With SC, CA and Sandiganbayan (a) Petitions for writ of amparo and habeas data. (4) With Insurance Commissioner for claims not exceeding P100,000

(5) All

cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions (General Original Jurisdiction) [Sec. 19(6), BP 129]

(6) Jurisdiction to Hear and Decide Intra-

Corporate Controversies [Sec. 52, Securities and Regulations Code] (a) Cases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the SEC (b) Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation , partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity (c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations (d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership of association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively

Appellate Jurisdiction over cases decided by lower courts in their respective territorial jurisdictions, except those made in the exercise of delegated jurisdiction, which are appealable in the same manner as decisions of the RTC [Sec. 34, BP 129, as amended]. Special Jurisdiction - SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice.

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B.6 FAMILY COURTS [RA 8369] (1) Criminal cases where one or more of the accused is below 18 or one or more of the victims was a minor; (2) Petitions for guardianship, custody of children and habeas corpus involving children; (3) Petitions for adoption of children and the revocation thereof; (4) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; (5) Petitions for support and/or acknowledgment; (6) Summary judicial proceedings brought under the provisions of the Family Code; (7) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under PD 603, EO 56, s. 1986, and other related laws; (8) Petitions for the constitution of the family home; (9) Cases against minors cognizable under the Dangerous Drugs Act, as amended; (10) Violations of RA 7610, or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act; and (11) Cases of domestic violence against Women and Children

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B.7 METROPOLITAN TRIAL MUNICIPAL TRIAL COURTS

COURTS/

Exclusive Original Jurisdiction (1) If the amount involved does not exceed P300,000 outside Metro Manila or does not exceed P400,000 in Metro Manila in the following cases: (a) Actions in admiralty and maritime jurisdiction; (b) Matters of probate (testate or intestate); (c) Other actions involving personal property; (d) Demand for money; (2) Actions involving title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed P20,000 outside Metro Manila or does not exceed P50,000 in Metro Manila (3) Inclusion and exclusion of voters (4) Those governed by the Rules on Summary Procedure (5) Forcible entry and unlawful detainer (FEUD) (a) With jurisdiction to resolve issue of ownership to determine ONLY issue of possession (provisional only) (b) Irrespective of the amount of damages or unpaid rentals sought to be recover (c) Where attorney’s fees are awarded, the same shall not exceed P20,000 {Should these three be just a child of FEUD, as done in this version of the reviewer, or should these three be listed as separate items, as done in the original version?} (6) Other civil cases, except probate proceeding, where the total amount of the plaintiff’s claim does not exceed P200,000 in MM, exclusive of interests and costs. {Editor does not know the basis for this item.} Special Jurisdiction over petition for writ of habeas corpus OR application for bail in criminal cases in the absence of all RTC judges in the province or city

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Delegated Jurisdiction to hear and decide cadastral and land registration cases where: (1) There is no controversy over the land (2) In case of contested lands, the value does not exceed P100, 000: (a) The value is to be ascertained: (i) By the claimant’s affidavit (ii) By agreement of the respective claimants, if there are more than one (iii) From the corresponding tax declaration of the real property

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Concurrent Jurisdiction of Shari’a District Courts The Shari’a courts shall have original jurisdiction concurrently with existing civil courts for: (1) Petitions of Muslim for the constitution of the family home, change of name and commitment of an insane person to an asylum; (2) All other personal and legal actions not mentioned in par. (d) of the immediately preceding topic, wherein the parties involved are Muslims Exception: those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the MTC. (3) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims

NOTE: MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions 1st level courts: (a) Metropolitan Trial Court – Metro Manila; (b) Municipal Trial Courts in Cities – situated in cities (c) Municipal Circuit Trial Court – composed of multi-sala (d) Municipal Trial Courts – in one municipality

Appellate Jurisdiction of Shari’a District Courts Such courts have appellate jurisdiction over all cases tried in the Shari’a Circuit Courts within their territorial jurisdiction.

B.8 SHARI’A COURTS

Exclusive Original Jurisdiction of Shari’a Circuit Courts (1) Offenses defined and punished under PD 1083 (2) Disputes relating to: (a) Marriage; (b) Divorce under PD 1083; (c) Betrothal or breach of contract to marry; (d) Customary dowry (mahr); (e) Disposition and distribution of property upon divorce; (f) Maintenance and support and consolatory gifts (mut’a); and (g) Restitution of marital rights (3) Disputes relative to communal properties

Exclusive Original Jurisdiction of Shari’a District Courts (1) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; (2) All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration of appointment administrators or executors regardless of the nature or aggregate value of the property; (3) Petitions for the declaration of absence and death for the cancellation and correction of entries in the Muslim Registries; (4) All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and (5) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus and all other auxiliary writs and processes in aid of its appellate jurisdiction

The Shari’a District Court or the Shari’a Circuit Court may constitute an Agama Arbitration Council to settle certain cases amicably and without formal trial. The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties.

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MTCs, MeTCs and MCTCs shall have jurisdiction over actions for payment of money where the value of the claim does not exceed P200,000 exclusive of interest and costs [Sec. 2, AM 08-8-7-SC, February 1, 2016].

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(3) Motion for new trial, or for reconsideration

of a judgment, or for reopening of trial; (4) Petition for relief from judgment; (5) Motion for extension of time to file

pleadings, affidavits, or any other paper; (6) Memoranda; (7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (8) Motion to declare the defendant in default; (9) Dilatory motions for postponement; (10) Reply; (11) Third-party complaints; and (12) Interventions.

Applicability [Sec. 2, AM 08-8-7-SC, February 1, 2016]: all actions which are purely civil in nature, where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money. The claim or demand may be: (1) For money owed under a contract of lease, loan, services, sale, or mortgage (2) For liquidated damages arising from contracts; (3) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of the LGC.

E. CASES COVERED BY BARANGAY CONCILIATION The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes.

D. CASES COVERED BY RULES ON SUMMARY PROCEDURE

EXCEPT: (1) Where one party is the government or any subdivision or instrumentality thereof (2) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions (3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000 (4) Offenses where there is no private offended party (5) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon (6) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon (7) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice

Civil Cases subject to Summary Procedure (1) All cases of forcible entry and unlawful detainer (FEUD), irrespective of the amount of damages or unpaid rentals sought to be recovered; and (2) All other cases, except probate proceedings where the total amount of the plaintiff‘s claim does not exceed P100,000 (outside Metro Manila) or P200,000 (in Metro Manila), exclusive of interest and costs. Probate proceedings are not covered by the Rule on Summary Procedure even if the gross value of the estate does not exceed the above-mentioned amounts. Prohibited Pleadings [Sec. 19, 1991 Revised Rule on Summary Procedure] (1) Motion to dismiss the compliant except on the ground of (a) Failure to comply with barangay conciliation proceedings; or (b) Lack of jurisdiction over the subject matter (2) Motion for a bill of particulars;

(8) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that only individuals shall be 19 OF 425

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parties to barangay conciliation proceedings either as complainants or respondents (9) Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically: (a) A criminal case where the accused is under police custody or detention (b) A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in his behalf (c) Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and support pendente lite (d) Where the action may be barred by statute of limitation (10) Labor disputes or controversies arising from employer-employee relationship (11)Where the dispute arises from the CARL (12) Actions to annul judgment upon a compromise which can be directly filed in court.

III. Commencement of Actions to Trial

NOTE: It is a condition precedent under Rule 16; can be dismissed but without prejudice

A.1 KINDS OF ACTIONS

A. ACTIONS An ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong [Potente v. Saulog Transit, G.R. No. L-12300 (1959)] An action is the legal and formal demand of one’s right from another person made and insisted upon in a court of justice. The determinative operative act, which converts a claim into an action, is its filing with a court of justice. [Riano] This is distinguished from the cause of action, which is the fact or combination of facts which affords a party a right to judicial interference in his behalf [Into v. Valle, G.R. No. 145379 (2005)] and which is the basis of ordinary civil actions. [Sec. 1, Rule 2]

CIVIL ACTION One by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong [Sec. 3(a), par. 1, Rule 1] • Ordinary civil action – civil action that is governed by the rules for ordinary civil actions • Special civil action – civil that is subject to the specific rules prescribed for a special civil action but also governed by the rules for ordinary civil actions [Sec. 3(a), par. 2, Rule 1]

F. TOTALITY RULE Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the am ount of the dem and shall be the totality of the claim s in all the claim s of action, irrespective of whether the causes of action arose out of the same or different transactions [Sec. 33[1], BP 129].

CRIMINAL ACTION One by which the State prosecutes a person for an act or omission punishable by law [Sec. 3(b), Rule 1]

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Kinds of Ordinary Civil Actions (1) As to place (a) Transitory – action founded on privity of contract between parties; brought in the place where the party resides (b) Local - action founded on privity of estate only and there is no privity of contract; brought in a particular place (2) As to object (a) Action in rem (b) Action quasi in rem (c) Action in personam (3) As to foundation (a) Real (b) Personal

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Special Proceeding As to appeal from an Interlocutory Order Cannot be directly and immediately Can be immediately appealed to the and directly appellate court until appealed to the after final judgment appellate court on the merits Action

A.3 PERSONAL ACTIONS AND REAL ACTIONS The distinction is importation for purposes of determining venue: “The question whether or not venue has been properly laid depends to a great extent on the kind of action (real or personal) presented by the Complaint.” [PICOP v. Samson, G.R. No. L-30175 (1975)]

A.2 CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS Civil Action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Sec. 3(a), par. 1, Rule 1]

REAL ACTION An action affecting title to or possession of real property, or interest therein. [See Sec. 1, Rule 4]

Special Proceeding – remedy by which a party seeks to establish a status, a right, or a particular fact. [Sec. 3(c), Rule 1]

A real action is ‘local,’ i.e. its venue depends upon the location of the property involved in the litigation. [Sec. 1, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)]

Special Proceeding As to Parties Involves at least 1 Involves at least 2 party or 2 or more parties parties in proper cases As to cause of action Does not involve the Involves a right and a violation of a right, violation of such right instead is concerned by the defendant, with the which causes some establishment of a damage or prejudice right (or of a status upon the plaintiff or a particular fact) As to formalities Requires the Requires no such application of legal formalities, as it remedies in may be granted accordance with the upon application prescribed rules As to governing rules Ordinary rules of Special rules of procedure procedure Action

Not every action involving real property is a real action because the realty may only be incidental to the subject matter of the suit. See again the cases of Heirs of Bautista and Olivarez Realty: in both cases, the SC held that the conveyance of real property was only incidental to the determination of things that were incapable of pecuniary estimation. PERSONAL ACTION All other actions [Sec. 2, Rule 4] A personal action is ‘transitory,’ i.e. its venue depends upon the residence of the plaintiff or of the defendant, at the option of the plaintiff. [Sec. 2, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)]

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A.4 LOCAL AND TRANSITORY ACTIONS Local action Transitory action One that could be One that could be prosecuted in any instituted in one one of several places specific place [Manila [Manila Railroad v. Railroad v. AttorneyAttorney-General, General, G.R. No. LG.R. No. L-6287 6287 (1911)] (1911)] Its venue depends Venue depends upon upon the residence of the location of the the plaintiff or of the property involved in defendant, at the the litigation [BPI v. option of the plaintiff Hontanosas, G.R. No. [BPI v. Hontanosas, 157163 (2014)] G.R. No. 157163 (2014)] E.g. Action to recover real property

REMEDIAL LAW

ACTION QUASI IN REM One which seeks to directly subject the property or interest of named defendants to the obligation or lien of the plaintiff. ACTION IN PERSONAM One which seeks to enforce personal rights and obligations brought against the person. Its purpose is to impose, through the judgment of the court, some liability directly upon the person of the defendant. The rule is that: (1) a judgment in rem is binding upon the whole world, such as a judgment in a land registration case or probate of a will; and (2) a judgment in personam is binding upon the parties and their successors-in-interest but not upon strangers. [Munoz v. Yabut, G.R. No. 142676 (2011)]

E.g. Action to recover sum of money

In actions in personam, courts must acquire jurisdiction over the person of the parties: recall the Regner case [Regner v. Logarta, G.R. No. 168747 (2007)], which clarified that a court must acquire jurisdiction over the persons of indispensable parties before it can validly pronounce judgments personal to the parties – this ruling is applicable to actions in personam.

If action is founded on privity of contract between parties, then the action is transitory. [De la Cruz v. El Seminario de la Archidiocesis de Manila, G.R. No. L-5402 (1911)] But if there is no privity of contract and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local and must be brought in the place where the land lies. [De la Cruz v. El Seminario de la Archidiocesis de Manila, G.R. No. L-5402 (1911)]

In actions in rem and quasi in rem , jurisdiction over the person of the parties is not essential: see again the Biaco case [Biaco v. Phil. Countryside Rural Bank, G.R. No. 161417 (2007)], where the SC clarified that in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.

A.5 ACTIONS IN REM, IN PERSONAM, OR QUASI IN REM The distinction is important to determine whether or not jurisdiction over the person of the defendant is required, and the type of summons to be employed. [Riano] ACTION IN REM One which seeks to determine the state or condition of a thing.

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Table: Actions in rem, in personam, and quasi in rem Action Action in Action in quasi in rem personam rem Directed Directed Directed against against against the particular particular thing itself persons persons Jurisdiction over the Jurisdiction Jurisdiction person of over the over the defendant is person of person of not required the defendant as long as defendant required jurisdiction not required over the res is required Proceeding to subject the interest Action to of a named Proceeding impose a defendant to determine responsibility over a the state or or liability particular condition of upon a person property to a thing directly an obligation or lien burdening it Judgment is binding only Judgment Judgment is upon binging binding on impleaded upon the whole parties or particular world their persons successors in interest E.g. Action E.g. Probate E.g. for partition; proceeding, Collection foreclosure cadastral suit, Action of real proceeding for Damages estate mortgage

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A.6 INDEPENDENT CIVIL ACTIONS [SEC. 3, RULE 111] An independent civil action may be brought in the cases provided by: (1) Art. 32, Civil Code (Violation of Constitutional rights by a public officer or employee, or a private individual) (2) Art. 33 (defamation, fraud, or physical injuries) (3) Art. 34 (refusal or failure to render aid or protection by a member of the police force); and (4) Art. 2176 (quasi-delict) “Physical injuries” under Art. 33 is used in the generic sense, and not in reference to the offenses defined in the Revised Penal Code. It also includes consummated, frustrated, and attempted homicide and death arising from delict. [Madeja v. Hon. Caro, G.R. No. L-51183 (1983)]

B. CAUSE OF ACTION CAUSE OF ACTION The act or omission by which a party violates a right of another. [Sec. 2, Rule 2] Every ordinary civil action must be based on a cause of action [Sec. 1, Rule 2] A cause of action stems from the sources of obligations under Art. 1156 of the Civil Code: (1) Law, (2) Contract, (3) Quasi-contract, (4) Acts and omissions punishable by law and (5) Quasi-delict. [Sagrada Orden etc v. NACOCO, G.R. No. L-3756 (1952)] Elements of a Cause of Action: (1) Plaintiff’s legal right; (2) Defendant’s correlative obligation to respect plaintiff’s right; (3) Defendant’s act/omission in violation of plaintiff’s right [Ma-ao Sugar Central v. Barrios, G.R. No. L-1539 (1947)] A cause of action must exist at the time of the filing of the complaint – else, the case shall be dismissible for being a groundless suit. [Swagman Hotels and Travel v. CA, G.R. No. 161135 (2005), reiterating Surigao Mine 23 OF 425

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Exploration v. Harris, G.R. No. L-45543 (1939)]

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The complaint must contain a concise statement of the ultimate or essential facts constituting the plaintiff’s cause of action. The focus is on sufficiency, not veracity, of the material allegations. [Anchor Savings Bank v. Furigay, G.R. No. 191178 (2013)]

B.1 RIGHT OF ACTION VERSUS CAUSE OF ACTION Right of action Cause of action The remedial right or The delict or right to relief granted wrongful act or by law to a party to omission committed institute an action by the defendant in against a person who violation of the has committed a primary rights of the delict or wrong plaintiff against him Right to sue as a consequence of the The delict or wrong delict Determined by the Whether such acts averments in the give him right of pleading regarding action determined by the acts committed substantive law by the defendant

TEST OF SUFFICIENCY The test of sufficiency of a cause of action rests on whether, hypothetically admitting the facts alleged in the complaint to be true, the court can render a valid judgment upon the same, in accordance with the prayer in the complaint. [Heirs of Maramag v. Maramag, G.R. No. 181132 (2009)] However, there is no hypothetical admission of the veracity of the allegations if: (1) The falsity of the allegations is subject to judicial notice; (2) The allegations are legally impossible; (3) The allegations refer to facts which are inadmissible in evidence; (4) By the record or document in the pleading, the allegations appear unfounded; or (5) There is evidence which has been presented to the court by stipulation of the parties or in the course of hearings related to the case [Heirs of Maramag v. Maramag, G.R. No. 181132 (2009)].

There can be no right of action without a cause of action being first established [Regalado citing Español v. The Chairman of PVA, G.R. No. L-44616 (1985)] For an instance where the right of action of a plaintiff was suspended, see again the Ma-ao Sugar Central case [Ma-ao Sugar Central v. Barrios, G.R. No. L-1539 (1947)] where the SC had occasion to hold that an EO providing for a debt moratorium not only suspended the execution of the judgment that the court could render so far as it ordered the payment of debts and other monetary obligations, but also suspended the filing of suit in the courts of justice for the enforcement of the payment of debts and other monetary obligations.

When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint and from no other, and the court cannot consider other matters aliunde. [Manaloto v. Veloso III, G.R. No. 171635 (2010)] Note, however, that there have been instances when the SC considered matters aside from the facts alleged in the com plaint, such as: (1) Documents attached to the complaint [Agrarian Reform Beneficiaries Association v. Nicolas, G.R. No. 168394 (2008)] – this case refers to actionable documents which by express provision of the Rules of Court are deemed part of the pleading. (2) Appended annexes, other pleadings, and admissions on record [Zepeda v. China Banking Corp., G.R. No. 172175 (2006)] – the jurisprudence establishing this

B.2 FAILURE OF THE COMPLAINT TO STATE A CAUSE OF ACTION Even if in reality, the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the complaint or pleading asserting the claim “states no cause of action.” [Sec. 1(g), Rule 16] The cause of action must unmistakably be stated or alleged in the complaint. All the elements required by substantive law must clearly appear from a mere reading of the complaint. [Riano] 24 OF 425

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supposed exception ultimately points to dismissals based on a lack of a cause of action, opposed to a failure of the complaint to state a cause of action.

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For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by the rule against the splitting of a cause of action. [City of Bacolod v. SM Brewery, G.R. No. L-25134 (1969)]

Failure of the complaint to state a cause of action versus lack of cause of action Failure to state a cause of action and lack of cause of action are really different from each other. On the one hand, failure to state a cause of action refers to the insufficiency of the pleading, and is a ground for dismissal under Rule 16 of the Rules of Court. On the other hand, lack of cause [of] action refers to a situation where the evidence does not prove the cause of action alleged in the pleading. [Macaslang v. Zamora, G.R. No. 156375 (2011)]

In the event that a plaintiff has omitted to include in the complaint one or several other reliefs to which he may be entitled, the proper remedy of the plaintiff is not to institute another or several other actions – instead he should move to amend the com plaint to include the omitted relief or reliefs. [Bayang v. CA, G.R. No. L-53564 (1987)] EFFECTS: The filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. [Sec. 4, Rule 2].

B.3 SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS SPLITTING A CAUSE OF ACTION The act of instituting two or more suits on the basis of the same cause of action. [Sec. 4, Rule 2]

The remedy is for the defendant to file a Motion to Dismiss under Rule 16. (1) Filing of the first complaint may be pleaded in abatement of the second complaint, on the ground of litis pendentia [Sec. 1(e), Rule 16]; or (2) A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata [Sec. 1(f), Rule 16]

Splitting a single cause of action is the act of dividing a single or indivisible cause of action into several parts or claims and instituting two or more actions upon them. A single cause of action or entire claim or demand cannot be split up or divided in order to be made the subject of two or more different actions. [Chu v. Sps. Cunanan, G.R. No. 156185 (2011)]

A party may not institute more than one suit for a single cause of action. [Sec. 3, Rule 2]

TEST OF SINGLENESS OF CAUSE OF ACTION The tests to ascertain whether two suits relate to a single or common cause of action are: (1) Whether the same evidence would support and sustain both causes of action (Sam e Evidence Test) (2) Whether the defenses in one case may be used to substantiate the complaint in the other (3) Whether the cause of action in the second case existed at the time of filing of the first complaint [Umale v. Canoga Park Development Corp., G.R. No. 167246 (2011)]

Rationale (1) To prevent repeated litigation between the same parties in regard to the same subject or controversy; (2) To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause); (3) To avoid the costs and expenses incident to numerous suits. [City of Bacolod v. SM Brewery, G.R. No. L-25134 (1969)]

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OF If there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action, as long as the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder. [Ada v. Baylon, G.R. No. (2012)]

JOINDER OF CAUSES OF ACTION The assertion of as many causes of action as a party may have against another in one pleading alone. [Sec. 5, Rule 2] It is also the process of uniting two or more demands or rights of action in one action. [Riano]

If the court has no jurisdiction to try the misjoined action, then it must be severed. Otherwise, adjudication rendered by the court with respect to it would be a nullity. [Ada v. Baylon, G.R. No. (2012)]

Ratio: To avoid a multiplicity of suits and to expedite disposition of litigation at minimum cost [Ada v. Baylon, G.R. No. (2012)] The rule however is purely permissive as there is no positive provision of law or any rule of jurisprudence which compels a party to join all his causes of action and bring them at one and the same time. [Nabus v. CA, G.R. No. 91670 (1991)]

C. PARTIES PLAINTIFF One having an interest in the matter of the action or in obtaining the relief demanded.

There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action [Regalado].

The term may either refer to the claiming party, counter-claimant, cross-claimant, or third-party plaintiff. [Sec. 1, Rule 3] DEFENDANT One claiming an interest in the controversy or the subject thereof adverse to the plaintiff.

Requisites [Sec. 5, Rule 2] (1) The party joining the causes of action shall comply with the rules on joinder of parties; (2) The joinder shall not include special civil actions or actions governed by special rules; (3) Where causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within that court’s jurisdiction and venue lies therein; (4) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction (“totality rule”)

Term may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)party defendant. [Sec. 1, Rule 3] It also includes an unwilling co-plaintiff, or one who should be joined as plaintiff but refuses to give his consent thereto. [Sec. 10, Rule 3] W ho may be Parties [Sec. 1, Rule 3] (1) Natural persons; (2) Juridical persons [Art. 44, Civil Code]; (a) The State and its political subdivisions; (b) Other corporations, institutions and entities for public interest or public purpose, created by law; and (c) Corporations, partnerships, and associations for private interest or purpose to which the law grants a judicial personality, separate and distinct from that of each shareholder, partner, or member. (3) Entities authorized by law. [Riano]

MISJOINDER OF CAUSES OF ACTION Misjoinder is not a ground for dismissal of an action [Sec. 6, Rule 2] An erroneously joined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. [Sec. 6, Rule 2] 26 OF 425

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(a) A corporation by estoppel is precluded

from denying its existence, and the members are liable as general partners [Sec. 21, Corporation Code] (b) A partnership with capital of at least P3,000 which fails to comply with the registration requirements is liable as a partnership to third persons [Arts. 1768, 1772, Civil Code] (c) The estate of a deceased person is a juridical entity that has a personality of its own [Limjoco v. Intestate Estate of Fragrante, G.R. No. L-770 (1948)] (d) The Roman Catholic Church may be a party; as to its properties, the Archbishop or diocese to which they belong may be a party. [Ponce v. Roman Catholic] (e) A legitimate labor union may sue and be sued in its registered name [Art. 242(e), Labor Code]

“Interest” means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved. [Ang v. Sps. Ang, G.R. No. 186993 (2012)] The interest must be ‘real,’ which a present and substantial interest as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest. [Rayo v. Metrobank, G.R. No. 165142] It should be material and direct, as distinguished from a mere incidental interest. [Mayor Rhustam Dagadag v. Tongnawa, G.R. No. 161166-67 (2005)] Unless authorized by law or the Rules, every action must be prosecuted or defended in the name of the real party in interest. [Sec. 2, Rule 3]

LEGAL CAPACITY TO SUE Legal capacity to sue or be sued means that the party is free from general disability (e.g. minority or insanity) or, in case of juridical entities, that it must be duly registered in accordance with law

Husband and wife shall sue and be sued jointly, except as provided by law. [Sec. 4, Rule 3] Exceptions: (1) Judicial separation of property (2) Abandonment (3) Exclusive property of spouses (4) Suits with respect to the practice of profession

Facts showing the capacity of a party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, must be averred. [Sec. 4, Rule 8] Legal capacity to sue Plaintiff’s general disability to sue, on account of minority, insanity, incompetence, etc. Ground for a Motion to Dismiss is “lack of capacity to sue [Sec. 1(d), Rule 16]

REPRESENTATIVES AS PARTIES A representative is one acting in fiduciary capacity, such as a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or the Rules of Court. [Sec. 3, Rule 3]

Legal personality to sue Plaintiff is not the real party in interest

Where the action is allowed to be prosecuted or defended by a representative party, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.

Ground is “failure of complaint to state a cause of action.” [Sec. 1(g), Rule]

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

C.1 REAL PARTY-IN-INTEREST REAL PARTY-IN-INTEREST The party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. [Sec. 2, Rule 3] 27 OF 425

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A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Sec. 5, Rule 3]

REMEDIAL LAW

A person is not an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complete justice between them. [Riano]

Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran, G.R. No. 101083 (1993)]

Indispensable parties Must be joined under any and all conditions

Failure to Name a Real Party-inInterest If the suit is not brought in the name of or against the real party-in-interest, a Motion to Dismiss may be filed on the ground that the complaint “states no cause of action.” [Balagtas v. CA, G.R. No. 109073 (1999)]]

Presence is a condition sine qua non for exercise of judicial power

Remedies: (1) Amendment of pleadings [Alonso v. Villamor, G.R. No. L-2352 (1910)]; or (2) Complaint may be deemed amended to include the real party-in-interest [Balquidra v. CFI Capiz, G.R. No. L-40490 (1977)]

No valid judgment if not joined. Interest in the controversy such that a final decree would necessarily affect their rights..

As an exception, the real litigant may be held bound as a party even if not formally impleaded provided he had his day in court. [Albert v. University Publishing Co., G.R. No. L9300 (1958)]

Necessary parties Should be joined whenever possible Action can proceed even in their absence; interest is separable from that of the indispensable party The case may be determined but the judgment will not resolve the entire controversy Interests are so far separable that a final decree can be made in their absence without affecting them.

C.3 INDIGENT PARTIES INDIGENT PARTY (1) One who has no money or property sufficient and available for food, shelter, and basic necessities [Sec. 21, Rule 3] (a) Include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. (b) Amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (c) If the party is not actually indigent under this Rule, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment

C.2. INDISPENSABLE AND NECESSARY PARTIES INDISPENSABLE PARTY A real party-in-interest without whom no final determination can be had of an action. [Sec. 7, Rule 3] NECESSARY PARTY Not an indispensable party but ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action [Sec. 8, Rule 3] Although joinder of parties is generally permissive [Sec. 6, Rule 3] the joinder of a party becomes compulsory when the one involved is an indispensable party. [Sec. 7, Rule 3]

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thereof, without prejudice to such other sanctions as the court may impose. (2) One whose gross income and that of their immediate family’s do not exceed an amount double the monthly minimum wage of an employee, and who does not own real property with a fair market value of more than Php 300,000 [Sec. 19, Rule 141]. (a) Legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant, unless the court otherwise provides. (b) Any falsity in the affidavits shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred.

REMEDIAL LAW

C.4 ALTERNATIVE DEFENDANTS Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other. [Sec. 13, Rule 3] C.5 COMPULSORY AND JOINDER OF PARTIES

PERMISSIVE

COMPULSORY JOINDER [Sec. 7, Rule 3] Parties in interest without whom no final determination can be had of an action (i.e. indispensable parties) shall be joined either as plaintiffs or defendants. The absence of an indispensable parties renders all subsequent actions of the trial court null and void for want of authority to act, not only as to the absent parties but even as to those present. [Moldes v. Villanueva, G.R. No. 161955 (2012)]

When an application to litigate as an indigent litigant is filed, the court shall scrutinize the affidavits and supporting documents to determine if the applicant complies with the standards prescribed in Sec. 19, Rule 141. If so, the authority to litigate as indigent litigant is automatically granted and the grant is a matter of right.

Non-Joinder of Necessary Parties [Sec. 9, Rule 3] When a pleading asserting a claim, omits to join a necessary party, the pleader must: (1) Set forth the name of the necessary party, if known, and (2) State the reason why the necessary party is omitted. [Sec. 9, par. 1, Rule 3]

However, if the trial court finds that one or both requirements have not been met, then it would set a hearing to enable the applicant to prove that the applicant complies with Sec. 21, par. 1, Rule 3. The adverse party may adduce countervailing evidence. The trial court will then rule on the application. In addition, Section 21, Rule 3 also provides that the adverse party may later still contest the grant of such authority at any time before judgment is rendered by the trial court. If the court determines after hearing, that the party declared as an indigent is in fact not, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment of prescribed fees shall be made, without prejudice to such other sanctions as the court may impose. [Sps. Algura v. City of Naga, G.R. No. 150135 (2006)]

Non-joinder of a necessary party does not prevent the court from proceeding in the action. The judgment rendered therein shall not prejudice the rights of such necessary party [Sec. 9, par. 3, Rule 3] PERMISSIVE JOINDER [Sec. 6, Rule 3] Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits. Requisites: (1) Right to relief arises out of the same transaction or series of transactions Transaction – not only a stipulation or agreement but any event resulting in wrong, whether the wrong was done by violence, neglect, or breach of contract Series of transactions – transactions connected with the same subject of the action 29 OF 425

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(2) A question of law or fact common to all

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becomes apparent, a motion to strike the names of the parties must be made.

the plaintiffs or defendants (3) Such joinder is not otherwise proscribed by the rules on jurisdiction and venue

Objections to misjoinder cannot be raised for the first time on appeal [Lapanday Agricultural & Development Corporation v. Estita, G.R. No. 162109 (2005)]

NOTE: Compare to Joinder of Causes of Action where it is enough if the causes of action arise out of the same contract, as there is no need for a common question of fact or law.

C.7 CLASS SUIT Requisites [Sec. 12, Rule 3] (1) Subject matter of the controversy is one of common or general interest to many persons; (2) The persons are so numerous that it is impracticable to join them all as parties, and to bring them all before the court; (3) Parties actually before the court are sufficiently numerous and representative of the class as to fully protect the interests of all concerned; (4) The representative sues or defends for the benefit of all.

C.6 MISJOINDER AND NON-JOINDER OF PARTIES MISJOINDER When one is made a party to the action although he should not be impleaded. NON-JOINDER When one is not joined when he is supposed to be joined but is not impleaded in the action. [Riano] Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. [Sec. 11, Rule 3]

In a class suit, any party in interest shall have the right to intervene to protect his individual interest. [Sec. 12, Rule 3]

Non-joinder of an indispensable party is not a ground for outright dismissal of the action. If the plaintiff refused to implead an indispensable party despite order of the court, that court m ay dism iss the com plaint for the plaintiff’s failure to comply with the order. [Pamplona Plantation v. Tinghil, G.R. No. 159121 (2005)].

If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action. [Sec. 1(d), Rule 16] However, no class suit may be dismissed upon the instance of the plaintiff or compromised, without the approval of the court. [Sec. 2, Rule 17]

If the court finds the reason for the nonjoinder of a necessary party unmeritorious, it may order the inclusion of such necessary party, if jurisdiction over his person may be obtained. Failure to comply with such order without justifiable cause is deemed a waiver of the claim against such party. [Sec. 9, pars. 1-2, Rule 3]

A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. [Regalado] A derivative suit is action brought by minority shareholders in the name of the corporation to redress wrongs committed against it, for which the directors refuse to sue. It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the majority.

Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. [Sec. 11, Rule 3] Objections to defects in parties Objections should be made at the earliest opportunity. At the moment such defect

In a derivative action, the real party in interest is the corporation itself, not the shareholders 30 OF 425

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who actually instituted it [Lim v. Lim Yu, G.R. No. 138343 (2001)]

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Failure to comply is a ground for disciplinary action.

There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. 63559 (1986)]

ACTION OF COURT UPON NOTICE OF DEATH Upon receipt of notice, shall determine if claim is extinguished by such death. (1) Claim does not survive: the proper action would be to dismiss the case. Substitution would not be required. (2) Claim survives: the court shall order the legal representative of the deceased to appear and be substituted for him within 30 days, or within such time as may be granted.

A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. [Mathay v. Consolidated Bank & Trust Company, G.R. No. L-23136 (1974)]

SURVIVAL OF ACTION Survival depends on the nature of the action and the damage sought (1) Causes of Action that Survive: (a) The wrong complained of affects primarily and principally property and property rights (b) Injuries to the person are merely incidental (c) E.g. Purely personal actions like support (2) Causes of Action that do not Survive: (a) The injury complained of is to the person (b) Property and property rights affected are incidental (c) E.g. actions to recover real and personal property or to enforce liens thereon

C.8 SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY Requisites [Sec. 15, Rule 3] (1) There are 2 or more persons not organized as a juridical entity; (2) They enter into a transaction; (3) A wrong is committed against a 3rd person in the course of such transaction. Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name. [Sec. 15, Rule 3]

Court may order the opposing party to procure the appointment of an administrator or executor of the estate in the ff. cases: (1) No legal representative is named; or (2) The one so named fails to appear within the specified period. [Sec. 16, Rule 3]

The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Sec. 8, Rule 14]

The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. [Ferreria v Vda de Gonzales, G.R. No. L-11567 (1986)]

C.9 EFFECT OF DEATH OF A PARTYLITIGANT DUTY OF COUNSEL UPON DEATH OF CLIENT [Sec. 16, Rule 3] (1) Inform court of such fact within 30 days after the death; (2) Give the name and address of the legal representatives. 31 OF 425

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DEATH OR SEPARATION OF A PARTY WHO IS A PUBLIC OFFICER Requisites [Sec. 17, Rule 3] (1) That the public officer is a party to an action in his official capacity; (2) That during the pendency of the action, he either dies/resigns or otherwise ceases to hold office; (3) That any party shows to the satisfaction of the court, within 30 days after the successor takes office, that there is a substantial need to continue or maintain the action; (4) That the successor adopts or continues his predecessor’s action, or threatens to do so; and (5) The party or officer affected: (a) Assented to the substitution, or (b) Was given reasonable notice of the application, and opportunity to be heard

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TRANSFER OF INTEREST DURING PENDENCY OF ACTION GENERAL RULE: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him. EXCEPTION When the substitution by or joinder of the transferee is ordered by court. [Sec. 19, Rule 3] The case is dismissed if the plaintiff’s interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.

D. VENUE Venue is related only to the place of trial or the geographical location in which an action or proceeding should be brought and does not equate to the jurisdiction of the court. [Spouses Mendiola v. CA, G. R. No. 159746 (2012)]

ACTION ON CONTRACTUAL MONEY CLAIMS Requisites [Sec. 20, Rule 3] (1) The action must primarily be for recovery of money, debt or interest thereon; (2) The claim arose from express or implied contract; (3) Defendant dies before the entry of final judgment in the court in which the action was pending. (4) The defendant’s death will not result in the dismissal of the action.

It is a procedural, not a jurisdictional matter. [Phil. Banking v. Tensuan, G.R. No. 104649 (1994)] Choosing the venue of an action is not left to a plaintiff’s caprice; the matter is regulated by the Rules of Court. [Ang v. Sps. Ang, G.R. No. 186993 (2012)]

Effect There shall be substitution in the manner provided under Sec. 16, Rule 3, and the action will continue until the entry of final judgment. However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedent’s estate without need of proving the claim.

On Dismissal A motu propio dismissal based on improper venue is patently incorrect. [Sec. 1, Rule 9; Dolot v. Paje, G.R. No. 199199 (2013)] Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot truly be said to have been improperly laid because the venue, although technically wrong, may be acceptable to the parties for whose convenience the rules of venue had been laid. [Dacuycoy v. IAC, G.R. No. 74854 (1991)]

INCOMPETENCY OR INCAPACITY OF A PARTY DURING THE PENDENCY OF THE ACTION The Court, upon motion with notice, may allow the action to be continued by or against the incapacitated person, assisted by his legal guardian or guardian ad litem. [Sec. 18, Rule 3]

However, the court may effect a motu propio dismissal for improper venue, inter alia, in actions covered by the Rules on Summary Procedure [Sec. 4], Rule of Procedure for Small Claims cases [Sec. 9], and in ejectment cases [Sec. 5, Rule 70]. 32 OF 425

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(2) objects of distinct transactions – separate

D.1 VENUE VERSUS JURISDICTION Venue Jurisdiction Power of the court to Place where the hear and decide a action is instituted case Jurisdiction over the subject matter and over the nature of May be waived the action is conferred by law and cannot-be waived Procedural Substantive Is fixed by law and May be changed by cannot be the the written subject of the agreement of the agreement of the parties parties Establishes a relation Establishes a between plaintiff and relation between the defendant, or court and the subject petitioner and matter respondent Not a ground for a motu propio dismissal Lack of jurisdiction over the subject Exceptions: matter is a ground - cases on summary for a motu proprio procedure dismissal. - Small claims cases - ejectment cases

actions should be filed in each place unless properly joined. D.3 VENUE OF PERSONAL ACTIONS All other actions may be commenced and tried, at the plaintiff’s election,: (1) Where the plaintiff or any of the principal plaintiffs resides; (2) Where the defendant or any of the principal defendants resides; (3) In case of a non-resident defendant, where he may be found. [Sec. 2, Rule 4] The plaintiff or the defendant must be residents of the place where the action has been instituted at the time the action is commenced. [Ang v. Sps. Ang, G.R. No. 186993 (2012)] The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. [Boleyley v. Villanueva, G.R. No. 128734 (1999)] A corporation cannot be allowed to file personal actions in a place other than its principal place of business unless such place is also the residence of a co-plaintiff or defendant. [Davao Light v. Court of Appeals, G.R. No. 111685 (2001)]

D.2 VENUE OF REAL ACTIONS Real actions shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated. [Sec 1(1), Rule 4]

D.4 VENUE OF ACTIONS AGAINST NONRESIDENTS Non-resident found in the Philippines (1) For personal actions (a) Where the plaintiff, or any of the principal plaintiffs, resides; or (b) Where the non-resident defendant may be found [Sec. 2, Rule 4] (2) For real actions -- where the property is located [Sec. 1, Rule 4]

Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated. [Sec. 1(2), Rule 4] If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiff’s option).

Non-resident not found in the Philippines (1) Involves personal status of plaintiff – where plaintiff resides (2) Involves property of defendant in the Philippines – where the property, or any portion thereof, is situated or found [Sec. 3, Rule 4]

If the case involves 2 properties located in 2 different places: (1) objects of the same transaction – file it in any of the 2 places;

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venue. [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]

When there is more than one defendant or plaintiff, the residences of the principal parties should be the basis for determining proper venue [Herrera]

E. PLEADINGS Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Sec. 1, Rule 6]

D.5 WHEN THE RULES ON VENUE DO NOT APPLY (1) If a specific rule or law provides otherwise (e.g. action for damages arising from libel); (2) If there is a stipulation as to venue which is permitted if the agreement: (a) Is in writing; (b) Was made before the filing of the action; and (c) Is the exclusive venue. [Sec. 4, Rule 4]

Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. [Sec. 1, Rule 8] Pleadings versus Motions Pleading Motion Purpose is to submit Purpose is to apply a claim or defense for an order not for appropriate included in the judgment judgment Cannot be initiatory; Always made in a May be initiatory case already filed in court Always filed before May be filed even judgment after judgment Only 9 kinds of Any application for pleading are allowed relief not by a by the rules pleading is a motion May be oral when made in open court Must be written or in the course of a hearing or trial

D.6 EFFECTS OF STIPULATION ON VENUE Written stipulations as to venue may be restrictive in the sense that the suit may be filed only in the place agreed upon, or merely perm issive in that the parties may file their suit not only in the place agreed upon but also in the places fixed by law. [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)] To be binding, the parties must have agreed on the exclusive nature of the venue of any prospective action between them. The agreement of parties must be restrictive and not permissive. [Regalado] In the absence of qualifying or restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is m erely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco, G.R. No. L-27033 (1969)]

E.1 KINDS OF PLEADINGS Pleadings Allowed (1) Complaint (2) Answer (3) Counterclaim (4) Cross-claim (5) Third (fourth, etc.)-party Complaint (6) Complaint-in-intervention (7) Reply [Sec. 2, Rule 6] (8) Counter-counterclaims [Sec. 9, Rule 6] (9) Counter-crossclaims [Sec. 9, Rule 6]

The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules [Regalado, citing Hoechst Philippines v Torres, G.R. No. L-44351 (1978)]. However, a complaint directly assailing the validity of the written instrument itself should not be bound by the exclusive venue stipulation contained therein and should be filed in accordance with the general rules on 34 OF 425

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COMPLAINT The pleading alleging the plaintiff’s cause/s of action. [Sec. 3, Rule 6]

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Kinds of Defenses [Sec. 5, Rule 6] (1) Negative Defenses - Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. (2) Affirmative Defenses - Allegations of new matters which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent or bar recovery, by way of confession and avoidance.

Function (1) To inform the defendant clearly and definitely of the claims made against him so that he may be prepared to meet the issues at trial. (2) To inform the defendant of all material facts on which the plaintiff relies to support his demand. (3) To state the theory of a cause of action which forms the bases of plaintiff’s claim of liability. [Tantuico v. Republic, G.R. No. 89114 (1991)]

A denial does not become specific merely because it is qualified by that word. [Agton v. CA, G.R. No. L-37309 (1982)] A general denial will be deemed an admission of the material averments in the complaint. [Sec. 11, Rule 8]

Ultim ate Facts are essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. [Remitere v. Montinola, G.R. No. L-19751 (1966)]

Modes of Specific Denial (1) Specific Absolute Denial - Defendant must specify each material allegation of fact the truth of which he does not admit, and, whenever applicable, set forth the substance of matters relied upon to support the denial (2) Partial Specific Denial - If pleader decides to deny only a part or a qualification of an averment: (a) He shall specify so much of it as is true and material (b) He shall deny the remainder (3) Denial by Disavowal of Knowledge – The defendant states that he is without knowledge or information sufficient to form a belief as to the truth of a material averment; has the effect of a denial [Sec. 10, Rule 8]

Non-Ultim ate Facts: (1) Evidentiary or immaterial facts; (2) Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated; (3) Conclusions of law alleged in the complaint are not binding on the court. (4) The details of probative matter or particulars of evidence, statements of law, inferences and arguments. ANSWER The pleading where the defendant sets forth his affirmative and/or negative defenses. [Sec. 4, Rule 6]

Negative Pregnant - a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines, G.R. No. 87434 (1993)]

It may be directed toward a complaint, a counterclaim, a cross-claim, or a third (fourth, etc.)-party complaint.

While it is a denial in form, its substance actually has the effect of an admission because of a too literal denial of the allegation sought to be denied. This arises when the pleader merely repeats the allegations in a negative form. [Riano] 35 OF 425

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COUNTERCLAIM Any claim which a defending party may have against an opposing party. [Sec. 6, Rule 6]

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(3) It must be cognizable by the regular courts of justice, and within the court’s jurisdiction both as to the amount and the nature. [Sec. 7, Rule 6]

Kinds of Counterclaims Compulsory Permissive counterclaim counterclaim Arises out of or is necessarily connected with the Neither arises out of transaction or nor is necessarily occurrence that is the connected with such subject matter of the subject matter opposing party's claim. Does not require for May require the its adjudication the presence of third presence of third parties over whom parties of whom the the court cannot court cannot acquire acquire jurisdiction. jurisdiction. Not barred even if Barred if not set up in not set up in the the action. action. Must be answered, Need not be otherwise, the answered; no defendant can be default. declared in default. Not an initiatory pleading; does not Initiatory pleading require CNFS

A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala, G.R. No. L-26768 (1970)] The filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. If he files a motion to dismiss, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer. [Financial Building Corp. v. Forbes Park Association, G.R. No. 133119 (2000)] On Amounts • In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Sec. 7, Rule 6] • If a counterclaim is filed in the MTC in excess of its jurisdictional limits, the excess is considered waived. [Agustin v. Bacalan, G.R. No. L-46000 (1985)] • However, in another case, the remedy where a counterclaim is beyond the jurisdictional amount of the MTC is to set off the claims and file a separate action to collect the balance. [Calo v. Ajax, G.R. No. L-22485 (1968)] Note, however, that the counterclaim in question here was permissive.

NOTE: Under OCA Circular No. 96-2009, citing A.M. No. 04-2-04 SC, the payment of filing fees for compulsory counterclaims remains suspended effective September 21, 2004. It clarified that the portion of the decision in Korea Technologies v. Lerma, G.R. No. 143581, which stated that docket fees are required to be paid in compulsory counterclaims has been deleted in a revised issuance.

Permissive Counterclaim A counterclaim is permissive if it does not arise out of, nor is necessarily connected with, the subject matter of the opposing party’s claim This is not barred even if not set up in the action.

Compulsory Counterclaim Requisites: (1) It arises out of, or is necessarily connected with the transaction or occurrence, constituting the subject matter of the opposing party's claim; (2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction;

Must have independent jurisdictional ground [Herrera]. Hence, the filing of a separate docket fee. NOTE: If the counterclaim, even if it arises out of, or is necessarily connected with, the 36 OF 425

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subject matter of the opposing party’s claim, matures or is acquired by a party after serving his pleading, i.e. the Answer, it is merely permissive. [Sec. 9, Rule 11]

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In all these cases, the rules expressly provide that the dismissal shall be without prejudice to the right of the defendant to pursue his counterclaim in the sam e or in a separate action.

Determ ining whether Com pulsory or Permissive (Also known as “logical relationship test”)

How Raised (1) By including it in the Answer A compulsory counterclaim or a crossclaim that a defending party has at the tim e he files his answer shall be contained therein. [Sec. 8, Rule 11] (2) By filing after the Answer (a) A counterclaim may be set up, by leave of court, by am endm ent before judgm ent, when: (i) it is not set up due to oversight, inadvertence, or excusable neglect, or (ii) when justice requires [Sec. 10, Rule 11] (b) A counterclaim, which either matured or was acquired by a party after serving his pleading, with permission of the court, may be set up in a supplemental pleading before judgment. [Sec. 9, Rule 11]

A positive answer on all four the following tests would indicate that the counterclaim is compulsory: (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute plaintiff’s claim as well as the counterclaim? (4) Is there any logical relation between the claim and counterclaim? [GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)] There is a logical relationship where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA, G.R. No. 101883 (1992)]

CROSS-CLAIM Any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. [Sec. 8, Rule 6]

Effect on Counterclaim when Complaint is dismissed The case may be dismissed, with a counterclaim set up under any of the following circumstances: (1) Dismissal under Sec. 6, Rule 16 – where the defendant does not file motion to dismiss but raises the ground as an affirmative defense (2) Dismissal under Sec. 2, Rule 17 – where the plaintiff files a motion to dismiss the case, after the defendant had filed a responsive pleading (3) Dismissal under Sec. 3, Rule 17 – where the complaint is dismissed due to the fault of the plaintiff

A cross-claim is generally compulsory. A cross-claim not set up shall be barred. [Sec. 2, Rule 9] Exceptions (“perm issive crossclaim s”) are when: (1) The claim is outside the court’s jurisdiction; (2) The court cannot acquire jurisdiction over 3rd parties whose presence is necessary for the adjudication of said cross-claim. (3) The Cross-claim matured or was acquired after service of Answer

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Effect on Cross-claim when Com plaint is dism issed The dismissal of the complaint carries with it the dismissal of a cross-claim, which is purely defensive; but not a cross-claim seeking an affirmative relief. [Torres v. CA, G.R. No. L25889 (1973)]

No need for a leave of court

3rd-party complaint Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to the action

Improper Cross-Claims (1) Where the cross-claim is improper, the remedy is certiorari [Malinao v. Luzon Surety (1964)] (2) The dismissal of a cross-claim is unappealable when the order dismissing the complaint becomes final and executory [Ruiz, Jr. v. CA (1993)] (3) A cross-claim is not allowed after declaration of default of cross-claimant [Tan v. Dimayuga, (1962)] It would be tantamount to setting aside the order of default because then the cross-claimant would re-obtain standing in court as party litigant

3rd-party complaint Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the recovery sought by the opposing party Cannot exceed the amount stated in the original complaint

THIRD (FOURTH, ETC.)-PARTY COMPLAINTS It is a claim that a defending party may, with leave of court, file against a person not a party to the action, for contribution, indemnity, subrogation, or any other relief, in respect of his opponent's claim. [Sec. 11, Rule 6]

Leave of court is needed

No need for leave of court

Complaint in intervention Same Initiative is with a non-party who seeks to join the action

Counterclaim Must be within the jurisdiction of the court trying the main case Need not diminish/defeat the recovery sought by the opposing party May exceed in amount or be different in kind from that sought in the original complaint

Under this Rule, a person not party to an action may be impleaded by the defendant either: (1) On allegation of liability to the latter, covered by the phrase “contribution, indemnity, or subrogation” (2) On the ground of direct liability to the plaintiff; or both, as covered by the phrase “any other relief”. [Samala v. Victor, G.R. No. L-53969 (1989)]

There could also be a 4th/etc.-party complaint with the same purpose and function. 3rd Party Cross-claim Counterclaim complaint Against a Against a co- Against an person not a party opposing party party to the action May arise out of or be Must arise necessarily out of the connected with transaction Must be in the transaction that is the respect of or the subject subject the matter of the matter of the opponent’s opposing original (plaintiff’s) party’s claim action or of a claim (compulsory counterclaim counterclaim), therein or it may not (permissive

Tests to Determine W hether the 3 rd Party Complaint is in Respect of Plaintiff’s Claim (1) WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff’s claim; (2) WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant; (3) WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff 38 OF 425

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has or may have to the plaintiff’s claim. [Capayas v. CFI, G.R. No. L-475 (1946)]

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W hen Allowed Intervention shall be allowed when a person has: (1) A legal interest in the matter in litigation; or (2) A legal interest in the success of any of the parties; or (3) An interest against the parties; or (4) When he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or of an officer thereof. [Sec. 1, Rule 19; Fernandez v. CA, A.M. OCA IPI No. 12-201CA-J (2013)]

Additional Rules Leave of court to file a 3rd-party complaint may be obtained by motion filed under Rule 15. Summons on third (fourth, etc.)-party defendants must be served for the court to obtain jurisdiction over his person, since he is not an original party. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third-party complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety, G.R. No. L-27802 (1968)]

The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. [Mago v. CA, G.R. No. 115624 (1999)]

A third-party complaint is not proper in an action for declaratory relief. [Commissioner of Customs v. Cloribel, G.R. No. L-21036 (1977)]

It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)]

COMPLAINT-IN-INTERVENTION Intervention is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding.

Legal Interest Interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)]

Pleadings-in-Intervention [Sec. 3, Rule 19] (1) Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties. (2) Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter.

Requisites for a Valid Intervention (1) There must be a motion for intervention filed before judgment is rendered by the trial court. (2) Movant must show in his motion: (a) That he has a legal interest: (i) in the matter of litigation, (ii) in the success of either party in the action, or (iii) against both parties. (b) That the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof

Intervention is never an independent action, but is ancillary and supplemental to an existing litigation, and in subordination to the main proceeding. [Saw v. CA, G.R. No. 90580 (1991)] Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996), G.R. No. 88345; Rule 19] 39 OF 425

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(c) That the intervention must not unduly

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Effect of Failure to Reply GENERAL RULE: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto.

delay or prejudice the adjudication of the rights of the original parties; and (d) That the intervenor’s rights may not be fully protected in a separate proceeding.

EXCEPTION: When a Reply is necessary (a) To set up affirmative defenses on the counterclaim [Rosario v. Martinez (1952)] (b) Where the answer alleges the defense of usury in which case a reply under oath should be made; otherwise, the allegation of usurious interest shall be deemed admitted [Rule 8, Sec. 8; Sun Bros. v. Caluntad (1966)] (c) Where the defense in the answer is based on an actionable document, a reply under oath must be made; otherwise, the genuineness and due execution of the document shall be deemed admitted. [Sec. 11, Rule 8; Toribio v. Bidin (1985)]

How to Intervene (1) With leave of court, the court shall consider the 2 factors (2) Motion to intervene may be filed at any time before judgment is rendered by trial court (3) Copy of the pleadings-in-intervention shall be attached to the motion and served on the original parties Time to Intervene [Sec. 2, Rule 19] GENERAL RULE: The motion to intervene must be filed at any time before the rendition of judgment by the trial court

COUNTER-COUNTERCLAIM A claim asserted against an original counterclaimant.

EXCEPTIONS: (1) With respect to indispensable parties, intervention may be allowed even on appeal [Falcasantos v. Falcasantos (1952)] (2) When the intervenor is the Republic [Lim v. Pacquing (1995)] (3) Intervention may be allowed after judgment where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal [Pinlac v. CA (2003)]

COUNTER-CROSS-CLAIM A claim filed against an original crossclaimant. E.2 PLEADINGS ALLOWED IN SPECIAL RULES REVISED RULES ON SUMMARY PROCEDURE The only pleadings allowed to be filed are: (1) Complaints (2) Compulsory counterclaims pleaded in the Answer (3) Cross-claims pleaded in the Answer; and (4) Answers thereto [Sec. 3[A], II]

Rem edies for Denial of Motion for Intervention (1) The movant may file a motion for reconsideration since the denial of a motion for intervention is an interlocutory order. (2) Alleging grave abuse of discretion, movant can also file a certiorari case. REPLY The plaintiff’s response to the defendant's answer, the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. [Sec. 10, Rule 6]

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Prohibited Pleadings, Motions, or Petitions [Sec. 19] (1) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with required barangay conciliation proceedings; (2) Motion for a bill of particulars; (3) Motion for new trial, or for reconsideration of a judgment, or for opening of trial; (4) Petition for relief from judgment; (5) Motion for extension of time to file pleadings, affidavits or any other paper; (6) Memoranda (7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (8) Motion to declare the defendant in default; (9) Dilatory motions for postponement; (10) Reply; (11)Third party complaints; and (12) Interventions.

REMEDIAL LAW

The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid. NOTE: Courts decision shall be contained in Form 13-SCC Prohibited Pleadings and Motions [Sec. 14] (1) Motion to dismiss the complaint except on the ground of lack of jurisdiction; (2) Motion for a bill of particulars; (3) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; (4) Petition for relief from judgment; (5) Motion for extension of time to file pleadings, affidavits, or any other paper; (6) Memoranda; (7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (8) Motion to declare the defendant in default; (9) Dilatory motions for postponement; (10) Reply; (11)Third-party complaints; and (12) Interventions.

RULE OF PROCEDURE FOR SMALL CLAIMS Forms: (1) Instead of a Complaint, a Statem ent of Claim using Form 1-SCC shall be filed [Sec 5] (2) Answer shall be filed by way of a Response using Form 3-SCC [Sec. 10] (3) Defendant may file counterclaim if he possesses a claim against the plaintiff that (a) Is within the coverage of this Rule, exclusive of interest and costs; (b) Arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; (c) Does not require for its adjudication the joinder of third parties; and (d) Is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim.

E.3 PARTS OF A PLEADING Caption – that part of the pleading which sets forth the: (1) The name of the court; (2) The title of the action (i.e. the names of the parties); and (3) The docket number, if assigned. [Sec. 1, Rule 7] Body – that part of the pleading which sets forth its designation, the allegations of party's claims or defenses, the relief prayed for, and its date. (1) Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances (2) Headings should be used if there is more than one cause of action in the Complaint, and if paragraphs in the Answer address one or more causes of action from the Complaint. 41 OF 425

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(3) Should specify relief sought, but it may

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Verification is required in the following instances: (1) Pleadings filed in the inferior courts in cases covered by the Rules on Summary Procedure [Sec. 3, B] (2) Petition for relief from judgment or order [Sec. 3, Rule 38] (3) Petition for review from RTC to the CA [Sec. 1, Rule 42] (4) Petition for review from quasi-judicial agencies to the CA [Sec. 5, Rule 43] (5) Appeal by certiorari from the CTA to the SC [Sec. 12, RA 9282 amending Sec. 19, RA 1125] (6) Appeal by certiorari from CA to the SC [Sec. 1, Rule 45] (7) Petition for annulment of judgments or final orders and resolutions [Sec. 1, Rule 47] (8) Complaint for injunction [Sec. 4, Rule 58] (9) Application for appointment of receiver [Sec. 1, Rule 59] (10) Application for support pendente lite [Sec. 1, Rule 69] (11) Petition for certiorari against judgments, final orders, or resolutions of constitutional commissions [Sec. 2, Rule 64] (12) Petition for certiorari [Sec. 1, Rule 65] (13) Petition for prohibition [Sec. 2, Rule 65] (14) Petition for mandamus [Sec. 3, Rule 65] (15) Petition for quo warranto [Sec. 1, Rule 66] (16) Complaint for expropriation [Sec. 1, Rule 67] (17) Complaint for forcible entry or unlawful detainer [Sec. 4, Rule 70] (18) Petition for indirect contempt [Sec. 4, Rule 71] (19) Petition for appointment of a general guardian [Sec. 2, Rule 93] (20) Petition for leave to sell or encumber property of the ward by a guardian [Sec. 1, Rule 95] (21) Petition for declaration of competency of a ward [Sec. 1, Rule 97] (22) Petition for habeas corpus [Sec. 3, Rule 102] (23) Petition for change of name [Sec. 2, Rule 103]

add a general prayer for such further or other relief as may be deemed just or equitable; also called the “prayer” (4) Every pleading shall be dated. [Sec. 2, Rule 7] SIGNATURE AND ADDRESS Every pleading must be signed by the party or counsel representing him. The address must be stated and such address must not be a post office box. [Sec. 3, Rule 7] An unsigned pleading produces no legal effect. However, the court may allow such deficiency to be remedied if it appears that: (1) It was due to mere inadvertence; and (2) It was not intended for delay [Sec. 3, Rule 7] Effect of Signature of Counsel This constitutes a certificate by him that: (1) He has read the pleading (2) That to the best of his knowledge, information, and belief there is good ground to support it; and (3) That it is not interposed for delay [Sec. 3, Rule 7] VERIFICATION A pleading need not be under oath, verified or accompanied by affidavit, unless otherwise provided by law or rules. [Sec. 4, Rule 7]

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Petition for voluntary judicial dissolution of a corporation [Sec. 1, Rule 104] (25) Petition for cancellation or correction of entries in the civil registry [Sec. 1, Rule 108]

REMEDIAL LAW

(3) Relief sought [Huibonhoa v. Concepcion,

(24)

G.R. No. 153785 (2005)] Certificate of Non-Forum Shopping (CNFS) A sworn statement in which the plaintiff or principal party certifies in a complaint or initiatory pleading: (1) That he has not commenced any action or filed any claim involving the same issues in any court or tribunal, and to the best of his knowledge, no such other action is pending; (2) That if there is such other pending action or claim, a complete statement of the present status thereof; and (3) That if he should learn that the same or a similar action has been filed or is pending, he shall report such fact within 5 days to the court receiving his initiatory pleading. [Sec. 5, Rule 7]

How verified [Sec. 4, Rule 7] By an affidavit declaring that: (1) That the affiant has read the pleading; and (2) That the allegations therein are true and correct of his personal knowledge or based on authentic documents. W ho Executes Verification Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct. [Altres v. Empleo, G.R. No. 180986 (2008)]

CNFS is not required in a compulsory counterclaim, as this is not an initiatory pleading. [UST Hospital v. Surla, G.R. No. 129718 (1998)] However, a certification is needed in permissive counterclaims [Korea Exchange Bank v. Gonzales, G.R. No. 14228687 (2005)]

Effect of noncompliant or defective verification Noncompliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby. [Altres v. Empleo, G.R. No. 180986 (2008)]

W ho Executes the CNFS It is the plaintiff or principal party who executes the certification under oath. [Sec. 5, Rule 7] Rationale: The plaintiff, not the counsel, is in the best position to know whether he or it has actually filed or caused the filing of a petition. Certification signed by counsel without proper authorization is defective, and a valid cause for dismissal. [Anderson v. Ho, G.R. No. 172590 (2013)]

FORUM SHOPPING The repeated availment of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues, either pending in or already resolved adversely by some other court. [Asia United Bank v. Goodland Company, Inc., G.R. No. 191388 (2011)]

If, for justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf. [Vda. de Formoso v. PNB, G.R. No. 154704 (2011)]

Test to determine existence of Forum Shopping Whether in the 2 or more cases pending, there is identity of: (1) Parties (2) Rights or causes of action

Verification/CNFS for Corporation The certification must be executed by an officer, or member of the board of directors, or by one who is duly authorized by a board resolution; otherwise, the complaint will have 43 OF 425

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to be dismissed. [Cosco Philippines Shipping, Inc. v. Kemper Insurance, Co., G.R. No. 179488 (2012)]

E.4 ALLEGATIONS IN A PLEADING IN GENERAL Every pleading shall contain a statement of the ultimate facts on which the party pleading relies for his claim or defense (1) In a methodical and logical form (2) A plain, concise and direct statement (3) Statement of mere evidentiary facts omitted [Sec. 1, Rule 8]

However, the Court has ruled that a President of a corporation can sign the verification and CNFS, without the benefit of a board resolution. It also allowed the following to sign: (1) The Chairperson of the Board; (2) The General Manager or acting GM; (3) A personnel officer; and (4) An employment specialist in a labor case.

If a defense relied on is based on law, state in a clear and concise manner: (1) Pertinent provisions of the law (2) Applicability of the law to him

However, the better procedure would be to append a board resolution to obviate questions regarding the authority of the signatory. [South Cotabato Communications Corp. v. Sto. Tomas, G.R. No. 173326 (2010)]

Facts that must be averred particularly – Circumstances showing fraud or mistake when averred [Sec. 5, Rule 8]

Belated submission of written authority has been found to be substantial compliance with the rule, especially when the acts were also ratified by the Board. [Swedish Match Philippines v. Treasurer of the City of Manila, G.R. No. 181277 (2013)]

Facts that may be averred generally (1) Conditions precedent [Sec. 3, Rule 8] (2) Capacity to sue or be sued; (3) Capacity to sue or be sued in a representative capacity; [Sec. 4, Rule 8] (4) Legal existence of an organization [Sec. 4, Rule 8] (5) Malice/intent/knowledge or other condition of the mind; [Sec. 5, Rule 8] (6) Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Sec. 6, Rule 8] (7) Official documents/acts. [Sec. 9, Rule 8]

Effect of noncom pliant CNFS Defect Effect Not curable by mere amendment Failure to comply with the requirements

False certification Noncompliance with any undertaking

Willful and deliberate forum shopping

REMEDIAL LAW

Cause for dismissal of the case, without prejudice unless otherwise provided, upon motion and after hearing Constitutes indirect contempt, without prejudice to administrative and criminal actions Ground for summary dismissal, with prejudice

Condition Precedent – If the cause of action depends upon a condition precedent, its fulfillment or legal excuse for nonfulfillment must be averred. A general averment of the performance or occurrence of all conditions precedent shall be sufficient [Sec. 3, Rule 8] All valid conditions precedent to the institution of a particular action, whether prescribed by statute, fixed by agreement of the parties, or implied by law must be performed or complied with before commencing the action. Such fact must be pleaded.

Direct contempt Cause for administrative sanctions

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Failure to comply with a condition precedent is a ground for a motion to dismiss [Sec. 1(j), Rule 16]

REMEDIAL LAW

Pleading the document (1) The substance of such document shall be set forth in the pleading; and the original or a copy shall be attached as an exhibit; or (2) Said copy may with like effect be set forth in the pleading [Sec. 7, Rule 8]

Examples of Conditions Precedent: (1) Exhaustion of administrative remedies (2) Investigation by a fiscal is a prerequisite to annulment of marriage when defendant defaults [Tolentino v. Villanueva (1974)] (3) No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts at compromise have been made but that the same have failed. [Art. 222, Family Code; Versoza v. Versoza (1968)] (4) Arbitration; (5) Barangay Conciliation

A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant dismissal of the action [Convets Inc. v. National Dev. Co., G.R. No. L-10232 (1958)] How to Contest [Sec. 8, Rule 8] (1) By specific denial under oath; and (2) By setting forth what is claimed to be the facts

Capacity The following must be averred: (1) Facts showing the capacity of a party to sue or be sued; or (2) The authority to sue or be sued in a representative capacity; (3) Or the legal existence of an organized association of persons that is made a party [Sec. 4, Rule 8]

Denial need not be under oath when: (1) The adverse party does not appear to be a party to the instrument, or (2) Compliance with an order for inspection of the document has been refused. Effect of Failure to Deny Under Oath (1) The genuineness and due execution is deemed admitted (2) The document need not be formally offered in evidence

NOTE: A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge.

Due Execution and Genuineness - That the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. [Hibberd v. Rohde and Mcmillian, G.R. No. 8418 (1915)]

Judgment - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. [Sec. 6, Rule 8] Official documents or acts – sufficient to aver that the document was issued, or the act done, in compliance with law. [Sec. 9, Rule 8]

SPECIFIC DENIALS The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with matters which he relied upon to support the denial. The parties are compelled to lay their cards on the table. [Philippine Bank of Communications v. Go, G.R. No. 175514 (2011)]

PLEADING IN AN ACTIONABLE DOCUMENT An actionable docum ent is the written instrument upon which the action or defense is based. Where a pleader relies upon a document, its substance must be set out in the pleading either by its terms or by its legal effects [Sec. 7, Rule 8] 45 OF 425

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NOTE: Under CB Circular No. 905, the Usury Law of 1912 is currently suspended.

Modes of Specific Denial (1) Specific Absolute Denial - Defendant must specify each material allegation of fact the truth of which he does not admit, and, whenever applicable, set forth the substance of matters relied upon to support the denial (2) Partial Specific Denial - If pleader decides to deny only a part or a qualification of an averment: (a) He shall specify so much of it as is true and material (b) He shall deny the remainder (3) Denial by Disavowal of Knowledge – The defendant states that he is without knowledge or information sufficient to form a belief as to the truth of a material averment; has the effect of a denial

E.5 EFFECT OF FAILURE TO PLEAD FAILURE TO PLEAD DEFENSES AND OBJECTIONS GENERAL RULE: Defenses and objections not pleaded in the answer or motion to dismiss are deemed waived. [“Omnibus Motion Rule,” Sec. 1, Rule 9] EXCEPTIONS: (1) Lack of jurisdiction over the subject matter; (2) Litis pendentia (3) Res judicata (4) Action barred by statute of limitations. [Sec. 1, Rule 9]

NOTE: Denial by disavowal of knowledge must be availed of with sincerity and in good faith – certainly neither for the purpose of confusing the adverse party as to what allegations of the complaint are really put in issue nor for the purpose of delay. [Barnes v. Reyes, G.R. No. L-9531 (1958)]

NOTE: These exceptions also empower the courts to motu proprio dismiss an action where such grounds appear from the pleadings or the evidence on record [Sec. 1, Rule 9]. FAILURE TO PLEAD COMPULSORY COUNTERCLAIMS AND CROSS-CLAIMS GENERAL RULE: A compulsory counterclaim, or a cross-claim, not set up shall be barred. [Sec. 2, Rule 9]

Effect of Failure to m ake Specific Denials GENERAL RULE: Allegations not specifically denied are deemed admitted [Sec. 11, Rule 8]

EXCEPTION: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim or a cross-claim, with leave of court, may be set up by amendment before judgment. [Sec. 10, Rule 11]

EXCEPT: (1) Allegations as to the amount of unliquidated damages; (2) Allegations immaterial to the cause of action (3) Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Sec. 12, Rule 8] (4) Conclusions of law.

E.6 DEFAULT Failure of the defendant to answer within the proper period. [Sec. 3, Rule 9] Dual stages of default (1) Declaration of Order of Default – when defendant fails to answer within the time specified in the rules, the court shall, upon motion of the plaintiff and proof of such failure, declare defendant in default (2) Rendition of Judgment by Default – thereafter, on the basis of the allegation of the complaint or after receiving plaintiff’s evidence, the court shall render judgment

Specific Denial requires an oath in the following cases: (1) Denial of the genuineness and due execution of an actionable document; [Sec. 8, Rule 8] and (2) Denial of allegations of usury. [Sec. 11, Rule 8] 46 OF 425

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granting him such relief as the complaint and the facts proven may warrant Order of default Issued by the court on plaintiff’s motion, for failure of the defendant to seasonably file his responsive pleading Interlocutory – unappealable

REMEDIAL LAW (a) Proceed to render judgment granting

the claimant such relief as his pleading may warrant; or (b) Require the claimant to submit evidence, which need not be received by the court personally but may be received by the clerk of court A declaration of default is not tantamount to an admission of the truth or validity of the plaintiff’s claims. [Monarch Insurance v. CA, G.R. No. 92735 (2000)] (3) A defending party declared in default retains the right to appeal from the judgment by default. However, the grounds that may be raised in such an appeal are restricted to any of the following: (a) The failure of the plaintiff to prove the material allegations of the complaint; (b) The decision is contrary to law; and (c) The amount of judgment is excessive or different in kind from that prayed for. [Otero v. Tan, G.R. No. 200134 (2012)]

Judgm ent by default Rendered by the court following a default order or after it received ex parte plaintiff’s evidence Final – Appealable

W hen Declaration of Default is Proper There is only one instance when a party defendant can properly be declared in default and that is when he fails to file his answer within the reglementary period [Rule 11], or within such extended time as he is allowed by the court. [Sec. 11, Rule 11] Requisites before a Declaration of Default (1) The court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance (2) The defendant failed to file his answer within the time allowed therefor (3) There must be a m otion by the plaintiff to declare the defendant in default with notice to the latter (4) There must be notice to the defendant by serving upon him a copy of such motion (5) There must be proof of such failure to answer (6) There must be a hearing to declare defendant in default

Relief from an Order of Default [Lina v. CA, G.R. No. L-63397] (1) After notice of the Order and before Judgment – file a motion under oath to set aside the Order; must show: (a) Failure to file Answer was due to fraud, accident, mistake, excusable negligence; and (b) That he has a meritorious defense (i.e. through an affidavit of merit) (2) After rendition of Judgment, before judgm ent becom es final and executory – may file: (a) a motion for new trial under Rule 37; or (b) appeal from the judgment for being contrary to the evidence or law (3) After Judgment becomes final and executory – may file a petition for relief under Rule 38 (within 60 days from notice of the judgment, but within 6 months from entry thereof) or annulm ent of judgm ent under Rule 47

Effect of Order of Default (1) The party declared in default cannot take part in the trial. However, he may still participate as a witness [Cavili v. Florendo, G.R. No. 73039 (1987)] and is entitled to notices of subsequent proceedings. [Sec. 3, Rule 9] In all, the defendant should receive the following notices: (a) Motion to declare him in default; (b) Order declaring him in default; (c) Subsequent proceedings; (d) Service of final orders and judgments. (2) The court may either:

These remedies presuppose that there was a valid order of default but the defendant may also file a petition for certiorari when he is improperly declared in default. [Riano]

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Partial Default When the complaint states a common cause of action against several defendants, only some of whom answer, the court should declare defaulting defendants in default, and proceed to trial on answers of others

REMEDIAL LAW DEFAULT IN ORDINARY PROCEDURE

After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default

If the defense is personal to the one who answered, it will not benefit those who did not answer. Extent of Relief to be Awarded (1) A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages (2) If the claim is not proved, the case should be dismissed

If motion denied: Defendant allowed to file an answer

If motion granted: Court issues order of default and renders judgment or require plaintiff to submit evidence ex parte

As held in Datu Samad Mangelen v. CA, G.R. No. 88954 (1992): (1) In a judgment based on evidence presented ex parte, judgment should neither exceed the amount, nor be different in kind from that prayed for. (2) On the other hand, in a judgment where an answer was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for.

Before judgment by default is rendered, defendant may: (1) Move to set aside order of default upon showing of FAME and that he has a meritorious defense; (2) Avail of Rule 65 in proper cases

W here Default Not Allowed Default is not allowed, in the following cases: (1) An action for annulment or declaration of nullity of marriage (2) For legal separation (3) Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed (4) Summary procedure (5) In expropriation proceedings, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of compensation to be paid for his property in the trial of the issue of just compensation. [Sec. 3, par. 3, Rule 67]

Court maintains order of default

Court sets aside order of default and defendant is allowed to file an answer Presentation of plaintiff’s evidence ex-parte Case set for pre-trial

If plaintiff proves his allegations: Judgment by default

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If plaintiff fails to prove his allegations: Case is dismissed

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E.7 FILING AND SERVICE OF PLEADINGS

REMEDIAL LAW

prescribed filing fee, BUT SUBSEQUENTLY, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment (5) Lim itation on the claim s covered by fees as lien, Metrobank v. Perez, G.R. No. 181842 (2010) • Claims not specified or claims although specified are left for determination of the court are lim ited only to any damages that m ay arise after the filing of the com plaint or sim ilar pleading for then it will not be possible for the claimant to specify nor speculate as to the amount thereof

PAYMENT OF DOCKET FEES GENERAL RULE: The court acquires jurisdiction over the case only upon payment of prescribed fees. Without payment, the case is considered not filed. Payment of docket fees is mandatory and jurisdictional. It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. Banque National de Paris, G.R. No. 151242 (2005)] Effect of Failure to Pay Docket Fees at Filing (1) The Manchester Rule: Manchester v. CA, G.R. No. 75919 (1987) • Automatic Dismissal • Any defect in the original pleading resulting in underpayment of the docket fees cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction (2) Relaxation of the Manchester Rule, Sun Insurance v. Asuncion, G.R. No. 79937 (1989) • NOT automatic dismissal • Court may allow payment of fees within a reasonable time but in no case beyond the expiration of the applicable prescriptive period of the action filed. (3) Exception to the Sun Insurance doctrine, Gochan v. Gochan, G.R. No. 146089 (2001) • The Sun Insurance rule allowing payment of deficiency does not apply where plaintiff never demonstrated any willingness to abide by the rules to pay the docket fee but stubbornly insisted that the case filed was one for specific performance and damages. (4) Further modification, Heirs of Hinog v. Melicor, G.R. No. 140954 (2005) • Fees as lien • Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the

FILING VERSUS SERVICE OF PLEADINGS Filing is the act of presenting the pleading or other paper to the clerk of court. [Sec. 2, Rule 13] Service is the act of providing a party or his counsel with a copy of the pleading or paper concerned. [Sec. 2, Rule 13] Papers required to be filed and served: [Sec. 4, Rule 13] (1) Pleading subsequent to the complaint; (2) Appearance; (3) Written Motion; (4) Notice; (5) Order; (6) Judgment; (7) Demand; (8) Offer of Judgment; (9) Resolution; (10) Similar papers.

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PERIODS OF FILING PLEADINGS Period Reckoning Point Answer to the Complaint Service of summons, General rule: unless a different Within 15 days period is fixed by the court [Sec. 1, Rule 11] Foreign private juridical entity defendant, summons Receipt of summons through government [Sec. 2, Rule 11] official: Within 30 days Non-resident defendant, with Service of extraterritorial extrajudicial service of summon: summons [Sec. 15, reasonable time not Rule 14] less than 60 days set by court Answer to amended Complaint Amendment was matter of right: Within 15 days

REMEDIAL LAW

Extension of Time to Plead Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. [Sec. 11, Rule 11] MANNER OF FILING Personal Filing By personally presenting the original copy of the pleading, notice, appearance, motion, order, or judgment to the clerk of court. [Sec. 3, Rule 13] Deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. Filing by Registered Mail [Sec. 3, Rule 13] Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office).

Service of a copy of the amended complaint

Deemed filed on the date it was deposited with the post office, as shown by the post office stamp on the envelope or the registry receipt.

Amendment not Notice of the order matter of right: admitting the same Within 10 days [Sec. 3, Rule 11] Answer to Counterclaim or Cross-Claim From service [Sec. 4, Within 10 days Rule 11] Answer to third (fourth, etc)-party complaint Same rule as answer Within 15 days to the complaint [Sec. 5, Rule 11] Reply From service of the Within 10 days pleading responded to [Sec. 6, Rule 11] Answer to supplemental complaint From notice of the order admitting the Within 10 days same, unless a different period is fixed by the court

NOTE: Filing a pleading by facsimile is not sanctioned. But fax was allowed in an extradition case [Justice Cuevas v. Juan Antonio Muoz (2000)] Filing by Private Carrier If a party avails of a private carrier, the date of the court’s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC, G.R. No. 89070 (1992)]

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MODES OF SERVICE Personal Service [Sec. 6, Rule 13] (1) Delivering personally a copy to the party, who is not represented by a counsel, or to his counsel; or (2) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or (3) Leaving the copy between 8am and 6pm at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing thereon – if not person is found in his office, or if his office is unknown, or if he has no office

REMEDIAL LAW

Service of Judgm ents, Final Orders, or Resolutions Service is done either: (1) Personally (2) By registered mail (3) By publication, if: (a) A party is summoned by publication; and (b) Such party failed to appear in the action NOTE: There is NO substituted service of judgments and final orders.

Service by Mail [Sec. 7, Rule 13] (1) Ordinary Mail - it does not constitute filing until the papers are actually delivered into the custody of clerk or judge (a) Service may be done by ordinary mail if no registry service is available in the locality of either sender or addressee (2) Registered Mail - The date of mailing is the date of filing (a) Date of filing is determinable from 2 sources: (i) From the post office stamp on the envelope (ii) From the registry receipt (b) It is done by depositing in the post office: (c) In a sealed envelope (d) Plainly addressed to the party or his counsel (i) At his office if known (ii) Otherwise, at his residence if known (e) Postage fully pre-paid (f) With instructions to the postmaster to return the mail to the sender after 10 days if undelivered

PRIORITIES IN MODES OF SERVICE AND FILING GENERAL RULE: Personal filing and service is preferred. [Sec. 11, Rule 13] Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed. Exception: Papers emanating from the court. COMPLETENESS AND PROOF OF FILING GENERAL RULE: The filing of a pleading or paper is proved by its existence in the record of the case [Sec. 12, Rule 13] EXCEPTION: When the pleading or paper is not in the record, its filing may be proved as shown below Completeness of Proof of filing Filing [Sec. 12, Rule 13] [Sec. 3, Rule 13] Personal filing Written or stamped Upon receipt by acknowledgment by the the clerk of court clerk of court Filing by registered mail (1) Registry receipt, On the date the and pleading was (2) Affidavit of the deposited with person who did the the post office mailing

Substituted Service [Sec. 8, Rule 13] Done by delivery of the copy to the clerk of court with proof of failure of both personal and service by mail Proper only when: (1) Service cannot be made personally or by mail (2) Office and place of residence of the party or his counsel being unknown Service is complete at the time of such delivery. 51 OF 425

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In the case of filing by registered mail, when the paper does not appear in the record, the affidavit of the person who did the mailing must contain: (1) A full statement of the date and place of depositing the mail in the post office (2) The fact that the paper was in a sealed envelope addressed to the court (3) The fact that postage was fully paid (4) The fact that there were instructions to the postmaster to return the mail to the sender after 10 days if undelivered

REMEDIAL LAW

Duties of sender when service is effected by registered mail: (1) The registry return card shall be filed immediately upon its receipt by the sender; or (2) The unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee shall likewise be filed immediately. [Sec. 13, Rule 13] Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless ordered by the court in the following circumstances: (1) When it is doubtful who the attorney for such party is; or (2) When the lawyer cannot be located; or (3) When the party is directed to do something personally, as when he is ordered to show cause. [Retoni, Jr. v. CA, G.R. No. 96776 (1993)]

COMPLETENESS AND PROOF OF SERVICE Com pleteness of Proof of service service [Sec. 10, [Sec. 13, Rule 13] Rule 13] Personal service (1) Written admission of the party served; or (2) Official return of the server; or Upon actual (3) Affidavit of the delivery party serving, with a full statement of the date/place/manne r of service. Service by ordinary m ail Affidavit of person 10 days after mailing of facts mailing, unless showing compliance otherwise provided with Sec. 7 of Rule 13. by the court

Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as notice to his client, as it would then be easy for the lawyer to prejudice the interests of his client by just alleging that he just forgot every process of the court affecting his clients, because he was so busy. [Bayog v. Natino, G.R. No. 118691 (1996)] E.8 AMENDMENT AND SUPPLEMENTAL PLEADINGS How to Am end Pleadings [Sec. 1, Rule 10] (1) Adding an allegation of a party; (2) Adding the name of a party; (3) Striking out an allegation of a party; (4) Striking out the name of a party; (5) Correcting a mistake in the name of a party; and (6) Correcting a mistaken or inadequate allegation or description in any other respect

Service by registered m ail Whichever is earlier of: (1) Affidavit of person (1) Actual receipt mailing showing by the compliance as addressee; or above; and (2) 5 days after (2) Registry receipt addressee issued by the post received office postmaster's notice Substituted Service At the time of delivery of the copy to the clerk of court together with proof of failure of both personal service and service by mail

A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. [Sec. 7, Rule 10] Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the 52 OF 425

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most expeditious and inexpensive manner. [Sec. 1, Rule 10]

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If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo, G.R. No. L-62082 (1992)] (3) If amendment is for curing a premature or inexistent cause of action. The cause of action must exist at the time the action was begun, and the plaintiff will not be allowed by an amendment to introduce a cause of action which had no existence when the action was commenced. [Surigao Mine Exploration v. Harris et al, G.R. No. L-45543 (1939)] (4) If amendment is for purposes of delay.

As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. [Barfel Development v. CA, G.R. No. 98177 (1993)] AMENDMENTS AS A MATTER OF RIGHT A party may amend his pleading once as a matter of right, at any time before a responsive pleading is served, thus: (1) Amendment of complaint is before an answer is served. (2) Amendment of answer is before a reply is filed, or before the period for filing a reply expires, and (3) Amendment of reply any time within 10 days after it is served

FORMAL AMENDMENTS Instances: (1) Mere defect in the designation of the parties; (2) Other clearly clerical or typographical errors The formal amendment must not cause prejudice to the adverse party.

A motion to dismiss is not a responsive pleading and does not preclude the exercise of the plaintiff’s right to amend his complaint. [Remington Industrial Sales v. CA, G.R. No. 133657 (2002)]

How form al am endm ents are effected (1) May be summarily corrected by the court at any stage of the action (2) A party may, by motion, call for the formal amendment

AMENDMENTS BY LEAVE OF COURT Leave of court is necessary in the following instances: (1) Further amendments after the party has already amended his pleading as a matter of right; and (2) When a responsive pleading has already been served.

AMENDMENTS TO CONFORM TO OR AUTHORIZE PRSENTATION OF EVIDENCE [Sec. 5, Rule 10] This is an instance wherein the court acquires jurisdiction over the issues even if the same are not alleged in the original pleadings, where the trial of said issues is with the express or implied consent of the parties.

Requisites (1) A motion for leave of court to amend pleading is filed Amended pleading should be attached to the motion [Sec. 9, Rule 15] (2) Notice is given to the adverse party (3) Parties are given opportunity to be heard

W hat Sec. 5 contem plates (1) Allows a complaint which failed to state a cause of action to be cured either by: (a) Evidence presented without objection or (b) In the event of an objection sustained by the court, by an amendment of the complaint with leave of court (2) Also allows admission of evidence on a defense not raised in a motion or answer: (a) if no objection is made thereto; or

W hen amendment may not be allowed (1) If the cause of action, defense or theory of the case is changed. (2) If amendment is intended to confer jurisdiction to the court. 53 OF 425

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(b) in the event of such objection, upon

REMEDIAL LAW

Amended Pleadings

amendment of the answer with leave of court

versus

Amendments

However, where the plaintiff has no cause of action at the tim e of the filing of the com plaint, this defect cannot be cured or remedied in this manner by the acquisition or accrual of one while the action is pending.

Reason for amendment is available at time of the first pleading Either as a matter of right or by leave of court

Two Scenarios (1) No objection to the evidence is raised • Issues not raised in pleadings are tried by express or implied consent of the parties; they are treated in all respects as if they had been raised. • Such amendments as may be necessary to cause the pleadings to conform to the evidence may be made upon motion of any party at any tim e, even after judgm ent • Failure to amend does not affect the result of the trial of those issues (2) Objection to the evidence is raised • Objection on the ground that it is not within the issues made by the pleadings • Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved • As safeguard, the court may grant a continuance to enable the objecting party to meet such evidence

Supersedes the original A new copy of the entire pleading must be filed

Supplemental Supplemental pleadings Grounds for supplemental pleading arose after the filing of the first pleading Always by leave of court Merely supplements, and exists side-byside with the original Does not require a new copy of the entire pleading

Supplemental pleadings are not allowed on separate and distinct causes of action but a supplemental pleading may raise a new cause of action as long as it has some relation to the original cause of action set forth in the original complaint. [Ada v. Baylon, G.R. No. 182435 (2012)] EFFECT OF AMENDED PLEADING (1) An amended pleading supersedes the pleading that it amends (2) Admissions in the superseded pleading can still be received in evidence against the pleader (as extrajudicial admissions) (3) Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived [Sec. 8, Rule 10]

SUPPLEMENTAL PLEADINGS A pleading which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Sec. 6, Rule 10] Purpose: To bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled [Ada v. Baylon, G.R. No. 182435 (2012)] How Made: Upon motion of a party, with reasonable notice and upon terms as are just. The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court.

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F. SUMMONS

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validly try and decide the case. [Velayo-Fong v. Velayo, G.R. No. 155488 (2006)]

The writ by which the defendant is notified of the action brought against him [Licaros v. Licaros, G.R. No. 150656 (2003)]

ACTIONS IN REM AND QUASI IN REM • Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process • Jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res

Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the corresponding summons to the defendants. [Sec. 1, Rule 14] CONTENTS (1) Summons shall be: (a) Directed to the defendant (b) Signed by clerk of court under seal (2) Summons shall contain: (a) The name of the court, and the names of the parties to the action; (b) A direction that the defendant answer within the time fixed by the Rules; and (c) A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. (3) The following shall be attached to the original and each copy of the summons: (a) A copy of the complaint; and (b) An order for appointment of guardian ad litem (if any)

F.2 VOLUNTARY APPEARANCE Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except where such appearance is precisely to object the jurisdiction of the court over the person of the defendant [Carballo v. Encarnacion, G.R. No. L-5675 (1953)] GENERAL RULE: Defendant's voluntary appearance in the action shall be equivalent to service of summons. [Sec. 20, Rule 14] EXCEPTIONS: Conditional appearance to file a motion to dismiss challenging the court’s jurisdiction. (1) Special appearance operates as an exception to the general rule on voluntary appearance; (2) Objections to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set forth in an unequivocal manner; and (3) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution. [Phil Commercial Intl Bank v. Spouses Dy, G.R. No. 171137 (2009)]

WHO MAY SERVE SUMMONS (1) The sheriff (2) His deputy (3) Other proper court officer (4) Any suitable person authorized by the court, for justifiable reasons. [Sec. 3, Rule 14] The enumeration of persons who may validly serve summons is exclusive. [Herrera] F.1 NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM

Inclusion in the motion to dismiss of grounds other than lack of jurisdiction over the defendant’s person, is not deem ed a voluntary appearance. [Sec. 20, Rule 14]

ACTIONS IN PERSONAM • To acquire jurisdiction over the person of the defendant in a civil case; • To give notice to the defendant that an action has been commenced against him.

However, seeking affirmative relief other than dismissal of the case is a manifestation of voluntary submission to the court’s jurisdiction. The active participation of a party in the proceedings is tantamount to an invocation of the court’s jurisdiction and a

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willingness to abide by the resolution of the case, and will bar said party from later on impugning the court’s jurisdiction. [Phil Commercial Intl Bank v. Spouses Dy, G.R. No. 171137 (2009)]

SUBSTITUTED SERVICE OF SUMMONS It is only when the defendant cannot be served personally within a reasonable time and for justifiable reasons that a substituted service may be made. [Sec. 7, Rule 14]

F.3 MODES OF SERVICE OF SUMMONS Modes (1) Personal Service [Sec. 6, Rule 14] (2) Substituted Service [Sec. 7, Rule 14] (3) Service by Publication [Sec. 14-16, Rule 14]

How Done (1) By leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion residing therein; or (2) By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof

NOTE: There is no service of summons solely by registered mail except as an additional requirement to service by publication. Where service is made by publication, a copy of the summons and order of the court shall be sent by registered mail to last known address of defendant. [Sec. 15, Rule 14]

Requisites It is necessary to establish the following: (1) Indicate the impossibility of service of summons within a reasonable time; (2) Specify the efforts exerted to locate the defendant; and (3) State that the summons was served upon: (a) a person of sufficient age and discretion who is residing in the address, or (b) a person in charge of the office or regular place of business, of the defendant. (4) It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. [Sps. Tiu v. Villar, A.M. No. P-11-2986 (2012)]

NOTE: Service to a foreign corporation is done through (a) its resident agent, or (b) the government agent designated in the absence of the former, or (c) on any of its officers or agents within the Philippines. [Sec. 12, Rule 14] PERSONAL SERVICE How Done [Sec. 6, Rule 14] (1) By handing a copy of summons to him; or (2) If he refuses to receive it, by tendering it to him Personal Service of Pleadings Sec. 6, Rule 13 Personal service includes: 1. Service on the party or his counsel; or 2. By leaving a copy with the clerk or person having charge of his office; or 3. Leaving it with a person of sufficient age and discretion at the party’s or counsel’s residence

REMEDIAL LAW

Personal Service of Summons Sec. 6, Rule 14

Residence is the place where the person named in the summons is living at the time of when the service is made, even though he may be temporarily out of the country at that time [Venturanza v. CA, G.R. No. 77760 1987]] Office or Regular Place of Business is the office or place of business of defendant at the time of service

Service is only made on defendant himself

Person in Charge Individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. [Prudential Bank v. Magdamit, G.R. No. 183795 (2014)]

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(2) By publication in a newspaper of general

circulation in such places and for such time as court may order; in which case, a copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant; or (3) In any other manner the court may deem sufficient.

(1) Service upon Unknown Defendant [Sec. 14,

Rule 14] (2) Extraterritorial Service of Summons [Sec.

15, Rule 14] (3) Service upon a Resident temporarily out of

the Philippines [Sec. 16, Rule 14]

Any order granting such leave shall specify a reasonable time within which defendant must answer, which shall not be less than 60 days after notice.

Service upon Unknown Defendant [Sec. 14, Rule 14 Applicable in cases where: (1) Defendant is sued as an unknown owner; or (2) His whereabouts are unknown and cannot be ascertained with diligent inquiry

Service upon a Resident tem porarily out of the Philippines [Sec. 16, Rule 14] Applicable in cases where: (1) Defendant is a resident of the Philippines; and (2) Is temporarily out of the country

Service of summons may be effected by publication in a newspaper of general circulation and in such places and for such time as the court may order

Summons may, by leave of court, be effected as in the case of extraterritorial service but unlike in Sec. 15, Rule 14 it may be effected in this manner for “any action,” not distinguishing between actions in rem, in personam, and quasi in rem.

The Section applies to “any action,” making no distinction between actions in rem, in personam and quasi in rem. Extraterritorial Service of Sum m ons [Sec. 15, Rule 14] Applicable in cases where: (1) Defendant is a nonresident; (2) He is not found in the Philippines; and (3) The action is either in rem. or quasi in rem [Jose v. Boyon, G.R. No. 147369 (2003)]

Even without such Section, as the defendant has a residence in the Philippines, summons may also be served through substituted service under Sec. 7, Rule 14. Summons may be effected to a resident defendant, temporarily outside the Philippines, by: (1) Substituted service [Sec. 7, Rule 14] (2) Service by publication [Sec. 15, Rule 14]

The actions in rem or quasi in rem, which would justify extraterritorial service of summons are: (1) Those which affect the personal status of the plaintiff, (2) Those which relate to, or the subject of which is, property within the Philippines in which defendant claims a lien or interest, actual or contingent; (3) Those in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines, or (4) Those wherein property of defendant within the Philippines has been attached

SPECIAL CLASSES OF DEFENDANTS Upon an Entity without Juridical Personality [Sec. 8] Applicable in cases where: (1) Persons are associated in an entity without juridical personality; and (2) They are sued under the name by which they are generally or commonly known Service is effected upon all of them by: (1) Serving summons upon any of them; or (2) Serving summons upon the person in charge of their office or place of business

Service of summons is effected, by leave of court, in the following modes: (1) By personal service, as under Sec. 6, Rule 14; 57 OF 425

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Upon Prisoners [Sec. 9] Where the defendant is a prisoner confined in a jail or institution, service shall be by the management of such institution, who is deemed deputized as a special sheriff.

(c) By

facsimile or any recognized electronic means, which can generate proof of service; (d) By such other means directed by the court.

Upon Minors and Incom petents [Sec. 10] Service upon minors is effected upon: (1) The minor defendant; and (2) His legal guardian, or any of his parents

Upon Public Corporations [Sec. 13] Service is effected: (1) Upon the Republic of the Philippines – to the Solicitor General; (2) Upon provinces, cities, municipalities, and like public corporations – through the executive head, or on such officers as law or the court may direct.

Service upon incompetents is effected upon: (1) The defendant personally; and (2) His legal guardian

F.4 RETURN AND PROOF OF SERVICE

In either case, if there be no legal guardian, the plaintiff shall apply for the appointment of a guardian ad litem, whom he shall also serve upon. Upon Dom estic Private Entity [Sec. 11] Service is effected upon: (1) The president, (2) Managing partner, (3) General manager, (4) Corporate secretary, (5) Treasurer, or (6) In- house counsel

REMEDIAL LAW

RETURN [Sec. 4, Rule 14] When service has been completed, the server shall: (1) Serve a copy of the return to the plaintiff’s counsel, personally or by registered mail, within 5 days from service of summons; and (2) The server shall return the summons, accompanied by proof of service, to the clerk who issued it.

Juridical

It is required to be given to the plaintiff’s counsel in order to enable him: (1) To move for a default order should the defendant fail to answer on time, or (2) In case of non-service, so that alias summons may be sought

Upon a Foreign Private Juridical Entity [Sec. 12] Service is effected: (1) When the defendant is transacting business in the Philippines: (a) Upon the resident agent; or (b) Upon the government agent designated by law; or (c) Any officer or agent of the corporation. Note that service in the cases of (b) and (c) require that there is no resident agent (2) When the defendant is not registered in the Philippines, or has no agent, with leave of court: (a) By personal service coursed through the appropriate foreign court, with the assistance of the DFA; (b) By publication in a newspaper of general circulation in the country where the defendant may be found; and by serving a copy of the summons and court order by registered mail at the defendant’s last known address;

In either of the 2 cases, server must serve a copy of the return on plaintiff’s counsel within 5 days from completion or failure of service ALIAS SUMMONS [Sec. 5, Rule 14] Upon plaintiff’s demand, the clerk may issue an alias summons if either: (1) Summons is returned without being served on any/all of the defendants. (2) Summons was lost. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service

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G. MOTIONS IN GENERAL

PROOF OF SERVICE [Sec. 18, Rule 14] Proof service shall be made in writing, and shall state (1) the manner, place, date of service; (2) any papers which served with the process; and (3) the name of the person who received the same.

A motion is any application for relief other than by a pleading Motions versus Pleadings Motion Pleading Contains allegations Contains allegations of facts of the ultimate facts Prays for a relief Prays for a relief Grant of the relief Grant of relief does not extinguish extinguishes the the action action (final relief) (interlocutory relief) Generally in writing (with some Always in writing exceptions)

Proof of service shall be sworn to when made by a person, other than the sheriff or his deputy. If effected by publication, proof of service shall be by: (1) The affidavit of the printer, his foreman, or principal clerk; or of the editor, business or advertising manager (2) A copy of the publication; and (3) An affidavit showing the deposit in the post office, with postage prepaid, directed for registered mail to the last known address of the defendant of: (a) A copy of the summons; and (b) The order of publication.

GENERAL RULE: A motion does not pray for judgment Exceptions: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence.

Effect of Defect of Proof of Service (1) Where sheriff’s return is defective, presumption of regularity in the performance of official functions will not lie (2) Defective return is insufficient and incompetent to prove that summons was indeed served (3) Party alleging valid summons will now prove that summons was indeed served (4) If there is no valid summons, court did not acquire jurisdiction which renders null and void all subsequent proceedings and issuances

G.1. CONTENTS AND FORM OF MOTION Contents [Sec. 3, Rule 15] (1) Relief sought to be obtained (2) Grounds upon which it is based (3) With supporting affidavits and other papers if: (a) Required by the Rules, or (b) Necessary to prove facts alleged therein Form [Sec. 2, Rule 15] Generally, in writing, except: (1) Motions for continuance made in the presence of the adverse party or those made in the course of the hearing or trial (2) Those made in open court even in the absence of the adverse party or those made in the course of a hearing or trial G.2 KINDS OF MOTIONS (1) Litigated M otions -- one which requires the parties to be heard before a ruling on the motion is made by the court; written motions are generally litigated motions 59 OF 425

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(2) Ex Parte Motions – one which does not

Exceptions to the rule on Notice of Hearing: (1) Ex parte motions; (2) Urgent motions; (3) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; (4) Motions for summary judgment which must be served at least 10 days before its hearing.

require such ruling, and upon which the court may act without prejudicing the rights of the other party (3) Motion of Course - one for a relief or remedy, to which the movant is entitled as a matter of right; factual allegations contained therein do not require verification or investigation (4) Special Motions – one involving discretion of the court and requiring investigation on the facts alleged (5) Pro Forma Motions – one which fails to indicate the time and place of the hearing

Proof of Service [Sec. 6, Rule 15] A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof.

G.3 NOTICE OF HEARING AND HEARING OF MOTIONS Litigated written motions shall be set for hearing by the movant or applicant. [Sec. 4, Rule 15]

Exceptions: (1) If the motion is one which the court can hear ex parte. (2) If the court is satisfied that the rights of the adverse parties are not affected by the motion. (3) If the party is in default; such a party is not entitled to notice.

GENERAL RULE: Motions shall be scheduled for hearing on Motion Day (1) On Friday afternoons; or (2) Afternoon of the next working day, if Friday is a non-working day. [Sec. 7, Rule 15] EXCEPTION: Motions immediate action

which

REMEDIAL LAW

G.4. OMNIBUS MOTION RULE A motion attacking a pleading, order, judgment, or proceeding must include all objections then available. All objections not included in the motion are deemed waived. [Sec. 8, Rule 15]

require

NOTICE OF HEARING Notice shall be addressed to all parties, and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Sec. 5, Rule 15]

Purpose: To require the movant to raise all available exceptions for relief during a single opportunity so that multiple and piece-meal objections may be avoided Exception: (1) Lack of jurisdiction over subject matter (2) Litis pendentia (3) Res judicata (4) Prescription [Sec. 8, Rule 15; icow Sec. 1, Rule 9]

Motion and notice of hearing must be served at least 3 days before the date of hearing; [Sec. 4, Rule 15] Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion.

H. MOTION FOR BILL OF PARTICULARS

Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed. [Provident International Resources v. CA, G.R. No. 119328 (1996)]

Bill of Particulars is a detailed explanation respecting any matter which is not averred with sufficient definiteness or particularity in the complaint as to enable a party to properly prepare his responsive pleading [Sec. 1, Rule 12] 60 OF 425

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An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a Bill of Particulars, or avail of the proper mode of discovery. [Galeon v. Galeon, G.R. No. L30380 (1973)]

H.2 ACTION OF THE COURT Upon filing of the motion, the clerk must immediately bring it to the attention of the court. [Sec. 2, Rule 12] The court may either: (1) Deny (2) Grant the motion outright (3) Allow the parties the opportunity to be heard

H.1. PURPOSE AND WHEN APPLIED FOR The purpose of the motion is to seek an order from the court directing the pleader to submit a bill of particulars, which avers matters with sufficient definiteness or particularity to enable the movant to prepare his responsive pleading.

H.3 COMPLIANCE WITH THE ORDER If motion is granted, either in whole or in part, the pleader must file a Bill of Particulars or a more definite statement, within 10 days from notice of order, unless the court fixes a different period.

It is not to enable the movant to prepare for trial. When this is the purpose, the appropriate remedy is to avail of Discovery Procedures under Rules 23 to 29. [Riano]

The bill of particulars or a more definite statement ordered by the court may be filed either as a separate pleading or in an amended pleading, and a copy of which must be served on the adverse party. [Sec. 3, Rule 12]

W hen Applied For (1) Before responding to a pleading (2) If sought to clarify a reply, within 10 days from service thereof The motion should point out: (1) The defects complained of; (2) The paragraph wherein they contained; (3) The details desired. [Sec. 1, Rule 12]

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A Bill of Particulars becomes part of the pleading for which it was intended. [Sec. 6, Rule 12]

are

Effect of Non-Compliance [Sec. 4, Rule 12] (1) In case of non-compliance or insufficient compliance with the order for Bill of Particulars, the court may: (a) Order the striking out of the pleading (or portion thereof) to which the order is directed; or (b) Make such order as it may deem just. (2) If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. [Sec. 4, Rule 12; Sec. 3, Rule 17] (3) If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. [Sec. 3, Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17]

The only question to be resolved in such motion is whether the allegations in the complaint are averred with sufficient definiteness or particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic, G.R. No. 89114 (1991)] What cannot be done in a Bill of Particulars: (1) To supply material allegations necessary to the validity of a pleading (2) To change a cause of action or defense stated in the pleading (3) To state a cause of action or defense other than the one stated (4) To set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to reply (5) To furnish evidentiary information [Virata v. Sandiganbayan, G.R. No. 103527 (1993)]

H.4 EFFECT ON THE PERIOD TO FILE RESPONSIVE PLEADING Provided that the Motion for Bill of Particulars is sufficient in form and substance, it stays the period for the movant to file his responsive pleading. 61 OF 425

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The movant may file his responsive pleading: (1) Within the period he was entitled at the time the motion was filed; or (2) Within 5 days whichever is higher.

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(2) The court has allowed the filing of a

motion to dismiss where the evidence that would constitute a ground for dismissal was discovered during trial GENERAL RULE: A court may not dismiss a case motu propio, unless a motion to that effect is filed by a party.

Such period shall be reckoned from: (1) Service of the Bill of Particulars or more definite pleading; or (2) Notice of denial of his Motion for Bill of Particulars.

EXCEPTIONS: (1) Upon the grounds stated in Sec. 1, Rule 9; (2) Due to fault of the plaintiff, under Sec. 3, Rule 17; (3) Pursuant to Sec. 4, Revised Rule on Summary Procedure.

J. MOTION TO DISMISS A remedy of the defendant, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint

J.1. GROUNDS (1) Lack of jurisdiction over the defendant’s person (2) Lack of jurisdiction over the subject matter of the claim (3) Improper venue (4) Plaintiff’s lack of legal capacity to sue (5) Litis pendentia (6) Res judicata (7) Prescription (8) Failure to state a cause of action (9) Extinguished claim (10) Unenforceable claim under the Statute of Frauds (11) Non-compliance with a condition precedent for filing claim

The Motion hypothetically admits the truth of the factual allegations stated in the complaint. It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof.

NOTE: Complaints cannot be dismissed on ground not alleged in a motion to dismiss. The motion may be based on only one of the grounds enumerated in Sec. 1, Rule 16

Types of Dismissal of Action: (1) Upon Motion to Dismiss under Rule 16; (2) Dismissal under Rule 17: (a) Upon notice by plaintiff; (b) Upon motion by plaintiff; (c) Due to fault of plaintiff. (3) Upon Demurrer to Evidence after plaintiff has presented his evidence under Rule 33; (4) Dismissal of an appeal.

LACK OF JURISDICTION OVER THE PERSON OF THE DEFENDANT This objection must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made.

Period to File

In La Naval Drug Corp. v. CA, et al., [G.R. No. 103200 (1994)] the Court held that while lack of jurisdiction over the person of defendant may be duly and seasonably raised, his voluntary appearance in court without qualification is a waiver of such defense.

GENERAL RULE: Within the time for, but before filing of, the answer to the complaint or pleading asserting a claim EXCEPTIONS: (1) For special reasons which may be allowed even after trial has begun, a motion to dismiss may be filed

Sec. 20, Rule 14 makes a categorical statement that the inclusion in a motion to dismiss of other grounds aside from lack of 62 OF 425

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jurisdiction over the person of the defendant shall not be deemed voluntary appearance on his part.

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(2) When he does not have the character

which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate). [Recreation and Amusement Association of the Philippines v. City of Manila, G.R. No. L7922 (1957)]

LACK OF JURISDICTION OVER THE SUBJECT MATTER If the complaint shows lack of jurisdiction over subject matter on its face, the court may dismiss the case outright even without a motion to dismiss. [Sec. 1, Rule 9]

Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action.

A motion to dismiss on this ground may also be raised (1) Before answer; (2) After answer is filed; (3) After hearing had commenced; (4) At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer.

The issue of plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceedings below [Univ. of Pangasinan Faculty Union v. Univ. of Pangasinan, G.R. No. 64821-23 (1993)]

NOTE: The rule refers to the subject matter of each particular claim and not only to that of the suit. Hence. other initiatory pleadings included.

LITIS PENDENTIA Requisites (1) Identity of parties, or at least such as representing the same interest in both actions; (2) Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) Identity of the two cases such that judgment in one would amount to res judicata on the action under consideration [Film Development Council of the Philippines v. SM Prime Holdings, Inc. (2013)]

Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. While the issue of jurisdiction may be raised at any time, he is estopped as it is tantamount to speculating on the fortunes of litigation [Crisostomo, et al. v. CA, G.R. No. 27166 (1970)] IMPROPER VENUE Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid. [Diaz v. Adiong, G.R. No. 106847 (1993)]

It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later.

Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition [Enriquez v. Macadaeg, G.R. No. L-2422]

It is not required that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply: (1) The More Appropriate Action Test; (2) The Interest of Justice Test, taking into account: (a) Nature of the controversy; (b) Comparative accessibility of the court to the parties; (c) Other similar factors.

PLAINTIFF HAS NO LEGAL CAPACITY TO SUE The plaintiff lacks legal capacity to sue: (1) When he does not possess the necessary qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights); 63 OF 425

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establish the former and the present causes of action. [DBP v. Pundogar (1993)]

In both tests, the parties’ good faith shall be taken into consideration.

Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: (1) Public policy and necessity makes it the interest of the State that there should be an end to litigation; (2) The hardship on the individual that he should be vexed twice for the same cause. [Nabus v. CA (1991)]

The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)] RES JUDICATA Two concepts of res judicata [Topacio v. Banco Savings and Mortgage Bank (2010)] (1) Bar by prior judgm ent [Sec. 47(b), Rule 39] Judgment on the merits in the first case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also to any other adm issible m atter which m ight have been offered for that purpose and to all matters that could have been adjudged in that case. (2) Conclusiveness of judgment [Sec. 47(c), Rule 39] The second action is upon a different claim or demand, the judgment in the first case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.

STATUTE OF LIMITATIONS Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time

Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time

Defense of prescription is waived and cannot be considered on appeal if not raised in the trial court [Ramos v. Osorio, G.R. No. L-27306 (1971)]

Requisites for “Bar by Prior Judgm ent” (1) Former judgment or order must be final; (2) The judgment or order must be on the merits; (3) The decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (4) There must be, between the two actions, identity: (a) of parties; (b) of subject matter; and (c) of causes of action [Topacio v. Banco Filipino Savings and Mortgage Bank (2010)]

However, if the allegations of the complaint, or evidence presented, clearly indicate that the action has prescribed, or where there is no issue in fact as to prescription, defense of prescription is not deemed waived by failure to allege the same [Chua Lamko v. Dioso, G.R. No. L-6293 (1955)] Estoppel and prescription cannot be invoked against the State [Republic v. CA, G.R. No. 116111 (1999)]

The test of identity of cause of action lies not in the form of the action but on whether or not the same evidence would support and

A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the 64 OF 425

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action has already prescribed [Sison v. McQuaid, G.R. No. L-6304 (1953)]

Complaint states no cause of action Insufficiency of allegations in the pleading

If it is not apparent on its face, take note that Sec. 3 prohibits deferment of the resolution of the motion. Thus: (1) Evidence may be received in support of the motion under Sec. 2, Rule 16; or (2) The motion to dismiss should be denied without prejudice to the complaint’s dismissal if evidence disclose that the action had already prescribed [Sec. 1, Rule 9]

May be raised in a Motion to Dismiss at any time but before the filing the answer to the complaint or pleading asserting a claim

COMPLAINT STATES NO CAUSE OF ACTION Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action.

Dismissal due to failure to state a cause of action can be made at the earliest stages of an action and without prejudice

The failure to state a cause of action must be evident on the face of the complaint itself. Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action?

REMEDIAL LAW

No cause of action Insufficiency of factual basis for the action May be raised at any time, after the questions of fact have been resolved on the basis of the stipulations, admissions, or evidence presented [Macaslang v. Zamora, G.R. No. 156375 (2011)] Dismissal due to lack of cause of action is made after questions of fact have been resolved on the basis of stipulations, admissions or evidence presented and with prejudice

EXTINGUISHED CLAIM That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished.

A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint.

UNENFORCEABLE CLAIM UNDER THE STATUTE OF FRAUDS Art. 1403(2) of the Civil Code requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit: (1) An agreement that by its terms is not to be performed within a year from the making thereof; (2) A special promise to answer for the debt, default, or miscarriage of another; (3) An agreement made in consideration of marriage, other than a mutual promise to marry; (4) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by

If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real party-in-interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC, G.R. No. 76225 (1992)]

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auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (5) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (6) A representation as to the credit of a third person.

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(1) Arguments on questions of law (2) Evidence on questions of fact, except

those not available at that time If the case should later go to trial, evidence presented in the hearing shall automatically be part of the evidence of the party presenting the same. Evidence need not be presented when the ground relied upon is “failure to state a cause of action,” which must generally be determined on the basis of the facts alleged in the complaint.

Unlike a motion to dismiss on the ground that the complaint states no cause of action, a motion invoking the Statute of Frauds may be filed even if the absence of a cause of action does not appear on the face of the complaint. Such absence may be proved during the hearing of the motion to dismiss on said ground. [Yuviengco et al. v. Dacuycuy, etc., et al., G.R. No. L-55048 (1981)]

Lack of formal hearing is not fatal when the issues raised were fully discussed in the motion and opposition. [Castillo v. CA, G.R. No. L-52008 (1988)] After hearing, the court may: (1) Dismiss the action/claim (2) Deny the MTD (3) Order amendment of the pleadings [Sec. 3, Rule 16]

NON-COMPLIANCE WITH CONDITION PRECEDENT Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action [Pineda v. CFI Davao, et al.]

The court cannot defer the resolution of the motion for the reason that the ground relied upon is not indubitable, and must clearly and distinctly state the reasons for its resolution. J.3. BAR BY DISMISSAL

Where the complaint does not state that it is one of the excepted cases, or it does not allege prior availment of conciliation process, or it does not have a certification that no conciliation or settlement had been reached under PD1508, case should be dismissed on motion [Morata v. Go, et al., G.R. No. L-62339 (1983)]

GENERAL RULE: The action/claim may be re-filed. EXCEPTION: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/demand; (4) Unenforceability under the Statute of Frauds. [Sec. 1(f), (h), (i), Rule 16]

Where the defendant had participated in the trial court without any invocation of PD 1508, and the judgment therein had become final and executory, but said defendant thereafter sought the annulment of the decision for alleged lack of jurisdiction, the same was denied under the doctrine of estoppel and laches [Royales, et al., v. IAC, G.R. No. L65072 (1984)]

J.4. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED If the motion is granted, the complaint is dismissed. Such dismissal is final, and not interlocutory.

J.2. RESOLUTION OF MOTION A motion to dismiss is a litigated motion and should be heard. During the hearing, parties shall submit:

The plaintiff has several options: (1) Where dismissal for certain grounds are not tantamount to adjudication on the 66 OF 425

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merits (e.g. improper venue), the plaintiff may refile the complaint. (2) Where it is for a ground which bars refiling, the plaintiff may appeal from the order of dismissal; (3) Where the dismissal was tainted with grave abuse of discretion, the plaintiff may also avail of a petition for certiorari. [Riano]

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prosecution of the counterclaim in the same or separate action. J.7. DISTINGUISHED FROM DEMURRER TO EVIDENCE [RULE 33] A motion to dismiss under this Rule differs from a motion to dismiss under Rule 33 on demurrer to evidence: Motion to Dismiss Demurrer to Evidence Grounded on Based on preliminary insufficiency of objections evidence May be filed by any May be filed only by defending party the defendant against whom a against the complaint claim is asserted in of the plaintiff the action Should be filed within the time for May be filed for the but prior to the filing dismissal of the case of the answer of the only after the plaintiff defending party to has completed the the pleading presentation of his asserting the claim evidence against him If denied, defendant must file an answer, If denied, defendant or else he may be may present evidence declared in default If granted, plaintiff If granted, plaintiff appeals and the order may appeal or if of dismissal is subsequent case is reversed, defendant not barred, he may loses his right to re-file the case present evidence

J.5. REMEDIES OF DEFENDANT WHEN THE MOTION IS DENIED If the motion is denied, the denial is interlocutory. GENERAL RULE: The filing of an answer and going through the usual trial process, and later, the filing of a tim ely appeal from the adverse judgment are the proper remedies against a denial of a motion to dismiss. If the motion is denied, the movant shall file his answer: (1) Within the balance of the period prescribed under Rule 11 to which he was entitled at the time of serving his motion; or (2) Within 5 days whichever is higher. [Rule 16, Sec. 4] If the pleading is ordered to be amended, the movant shall file his answer within the period prescribed by Rule 11, counted from service of amended pleading, unless a longer period is prescribed by the court.

K. DISMISSAL OF ACTIONS

EXCEPTION The denial may be assailed by certiorari, prohibition or mandamus, if there is a showing that the denial was tainted by with grave abuse of discretion amounting to lack of jurisdiction.

K.1. DISMISSAL UPON NOTICE PLAINTIFF Dismissal by plaintiff as a matter of right

BY

Dismissal is effected by mere notice of dismissal, which is a matter of right, before service of: (1) The answer; or (2) A motion for summary judgment

J.6. WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as affirmative defenses and a preliminary hearing may be had at court’s discretion. [Sec. 6, Rule 16]

The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff, not when the answer or the motion is filed with the court.

A defendant with a counterclaim should plead these grounds as affirmative defenses as dismissal of the complaint under this section shall be without prejudice to the 67 OF 425

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Withdrawal is not autom atic but requires an order by the court confirming the dismissal. Until confirmed, the withdrawal does not take effect. The requirement is in keeping with the respect due the court. [Herrera]

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Effect on Counterclaim : If counterclaim has been pleaded by defendant prior to service upon him of plaintiff’s motion for dismissal, dismissal shall be limited to the complaint The defendant either: (1) Prosecute his counterclaim in a separate action; or • The court should render the corresponding order granting the plaintiff’s motion and reserving his right to prosecute his claim in a separate complaint (2) Have the same resolved in the same action • Defendant must manifest such preference to the trial court within 15 days from notice of the plaintiff’s motion to dismiss

However, it is not the order which operates to dismiss the complaint. As stated by the rule, it merely confirms the dismissal already effected by the filing of the notice. [Riano] GENERAL RULE: Dismissal is without prejudice EXCEPTIONS: (1) Where the notice of dismissal so provides; or (2) Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (“Two Dismissal Rule”) (3) Where the notice of dismissal is premised on a reason which would prevent refiling of the complaint (e.g. extinguishment or res judicata) [Riano]

These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive. K.3. DISMISSAL DUE TO FAULT OF THE PLAINTIFF The case may be dismissed motu proprio or upon the defendant’s motion if, without justifiable cause, plaintiff: (1) Fails to appear on the date of the presentation of his evidence-inchief on the complaint; (a) The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga, G.R. No. L-35989 (1977)] (b) Since plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of defendant or other parties’ evidence, or even at rebuttal or subsequent stages, is not a ground for dismissal. (2) Fails to prosecute his action for an unreasonable length of time (nolle prosequi); (a) The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is

Two Dismissal Rule Applies when the following are met: (1) Plantiff had twice dismissed actions; (2) Both actions based on , or including, the same claims; (3) In a court of competent jurisdiction. The second dismissal operates as an adjudication on the m erits. K.2. DISMISSAL UPON MOTION OF PLAINTIFF Under this section, dismissal of the complaint is subject to the discretion of the court and upon such terms and conditions as may be just. GENERAL RULE: Dismissal is without prejudice EXCEPTIONS: (1) When otherwise stated in the motion to dismiss; or (2) When stated to be with prejudice in the order of the court

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chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA, G.R. No. 103185 (1993)] (b) The dismissal of an action pursuant to this rule rests upon the sound discretion of the court [Smith Bell and Co. v. American President Lines Ltd. (1954)] (c) The action should never be dismissed on a non-suit for want of prosecution when the delay was caused by the parties looking towards a settlement. [Goldloop Properties Inc. v. CA, G.R. No. 99431 (1992)] (3) Fails to comply with the Rules or any court order. (a) The order must be valid (b) Failure to comply with order: (c) Dismissal for failure to comply with order to amend complaint to make claims asserted more definite is ground for dismissal [Santos v. General Wood Craft, G.R. No. L-28996 (1982)] (d) Failure to comply with an order to include indispensable parties is ground for dismissal [Aranico-Rubino v. Aquino, G.R. No. L-46641 (1977)] (e) The failure to comply with order of new judge to recall witness so he may observe demeanor is sufficient ground for dismissal [Castillo v. Torres, G.R. No. 9181 (1915)] (4) Failure to comply with rules (a) The failure of the parties to submit a compromise agreement within period granted to them by court is not a ground for dismissal [Goldloop Properties Inc. v. CA, G.R. No. 99431 (1992)] (b) Dismissal is improper where a 3rd party complaint has been admitted and the 3rd party defendant had not yet been summoned [Sotto v. Valenzuela, G.R. No. L-12732 (1959)] (c) A case may be dismissed for failure to answer written interrogatories under Rule 25 even without an order from the court to answer. [Arellano v. CFISorsogon, G.R. No. L-34897 (1975)]

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GENERAL RULE: Dismissal is with prejudice, and operates as an adjudication on the merits EXCEPTIONS: (1) The court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action (2) If court has not yet acquired jurisdiction over the person of the defendant Effect on Counterclaim : Defendant is granted the choice to prosecute that counterclaim in either the same or a separate action Defendant is not required to manifest his preference within a 15-day period as in Sec. 2. The motions to dismiss in this section and in Sec. 6, Rule 16 are filed by a defendant who has already deliberated on the course of action he intends to take on his counterclaim and which he may even manifest right in his motion to dismiss. The dismissal in Sec. 2 is at the instance of plaintiff, hence, defendant is granted the time and duty to manifest preference within 15 days from notice, after an opportunity to study the situation. K.4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY COMPLAINT Provisions of Rule 17 shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint Voluntary dismissal by claimant by notice as in Sec. 1, shall be made: (1) Before a responsive pleading or motion for summary judgment is served; or (2) If there is none, before introduction of evidence at trial or hearing

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L. PRE-TRIAL

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Pre-trial is M andatory Mandatory nature is addressed to both court and parties: • Court must set the case for pre-trial and notify the parties as well as counsel to appear • Parties with their counsel are obliged to obey the order of the court to that effect

Pre-Trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice.

Primary Objective Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised.

It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the case, such as: (1) Number of witnesses (2) Tenor or character of their testimonies (3) Documentary evidence; nature and purpose of each (4) Number of trial dates [Herrera]

Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pretrial conference bars the consideration of other questions on appeal. [Caltex v. CA, G.R. No. 97753 (1992)] L.2. NOTICE OF PRE-TRIAL After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. [Sec. 1, Rule 18] • Within 5 days from date of filing of the reply, plaintiff must promptly move ex parte that the case be set for pre-trial conference. • If the plaintiff fails to file said motion within the given period, the branch clerk shall issue a Notice of Pre-Trial [AM No. 03-1-09-SC]

L.1. NATURE AND PURPOSE Purpose of pre-trial is to consider: [Sec. 2, Rule 18] (1) Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (2) Simplification of the issues; (3) Necessity/desirability of amendments to the pleadings; (4) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (5) Limitation of the number of witnesses; (6) Advisability of a preliminary reference of issues to a commissioner; (7) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (8) Advisability/necessity of suspending the proceedings; and (9) Other matters that may aid in the prompt disposition of the action.

The “last pleading” need not be literally construed as the actual filing of the last pleading. For purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient [Sarmiento v. Juan, G.R. No. L-56605 (1983)] The notice shall be served on counsel, or on the party if he has no counsel. [Sec. 3, Rule 18] The sufficiency of the written notice of pretrial is irrelevant where evidence shows that counsel and the parties actually knew of the pre-trial [Bembo v. CA, G.R. No. 116845 (1995)] 70 OF 425

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When we say that a defendant is “in default” it speaks of his failure to file responsive pleading and not his non-appearance at pretrial.

L.3. APPEARANCE OF PARTIES It is the duty of both the parties and their counsel to appear at the pre-trial. [Sec. 4, Rule 18]

Remedies of Non-suited Party (1) For a non-suited plaintiff: • Since the dismissal is with prejudice, it has the effect of an adjudication on the merits. • The proper remedy of the plaintiff is appeal, not certiorari [Chingkoe v. Republic, G.R. No. 183608 (2013)] (2) For a non-suited defendant: • Since the order allowing presentation of the evidence ex parte does not dispose of the case, it is interlocutory. • The remedy of the defendant is to file a motion for reconsideration, and if denial is with grave abuse of discretion, file a petition for certiorari [Riano]

W hen non-appearance is excused [Sec. 4, Rule 18] Non-appearance of a party may be excused only if either: (1) Valid cause is shown for it; (2) A representative appears in his behalf, fully authorized in writing: (a) To enter into an amicable settlement; (b) To submit to alternative modes of dispute resolution; and (c) To enter into stipulations/admissions of facts and of documents. The written special authority must be in the form of a special power of attorney as authority to enter into amicable settlement must be in such form. [Sec. 23, Rule 138; Art. 1878(3), Civil Code]

L.4. PRE-TRIAL BRIEF Parties shall file and serve their respective pre-trial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial.

Effect of Failure to Appear; Order of Non-suit (1) Of the plaintiff – the case shall be dismissed with prejudice, unless the court orders (2) Of the defendant – the plaintiff shall be allowed to present evidence ex parte, and judgment shall be rendered based thereon [Sec. 5, Rule 18]

It is mandatory for parties to file their pretrial briefs as failure shall have the same effect as failure to appear at the pre-trial. [Sec. 6, Rule 18] Contents (1) Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (2) Summary of admitted facts and proposed stipulation of facts; (3) Issues to be tried/resolved; (4) Documents/exhibits to be presented, stating the purpose thereof; (5) Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; (6) Number and names of the witnesses, and the substance of their respective testimonies. [AM No. 03-1-09-SC]

The non-appearance of defendant in pre-trial is not a ground to declare him in default. Thus, we distinguish: Default by defendant [Sec. 3, Rule 9] Upon motion and notice to defendant. Requires proof of failure to answer Court may render judgment without receiving evidence Judgment by Default Relief awarded must be the same in nature and amount as prayed for in the complaint

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Failure to appear by defendant [Sec. 5, Rule 18] Not required Not required Court renders judgment based on the evidence presented ex parte Judgment Ex Parte Relief awarded may be of different nature and amount from the relief prayed for

Remedy of defendant is to file a motion for reconsideration, showing that his failure to file a trial brief was due to fraud, accident, 71 OF 425

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mistake, or excusable negligence. The filing of pre-trial brief is mandatory, and is not excused simply because the defendant was not represented by counsel. [Saguid v. CA, G.R. No. 150611 (2003)]

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(5) Should the action proceed to trial, the

explicit definition and limit of the issues to be tried. Effect of Pre-Trial Order The contents of the order shall control the subsequent course of the action, unless: (1) Modified before trial to prevent manifest injustice [Sec. 7, Rule 18] (2) Issues impliedly included therein or may be inferable therefrom by necessary implication [Philippine Export and Foreign Loan Guarantee Corp. v. Amalgamated Management and Development Corp., G.R. No. 177729 (2011)] (3) Amendment to conform to evidence [Sec. 5, Rule 10]

No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those identified and pre-marked during the pretrial, except if allowed by the court for good cause shown. [AM No. 03-1-09-SC] L.5. PROCEEDINGS DURING AND AFTER PRE-TRIAL Record of Pre-Trial The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order. [Sec. 7, Rule 18]

L.6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND IN CRIMINAL CASE Criminal Case [Rule Civil Case [Rule 18] 118] Set when the plaintiff Ordered by the court moves ex parte to set and no motion is the case for pre-trial required from either [Sec. 1] party [Sec. 1] Ordered by the court after arraignment, Made after the last and within 30 days pleading has been from the date the served and filed [Sec. court acquired 1] jurisdiction over the person of the accused [Sec. 1] Possibility of Possibility of an amicable settlement amicable settlement of criminal liability as an important not among its objective [Sec. 2(a)] purposes [Sec. 1] The sanctions for Sanctions are non-appearance are imposed upon the imposed upon the counsel for the plaintiff and the accused or the defendant [Sec. 4] prosecutor [Sec. 3] A pre-trial brief is specifically required A pre-trial brief is not to be submitted [Sec. specifically required. 6]

ONE DAY EXAMINATION OF WITNESS RULE The court shall ask the parties to agree on specific dates for continuous trial, adhere to the case flow chart determined by the court, and use the time frame for each stage in setting the trial dates. Adherence to the One Day Examination of Witness Rule shall be required where the witness shall be fully examined in one day only, subject to the court’s discretion during the trial on whether or not to extend the examination for justifiable reasons. [AM No. 03-1-09-SC] MOST IMPORTANT WITNESS RULE The court shall determine the most important witnesses, limit the number of such witnesses and require the parties and/or counsels to submit to the branch clerk of court the names, addresses and contact numbers of the witnesses to be summoned by subpoena. The court may also refer the case to trial by commissioner under Rule 32. [AM No. 03-109-SC] Contents of Pre-Trial Order (1) Matters taken up in the conference; (2) Action taken thereon; (3) Amendments allowed on the pleadings; (4) Agreements/admissions made by the parties as to any matters considered;

Pre-trial under Criminal Cases require stricter procedure: • Civil Case: The arrangements and admissions are not required to be signed by both parties and their counsels; 72 OF 425

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instead contained in the record of pretrial and pre-trial order [Sec. 7, Rule 18] Recently, the proceedings during the preliminary conference are recorded in the “Minutes of Preliminary Conference” to be signed by both parties and/or counsel. Note that either the party or his counsel may sign. [AM No. 03-1-09-SC] •

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participates to assist in the resolution of issue [Sec. 3(a), RA 9285] Policy: To actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes [Sec. 2, RA 9285] Exception to the Application of RA 9285 [Sec. 6] (1) Labor disputes covered by the Labor Code; (2) The civil status of persons; (3) Validity of a marriage; (4) Any ground for legal separation; (5) The jurisdiction of courts; (6) Future legitime; (7) Criminal liability; and (8) Those which by law cannot be compromised.

Criminal Case – All agreements or admissions made during the pre-trial conference are reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Sec. 2, Rule 118]

L.7. ALTERNATIVE DISPUTE RESOLUTION One the purposes of pre-trial is the consideration of the possibility of amicable settlement, or of a submission to alternative modes of dispute resolution. [Sec. 2(a), Rule 18]

Modes of Alternative Dispute Resolution [Sec. 3, RA 9285] (1) Arbitration -- a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award (a) Dom estic Arbitration – an arbitration that is not international; governed by RA 876 (Arbitration Law) [Sec. 32, RA 9285] (b) International Arbitration – An arbitration is international if: • The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or • One of the following places is situated outside the State in which the parties have their places of business [Art. 3, Model Law on International Commercial Arbitration] (2) Mediation – a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute; includes conciliation [Sec. 7, RA 9285]

The pre-trial briefs of parties must include the parties’ statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution [Sec. 6, Rule 18; AM No. 03-1-09-SC] At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the Philippine Mediation Center mediation unit for purposes of mediation if available. IF mediation fails, the judge will schedule the continuance of the preliminary conference. [AM No. 03-1-09-SC] The judge should not allow the termination of pre-trial siply because of the manifestation of the parties that they cannot settle the case. He should expose the parties to the advantages of pre-trial [AM No. 03-1-09-SC] ALTERNATIVE DISPUTE RESOLUTION SYSTEM Any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in the Act, in which a neutral third party 73 OF 425

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(3) Mini-Trial

– a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement (4) Early Neutral Evaluation – a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute (5) Combinations of alternative dispute resolution processes: Med-Arb - step dispute resolution process involving both mediation and arbitration

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the parties to appear at a particular time and date for hearing and allowing him to file a comment or opposition to petition within 15 days from receipt of notice. Hearing shall not be set no later than 5 days from lapse of period for filing opposition or comment. Sum m ary Hearing - In all cases, as far as practicable, the summary hearing shall be conducted in one (1) day and only for purposes of clarifying facts. Prohibited Submissions [Rule 1.6] (1) Motion to dismiss; (2) Motion for bill of particulars; (3) Motion for new trial or for reopening of trial; (4) Petition for relief from judgment; (5) Motion for extension, except in cases where an ex-parte temporary order of protection has been issued; (6) Rejoinder to reply; (7) Motion to declare a party in default; and (8) Any other pleading specifically disallowed under any provision of the Special ADR Rules.

Special Rules of Court on ADR [AM No. 07-11-08-SC] The Special ADR Rules shall apply to and govern the following cases [Rule 1.1] (1) Relief on the issue of Existence, Validity, or Enforceability of the Arbitration Agreement; (2) Referral ADR (3) Interim Measures of Protection; (4) Appointment of Arbitrator; (5) Challenge to Appointment of Arbitrator; (6) Termination of Mandate of Arbitrator; (7) Assistance in Taking Evidence; (8) Confirmation, Correction or Vacation of Award in Domestic Arbitration; (9) Recognition and Enforcement or Setting Aside of an Award in International Commercial Arbitration; (10) Recognition and Enforcement of a Foreign Arbitral Award; (11) Confidentiality/Protective Orders; and (12) Deposit and Enforcement of Mediated Settlement Agreements.

No summons [Rule 1.9] In cases covered by the Special ADR Rules, a court acquires authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a copy of the petition and the notice of hearing.

Service and Filing of Petition The petitioner shall serve, either by personal service or courier, a copy of the petition upon the respondent before the filing thereof. Proof of service shall be attached to the petition filed in court. Notice is served once the court finds petition sufficient in form and substance, directing 74 OF 425

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PRE – TRIAL

NO SETTLEMENT FAILURE TO APPEAR

Agreements made by parties; Amendments to pleading; Schedule of Trial

AMICABLE SETTLEMENT

If defendant is absent, court may hear evidence of plaintiff ex parte

If plaintiff is absent when so required to attend, court may dismiss the case

TRIAL If evidence is insufficient to prove plaintiff’s cause of action or defendant’s counterclaim, court rules in favor of either one or dismisses the case

COURT RENDERS DECISION

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M. INTERVENTION

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of which is limited by considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding. [Virra Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)]

A proceeding in a suit or an action by which a third person is permitted by the court to make himself a party, either: (1) Joining plaintiff in claiming what is sought by the complaint; (2) Joining with defendant in resisting the claims of the plaintiff; or (3) demanding something adverse to both of them. [Herrera]

M.2. TIME TO INTERVENE The motion to intervene may be filed at any tim e before rendition of judgm ent by the trial court.

Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. [Carino v. Ofilada, G.R. No. 102836 (1993)]

Effected by: (1) A motion to intervene (2) Attaching the pleading-in-intervention; and (3) Also serving the motion and pleading-inintervention on the original parties [Sec. 2, Rule 19]

M.1. REQUISITES FOR INTERVENTION (1) The legal interest: (a) In the matter in controversy; or (b) In the success of either of the parties; or (c) Against both; or (d) So situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an office thereof; (2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties (3) Intervenor’s rights may not be fully protected in a separate proceeding [Lorenza Ortega v. CA, G.R. No. 125302 (1998)]

GENERAL RULE: Allowance of intervention is discretionary with the court EXCEPTION: When the intervenor is an indispensable party M. 3. PLEADINGS-IN-INTERVENTION (1) Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties. (2) Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter. (3) Answer to complaint-inintervention [Sec. 4, Rule 19] - It must be filed within 15 days from notice of the order admitting the complaint-inintervention, unless a different period is fixed by the court.

MEANING OF LEGAL INTEREST Interest – must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)]

M.4. REMEDIES OF THE PARTIES (1) If intervention is denied (a) Aggrieved party may appeal (b) Mandamus will not lie except in case of grave abuse of discretion (2) If intervention is granted (a) A grant of a motion to intervene is interlocutory (b) Hence, anyone who objects can file a petition for certiorari for improper granting of intervention

Notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise 76 OF 425

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N. SUBPOENA

N.1. SUBPOENA DUCES TECUM A process directed to a person requiring him to bring with him books, documents, or other things under his control [Sec. 1, Rule 21]

A process directed to a person requiring him: (1) To attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition; or (2) To bring with him any books, documents, or other things under his control [Sec. 1, Rule 21] Subpoena An order to appear and testify or to produce books and documents May be served to a non-party Needs tender of kilometrage, attendance fee and reasonable cost of production fee

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The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum, with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena.

Summons

Before this subpoena may issue, the court must first be satisfied that the following tests are met: (1) Test of relevancy – the books, documents, or other things requested must appear prima facie relevant to the issue subject of the controversy; (2) Test of definiteness – such books must be reasonably described by the parties to be readily identified

An order to answer complaint Served on the defendant Does not need tender of kilometrage and other fees

W ho may issue [Sec. 2, Rule 21] (1) Court before whom the witness is required to attend (2) Court of the place where the deposition is to be taken (3) Officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or (4) Any justice of the SC or of the CA, in any case or investigation pending within the Philippines

N.2. SUBPOENA AD TESTIFICANDUM A process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority or for the taking of his deposition [Sec. 1, Rule 21]

All processes issued by the MTC and MCTC in cases falling within their jurisdiction may be served anywhere in the Philippines without the necessity of certification by the judge of the RTC [Sec. 38(2), BP 129]

Formalities (1) The original is exhibited to the person served; (2) A copy is delivered to him; and (3) Tender is made to him of the following: (a) Fees for one day’s attendance; (b) Kilometrage allowed by the Rules; and (c) In the case of subpoena duces tecum, the reasonable cost of producing the books, documents and things demanded.

N.3. SERVICE OF SUBPOENA Service of subpoena shall be made in the same manner as personal or substituted service of summons. [Sec. 6, Rule 21]

Form and contents [Sec. 3, Rule 21] (1) Shall state the name of the court and the title of the action or investigation (2) Shall be directed to the person whose attendance is required (3) For subpoena duces tecum, shall also contain a reasonable description of the books, or things demanded which must appear to the court to be prima facie relevant

Note: Tender of these amounts need not be made if subpoena is issued by or on behalf of the Republic, or an officer or agency thereof

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W hen made: must be such as to allow the witness reasonable time for preparation and travel to the place of attendance

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fees and kilometrage.

O. MODES OF DISCOVERY

N.4. COMPELLING ATTENDANCE OF WITNESS The court which issued the subpoena may, upon proof of service and failure of witness to attend, issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause [Sec. 8, Rule 21]

Discovery – a device employed by a party to obtain information about relevant matters on the case from the adverse party in the preparation for trial [Riano] Purpose: To permit mutual knowledge before trial of all relevant facts gathered by both parties so that either party may compel the other to disgorge facts whatever he has in his possession [Riano citing C.J.S.]

The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it. [Sec. 9, Rule 21]

Modes of Discovery (1) Depositions pending actions [Rule 23] (2) Depositions before action or pending appeal [Rule 24] (3) Interrogatories to parties [Rule 25] (4) Admission by adverse party [Rule 26] (5) Production or inspection of documents or thing [Rule 27] (6) Physical and mental examination of persons [Rule 28]

EXCEPTION: Provisions regarding the compelling of attendance [Sec. 8] and contempt [Sec. 9] do not apply where: (1) Witness resides more than 100km from his residence to the place where he is to testify by the ordinary course of travel [“viatory right”]; or (2) Permission of the court in which the detention prisoner’s case is pending was not obtained

O.1 DEPOSITIONS [Rules 23-24] Deposition – taking of testimony out of court of any person, whether party to the action or not but at the instance of a party to the action [Riano]

Note: “Viatory right” applies only in civil cases, not criminal cases. [Genorga v. Quitain, AM No. 981-CFI (1977)]

Kinds of Depositions (1) Depositions pending action [Rule 23] – called deposition de bene esse (2) Depositions before action or pending appeal [Rule 24] – called depositions in perpetuam rei m em oriam

N.5. QUASHING OF SUBPOENA Quashing of subpoena is done by the court, upon motion promptly made at or before the time specified in the subpoena. [Sec. 4, Rule 21] GROUNDS (1) For quashing subpoena duces tecum: (a) That the subpoena is unreasonable and oppressive; (b) That the articles sought do not appear prima facie relevant to the issues; (c) That the applicant does not advance the cost for the production of the articles desired; or (d) That there was no tender of witness fees and kilometrage. (2) For quashing subpoena ad testificandum (a) That the witness is not bound thereby, or

TAKING OF DEPOSITION W hen Depositions Pending Action Taken [Sec. 1, Rule 23] (1) W ith leave of court (a) After jurisdiction has been obtained over any defendant or over the property which is the subject of the action, but (b) Before an answer has been served (2) W ithout leave of court after answer has been served NOTE: The taking of deposition of a person confined in prison is always by leave of court, 78 OF 425

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whether before or after service of the answer. [Sec. 1, Rule 23]

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and may be impeached like a court witness. [Sec. 3] (5) The officer before whom the deposition is being taken has no authority to rule on objections interposed during the course of the deposition but any objections shall be noted by him upon the deposition. Any evidence that is objected to shall be taken subject to the objection. [Sec. 17]

Before whom Depositions are taken [Secs. 10-11, Rule 23] (1) Within the Philippines: (a) Judge (b) Notary Public, or (c) Any person authorized to administer oaths, as stipulated by the parties in writing (2) Outside the Philippines (a) On notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Philippines (b) Before such person or officer as may be appointed by commission or under letter rogatory or (c) Any person authorized to administer oaths as stipulated by parties in writing

Effect of Taking Depositions [Sec. 7, Rule 23] A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence. USES AND SCOPE OF DEPOSITION General Uses of Deposition: (1) Intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit or proceeding (2) Dual functions: (a) A method of discovery (b) A method of presenting testimony in lieu of oral open court testimony

Disqualification by interest [Sec. 13, Rule 23] No deposition shall be taken before the following: (1) A relative by affinity or consanguinity within the 6th degree of any party; (2) An employee or counsel of any of the parties (3) A relative within the same degree or employee of such counsel; (4) Any person financially interested in the action

Scope of Exam ination [Sec. 2, Rule 23] Deponent may be examined as to any matter: (1) Not privileged; (2) Relevant to the subject of the pending action; and (3) Under such limitations as the court may order under Secs. 16 and 18.

Taking Depositions upon Oral Examination (1) A party desiring to take the deposition shall give reasonable notice in writing to every party stating the time and place for taking the deposition and the name and address of each person to be examined. [Sec. 15] (2) After notice is served, the court may make any order for protection of the parties and the deponent. [Sec. 16] (3) The attendance of the witnesses may be compelled by the use of subpoena. [Sec. 1] (4) The deponent may be examined following the procedures for witnesses in a trial, and may be asked questions on direct, cross, re-direct or recross. He has the same rights as a witness

These may relate to: (1) Any claim or defense of any other party; (2) The existence, description, nature, custody, condition, and location of books, documents and other tangible things; or (3) The identity or location of persons having knowledge of relevant facts. Specific Uses of Depositions [Sec. 4, Rule 23] The use of depositions depends on whether deponent is a party or not. (1) For contradicting or impeaching the testimony of the former deponent, now testifying as a witness 79 OF 425

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(2) The deposition is used to impeach or

• Only used to contradict, not as proof of specific facts • Cannot be used for this person if deponent does not testify (2) For any purpose, if the deponent was an adverse party • May be used as an admission • Cannot, however, be used in the trial of a case against a defendant who was not a party to the action when the deposition was taken (3) Deposition of a witness or party may be used for any purpose under the following circum stances: (a) Witness-deponent is dead – there must be proof or presumption of death, and proof that the deposition was lawfully taken (b) Witness resides more than 100 km from the place of trial or hearing, or is out of the country -- unless absence was procured by the proponent of the deposition (c) Disability of a witness due to age, sickness, infirmity, or imprisonment – proven by certificate of attending physician (d) Inability to procure attendance of witness by subpoena (e) Exceptional circumstances

contradict opponent. OBJECTIONS TO ADMISSIBILITY Objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. [Sec. 6, Rule 23] TERMINATION OF TAKING OF DEPOSITION OR LIMITATION OF SCOPE How done (1) A motion or petition for termination or limit examination is filed by any party or of the deponent (2) Filed in the court where the action is pending OR the RTC of the place where deposition is being taken W hen done: At any time during the taking of deposition Grounds: That the examination is being conducted: (1) In bad faith, or (2) In such manner as unreasonably to annoy, embarrass or oppress the deponent or party

GENERAL RULE: A deposition is not a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay. [Dasmarinas Garments Inc. v. Reyes, G.R. No. 108229 (1993)].

Effect of Errors and Irregularities in Depositions [Sec. 29, Rule 23] Error and Effect Irregularities Waived As to notice for Unless written objection is taking promptly served upon depositions party giving notice Waived Objection to Unless made: taking (1) Before taking of deposition deposition begins or because of (2) As soon thereafter as disqualification disqualification of officer becomes known or before whom it could be discovered is to be taken with reasonable diligence Objection to Not waived by failure to the make them before or competency of during the taking of a witness or deposition

EXCEPTION: Depositions may be used as evidence under the circumstances in Sec. 4. Effect of Using Deposition [Sec. 8, Rule 23] GENERAL RULE: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness. EXCEPTIONS: (1) The deposition is that of an opposing party, or 80 OF 425

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Error and Irregularities competency or relevancy or materiality of testimony

Occurring at oral examination and other particulars

Objections to the form of written interrogatories under Sec. 25 and 26

In the manner in which testimony is transcribed or in the preparation under Sec. 17, 19, 20, and 26

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(6) That after being sealed, the deposition

Effect

shall be opened only by order of the court; (7) That secret processes, developments, or

Unless the ground of the objection is one which might have been obviated or removed if presented at that time In the manner of taking, in the form of questions or answers, in the oath or affirmation, or in conduct of parties and errors of any kind which might be obviated or removed if promptly prosecuted are waived Unless reasonable objection thereto is made at the time of taking the deposition Waived Unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of last interrogatories authorized Waived Unless motion to suppress depositions or some part thereof is made with reasonable promptness after such defect is ascertained, or with due diligence might have been ascertained

research need not be disclosed; (8) That the parties shall simultaneously file

specified documents or information enclosed in sealed envelopes to be opened as directed by the court; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL [Rule 24] Referred to as perpetuation of testimony (“depositions in perpetuam rei memoriam”) because their objective is to perpetuate the testimony of a witness for future use, in the event of further proceedings in said court. W ho may avail: Any person: (1) Who wants to perpetuate his own testimony; or (2) Who wants to perpetuate the testimony of another person Procedure for Deposition before Action (1) File a verified petition in the court of the place of the residence of any expected adverse party, entitled in the name of the petitioner and stating: (a) That the petitioner expects to be a party to an action in a court of the Philippines but is unable to bring it or cause it to be brought; (b) The subject matter of the expected action and his interest therein; (c) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) The names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) The nam es and addresses of the persons to be examined and the substance of the testimony which he expects to elicit, and (f) Asking for an order authorizing the taking of the depositions of the persons sought to be examined named in the petition for the purpose of perpetuating their testimony.

Orders of the court regarding deposition taking (1) That the deposition shall not be taken; (2) That it may be taken at some designated place other than that stated in the notice; (3) That it may be taken only on written interrogatories; (4) That certain matters shall not be inquired into’ (5) That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; 81 OF 425

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(2) Notice and service to each person

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testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken.

nam ed in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. (a) At least 20 days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3) Order and Examination: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories.

O.2. WRITTEN INTERROGATORIES ADVERSE PARTIES [RULE 25]

OF

Purpose: This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Sec. 1, Rule 25] Scope and Use: Interrogatories have the may relate to the same matter as may be inquired into under Depositions Pending Action and may also be used for the same purposes provided. [Sec. 5, Rule 24] W ritten Interrogatories v. Interrogatories to Parties Written Interrogatories to Interrogatories Parties Taken before a No deposition officer. deposition officer Questions are prepared beforehand, and The questioning is submitted to the direct. deposition officer who will ask the deponent The deposition of any Interrogatories are person may be taken, served on parties to whether he is a party the action or not.

Use of Deposition If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. [Sec. 6, Rule 24] Procedure for Deposition Pending Appeal: (1) During the pendency of an appeal, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court. (2) The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state: (a) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and (b) The reason for perpetuating their testimony. (3) Order allowing the deposition: If the court finds that the perpetuation of the

SERVICE OF INTERROGATORIES TO PARTIES Any party desiring to elicit material and relevant facts from any adverse party shall file and serve upon the adverse party written interrogatories to be answered by the party served. Manner of Service (1) Without leave of court – After answer has been served; and for the first set of interrogatories (2) With leave of court – before the answer has been served; and for subsequent sets of interrogatories NOTE: No party may, without leave of court, serve more than one set of interrogatories to 82 OF 425

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be answered by the same party. [Sec. 4, Rule 25]

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EFFECT OF FAILURE TO SERVE A party not served with written interrogatories may not be compelled by adverse party to: (1) Give testimony in open court; or (2) Give deposition pending appeal [Sec. 6, Rule 25]

ANSWERS Written interrogatories and the answers thereto must both be filed and served. [Sec. 2, Rule 25] Hence, the answers may constitute as judicial admissions [Sec. 4, Rule 129]

Exception: Allowed by the court for good cause shown and to prevent a failure of justice

Form: The answer must be fully in writing, signed and sworn to by the person making them.

O.3. REQUEST FOR ADMISSION [RULE 26] Rule 26, as a mode of discovery, contemplates interrogatories seeking clarification in order to determine the truth of the allegation in a pleading.

Service and Filing Shall be filed and served on the party submitting interrogatories within 15 days after service of interrogatories, unless the court extends or shortens period on motion and for good cause.

Purposes: (1) To allow one party to request the adverse in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. (2) To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: (a) Admit the genuineness of any material and relevant document described in and exhibited with the request; or (b) Admit the truth of any material and relevant matter of fact set forth in the request [Sec. 1, Rule 26]

OBJECTIONS TO INTERROGATORIES Objections may be presented to the court within 10 days after service of the interrogatories, with notice as in case of a motion. [Sec. 3, Rule 25] Effect: Answers shall be deferred until objections are resolved Grounds (1) The interrogatories require: (a) Statements of conclusions of law; (b) Answers to hypothetical questions or opinion; (c) Mere hearsay; or (d) Matters not within the personal knowledge of the interrogated party (2) Frivolous interrogatories need not be answered. [Herrera]

How m ade: (1) A party files and serves upon any other party a written request (2) Copies of the documents shall be served with the request unless already furnished The request for admission must be served on the party, not the counsel. This is an exception to the general rule that notices shall be served upon counsel and not upon the party. [Duque v. CA, G.R. 125383 (2002)]

CONSEQUENCES OF FAILURE TO ANSWER On failure to answer of a party served with interrogatories, the court, on motion and notice, may: (1) Strike out all or any part of any pleading of that party; (2) Dismiss the action; (3) Render judgment by default against the party; and (4) Order payment by such party of reasonable expenses including attorney’s fees. [Sec. 5, Rule 29]

W hen made: At any time after issues have been joined, which is to say, IMPLIED ADMISSION BY ADVERSE PARTY Each of the matters which an admission is requested shall be deemed admitted unless the party to whom request is directed files and serves upon the party requesting 83 OF 425

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admission a sworn statement [Sec. 2, Rule 26]

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in accordance with the claim of the party obtaining the order; (2) That the disobedient party be disallowed from supporting or opposing designated claims or defenses; (3) That pleadings or parts thereof be stricken out; or (4) That further proceedings be stayed until compliance; or that actions or any parts thereof be dismissed or that judgment be rendered by default against the disobedient party; or (5) That the disobedient party be arrested. [Sec. 3, Rule 29]

Contents (1) Denying specifically the matters of which an admission is requested, or (2) Setting forth in detail the reasons why he cannot truthfully either admit or deny those matters Period: Such party must file and serve such statement: (1) Within a period not less than 15 days designated in the request; or (2) Within such further time as the court may allow on motion

EFFECT OF ADMISSION Any admission made by a party pursuant to such request is for the purpose of the pending action only [Sec. 3, Rule 26]

Objections shall be submitted to the court by the party requested within the period for and prior to filing of his sworn statement. Compliance with the sworn statement shall be deferred until objections are resolved. [Sec. 2, Rule 26]

It shall not: (1) Constitute an admission by him for any other purpose; nor (2) Be used against him in any other proceeding

CONSEQUENCES FOR FAILURE TO ANSWER REQUEST The proponent may apply to the proper court for an order to compel an answer. [Sec. 1, Rule 29]

EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION Applicability: The party fails to file and serve a request for admission on the adverse party for facts at issue, which are: (1) Material and relevant fact at issue, and (2) Are, or ought to be, within the personal knowledge of the adverse party

If application is granted, the court: (1) Shall require the refusing party to answer; and (2) May require the refusing party or counsel to pay reasonable expenses for obtaining the order, the refusal to answer was without substantial justification.

Effect: The party shall not be permitted to present evidence on such facts, unless allowed by the court for good cause and to prevent a failure of justice [Sec. 5, Rule 29]

If application is denied and it was filed without substantial justification, the court may require the refusing party or counsel to pay reasonable expenses for opposing the application.

O.4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS [RULE 27] Applicable only to a pending action and the things subject of the motion must be within the possession, control, or custody of a party.

Refusal to answer after being directed by the court would constitute contem pt of court.

PROCEDURE [Sec. 1, Rule 27] A motion is filed by the party seeking production or inspection, showing good cause therefor.

Refusal to obey would also allow the court to make such orders regarding the refusal as are just, such as: (1) That the matters regarding which questions were asked be taken as established for the purposes of the action

The court may issue an order: (1) for the party to produce and permit inspection, copying or photographing, by 84 OF 425

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or on behalf of the moving party, of any designated documents or tangible things, (a) not privileged, (b) constituting or containing material evidence, and (c) in the party’s in his possession, custody or control (2) for the party to permit entry upon designated land or other property, in his possession or control, for inspection, measuring, surveying, or photographing property or any designated relevant object or operation.

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O.5. PHYSICAL OR MENTAL EXAMINATION OF PERSONS [RULE 28] Applicable in an action in which the mental or physical condition of a party is in controversy. [Sec. 1, Rule 28] PROCEDURE [Sec. 2, Rule 28] A motion for the examination is filed in the court where the action is pending: (1) showing good cause for the examination; (2) with notice to the party to be examined, and all other parties; and (3) specifying the time, place, manner, conditions, scope, and person conducting the examination.

The order shall state: (1) The time, place, and manner of making the inspection and taking copies and photographs, and (2) Such terms and conditions as are just

Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege [Sec. 24(b), Rule 130]

PRODUCTION OF DOCUMENTS VS SUBPOENA DUCES TECUM Production or Subpoena Duces Inspection of Tecum Documents A means of compelling A mode of discovery production of evidence Limited to the parties May be directed to of the action non-party Issued upon motion May be issued upon with notice to the ex parte application adverse party May be asked before May be asked only and/or during trial during trial Must show good Need not show good cause cause Grounds for quashal: (1) Unreasonable, oppressive, May be quashed for irrelevant lack of good cause (2) Failure to shown advance reasonable costs of production Disobedience would allow court to issue Disobedience orders as in the case constitutes contempt of refusal to answer of court request for admission

REPORT OF FINDINGS [Sec. 3, Rule 28] The party examined may request delivery of a copy of the detailed written report, with the findings of the examining physician. Upon such request and delivery, the party causing the examination is entitled upon request to receive a like report of any examination, previously or thereafter made, of the same mental or physical condition. If such report is not delivered: (a) Due to refusal of the party examined, the court may make an order requiring delivery on such terms as are just; (b) Due to failure or refusal of the physician, the court may exclude his testimony when offered at trial. WAIVER OF PRIVILEGE [Sec. 4, Rule 28] Where the party examined requests and obtains a report on the results of the examination, the consequences are: (1) He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition; and (2) He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him

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O.6. CONSEQUENCES OF REFUSAL TO COMPLY [RULE 29] Form of Refusal Sanctions The court may, upon proper application, compel a refusing deponent to answer [Sec. 1] (1) If granted, and refusal to answer is without substantial justification, court may require the refusing party to pay proponent the Refusal to answer any reasonable expenses incurred in obtaining the order question (2) If denied, and filed without substantial justification, court may [Sec. 1 and 2] require proponent to pay refusing party the reasonable expenses incurred in obtaining the order

Refusal to be Sworn [Sec. 2]

Refusal to answer designated questions or refusal to produce documents or to submit to physical or mental examination [Sec. 3]

Refusal to admit under Rule 26 [Sec. 4]

Failure of party to attend or serve answers to written interrogatories [Sec. 5]

A refusal to answer after being directed by court to do so may be constituted as contempt of court Cite the disobedient deponent in contempt of court The court may make the following orders: (1) Prohibit the disobedient party to introduce evidence of physical or mental condition (2) Refuse to allow the disobedient party to support or oppose claims or defenses (3) Strike out pleadings or parts thereof (4) Stay further proceedings (5) Dismiss the action or proceeding or any part thereof (6) Render a judgment by default against disobedient party (7) Direct the arrest of any party disobeying any of such orders except an order to submit to a physical or mental examination (8) Other orders as may be just The court, upon proper application, issue an order requiring the other party to pay him reasonable expenses incurred, including attorney’s fees PROVIDED that party requesting proves genuineness of such document or truth UNLESS court finds: (1) There were good reasons for denial (2) Admissions sought were of no importance The court on motion and notice may: (1) Strike out all or any part of any pleading of disobedient party (2) Dismiss the action or proceeding or any part thereof (3) Enter a judgment by default against disobedient party (4) Order payment of reasonable expenses incurred by the other including attorney’s fees

Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. [Sec. 6, Rule 29]

P. TRIAL

pre-trial and the determination of granting or denying a motion. [Trocio v. Labayo [1973]]

Trial – is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People [1962]].

GENERAL RULE: When an issue exists, trial is necessary. Decision should not be made without trial. EXCEPTIONS: A civil case may be adjudicated upon without the need for trial in any of the following cases:

A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It includes the 86 OF 425

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(1) Where the pleadings tender no issue at all,

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postponement has no absolute right to expect that his motion would be granted. [Republic v. Sandiganbayan, G.R. No. 123997 (1999)]

judgm ent on the pleadings may be directed by the court [Rule 34] (2) Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment [Rule 35] (3) Where the parties have entered into a com prom ise or an amicable settlement either during the pre-trial or while the trial is in progress [Rule 18; Art. 2028, Civil Code] (4) Where the complaint has been dismissed with prejudice, or when the dismissal has the effect of an adjudication on the merits [Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, Rule 7] (5) Where the case falls under the Rules on Sum m ary Procedure, and (6) Where the parties agree, in writing, upon the facts involved in the litigation and submit the case for judgment on the facts agreed upon, without the introduction of evidence. [Sec. 6, Rule 30] [Riano]

Requisites of Motion to Postpone Trial (1) For absence of evidence [Sec. 3, Rule 30] – Motion accompanied by affidavit showing: (a) That the materiality or relevancy of the evidence; and (b) That diligent efforts had been exerted to procure the evidence (2) For illness of party or counsel [Sec. 4, Rule 30] – Motion accompanied by affidavit or sworn certification showing: (a) The presence of such party or counsel at the trial is indispensable; and (b) That the character of his illness is such as to render his non-attendance excusable P.2. AGREED STATEMENT OF FACTS The parties may agree, in writing, upon the facts involved in the litigation and submit the case for judgment in the facts agreed upon, without the introduction of evidence

Notice of Trial Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date. [Sec. 1, Rule 30]

If the parties agree only on some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe. [Sec. 6, Rule 30]

P.1. ADJOURNAMENTS AND POSTPONEMENTS A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require

Stipulation in Civil Cases May be signed alone by the counsel, who has an SPA May be made verbally or in writing

Lim itations The court has no power to adjourn a trial for: (1) A period longer than one month for each adjournment; or (2) More than 3 months in all

Stipulation in Criminal Cases Must be signed by both counsel and accused Strict; it must always be in writing

An agreed statement of facts is conclusive on the parties, as well as on the court. Neither of the parties may withdraw from the agreement, nor may the court ignore the same. [McGuire v. Manufactures Life, G.R. L3581 (1950)]

EXCEPTION: The court may go beyond these limitations, if authorized in writing by the Court Administrator.

P.3. ORDER OF TRIAL Trial shall be limited to the issues stated in the pre-trial order, except in the following cases: (1) The court orders separate trial under Sec. 2, Rule 31 in the furtherance of convenience or to avoid prejudice; or

Postponement A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier. A party asking for 87 OF 425

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(2) When for special reasons the court directs

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parties. [Republic v. Heirs of Oribello, G.R. No. 199501 (2013)]

otherwise General Order of Trial (1) Plaintiff’s evidence in chief (2) Defendant’s evidence in chief and evidence in support of his counterclaim, cross-claim and 3rd-party complaint rd (3) 3 -party defendant shall adduce evidence of his defense, counterclaim, cross-claim, and 4th party complaint th (4) 4 -party defendant shall adduce evidence, and so forth (5) Parties against whom any counterclaim or cross-claim has been pleaded shall adduce evidence in support of their defense, in the order to be prescribed by court (6) Parties may then respectively adduce rebutting evidence only, unless the court permits them to adduce evidence upon original case (7) Upon admission of evidence, case submitted for decision, unless court directs parties to argue or to submit respective memoranda or any further pleading [Sec. 5, Rule 30]

W hen proper: When actions involving a common question of fact or law are pending before the court [Sec. 1, Rule 31] Court action: The court may: (1) Order a joint hearing or trial of any or all matters in issue in the actions (2) Order all actions consolidated; or (3) Make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay Purpose: To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court and save unnecessary costs and expenses Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan, G.R. No. 102370-71 (1992)]

Reverse Order The defendant presents evidence ahead of the plaintiff, when the defendant relies in his Answer only upon an affirmative defense.

The rules do not distinguish between cases filed before the same branch or judge and those that are pending in different branches or before different judges of the same court, in order that consolidation may be proper, as long as the cases involve the resolution of questions of law or facts in common with each other [Active Woods Products Co. Inc. v. CA, G.R. No. 86602 (1990)]

Where the answer of the defendant admitted the obligation stated in the complaint, although special defenses were pleaded, the plaintiff has every right to insist that it was for the defendant to come forward with evidence to support his special defenses. [Yu v. Mapayo, G.R. No. L-29742 (1972)]

Kinds of Consolidation [Republic v. Heirs of Oribello, G.R. No. 199501 (2013)] (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 others; not actually consolidation but referred to as such (2) Actual consolidation – where several actions are combined into one, lose their separate identity, and become one single action in which judgment is rendered (3) Consolidation for Trial – where several actions are ordered to be tried

The reasoning behind this is that the plaintiff need not present evidence since judicial admissions do not require proof [Sec. 2, Rule 129] P.4. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Consolidation – a procedural device, granted to the court as an aid in deciding how case in its docket are to be tried, so that the business of the court may be dispatched expeditiously while providing justice to the 88 OF 425

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together, but each retains its separate character, and requires the entry of separate judgment

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P.6. TRIAL BY COMMISSIONERS Commissioner - A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered

When proper: A single action has a number of claims, counterclaims, cross-claims, thirdparty complaints or issues which may be separately tried for convenience, or to avoid prejudice.

GENERAL RULE: Trial by commissioner depends largely upon the discretion of the court

When separate trial of claims is conducted by the court under this section, it may render separate judgments on each claim [see Sec. 5, Rule 36]

EXCEPTIONS: In the following instances, appointment of a commissioner is necessary: (1) Expropriation [Rule 67] (2) Partition [Rule 69] (3) Settlement of Estate of a Deceased Person in case of contested claims; and (4) Submission of Accounting by executors or administrators

This provision permitting separate trials presupposes that the claims involved are within the jurisdiction of the court • When one of the claims is not within its jurisdiction, the same should be dismissed, so that it may be filed in the proper court

Kinds of Trial by Commissioners (1) Reference by consent of both parties. (2) Reference ordered on motion.

P.5. DELEGATION OF RECEPTION OF EVIDENCE

Reference by Consent The court may order any or all of the issues in a case to be referred to a commissioner by written consent of both parties. [Sec. 1, Rule 32]

GENERAL RULE: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. [Sec. 9, Rule 30]

Commissioners are to be: (1) Agreed upon by the parties; or (2) Appointed by the court

EXCEPTION: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: (1) Default hearings; (2) Ex parte hearings; (3) Cases where parties agree in writing.

Reference Ordered on M otion The court may direct reference to a commissioner, upon application of a party or upon its own motion, in the ff. cases: (1) When trial of an issue of fact requires examination of long account; (2) When taking of an account is necessary; (3) When question of fact, other than upon pleadings, arises upon motion or otherwise, in any stage, or for carrying a judgment into effect [Sec. 2, Rule 32]

The clerk of court has no power to rule on objections to any question or the admission of exhibits. Objections shall be resolved by the court upon submission of the clerk’s report and TSN within 10 days from termination of the hearing. The rule requires that, where the reception of evidence is delegated to the clerk of court, he must also be a member of the bar. Neither agreement by parties nor their acquiescence can justify its violation. [Umali-Paco v. Quilala, AM RTJ-02-1699 (2003)]

Order of Reference: [Sec. 3, Rule 32] When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference, which may contain the following: (1) Specifications or limitations of the powers of the commissioner; 89 OF 425

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(2) A direction to report only upon particular

(3) He shall attach all exhibits, affidavits,

issues, to do or perform particular acts, or to receive and report evidence only (3) The date for beginning and closing the hearings, and that for the filing of his report

depositions, papers, and transcripts, if any, of testimonial evidence presented before him Notice and Hearing on the Report [Secs. 10-11, Rule 32] Upon filing of the report of the commissioner: (1) Parties shall be notified by the clerk (2) Parties shall be allowed 10 days within which to object to the findings of the report

Powers of Commissioner (1) Exercise power to regulate the proceeding before him (2) Do all acts and take all measures necessary or proper for the efficient performance of his duties (3) Issue subpoena and subpoenas duces tecum (4) Swear witnesses (5) Rule upon the admissibility of evidence, unless otherwise provided in the order of reference

NOTE: Objections based upon grounds which were available to the parties during the proceedings before the commissioner shall not be considered by the court, unless they were made before the com m issioner

NOTE: Refusal of a witness to obey such subpoena or to give evidence before him is deemed contempt of the court which appointed the commissioner. [Sec. 7, Rule 32]

Upon expiration of the 10-day period to file objections, the report shall be set for hearing. After such hearing, the court shall issue an order: (1) Adopting, modifying, or rejecting the report, in whole or in part (2) Recommitting it with instructions; or (3) Requiring the parties to present further evidence before the commissioner or the court

Proceedings before the Commissioner [Sec. 5, Rule 32] (1) Upon receipt of the order of reference, the commissioner shall set a time and place for the first meeting of parties or their counsel (2) Notices shall be sent to parties or counsel (3) Hearing is to be held within 10 days after date of order of reference (4) If a party fails to appear, the commissioner may: [Sec. 6] (a) Proceed ex parte; or (b) Adjourn the proceedings to a future date giving notice to the absent party or his counsel

Q. DEMURRER TO EVIDENCE A species of motion to dismiss that may be invoked based on insufficiency of evidence [i.e. upon the facts and the law the plaintiff has shown no right to relief]. [Sec. 1, Rule 33] It is invoked after the plaintiff has presented all the evidence available to him Judgment on Demurrer to Evidence – judgment rendered by the court dismissing a case upon motion of defendant, made after plaintiff has rested his case, on the ground that upon the facts presented and the law on the matter, plaintiff has not shown any right to relief.

Report of the Comm issioner [Sec. 9, Rule 32] The report is filed with the court upon completion of the trial, hearing or proceeding before the commissioner. Contents: (1) Report in writing upon the matters submitted to him by the order of reference (2) When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law 90 OF 425

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Dem urrer of Evidence v. Motion to Dism iss Demurrer to Evidence Motion to Dismiss Presented after the Presented before plaintiff has rested filing of a responsive his case pleading Based on the Based on those insufficiency of grounds enumerated evidence in Rule 16 If denied, the If denied, the defendant may file defendant may his responsive present his evidence pleading If granted, the If granted, the complaint is complaint is dismissed; plaintiff dismissed; plaintiff’s may appeal or re-file, remedy is to appeal depending on the ground for dismissal.

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Q.3. WAIVER OF RIGHT TO PRESENT EVIDENCE If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Sec. 1, Rule 33; Republic v. Tuvera, G.R. No. 148246 (2007)] Q.4. DEMURRER IN CIVIL AND CRIMINAL CASES Civil Cases Criminal Cases Court may motu Defendant files a proprio dismiss the demurrer. action for insufficiency of Court cannot motu prosecution’s propio dismiss the evidence, after it has case for insufficiency rested its case. [Sec. of plaintiff’s evidence 23, Rule 119] May be filed with or Defendant need not without leave of ask for leave of court court. If court denies the demurrer (1) filed with leave, If court denies the accused may demurrer, defendant present evidence. will present his (2) filed without evidence leave, accused can no longer present evidence. If prosecution’s If plaintiff’s evidence evidence insufficient, insufficient, court will court will grant grant demurrer by demurrer by dismissing the rendering judgment complaint of acquittal. The judgment of Judgment of dismissal is acquittal is not appealable; If appealable; reversed, court will Double jeopardy sets decide based on in. plaintiff’s evidence.

Q.1. EFFECT OF DENIAL If the demurrer is denied, the defendant shall have the right to present his evidence. The court should not proceed to grant the relief demanded by the plaintiff but should set the date for reception of the defendant’s evidence. [Northwest Airlines v. CA, G.R. No. 120334 (1998)] An order denying the demurrer is interlocutory, and not subject to appeal. It can be subject to a petition for certiorari, in case of grave abuse of discretion or oppressive exercise of judicial authority. [Katigbak v. Sandiganbayan, G.R. No. 140183 (2003)] Q.2. EFFECT OF GRANT If the demurrer is granted, the case shall be dismissed. As a final order, the remedy of the plaintiff is to appeal. If the appeal is granted, the defendant-movant loses the right to present evidence. The appellate court should not remand the case for further proceedings but should render judgment on the basis of the evidence submitted by the plaintiff. [Consolidated Bank and Trust Corp. v. Del Monte Motor Works, Inc., G.R. No. 143338 (2005)] 91 OF 425

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IV. Judgments Final Orders

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and

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holder may confess judgment as the maker’s attorney-in-fact. This is considered void in our jurisdiction for denying a party his right to a day in court [PNB vs. Manila Oil (1992)] (b) Judgment by confession relicta verification – after pleading and before trial, the defendant: (i) confessed the plaintiff’s cause of action; and (ii) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. (3) Judgment upon the merits – one rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is “on the merits” when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts. (4) Clarificatory Judgment – one rendered to clarify an ambiguous judgment or one difficult to comply with. (5) Judgment Nunc Pro Tunc – literally, “now for then”. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. [Lichauco v. Tan Pho (1923)] It can only be issued when the thing ordered has previously been made, but by inadvertence has not been entered. [Briones-Vasquez vs. CA (2005)] (6) Judgment sin perjuicio – refers to a judgment with a dispositive portion only. It is not allowed and cannot have any effect. (7) Conditional Judgm ent – one whose effectivity depends upon the occurrence or non-occurrence of an event; generally void because of the absence of a disposition [Cu-Unjieng v. Mabalacat Sugar Co. (1940)] (8) Several Judgm ent – one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. [Sec. 4, Rule 36] Proper when the liability of each party is clearly separate and distinct from his coparties such that:

A. JUDGMENTS IN GENERAL The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties, or other matters submitted to it in an action or proceeding [Macahilig v. Heirs of Magalit (2000)] A.1. REQUISITES OF A VALID JUDGMENT [Riano] (1) Court or tribunal must be clothed with authority to hear and determine the matter before it. [Acosta v. COMELEC (1998)] (2) Court must have jurisdiction over the parties and the subject matter. (3) Parties must have been given an opportunity to adduce evidence in their behalf. [Acosta v. COMELEC (1998)] (4) Evidence must have been considered by the tribunal in deciding the case. [Acosta v. COMELEC (1998)] (5) Judgment must be in writing, personally and directly prepared by the judge. [Corpus v. Sandiganbayan (2004)] (6) Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. [Sec. 1, Rule 36; Sec. 14, Art. VIII, 1987 Constitution] A.2. KINDS OF JUDGMENT (1) Judgment by Com prom ise – one conferred on the basis of a compromise agreement entered into between the parties. It is immediately executory in the absence of a motion to set aside on the ground of fraud, accident, mistake, or excusable negligence, as it constitutes a waiver of the right to appeal. (2) Judgment by Confession – one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. (a) Judgm ent by cognovit actionem – one rendered upon confession made pursuant to a clause in a promissory note or contract that upon default, the 92 OF 425

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(a) the claims against each of them could

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(4) Signed by the judge (5) Filed with the clerk of court.

have been the subject of separate suits, and (b) the judgment for or against one of them will not necessarily affect the other. Where a common cause of action exists, a several judgment is not proper. (9) Separate Judgm ent – one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. [Sec. 5, Rule 36] Proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made. (10) Memorandum Decision – a decision of the appellate court which adopts the findings and conclusions of the trial court. (11) Declaratory Judgm ent – one rendered in a special civil action for declaratory relief. (12) Foreign Judgment.

B.2. PARTS OF A JUDGMENT [Riano, Herrera] (1) Opinion of the Court • Also called the body, or the ratio decidendi • Contains the findings of facts and conclusions of law (2) Disposition of the case • Also called the dispositive portion, or the fallo • Part of the judgment that is subject to execution, as constituting the judgment of the court It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively [Light Rail Transit Authority v. CA (2004)] (3) Signature of the judge B.3. DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE COURT The judgment or fallo must be distinguished from the Opinion. The Opinion is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So there is a distinction between the findings and conclusions of a court and its judgment.

A.3. JUDGMENT WITHOUT TRIAL Trial is not necessary in the following instances: (1) Judgment on the Pleadings [Rule 34] (2) Summary Judgment [Rule 35] (3) Upon compromise or amicable settlement, either during pre-trial or during trial [Rule 18; Art. 2028, Civil Code] (4) Dismissal with prejudice [Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, last par., Rule 7] (5) Under the Rules on Summary Procedure (6) Agreed statement of facts [Sec. 6, Rule 30]

While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself. They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan v. Salcedo (1969)]

Note: Also enumerated in Part III.P. (Trial)

B.4. CONFLICT BETWEEN DISPOSITION AND OPINION OF THE COURT

B. CONTENTS OF A JUDGMENT

GENERAL RULE: Where there is a conflict between the fallo and the body of the decision, the fallo controls.

B.1. FORM OF JUDGMENT [Sec. 1, Rule 36] (1) In writing (2) Personally and directly prepared by the judge (3) Stating clearly & distinctly the facts and the law on which it is based

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ordering nothing [Poland Industrial Limited v. National Development Company (2005)]

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(2) Annulment of marriage; and (3) Legal Separation (4) Unliquidated damages; claims for such

EXCEPTION: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v. Pacific Equipment Corporation (2008)]

damages must be alleged and proved (5) Admission refers only to allegations of fact

and not conclusions of law (6) Insufficiency of facts; proper remedy is

amendment Where the inevitable conclusion from the body of the decision is that there was a mistake in the dispositive portion, the body of the decision will prevail. [Rosales v. CA, G.R. No. 137566 (2001)]

NOTE: The concept will not apply when no answer is filed. It will come into operation when an answer is served and filed but the same fails to tender an issue, or admits the material allegations of the adverse party’s pleading. [Riano]

NOTE: see again “sin perjuicio” judgments

C. JUDGMENT ON THE PLEADINGS

When no answer is filed, the remedy is to move that the defendant be declared in default. [Sec. 3, Rule 9]

Judgment on the Pleadings is a judgment rendered by the court if the answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading. It is rendered without a trial, or even without a pre-trial

D. SUMMARY JUDGMENTS A judgment which the court may render before trial, but after both parties have pleaded, upon application by one party supported by affidavits, depositions, or other documents, with notice upon the adverse party who may file an opposition supported also by such documents, should the court find, after summarily hearing both parties with their respective proofs, that there exists no genuine issue between them. [Herrera]

A motion for a Judgment on the Pleadings, where the answer admits the material averments of the complaint, is one that may be considered ex parte because upon the particular facts thus presented and laid down before the court, the plaintiff is entitled to a judgment [Dino v. Valencia, G.R. No. L-43886 (1989)] A Judgment on the Pleadings cannot be rendered by the court motu propio. It can only be done where there is a prior motion to that effect by the appropriate party. [Sec. 1, Rule 34; Riano; but see Luzon Development Bank v. Conquilla, G.R. No. 163338 (2005)]

The trial court cannot motu propio decide that summary judgment on an action is in order. The defending party or claimant, as the case may be, must invoke the rule by filing a motion. The adverse party must then be notified of the motion and furnished with supporting documents before hearing is conducted. [Pineda v. Heirs of Eliseo Guevara, G.R. No. 143188 (2007)]

GROUNDS FOR JUDGMENT ON THE PLEADINGS [Sec. 1, Rule 34] (1) The answer fails to tender an issue because of: (a) General denial of the material allegations of the complaint; (b) Insufficient denial of the material allegations of the complaint; or (2) The answer otherwise admits material allegations of the adverse party’s pleading

Proper when it appears to the court that: (1) There exists no genuine issue as to any material fact, except as to the amount of damages; and (2) The party presenting the motion must be entitled to judgment as a matter of law Genuine Issue - an issue of fact which calls for the presentation of evidence as distinguished from a sham, fictitious, contrived, or false claim. [Philippine Bank of

Judgment on the Pleadings is not proper in the ff. cases: (1) Declaration of Nullity of Marriage 94 OF 425

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Communications v. Go, G.R. No. 175514 (2011)]

summary judgment. Trial should deal only with the facts not yet specified or established.

Test: Whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, that there is no defense to the action, or the claim is clearly meritorious. [Estrada v. Consolacion, G.R. No. L-40948 (1976)]

Duty of the Court [Sec. 4, Rule 35] (1) Ascertain which material facts exist without substantial controversy, and which are actually and in good faith controverted, by: (a) Examining the pleadings and evidence before it; and (b) Interrogating counsel (2) Make an order, which: (a) Specifies the facts without substantial controversy and deemed established, including extent of damages (b) Directs further proceedings as are just (3) Conduct trial on the controverted facts

W hen Filed (1) If sought by the claimant – only after the answer is served; [Sec. 1, Rule 35] (2) If sought by the defendant – at any time [Sec. 2, Rule 35] NOTE: Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer.

Effect: A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA, G.R. No. L-49017 (1983)]

Procedure [Sec. 3, Rule 35] (1) Movant files a motion for summary judgment with supporting affidavits, depositions or admission (2) Service to the adverse party at least 10 days the hearing (3) Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing (4) Hearing – Court shall determine if a genuine issue as to any material fact exists, and if the movant is entitled to a summary judgment as a matter of law (5) Court renders summary judgment

D.2 AFFIDAVITS AND ATTACHMENTS Form [Sec. 5, Rule 35] (1) Made on personal knowledge (2) Setting forth such facts as would be admissible in evidence (3) Showing affirmatively that the affiant is competent to testify to the matters stated therein. (4) Certified true copies of all papers or parts thereof referenced in the affidavit shall be attached or served with the affidavit. Affidavits in bad faith – those presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay

NOTE: Damages must still be proven even if not denied. Bases for Sum m ary Judgm ent (1) Affidavits made on personal knowledge; (2) Depositions of the adverse or a 3rd party [Rule 23] (3) Answers to interrogatories [Rule 25] (4) Admissions of the adverse party [Rule 26]

Effect: The court: (1) shall order the offending party or counsel to pay the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur; and (2) may, after hearing, adjudge the offending party or counsel guilty of contempt [Sec. 6, Rule 35]

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E. SUMMARY JUDGMENT V. JUDGMENT ON THE PLEADINGS V. JUDGMENT BY DEFAULT

F. RENDITION OF JUDGMENTS AND FINAL ORDERS

Summary Judgment Based on the pleadings, depositions, admissions, and affidavits

Rendition of Judgm ent Pronouncement of the judgment in open court does not constitute rendition of judgment. It is the filing of the signed decision with the clerk of court that constitutes rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court. [Ago v. CA, G.R. No. L-17898 (1962)]

Available to both plaintiff and defendant There is no genuine issue between the parties i.e. There may be issues but these are irrelevant 10-day notice required May be interlocutory or on the merits Available only in actions to recover a debt, or for a liquidated sum of money or for declaratory relief If sought by plaintiff, it must be filed at any time after an answer is served. If sought by defendant, may be filed at any time even before there is answer

Judgment On The Pleadings Based solely on the pleadings (complaint and answer)

Judgment By Default Based on the complaint and evidence, if presentation is required

Generally available only to the plaintiff, unless the defendant presents a counterclaim

Available to plaintiff

The answer fails to tender an issue or there is an admission of material allegations

No issue as no answer is filed by the defending party

3-day notice required

3-day notice rule applies

On the merits

On the merits

Available in any action except annulment of marriage, legal separation, or declaration of nullity cases

Available in any action except annulment of marriage, legal separation, or declaration of nullity cases

There is already an answer filed

This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. [Herrera] Promulgation refers to the process by which a decision is published, officially announced, made known to the public, or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel Period for Rendition [Sec. 15, Art. VIII, 1987 Constitution] (1) All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision. (2) Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts. A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court. An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse. Without an extension, a delay in the disposition of cases is tantamount to gross inefficiency on the part of the judge. [Arap v Mustafa, SCC-01-7 (2002)]

There is no answer filed

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G. ENTRY OF JUDGMENT AND FINAL ORDER

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Exceptions: (1) Correction of clerical errors [Filipinas Palmoil Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)] (2) Nunc Pro Tunc entries [Filipinas Palmoil Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)] (3) Whenever circumstances transpire after finality of the decision, rendering its execution unjust and inequitable. [Apo Fruits Corp. v. Land Bank of the Phils., G.R. No. 164195 (2010)] (4) In cases of special and exceptional nature, when it is necessary in the interest of justice to direct modification in order to harmonize the disposition with the prevailing circumstances [Industrial Timber Corp. v. Ababon, G.R. No.164518 (2006)] (5) In case of void judgments [FGU Insurance v. RTC Makati, G.R. No. 161282 (2011)] (6) Where there is a strong showing that a grave injustice would result from an application of the Rules [Almuete v. People, G.R. No. 179611 (2013)] (7) When there are grounds for annulment of judgment or petition for relief [Gochan v. Mancao, G.R. No. 182314 (2013)]

The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. [Riano] W hen entered: If no appeal, or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments [Sec. 2, Rule 36] Contents of Record in the Book of Entries: (1) Dispositive part of the judgment or final order (2) Signature of the clerk; and (3) Certification that such judgment or final order has become final and executory. NOTE: The date of finality is deem ed the date of entry. A judgment becomes final and executory when the period for appeal has elapsed without a party having perfected an appeal, or if there has been an appeal, it has been resolved by the highest tribunal.

Amended/clarified judgment An entirely new decision and supersedes the original judgment Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues

This is the date of entry of judgment even if the physical act of entering the judgment in the book of entries is done later. [Riano]

H. AMENDMENTS TO JUDGMENT GENERAL RULE: Once a judgment becomes final and executory, such judgment can no longer be disturbed, altered, or modified Under the Doctrine of Im m utability of Judgments, a judgment that has attained finality can no longer be disturbed. The reason of two-fold: (1) To avoid delay in the administration of justice, and to make orderly the discharge of judicial business; and (2) To put an end to judicial controversies at the expense of occasional errors. [Riano] 97 OF 425

Supplemental decision Does not take the place of or extinguish the original judgment

Serves to add to the original judgment

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V. Post-Judgment Remedies

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admitted, would probably alter the result of the action GROUNDS FOR MOTION FOR RECONSIDERATION [Sec. 1, Rule 37] (1) Damages awarded are excessive (2) Evidence is insufficient to justify the decision or final order (3) The decision or final order is contrary to law

Rem edies before Finality of Judgm ent (1) Motion for reconsideration [Rule 37] (2) Motion for new trial [Rule 37] (3) Appeal [Rules 40-45]

A. MOTION FOR NEW TRIAL OR RECONSIDERATION

A.2. WHEN TO FILE [Riano] An aggrieved party may file a motion for new trial or reconsideration within the period for taking an appeal.

NOTE: The motion for reconsideration under Rule 37 is directed against a judgment or final order. It does not refer to one for interlocutory orders, which often precedes a petition for certiorari under Rule 65.

The period depends on whether the appeal is by mere notice of appeal or by record on appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals.

These motions are prohibited in cases that fall under the Rule on Summary Procedure and those falling under the Rule of Procedure for Small Claims.

Where an appeal is one by notice of appeal, the period for appeal is 15 days. Where a record on appeal is required, the period is 30 days.

A.1. GROUNDS GROUNDS FOR MOTION FOR NEW TRIAL [Sec. 1, Rule 37] (1) Fraud, accident, mistake, excusable negligence (FAME) – subject to the following conditions: (a) Which ordinary prudence could not have guarded against; and (b) By reason of which such aggrieved party has probably been impaired in his rights. There must be a valid cause of action or defense. NOTE: Fraud must be extrinsic fraud which is any fraudulent scheme executed outside of the trial by the prevailing party against the losing party, who because of such fraud is prevented from presenting his side of the case. (2) Newly discovered evidence – subject to the following requisites: (a) It must have been discovered after the trial (b) It could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) It must be material and not merely collateral, cumulative, or corroborative; and

The periods commence upon receipt of notice of the decision or final order appealed from by the counsel of record, which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment. A.3. FORM AND CONTENTS FORM [Sec. 2, Rule 37] (1) The motion must comply with the provisions of Rule 15 otherwise it will not be accepted for filing and/or will not suspend the running of the reglementary period. (2) It shall be made in writing, stating the ground or grounds therefor (3) Written notice shall be served by movant on the adverse party Non-compliance with the formal requirements would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal.

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CONTENTS OF A MOTION FOR NEW TRIAL [Sec. 2, Rule 37] (1) If based on FAME, it shall be supported by an affidavit of merits, which: (a) recites the nature and character of FAME on which the motion is based (b) states the movant’s good and substantial cause of action or defense; and (c) states the evidence he intends to present if granted. (2) If based on newly found evidence, it shall be supported by: (a) Affidavits of witnesses by whom such evidence is expected or given; or (b) Duly authenticated documents which are proposed to be introduced in evidence

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(3) Amend such judgment or final order

accordingly if: (a) The court finds that excessive damages have been awarded or that; or (b) That the judgment or final order is contrary to the evidence or law Resolution: The motion shall be resolved within 30 days from submission. [Sec. 4, Rule 37] The 30-day period to resolve the motion is held to be mandatory. [Gonzales v. Bantolo (2006)] GRANT OF MOTION; EFFECT Grant of m otion for reconsideration The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment.

CONTENTS OF A MOTION FOR RECONSIDERATION [Sec. 2, Rule 37] (1) Shall point out specifically the findings or conclusions of the judgment or final order which are not supported by evidence or which are contrary to law; and (2) Make express reference to testimonial or documentary evidence or provisions of law alleged to be contrary to such findings or conclusions

Grant of m otion for new trial The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them, if they are material and competent.

Single-Motion Rule [Sec. 5, Rule 37] A party shall not be allowed to file a 2nd motion for reconsideration.

Partial grant The court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. [Sec. 7, Rule 37]

While a 2nd motion for reconsideration is not allowed, a second motion for new trial is authorized, subject to the following conditions: (1) it must be based on a ground not existing or available when the 1st motion was made; and (2) it must be made within the period allowed but excluding the time during which the first motion had been pending.

DENIAL OF MOTION Effect: The judgment or final order stands as is. Fresh 15-Day Rule: The aggrieved party has a “fresh period” of 15 days within which to file his appeal. If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal. [Neypes v. CA, G.R. No. 141524 (2005)]

A.4 RESOLUTION AND COURT ACTION Court action [Sec. 3, Rule 37] The court may: (1) Set aside the judgment or final order and grant a new trial; or upon such terms as may be just (2) Deny the motion

NOTE:

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(1) This fresh period becomes significant only

Motion for Reconsideration been awarded; or (2) that the judgment or final order is contrary to the evidence or law Available against the Available even on judgments or final appeal but only on orders or both the the ground of newly trial and appellate discovered evidence courts Both are prohibited motions under Summary Procedure Motion for New Trial

when a party opts to file a motion for new trial or reconsideration (2) This rule does not refer to the period within which to appeal from the order denying the motion for reconsideration but to the period within which to appeal from the judgment itself. Rem edies if Motion is Denied (1) To appeal from the judgment or final order itself (2) The order denying the motion may itself be assailed by a petition for certiorari under Rule 65 Note: AM No. 07-7-12, effective December 27, 2007, amended Sec. 1, Rule 41 by deleting “An order denying a motion for new trial or reconsideration” from the non-appealable orders. Nevertheless, Sec. 9, Rule 37 says that an order denying a motion for new trial or reconsideration is not appealable. However, Motion for New Trial

Grounds: (1) Fraud, accident, mistake, or excusable negligence (2) Newly discovered evidence

May be allowed so long as based on grounds not existing or available at the time the first motion was made

If granted, original judgment or final order is vacated, and the case stands for trial de novo.

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B. APPEALS Nature (1) Not a natural right nor a part of due

process (2) It is merely a statutory right, and may be

exercised only in the manner and in accordance with provisions of the law. It must comply with the requirements; failing to do so, the right to appeal is lost (3) Once granted, appeals become part of due process and should be liberally applied in favor of the right to appeal

Motion for Reconsideration Grounds: (1) Damages awarded are excessive (2) That evidence is insufficient to justify the decision or final order (3) That decision or final order is contrary to law Second motion from the same party is prohibited.

B.1. JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL; MATTERS NOT APPEALABLE [SEC. 1, RULE 41, AS AMENDED BY AM NO. 07-7-12-SC] (1) Appeal may be taken from a judgment or

final order that completely disposes of the case, or of a particular matter therein when declared by the Rules to be appealable (2) No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (e) An order of execution;

Prohibition applies only to motions for reconsideration of final orders or judgments; allowed for interlocutory orders The court may amend the judgment or final order, it finds: (1) that excessive damages have 100 OF 425

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B.2. MODES OF APPEAL

(f) A judgment or final order for or against

one or more of several parties or in separate claims, counterclaims, crossclaims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (g) An order dismissing an action without prejudice (not a judgment on the merits).

(1) Ordinary appeal – Rule 40 and 41 (a) Notice of appeal (b) Record on appeal (2) Petition for review – Rule 42 (3) Appeal from the CTA and other QJAs to

the CA – Rule 43 (4) Petition for review on certiorari – Rule 45

B.3. ISSUES TO BE RAISED ON APPEAL

Note: A.M. No. 07-7-12-SC removed from the original list “an order denying a motion for new trial or reconsideration.” Nevertheless, Rule 37, Sec. 9 still states that no appeal can be made from an order denying MR or MNT.

Limited to cognizable judgments/issues (errors stated in the assignment of errors). The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. Bermudez-Lorino, G.R. No. 160258 (2005)]

Only final judgments or orders can be appealed as distinguished from interlocutory judgments or orders which are not appealable. Final Order Disposes of the matter in its entirety, leaving nothing more to be done but to enforce execution Appealable Must clearly and distinctly state the law and the facts on which it is based

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Rationale: Appeal is merely a privilege conferred by law upon the litigants.

Interlocutory Order Does not dispose of a case completely but leaves something more to be decided upon. Not appealable except through a petition for certiorari under Rule 65

A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)] However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA, G.R. No. 102128 (1992)]

No need to comply with such a requirement

An interlocutory order is one that does not finally dispose of the case, and does not end the court's task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done. [BPI v. Lee, G.R. No. 190144 (2012)] Rem edy against M atters not Appealable In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65. [Sec. 1, Rule 41]

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B.4. COMPARISONS MODES OF APPEAL Ordinary Appeal

Petition for Review

Appeals from QJAs to the CA Rule 43 Awards, judgments, final orders or resolutions of any QJA in the exercise of its quasi-judicial function

Petition for Review by Certiorari Rule 45

Rule 41

Rule 42

Case decided by RTC in exercise of original jurisdiction

Case decided by RTC in exercise of appellate jurisdiction

Notice of appeal/Record on appeal with the CA

Petition for review with the CA

Petition for review with the CA

Petition for review on certiorari with the SC

File notice of appeal or record of appeal with court of origin and give a copy to adverse party

File a verified petition for review with CA. Pay docket and lawful fees and P500 as deposit for costs with the CA. Furnish RTC and adverse party a copy of such

File a verified petition for review with CA. Pay docket and lawful fees and PHP 500 for costs. Furnish copy to adverse party and on the court/agency below

File verified petition for review on certiorari with the SC. Pay docket and lawful fees and P500 for costs. Submit proof of service of a copy to the lower court and adverse party

Within 15 days from notice of judgment or final order for notice of appeal; 30 days from notice of judgment or final order for records on appeal

Within 15 days from notice of judgment or final order, or from denial of a MFR or MFNT

EXCEPT: Judgments or final orders issued under the Labor Code

Within 15 days from notice of judgment, award, final order or resolution, or from the date of last publication (if publication necessary to make it effective), or from denial of a MFR or MFNT

Case decided by the RTC in exercise of original jurisdiction, CA, CTA, and Sandiganbayan

Within 15 days from notice of judgment or final order, or of denial of MFR or MFNT

15 day extension allowed

PERIOD OF APPEAL Period to Appeal

Extensions MTC to RTC

By notice of appeal; within 15 days from notice of judgment or final order

No provision on extension under the Rules (not allowed)

Effect of MR or MNT Fresh period to appeal from denial MR or MNT

By record of appeal; within 30 days from notice of judgment or final order RTC to CA By notice of appeal; Within 15 days from notice of judgment or final order By record of appeal; within 30 days from notice of judgment or final order

No provision on extension under the Rules (not allowed)

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Period to Appeal

Extensions MTC to RTC to CA The CA may grant a 15 day extension. No further extension shall be granted 15 days from notice of judgment or final except for the most compelling order OR from denial of MR or MNT reasons and in no case longer than 15 days. QJA to CA The CA may grant a 15 day extension. 15 days from notice of award, judgment, No further extension shall be granted final order or resolution OR from date of except for the most compelling last publication if required by law OR from reasons and in no case longer than 15 denial of MR or MNT days. RTC to SC; RTC to CA to SC; CA to SC 15 days from notice of judgment or final The SC may grant a 30 day extension order OR from denial of petitioner’s MR or but only for justifiable reasons. MNT.

The fresh period rule shall apply to: (1) Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; (2) Rule 41 governing appeals from the Regional Trial Courts to the Court of Appeals (3) Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; (4) Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and (5) Rule 45 governing appeals by certiorari to the Supreme Court.

REMEDIAL LAW Effect of MR or MNT Fresh period to appeal from denial MR or MNT

Fresh period to appeal from denial MR or MNT Fresh period to appeal from denial MR or MNT

mandatory and jurisdictional. [Balgami v. CA, G.R. No. 131287 (2004)] Effect of Failure to Perfect Appeal (1) Defeats a party’s right to appeal. (2) Precludes appellate court from acquiring jurisdiction.

The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes v. CA, G.R. No. 141524 (2005)] Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI, G.R. No. 154034 (2007)]

B.5 PERFECTION OF APPEAL Perfection of an appeal in the manner and within the period laid down by law is

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B.6. APPEAL FROM MUNICIPAL TRIAL COURTS [RULE 40]

HOW TAKEN [Sec. 3, Rule 40]

OUTLINE OF PROCEDURE [Sec. 7, Rule 40] Appeal decision of MTC by filing notice of appeal and pay within 15 days from receipt of judgment 15 days from perfection of appeal, MTC clerk transmits record to RTC Notice to parties that an appeal is being taken from the decision of the MTC Within 15 days from notice of appeal: (1) Appellant submits memorandum to the RTC (2) Appellee files his own memorandum 15 days from receipt of appellant’s memorandum Court acts on the appeal

If uncontested, judgment is entered in the book of entries

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Any party may appeal by filing a petition for review with the CA

WHERE TAKEN It is taken to the RTC exercising jurisdiction over the area to which the MTC pertains. [Sec. 1, Rule 40]

WHEN TAKEN [Sec. 2, Rule 40] (1) If by notice of appeal, within 15 days

after notice to appellant of judgment or final order appealed from (2) If record of appeal is required, within 30 days from notice of judgment or final order (3) Period of appeal shall be interrupted by a timely motion for new trial or reconsideration

By Notice of Appeal (1) File a notice of appeal with the trial court that rendered the judgment or final order appealed from (2) The notice of appeal must indicate the parties, the judgment or final order or part thereof appealed from; the material date showing timeliness of appeal (3) A copy served on the adverse party; and (4) Payment in full of docket fees and other lawful fees By Record on Appeal (1) Record on appeal is required for the following cases: (a) Special proceedings (b) In such other cases where multiple appeals are allowed (2) Form and contents of the record on appeal: [Sec. 6, Rule 41] (a) Within 15 days from perfection of appeal, clerk of court or the branch clerk of the lower court shall transmit to the RTC: (i) Original record or record on appeal (ii) Together with transcripts and exhibits (b) Clerk shall make a certification that the documents are complete (c) Clerk shall also furnish the parties a copy of his letter of transmittal of the records to the appellate court (3) Copy is served on the adverse party (4) Payment in full of docket fees and other lawful fees

PERFECTION OF APPEAL Since appeals from inferior courts may now be either by notice of appeal or record on appeal, the rules on the perfection and the effect thereof are the same. [See Sec. 9, Rule 41]

Extension of Period to Appeal Period to appeal may be extended but such extension is addressed to the sound discretion of the court [Socco v. Garcia, G.R. No. L-18231 (1962)]

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APPEAL FROM ORDER DISMISSING A CASE WITHOUT TRIAL; LACK OF JURISDICTION

of fact, of law, or mixed questions of fact and law (3) Petition for Review on Certiorari, or appeal by certiorari to the SC • This mode of appeal, provided for by Rule 45, is brought to the SC from the decision of the RTC in the exercise of its original jurisdiction and only on questions of law

Two Scenarios: (1) If the MTC dismissed the case without trial on the merits, the RTC may: (a) Affirm, if the ground of dismissal is lack of jurisdiction over the subject matter; If the RTC has jurisdiction, it shall try the case on the merits as if the case was originally filed therein; or (b) Reverse, in which case, it shall remand the case for further proceedings (2) If the case was tried on the merits by the MTC without jurisdiction over the subject matter: (a) The RTC shall not dismiss the case if it has original jurisdiction but shall decide the case and admit amended pleadings or additional evidence in the interest of justice

B.8. APPEAL FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS [RULE 41] Appeal via Rule 41 presupposes that: (1) The RTC rendered the judgment or final order in the civil action or special proceeding in the exercise of its original jurisdiction; and (2) That the appeal is taken to the CA on: (a) Questions of fact or (b) Mixed questions of fact and law Notice of Appeal – Filed with the court which rendered the judgment or final order appealed from. A copy is served on the adverse party. [Sec. 5, Rule 41]

APPLICABILITY OF RULE 41 The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule.

B. 7. APPEAL FROM REGIONAL TRIAL COURTS

REMEDIAL LAW

Contents of the Notice of Appeal: (1) Parties to the appeal (2) Judgment or final order or part thereof appealed from (3) The court to which the appeal is being taken; and (4) The material dates showing the timeliness of the appeal

THE

Modes of Appeal – There are three modes of appeal from judgments or final orders of the RTC: (1) Ordinary Appeal or appeal by writ of error, where judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction • This mode of appeal, governed by Rule 41, is taken to the CA on questions of fact or mixed questions of fact and law (2) Petition for Review , where judgment was rendered by the RTC in the exercise of its appellate jurisdiction • This mode of appeal, covered by Rule 42, is brought to the CA on question

Record on Appeal – Done in special proceedings and other cases where multiple or separate appeals are allowed. This is filed and served in the same manner as notice of appeal. Contents of the Record [Sec. 6, Rule 41] (1) Full names of all the parties to the proceedings shall be stated in the caption of the record on appeal (2) It shall include the judgment or final order from which the appeal is taken, (3) In chronological order, copies of only such pleadings, petitions, motions, and

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all interlocutory orders as are related to the appealed judgment or final order (4) For the proper understanding of the issue involved (5) Together with such data as will show that the appeal was perfected on time

REMEDIAL LAW

Extension of Period to Appeal Period to appeal may be extended but such extension is addressed to the sound discretion of the court [Gregorio v. CA, G.R. No. L-43511 (1976)]

Approval of the Record on Appeal [Sec. 7, Rule 41] Upon filing of the record for approval and if no objection is filed by the appellee within 5 days from receipt of a copy thereof, the trial court may: (1) Approve it as presented; or (2) Direct its amendment by the inclusion of any omitted matters which are deemed essential.

The mere filing and pendency of motion for extension to perfect appeal does not suspend the running of the reglementary period [King v. Corro, G.R. No. L-23617 (1967)]

PLEADINGS FILED Procedure in the CA]

[See

Rule

44,

Appellant’s Brief • Filed within 45 days from receipt of notice of clerk that all evidence is attached to record • Follow the Efficient Use of Paper Rule, one original properly marked and 2 copies with annexes • Attach proof of service to adverse party

Joint Record on Appeal [Sec. 8, Rule 41] Where both parties are appellants, they may file a joint record on appeal.

PERIOD TO APPEAL [Sec. 2, Rule 41] (1) 15 days from notice of judgment or final

order appealed from (2) 30 days from notice of judgment or final order where a record on appeal is required (3) 48 hours from notice of judgment or final order appealed from in habeas corpus cases

Grounds for dismissal with respect to appellant’s brief: (1) Failure to file brief on time (2) Failure to make specific assignment of errors in his brief Contents: (1) Subject index (2) Assignment of Errors (3) Statement of the Case (4) Statement of Facts (5) Statement of Issues (6) Arguments (7) Relief (8) Copy of judgment or final order appealed from

Reckoning point of reglem entary period Period for filing the appeal should be counted from the date when the party’s counsel received a copy of the judgment or final order When a party is represented by a counsel, service of process must be made on counsel, not on party [Fajardo v. CA, G.R. No. 140356 (2001)]

Appellee’s Brief • Filed within 45 days from receipt of appellant’s brief • Manner of filing is similar to that in appellant’s brief

Effect of Motions for New Trial and Reconsideration Originally, the period to appeal is interrupted by a timely motion for new trial and reconsideration. However, with the Neypes doctrine, a party has a fresh 15-day period from a denial of the motion to perfect an appeal.

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and

REMEDIAL LAW

time and expiration of the time to appeal of the other parties • This rule applies individually and to each of the parties since the timeliness of their recourse for appellate remedy depends on when they respectively received a copy of the judgment or final order (2) In appeals by record on appeal: • Court loses jurisdiction only over the subject matter thereof upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties • The effect is limited to the subject matter only. Jurisdiction over the case is still with the trial court.

Counter-

Appellant’s Reply Brief (1) Filed within 20 days from receipt of Appellee’s Brief (2) This is not mandatory as it is optional on the part of the appellant Extension of Tim e for Filing Briefs: GENERAL RULE: Not allowed EXCEPTION: For good reasons and only if motion for extension is filed before expiration of time sought to be extended

Residual Powers/Jurisdiction of the RTC After losing jurisdiction but prior to the transmittal of the original record on appeal, the RTC may: (1) Issue orders for protection and preservation of the rights of the parties which do not involve matters litigated by the appeal (2) Approve compromises (3) Permit appeals by indigent litigants (4) Order execution pending appeal under Sec. 2, Rule 39 (motion for execution was filed before expiration of the period to appeal) (5) Allow withdrawal of the appeal

PERFECTION OF APPEAL Payment of Docket Fees [Sec. 4, Rule 41] Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. Payment of docket fees in full is mandatory and is a condition sine qua non for the perfection of an appeal.

The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed [Fernandez v. CA, G.R. No. 131094 (2005)].

Perfection of Appeal [Sec. 9, Rule 41] • If appeal is by notice of appeal – it is deemed perfected as to him upon the filing of the notice of appeal in due time • If appeal is by record on appeal – it is perfected as to him with respect to the subject matter thereof, upon approval of the record on appeal filed in due time

Duty of Clerk Upon Perfection of Appeal [Sec. 10, Rule 41] Within 30 days after perfection of all appeals, the RTC clerk shall: (1) Verify completeness of original record or record on appeal and make certification as to its correctness

Effect of Perfected Appeal (1) In appeals by notice of appeal: • Court loses jurisdiction over the case upon perfection of appeal filed in due

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(2) Verify completeness of records that will

HOW TAKEN; PERIOD TO APPEAL

be transmitted to appellate court (3) If found to be incomplete: (a) Take such measures as may be

If a party desires to appeal from a decision of the RTC in its appellate jurisdiction: (1) File a verified petition for review with the CA (a) Within 15 days from notice of judgment or final order, or (b) Within 15 days from notice of denial of petitioner’s motion for new trial or reconsideration (2) Pay the corresponding docket fee and other lawful fees and depositing P500 for costs (3) Furnish the RTC and adverse party a copy of the petition

required to complete records (b) If efforts to complete records fail:

(i)

Indicate in his letter of transmittal the exhibits or transcripts not included (ii) Reasons for their transmittal (iii) Steps taken or that could be taken to have them available (4) Transmit the records to the appellate court and furnish the parties with copies of his letter of transmittal

DISMISSAL OF APPEAL [Sec. 13, Rule 41]

Extension of period The CA may grant an additional 15 days within which to file the petition for review, but only for most compelling reasons.

When can the RTC dismiss the appeal? • Prior to transmittal of original record to appellate court; or • Prior to transmittal of record on appeal to the appellate court

Conditions (1) There was a motion filed to this effect (2) There was payment in full of docket fees and other lawful fees as well as deposit for costs (3) These two were done within the reglementary period

How done: By the court, motu proprio, or on motion to dismiss appeal by a party Grounds (1) Appeal was taken out of time (2) Non-payment of docket and other lawful fees within the reglementary period

FORM AND CONTENTS [Sec. 5, Rule 42] Form of the petition: (1) Original copy is filed intended for the court, properly marked and 2 copies with their annexes (Efficient Use of Paper Rule) (2) Accompanied by clearly legible duplicate originals or true copies of judgments or final orders of both lower courts certified correct by the RTC clerk (3) Also with pleadings and other material portions of record as would support the allegations of the petition

NOTE: The dismissal of the appeal in the RTC is limited only to these two grounds

B.9. PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS [RULE 42] Appeal via Rule 42 is proper when one appeals from a decision of the RTC in the exercise of its appellate jurisdiction. It may be taken on either questions of fact, questions of law, or on mixed questions of fact and law.

Contents: (1) Full names of the parties without impleading the lower courts or judges thereof (2) Specific material dates showing timeliness of appeal

This mode of appeal is not a m atter of right but is a matter of discretion on the part of the CA, on whether or not to entertain the appeal.

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(3) Concise statement of: (a) Matters involved (b) Issues raised (c) Specification of errors of fact or law,

REMEDIAL LAW

(1) Require respondent to file a comment on

the petition not a motion to dismiss within 10 days from notice; or (2) Dismiss the petition if it finds the same to be: (a) Patently without merit (b) Prosecuted manifestly for delay; or (c) The questions raised therein are too unsubstantial to require consideration

or both (d) Reasons or arguments relied upon (4) A certificate of non-forum shopping

must also be attached Effect of failure to comply [Sec. 3, Rule 42] Failure to comply with any of the following requirements shall be sufficient ground for dismissal: (1) Payment of docket and other lawful fees NOTE: In petitions for review under Rules 42, 43, and 45, the docket fee is paid in the appellate courts (2) Deposit for costs (3) Proof of service of petition (4) Contents of the documents, which should accompany the petition

Under this Rule, appeal is discretionary on the CA which may give its due course only when the petition shows prima facie that the lower court has committed error. Comment by Respondent [Sec. 5, Rule 42] Form (1) An original is filed, properly marked, together with 2 copies with their annexes (Efficient Use of Paper Rule) (2) Accompanied by certified true copies of such material portions of the record referred to therein (3) Together with other supporting papers (4) Copy of the comment served on petitioner

PERFECTION OF APPEAL [Sec. 8, Rule 42] Appeal is deemed perfected as to petitioner upon: (1) Timely filing of the petition (2) Payment of docket and lawful fees

Contents – The comment shall: (1) State whether or not he accepts the statement of matters involved in the petition (2) Point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters but without repetition (3) Reasons why the petition should not be given due course

Jurisdiction of the RTC (1) RTC loses jurisdiction upon: (a) Perfection of appeals filed in due time; and (b) Expiration of the time to appeal of other parties (2) RTC may exercise residual jurisdiction before the CA gives due course to the petition

Due Course [Sec. 6, Rule 42] If the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition.

GENERAL RULE: Perfected appeal stays the challenged judgment or final order EXCEPTIONS: (1) Civil cases decided under the Rule on Summary Procedure; or (2) Unless the CA, law, or Rules provide otherwise [Sec. 8, Rule 42]

As stated earlier, the Doctrine of Residual Jurisdiction of the RTC applies as in cases under Rule 41, except that the RTC must exercise this jurisdiction before the CA gives

ACTION ON PETITION [Sec. 4, Rule 42] The CA may:

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due course to the petition. In contrast, the RTC must exercise residual jurisdiction in Rule 41 prior to transmittal of the original record or the record on appeal.

Department of Agrarian Reform under RA 6657 (12) GSIS (13) Employees Compensation Commission (14) Agricultural Inventions Board (15) Insurance Commission (16) Philippine Atomic Energy Commission (17) Board of Investment (18) Construction Industry Arbitration Commission, and (19) Voluntary arbitrators authorized by law (11)

SUBMISSION FOR DECISION [Sec. 9, Rule 42] If the petition is given due course (1) Case may be set for oral argument, or (2) The parties may be required to submit memoranda within 15 days from notice Case shall be deemed submitted for decision upon filing of last pleading or memoranda

B.10. APPEALS JUDICIAL BODIES

FROM

REMEDIAL LAW

W here to Appeal [Sec. 3, Rule 43] Appeal is taken to the CA on questions of fact, of law, or mixed questions of fact and law.

QUSI-

Scope: Appeals from awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions

Period to Appeal [Sec. 4, Rule 43] Period to appeal is 15 days from: (1) Notice of award, judgment, final order, or resolution; (2) Date of publication, if publication is required by law for its effectivity; or (3) Denial of petitioner’s motion for new trial or reconsideration.

A quasi-judicial agency or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties though either adjudication or rule-making

Extension of Period The CA may grant an additional 15 days within which to file the petition for review

NOTE: The CTA is no longer a quasijudicial agency under RA 9282, as of April 7, 2004. A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari under Rule 45. [Sec. 11, RA 9282 and AM No. 07-7-12-SC]

Conditions: (1) There was a motion filed to this effect (2) There was payment in full of docket fees and other lawful fees as well as deposit for costs (3) These two were done within the reglementary period

QJAs covered by Rule 43: (1) Civil Service Commission (2) Securities and Exchange Commission (3) Office of the President (4) Land Registration Authority (5) Social Security Commission (6) Civil Aeronautics Board (7) Bureau of Patents, Trademarks and Technology Transfer (8) National Electrification Administration (9) Energy Regulatory Board (10) National Telecommunications Commission

No further extension may be granted except for the most compelling reason and in no case to exceed 15 days. NOTE: Similar to the rule in petition for review from the RTC to the CA [Rule 42]. How Taken [Sec. 5, Rule 43] (1) A verified petition for review is filed with the CA following the Efficient Use of Paper Rule

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(a) Attach proof of service of a copy to

REMEDIAL LAW (c) Questions

the adverse party and to the court or agency a quo (2) Upon filing, pay the docket and lawful fees as well as a P500 deposit for costs (a) Payment is made to the CA clerk (b) Exemption from payment may be granted by the CA by filing a verified motion for exemption; if denied, party must pay within 15 days from notice of denial

unsubstantial consideration

raised

are to

too require

Form of Comment [Sec. 9, Rule 43] (1) Filed within 10 days from notice following the Efficient Use of Paper Rule (2) Accompanied by the following: (a) Clearly legible certified true copies of such material portions of the record referred to therein (b) And such other supporting documents (3) Copy of Comment is served on petitioner with proof of such service filed with the CA

Contents of Petition [Sec. 6, Rule 43] (1) Statement of full names of parties to the case without impleading court or agencies (2) Concise statement of facts and issues involved and grounds relied upon for review (3) Accompanied by: (a) Clearly legible duplicate original or a certified true copy of award, judgment, final order, or resolution appealed from (b) Certified true copies of such material portions of record referred to in the petition and other supporting papers (4) Certificate of non-forum shopping (5) Statement of specific material dates showing timeliness of appeal

Contents of Comment [Sec. 9, Rule 43] The comment shall: (1) Point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues (2) State reasons why petition should be denied or dismissed Due Course [Sec. 10, Rule 43] CA may give due course if CA finds prima facie that court or agency has committed errors of fact or law that would warrant reversal or modification

Effect of Failure to Comply [Sec. 7, Rule 43] Failure to comply with the following is sufficient ground for the CA to dismiss the appeal: (1) Payment of docket and lawful fees (2) Deposit for costs (3) Proof of service of petition (4) Contents of petition (5) Documents which should accompany the petition

If not, then the CA may dismiss the same. Transmittal of Records [Sec. 11, Rule 43] Within 15 days from notice that petition has been given due course, the CA may: (1) Require court or agency concerned to transmit original or legible certified true copy of entire record of proceeding under review (2) Require or permit subsequent correction or addition to record

Action on the Petition [Sec. 8, Rule 43] The CA may: (1) Require respondent to file Comment within 10 days from notice (2) Dismiss the petition if CA finds the same to be: (a) Patently without merit (b) Prosecuted manifestly for delay, or

Effect of Appeal [Sec. 12, Rule 43] GENERAL RULE: Appeal shall not stay the award, judgment, final order or resolution sought to be reviewed

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B.13. APPEAL OMBUDSMAN

EXCEPTION: When the CA shall direct otherwise upon such terms as it may deem just

REMEDIAL LAW

FROM

THE

The following decisions are unappealable [Sec. 7, Rule III, Admin Order No. 7] (1) In administrative cases where respondent is absolved of the charge (2) In case of conviction, where penalty imposed is public censure or reprimand, or suspension of not more than one month or a fine equivalent to one month salary

Subm ission for Decision [Sec. 13, Rule 43] If petition is given due course, the CA may set the case for oral argument or require parties to submit memoranda within 15 days from notice. Upon filing of last pleading or memorandum required, case is deemed submitted for decision.

Jurisdiction of the CA (1) CA has jurisdiction over orders, directives, and decisions of the Office of Ombudsman in administrative disciplinary cases only (2) It cannot review orders, directives, decisions in criminal and nonadministrative cases

B.11. APPEAL FROM THE CTA A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45. [Sec. 19, RA 1125 as amended by RA 9282)

Jurisdiction of the SC (1) In criminal cases, ruling of Ombudsman shall be elevated to the SC via Rule 65 (2) In cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with this Court to set aside the Ombudsman’s order or resolution. [Nava v. NBI, G.R. No. 134509 (2005)]

B.12. APPEAL FROM THE COMELEC Unless otherwise provided by law, or by any specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation. [Sec. 1, Rule 37, COMELEC Rules of Procedure; Sec. 3, Rule 64, Rules of Court] Decisions in appeals from courts of general or limited jurisdiction in election cases relating to the elections, returns, and qualifications of municipal and barangay officials are not appealable. [Sec. 2, Rule 37, COMELEC Rules of Procedure]

B.14. APPEAL FROM THE NLRC Appeal from quasi-judicial agencies does not apply to judgments or final orders issued under the Labor Code. [Sec. 2, Rule 43]

Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation, unless restrained by the Supreme Court. [Sec. 3, Rule 37, COMELEC Rules of Procedure]

The remedy of a party aggrieved by the decision of the NLRC is to file a motion for reconsideration and, if denied, file a special civil action for certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, this should be filed with the CA. [St. Martin Funeral Homes v. NLRC, G.R. No. 130866 (1998)] From the CA, the remedy of the aggrieved party is a petition for review by certiorari to

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the SC. [Dongon v. Rapid Movers and Forwarders, G.R. No. 163431 (2013)]

Petitioner and respondent are original parties to the action in the lower court

NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule. [Fabian v. Desierto, G.R. No. 129742 (1998)]

Prior filing of MR not required Filed with SC

REMEDIAL LAW The parties are the aggrieved party against the lower court or quasi-judicial agency A filing of a MR is a condition precedent, subject to certain exceptions Filed with RTC, CA, or SC

Outline of Procedure

B.15. APPEAL BY CERTIORARI TO THE SUPREME COURT [RULE 45]

RTC, Sandiganbayan, CTA en banc, or CA renders a decision

Certiorari as M ode of Appeal and as Special Civil Action [Herrera] Appeal by Certiorari Certiorari as SCA [Rule 45] [Rule 65] Special civil action Mode of appeal (original action) Continuation of the appellate process Independent action over the original case Raises questions of jurisdiction because a tribunal, board, or officer exercising Raises only questions judicial or quasiof law judicial functions has acted without or in excess of jurisdiction, or with grave abuse of discretion May be directed against an interlocutory order of the court prior to Involves review of appeal from the judgment, award or judgment or where final order on merits there is no appeal or any other plain, speedy, or adequate remedy May be filed not later Must be made within than 60 days from the reglementary notice of judgment, period of appeal order or resolution sought to be assailed Does not stay the Stays the judgment, challenged award, or order proceedings, unless appealed from enjoined or restrained

Any party files a petition for review on certiorari Within 15 days from notice: of final judgment or order of lower court, or notice of denial of motion for reconsideration or new trial

Appellant serves copies of petition on adverse parties And to the lower court, And pay the corresponding docket fees

SC may dismiss the petition or require appellee to comment

If given due course, parties may submit memoranda

SC may affirm, reverse, or modify judgment of lower court

PROPRIETY AS A MODE OF APPEAL Appeals to the SC can be taken from a judgment or final order or resolution of the

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CA, Sandiganbayan, CTA en banc, RTC or such other courts as may be authorized by law

weigh the probative value of the evidence adduced before the lower courts [Frondarina v. Malazarte, G.R. No. 148423 (2006)]

Only questions of law are allowed. Whether an appeal involves only questions of law or both questions of law and fact is best left to the determination of an appellate court and not by the court which rendered the decision appealed from [PNB v. Romillo, etc., et al., G.R. No. L-70681 (1985)] QUESTIONS OF LAW

QUESTIONS OF FACT

Doubt as to what the law is on certain facts

Doubt as to the truth or falsehood of facts, or as to probative value of the evidence presented

If the appellate court can determine the issue without reviewing or evaluating the evidence

The determination involves evaluation or review of evidence

Can involve questions of interpretation of law with respect to certain set of facts

Query involves the calibration of the whole evidence considering mainly the credibility of witnesses, existence, and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

REMEDIAL LAW

APPEAL FROM RTC TO SC UNDER RULE 45 RTC must have rendered judgment in the exercise of its original jurisdiction. If the RTC is in exercise of its appellate jurisdiction, proper remedy is to appeal to the CA via Rule 42 even if only questions of law are raised. If the other party had already taken an appeal to the CA to question the RTC decision, the proper remedy of petitioner is simply ordinary appeal to the CA as well. [First Phil. International Bank v. CA] Grave abuse of discretion is not an allowable ground under Rule 45. [Martires v. CA, G.R. No. 78036-37 (1990)].

APPEAL FROM CA Appeal under Rule 45 is the proper review of decisions of the CA even in special civil actions. Any alleged errors committed by it in the exercise of jurisdiction would be errors of judgment which are reviewable by timely appeal and not by special civil action of certiorari. Rule 45 is clear that decisions, final orders, or resolutions of the CA in any case, regardless of the nature of the action or proceedings involved, may be appealed to the SC by filing a petition for review, which would but be a continuation of the appellate process over the original case.

The SC is not a trier of facts, and is not to review or calibrate the evidence on record. Moreover, findings of facts of trial court, as affirmed on appeal by the CA, are conclusive on the court [Boston Bank of the Philippines v. Manalo, G.R. No. 158149 (2006)] It has to be emphasized that it is not the duty of the SC to review, evaluate, and

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CONCLUSIVENESS OF FINDINGS OF FACT

[Manlapaz v. CA, G.R. No. L-56589 (1987)].

GENERAL RULE: The SC is not a trier of facts, and is not to review or calibrate the evidence on record. Moreover, findings of facts of trial court, as affirmed on appeal by the CA, are conclusive on the court [Boston Bank of the Philippines v. Manalo, G.R. No. 158149 (2006)]

Period of Appeal [Sec. 2, Rule 45] Time for Filing: 15 days from (1) Notice of judgment, final order, or resolution appealed from, or (2) Notice of denial of motion for new trial or reconsideration filed in due time after notice of judgment

EXCEPTIONS: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: (1) Conclusion is a finding grounded entirely on speculations, surmises or conjectures [Joaquin v. Navarro, G.R. No. L-5426 (1953)]. (2) Inference made is manifestly mistaken, absurd or impossible [Luna v. Linatok (1942)]. (3) There is grave abuse of discretion in the appreciation of facts [Buyco v. People, G.R. No. L-6327 (1954)]. (4) Judgment is based on a misapprehension of facts [De la Cruz v. Sosing, G.R. No. L-4875 (1953)]. (5) The Court of Appeal’s findings of fact are conflicting [Casica v. Villaseca, G.R. No. L-9590 (1957)]. (6) The Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons v. CA, G.R. No. L-47851 (1986)]. (7) The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana v. Dosdos, G.R. No. L-19498 (1965)]. (8) The Court of Appeal’s findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record

NOTE: The Neypes applicable in Rule 45.

doctrine

is

also

Extension of Period: 30 days upon (1) Motion duly filed and served; (2) Payment of docket and lawful fees, and deposit for costs; and (3) Showing of justifiable reasons. NOTE: Both (1) and (2) must be within the reglementary period. Form of Petition The petition must be verified: (1) Following the Efficient Use of Paper Rule: (a) One original, properly marked, and 4 copies (b) If the case is referred to En Banc, 10 additional copies is filed (2) Payment of docket and other lawful fees and deposit of P500 for costs is made with the SC Clerk at the time of filing (3) Proof of service of the petition to the lower court and adverse party are attached

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Contents of Petition [Sec. 4, Rule 45] (1) State full names of the parties (a) Appealing party = as Petitioner (b) Adverse party = as Respondent (c) Do not implead lower courts or judges (2) Indicate material dates showing: (a) When notice of judgment or final order or resolution was received (b) When a motion for new trial or reconsideration, if any, was filed and when a denial thereof was received (3) Concise statement of: (a) The matters involved (b) Reasons or arguments relied on (4) Accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court and court a quo (5) Certificate of non-forum shopping

or with the applicable provisions of the SC; or (2) Court a quo has so far departed from accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of power of supervision

Grounds for Denial of Petition [Sec. 5, Rule 45] (1) Failure of petitioner to comply with: (a) Payment of docket or other lawful fees (b) Deposit for costs (c) Proof of Service; and (d) Contents of and documents which would accompany the petition (2) Appeal is without merit (3) Is prosecuted manifestly for delay (4) That the questions raised are so unsubstantial as to require consideration

Grounds for Dismissal [Secs. 1-2, Rule 50] (1) Failure of record on appeal to show on its face that appeal was taken within the period fixed by Rules (2) Failure to file notice of appeal or record on appeal within prescribed period (3) Failure of appellant to pay docket and other lawful fees as provided in Sec. 4, Rule 41 (4) Unauthorized alterations, omissions, or additions in approved record on appeal as provided in Sec. 4, Rule 44 (5) Failure of appellant to serve and file required number of copies of his brief or memorandum within time provided by Rules (6) Absence of specific assignment of errors in the appellant’s brief, or of page references to record as required in Sec. 13, (a), (c), (d), (f), Rule 44 (7) Failure of appellant to take necessary steps for correction or completion of record within time limited by the court in its order (8) Failure of appellant to appear at preliminary conference under Rule 48 or comply with orders, circulars, directives of the court without justifiable cause

Elevation of Records [Sec. 8, Rule 45] If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice

B. 16. DISMISSAL OF APPEALS Dism issal by the CA [Rule 50] An appeal may be dismissed by the CA, on its own motion, or on that of the appelle on certain grounds

NOTE: SC may dismiss the petition motu proprio Review is Discretionary [Sec. 6, Rule 45] Appeal to the SC is NOT a matter of right. It will be granted only when there are special and important reasons therefor. Some indications of the character of reasons which will be considered: (1) When the court a quo has decided the question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law

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(9) Fact

that the order or judgment appealed from is not appealable (10) Appeal under Rule 41 from the RTC, raising only questions of law; (11) Appeal by notice of appeal from a decision rendered by the RTC in its appellate jurisdiction; (12) Appeal erroneously taken to the CA

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Dism issal by the SC [Rule 56] The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (1) Failure to appeal within reglementary period (2) Lack of merit of petition (3) Failure to pay docket and lawful fees and deposit (4) Failure to comply with requirements on proof of service, contents, and documents accompanying petition (5) Failure to comply with circular, directive, or order of SC without justifiable cause (6) Error in choice of mode of appeal (7) The case is not appealable to the SC

Other Grounds (1) By agreement of the parties (i.e. amicable settlement) (2) Where appealed case has become moot or academic (3) Where appeal is frivolous or dilatory

FLOWCHART: APPEALS TO THE SUPREME COURT

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COMPARATIVE TABLE ON THE MODES OF APPEAL RULE 40

RULE 41

ORDINARY APPEAL Matter of Right; Filed with the court of origin All records are elevated from court of origin Appeal from a judgment or Appeal from a decision of final order of a the RTC in the exercise of its MTC/MeTC/MCTC original jurisdiction

Rule 41 provisions shall apply to Rule 40 if not consistent with Rule 40 provisions

Filed with the MTC Appeal to the RTC Questions of fact or mixed questions of fact and law

Filed with the RTC Appeal to the CA Questions of fact or mixed questions of fact and law

BY NOTICE OF APPEAL Within 15 days after notice of judgment or final order BY RECORD ON APPEAL Within 30 days from notice of judgment or final order by filing a notice of appeal and a record on appeal

RULE 42 RULE 43 RULE 45 WHEN PROPER PETITIONS FOR REVIEW Discretionary; No records are elevated unless the court decrees it Filed with the appellate court Appeals to the SC from a judgment or final order or resolution of the CA, Sandiganbayan, CTA en banc, Appeals from awards, RTC (original jurisdiction) or judgments, final orders such other courts as may be Appeal from a decision of or resolution of or authorized by law the RTC rendered in the authorized by any quasiexercise of its appellate Decisions, final orders, or judicial agency in the jurisdiction resolutions of the CA in any exercise of its quasicase, regardless of the nature of judicial functions the action or proceedings involved, may be appealed to the SC by filing a petition for review WHERE TO FILE Filed with the CA Filed with the CA Filed with the SC Appeal to the CA Appeal to the CA Appeal to the SC Questions of fact, Questions of fact, questions questions of law, or of law, or mixed questions Only questions of law mixed questions of fact of both and law TIME FOR FILING Within 15 days from: Within 15 days from: (1) Notice of award, Within 15 days from notice (1) Notice of judgment, final judgment, final of decision, or order, or resolution order, or resolution; Within 15 days from notice appealed from; or (2) Date of publication, of denial of petitioner’s (2) Notice of denial of motion if publication is motion for new trial or for new trial or required by law for reconsideration reconsideration filed in due its effectivity; or time after notice of (3) Denial of petitioner’s judgment MNT or MR

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FLOWCHART: POST-JUDGMENT REMEDIES WITHIN THE LOWER COURT

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C.2. MOTION FOR NEW TRIAL AND PETITION FOR RELIEF

C. RELIEF FROM JUDGMENTS. ORDERS, AND OTHER PROCEEDINGS

Motion for New Trial [Rule 37] Available before judgment becomes final and executory

Remedies after finality of judgment (1) Petition for Relief [Rule 38] (2) Action to Annul Judgment [Rule 47] (3) Collateral Attack of a Judgment that is Void on its Face

Applies to judgments or final orders only Grounds: (1) FAME; or (2) Newly discovered evidence

C.1. NATURE A legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake, or excusable negligence (FAME). [Quelnan v. VHF Phils, G.R. No. 138500 (2005)]

Filed within the time to appeal

A petition for relief from judgment is an equitable remedy allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available, either motion for new trial or appeal, and he was not prevented by FAME from filing such motion or taking such appeal, he cannot avail himself of this petition. [Trust International Paper Corp. v. Pelaez, G.R. No. 164871 (2006)]

If denied, order of denial is not appealable; hence, remedy is appeal from judgment Legal remedy Motion need not be verified

Petition for Relief [Rule 38] Available after judgment has become final and executory Applies to judgments, final orders and other proceedings Ground: FAME Filed: (1) within 60 days from knowledge of judgment; and (2) within 6 months from entry of judgment If denied, order denying a petition for relief is not appealable; remedy is appropriate civil action under Rule 65 Equitable remedy Petition must be verified

A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed. [Francisco v. Puno, G.R. No. L-55694 (1981)]

A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment. [Manila Electric v. CA, G.R. No. 88396 (1990)]

C.3. WHEN PROPER The petition can be availed of judgment or final order has been when any other proceeding is taken against the petitioner in through FAME. [Sec. 1, Rule 38]

when the entered or thereafter any court

Thus, it was held that a petition for relief is also applicable to a proceeding taken after entry of judgment or final order such as an order of execution [Cayetano v. Ceguerra, G.R. 121 OF 425

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C.7. FORM OF THE PETITION

No. L-18831 (1965)] or an order dismissing an appeal [Medran v. CA, G.R. No. L-1350 (1949)]

The petition must be: (1) Verified; (2) Accompanied by an affidavit showing the FAME relied upon; and (3) Accompanied by an affidavit of merit, showing the facts constituting the petitioner’s good and substantial cause of action or defense.

C.4. WHERE FILED Rule 38 is not an independent action but a continuation of the old case. Hence, it is filed with the same court and same branch which decided the case.

C.5. GROUNDS [SECS. 1-2, RULE 38]

The absence of an affidavit of merits is a fatal defect and warrant denial of the petition [Fernandez v. Tan Tiong Tick, G.R. No. 15877 (1961)]

(1) When judgment or final order is entered

or any other proceeding is thereafter taken against petitioner through FAME (2) When petitioner has been prevented from taking an appeal by FAME

However, it is not a fatal defect so long as the facts required to be set out also appear in the verified petition [Fabar Inc. v. Rodelas, G.R. No. L-46394 (1977)]

NOTE: “Extrinsic fraud” is that fraud which the prevailing party caused to prevent the losing party from being heard on his action or defense. Such fraud concerns not the judgment itself but the manner in which it was obtained. [AFP Mutual Benefit Association, Inc. v. RTC-Marikina City, G.R. No. 183906 (2011)]

When Affidavit of Merit is not necessary: (1) When there is lack of jurisdiction over the defendant; (2) When there is lack of jurisdiction over the subject matter; (3) When judgment was taken by default; (4) When judgment was entered by mistake or was obtained by fraud; or (5) Other similar cases.

C.6. PERIOD FOR FILING [SEC. 3, RULE 38] (1) Within 60 days after petitioner learns of

the judgment, final order, or other proceeding to be set aside; AND (2) Not more than 6 months after such judgment or final order was entered, or such proceeding was taken

C.8. ORDER TO FILE ANSWER [SEC. 4, RULE 38] An order to answer shall issue only if petition is sufficient in form and substance.

These two periods must concur, are not extendible and are never interrupted. Strct compliance with these periods stems from the equitable character and nature of the petition for relief. Such petition is actually the “last chance” given by law to litigants to question a final judgment or order. Failure to avail of such chance, within the grace period fixed by the Rules, is fatal. [Quelnan v. VHF Phils, G.R. No. 138500 (2005)]

If petition is sufficient in form and in substance, the court shall issue an order requiring the adverse party to answer within 15 days from receipt thereof.

C.9. PROCEEDINGS AFTER ANSWER IS FILED [SEC. 6, RULE 38] After filing of answer or expiration of the period therefor, court shall hear the petition.

Reckoning Points (1) The 60-day period is reckoned from the time the party acquired knowledge of the order, judgment or proceeding. Not from the date he actually read the same [Perez v. Araneta] (2) 6-months period is computed from the date of entry of the order or judgment

If the court finds that the allegations are not true – Petition is dismissed. If the court finds that allegations are true: (1) It shall set aside the judgment, final order, or other proceeding complained of upon such terms as may be just 122 OF 425

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(2) Thereafter, case shall stand as if such had

W here Filed Judgment, Final Order or Resolution of the RTC Filed with the CA CA has exclusive and original jurisdiction over said action under Sec. 9(2) of BP 129 The CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition

never been rendered, issued, or taken (3) The court shall then proceed to hear and determine the case as if timely motion for new trial or reconsideration has been granted by it

C.10. REMEDY FOR DENIAL OF PETITION FOR RELIEF Appeal from an order denying a petition for relief is no longer available under the present rules. The remedy against a denial of a petition for relief is certiorari under Rule 65, when proper.

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Judgment, Final Order or Resolution of the MTC, etc. Filed with the RTC RTC as a court of general jurisdiction under Sec. 19(6) BP 129 The RTC has no such discretion, it is required to consider it as an ordinary civil action

W ho Can File Petitioner need not be a party to the judgment sought to be annulled.

D. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

A person who is not a party to the judgment may sue for its annulment provided that he can prove the same was obtained through fraud or collusion, and that he would be adversely affected thereby. . [Alaban v. CA, G.R. No. 156021 (2005)]

D.1. NATURE An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose is to have the final and executory judgment set aside so that there will be a renewal of litigation. [Alaban v. CA, G.R. No. 156021 (2005)]

D.2. GROUNDS [SEC. 2, RULE 47] (1) Extrinsic Fraud

• A fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from exhibiting fully his side of the case by deception practiced on him by the prevailing party [Alba v. CA, G.R. No. 164041 (2005)] • Extraneous evidence is admitted (2) Lack of Jurisdiction • Either lack of jurisdiction over the person of the defending party, or over the subject matter of the claim • Petitioner must show absolute lack of jurisdiction and not mere abuse of judicial discretion; a claim of grave abuse of discretion will support a petition for certiorari but not an action for annulment of judgment. • Only evidence found in the record can justify nullity (3) Denial of Due Process • Recognized as an additional ground based on jurisprudence.

W hen Proper The remedy may not be invoked where the party has availed himself of the remedy of new trial, appeal, petition for review, or other appropriate remedy and lost, or where he has failed to avail himself of those remedies through his own fault or negligence. [Republic v. ‘G’ Holdings, Inc., G.R. No. 141241 (2005)] It is a condition sine qua non that one must have failed to avail of those remedies, through no fault attributable to him. Otherwise, he would benefit from his own inaction or negligence. [Republic v. De Castro, G.R. No. 189724 (2011)]

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D.3. PERIOD TO FILE ACTION [SEC. 3, RULE 47] Extrinsic Fraud Period for Filing

4 years from discovery

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orders of MTCs before the RTC. [Sec. 10, Rule 47]

Lack of Jurisdiction Before barred by laches or estoppel

D.5. EFFECT OF JUDGMENT OF ANNULMENT [SEC. 7, RULE 47] Based on Lack of Jurisdiction (1) The same shall be set aside, and considered null and void (2) Aggrieved party may refile the action in the proper court • This may involve a different court of competent jurisdiction • Where the reason was lack of jurisdiction over the defendant, the action may be re-filed in the same original court, provided it has proper jurisdiction and venue

There must be a manifest showing with petition that it was filed within the 4-yr period. The rule does not fix the period to annul judgment based on lack of jurisdiction but recognizes the principle of estoppel as first laid down by Tijam v. Sibanghanoy [G.R. No. L-21450 (1968)]. Form and Contents of Petition [Sec. 3, Rule 47] (1) Verified petition, alleging therein: (a) With particularity, the facts and the law relied upon (b) Petitioner’s good and substantial cause of action or defense (2) Filed following the Efficient Use of Paper Rule (3) Certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition (4) Affidavits of witnesses or documents supporting the cause of action or defense; and (5) Certificate of non-forum shopping

Based on Extrinsic Fraud (1) The same shall be set aside and considered null and void (2) On motion of the prevailing party on justifiable grounds, he may be allowed to no longer refile the action; instead, the trial court which rendered the questioned judgment shall be ordered to try the case anew The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. [Sec. 8, Rule 47]

D.4. PROCEEDINGS Two stages in the disposition of the petition: (1) A preliminary evaluation of the petition for prima facie merit [Sec. 5] • The rule allows the CA to dismiss the petition outright as in special civil actions • If prima facie merit is found, petition is given due course and summons is served on respondent (2) If prima facie merit is found, petition is given due course and issuance of summons as in ordinary civil cases is made [Sec. 6] • Procedure in ordinary civil cases is observed

E. COLLATERAL JUDGMENTS

ATTACK

OF

E. 1. ATTACKING A JUDGMENT Direct Attack v. Collateral Attack • Direct attack upon a judgment is an action or proceeding to annul it, this being the main object of the proceeding • Collateral attack upon a judgment is one made to obtain relief other than the setting aside of the judgment, the attack on the judgment itself being incidental

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Collateral attack is proper only when the judgm ent on its face is null and void as where it is patent that the court which rendered said judgment has no jurisdiction

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Attacking a Void Judgment It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)]

The validity of a judgment or order of the court, which has become final and executory, may be attacked in three ways: (1) By a direct action or proceeding to annul the same • A direct attack against the order or judgment because it is not incidental to, but is the main object of, the proceeding • To annul and enjoin enforcement of the judgment, where the alleged defect is not apparent on its face or from the recitals contained in the judgment • See Rule 47 (2) By direct action, as certiorari, or by collateral attack in case of apparent nullity • The collateral attack must be against a challenged judgment which is void upon its face or that the nullity of the judgment is apparent from its own recitals (3) By a Petition for Relief under Rule 38 • This third manner of attacking must be taken in the same action or proceeding in which the judgment or order was entered

Remedies If the reglem entary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration [Rule 37], Appeal [Rules 40-45], Petition for Relief [Rule 48], and Other Appropriate Remedies such as Certiorari may also be used. If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment [Rule 47] may be resorted to. When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. [See Barrameda v. Moir, G.R. No. L-7927 (1913)] Jurisprudential Basis Spouses Benatiro v. Heirs of Cuyos [G.R. No. 161220 (2008)] and Agustin v. Bacalan [G.R. No. L-46000 (1985)] on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner.

E. 2. VOID JUDGMENT A void judgment is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void. [Polystyrene Manufacturing v. Privatization Management, G.R. No. 171336 (2007)]

Although Sec. 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore. [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)]

A void judgment may be likened to a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it rears its head. [Banco EspanolFilipino v. Palanca, G.R. No. L-11390 (1918)]

A void judgment is like an outlaw which may be slain at sight wherever or whenever it exhibits its head. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin

A judgment may be void for lack of due process of law. [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)]

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VI. Execution, Satisfaction and Effect of Judgments

the judgment. [Montinola v. Judge Gonzales (1989)] Assuming the judgment to have been void… the proper remedy was by an original proceeding and not by motion in the cause. [Banco Espanol-Filipino v. Palanca, G.R. No. L-11390 (1918)]

Execution is the legal remedy for the enforcement of a judgment. It is not an action but is included in the phrase “Process in an action” – part of the proceedings considered as still pending.

A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law. [Panlilio v. Garcia, G.R. No. L-29038 (1982)]

Writ of Execution – a judicial writ issued to an officer authorizing and requiring him to execute the judgment of the court.

A. FINALITY FOR PURPOSES OF APPEAL AND FOR PURPOSES OF EXECUTION A judgment is final if it disposes of the action as distinguished from an interlocutory order which leaves something to be done with respect to the merits of the case, and it is executory if the period to appeal has expired and no appeal is taken. [Herrera] Finality for purposes of appeal refers to the distinction between “final judgments or orders” and “interlocutory orders,” which cannot be appealed. [Sec. 1(b), Rule 41] The word interlocutory refers to something intervening between the commencement and the end of a suit, which decides some point or matter but is not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan, G.R. No. 140756-90 (2004)] A final judgm ent or order is one that finally disposes of a case, leaving nothing more to be done by the court in respect thereto. Examples include: (1) an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or (2) a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the court except to await the 126 OF 425

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parties' next move (such as filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, to cause the execution of the judgment once it becomes 'final and executory.’

enforced and of the entry thereof, with notice to the adverse party. EXCEPTIONS: Execution may Issue even if judgment not final in the following cases: (1) Support pendente lite (2) Judgments of inferior courts in ejectment cases (3) Execution pending appeal (4) Injunction, accounting, receivership, support [Sec. 4, Rule 39] (5) Decision of the RTC in appealed civil cases under Summary Procedure, including forcible entry and unlawful detainer (6) Decision of the LA reinstating dismissed employee, insofar as reinstatement aspect is concerned

Finality for purposes of execution refers to the judgment being “final and executory” upon the lapse of the appeal period if no appeal is taken, upon which execution shall issue as a matter of right. [Sec. 1, Rule 39] A judgment becomes “final and executory” by operation of law. Finality becomes a fact upon the lapse of the reglementary period to appeal if no appeal is perfected. Final Judgments - They finally dispose of, adjudicate, or determine the rights of the parties, HOWEVER, they are not yet “final and executory” pending the expiration of the reglementary period for appeal. - During that period, the winning party cannot demand the execution of the judgment yet as a right.

B. WHEN ISSUE

Final AND Executory Judgments

B.1. EXECUTION AS A MATTER OF RIGHT [SEC. 1, RULE 39] A judgment becomes final and executory by operation of law, not by judicial declaration. The prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is a ministerial duty and compellable by mandamus. [Herrera]

- Judgments become final and executory by operation of law. - After the lapse of the reglementary period to appeal, the prevailing party is entitled to a writ of execution, and issuance thereof is a ministerial duty of the court.

EXECUTION

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Execution as a matter of right is available in two instances: (1) No appeal has been perfected or period of appeal has expired (2) Appeal has been perfected and finally resolved NOTE: Some judgments are not appealable, e.g. Small Claims judgments, compromise judgments, etc

SHALL

How Done (1) If no appeal is perfected, prevailing party applies by motion for a writ of execution (2) If an appeal has been perfected and finally resolved – (a) prevailing party files a motion in the court of origin, submitting: (i) certified true copies of the judgment/s or final order/s sought to be enforced; (ii) certified true copies of the entry thereof; and (iii) with notice to the adverse party. (b) appellate court may also direct the court of origin to issue the writ of

GENERAL RULE: Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment/s or final order/s sought to be 127 OF 425

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execution, upon motion in the same case, when the interest of justice so requires.

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NOTE: Execution may only issue upon motion with notice of hearing.

B.2. DISCRETIONARY EXECUTION [SEC. 2, RULE 39]

GENERAL RULE: Issuance of the writ of execution is a matter of right on the part of the prevailing party when the judgment or order becomes executory. The court cannot refuse execution.

Discretionary Execution May issue before the lapse of period to appeal, and even during appeal Discretionary upon the court Upon showing of good reason for execution

EXCEPTIONS: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases: (1) When the judgment has already been executed by the voluntary compliance thereof by the parties; (2) When a judgment has been novated by the parties; (3) When a petition for review is filed and preliminary injunction is granted; Also, when execution of the judgment has been enjoined by a higher court; (4) When the judgment sought to be executed is conditional or incomplete; (5) When facts and circumstances transpire which would render execution inequitable or unjust; (6) When execution is sought more than five (5) years from its entry without it having been revived; (7) When execution is sought against property exempt from execution; (8) When refusal to execute the judgment has become imperative in the higher interest of justice. [Riano]

Execution as a Matter of Right Period to appeal has already lapsed and no appeal is perfected, or there is no appeal Ministerial duty of the court Provided there are no supervening events

Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal. It is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid, there should be a good reason to justify execution pending appeal, stated in the order which granted it. Mere issuance of a bond to answer for damages is no longer considered a good reason for execution pending appeal [Planters Products v. CA, G.R. No. 106052 (1999)]

Supervening Event Doctrine A supervening event can be invoked for the modification or alteration of a final judgment. This refers to: (1) Facts which transpire after judgment has become final and executory; (2) New circumstances which developed after the judgment has acquired finality; (3) Matters which the parties were not aware of prior to or during the trial as they were not yet in existence at that time. (4) The supervening facts or circumstances must either bear a direct effect upon the matters already litigated and settled or

“Good reasons” Compelling circumstances justifying the immediate execution lest judgment becomes illusory, or the prevailing party may after the lapse of time become unable to enjoy it [Fareast Bank v. Toh, G.R. No. 144018 (2003)] Examples of Good Reasons: (1) Where the goods subject of the judgment stand to perish or deteriorate during the pendency of the appeal [Yasuda v. CA] 128 OF 425

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(2) The award of actual damages is for an

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(2) it is in possession of either the original

amount fixed and certain [Radio Communications Inc. v. Lantin]. But not an award for moral and exemplary damages (3) Insolvency of a defeated party [Hacienda Navarro v. Labrador] (4) The prevailing party is of advanced age and in a precarious state of health and the obligation in the judgment is nontransmissible, being for support [De Leon v. Soriano] (5) Where defendants were exhausting their income and have no other property aside from proceeds of the property subject in litigation [Lao v. Mencias]

record or the record on appeal. After the trial court has lost jurisdiction, the motion may be filed in the appellate court. [Bangkok Bank Public Company, Ltd. v. Lee, G.R. No.159806 (2006)] Stay of Discretionary Execution Discretionary execution may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part [Sec. 3, Rule 39]

Discretionary Execution is not applicable in the case of the Court of Appeals: (1) The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. (2) The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN. (3) Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.

Bond may be proceeded against on motion with notice to surety GENERAL RULE: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. EXCEPTION: However, the filing of the supersedeas bond does not entitle the judgment debtor to the suspension of execution as a matter of right. Where the needs of the prevailing party are urgent, the Court can order immediate execution despite such supersedeas bond. [Regalado] If judgment is reversed totally or partially, or annulled The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances

A judgment of the CA cannot be executed pending appeal. [Heirs of Justice JBL Reyes v. CA, G.R. No. 135180-81 (2000)] Requisites for Discretionary Execution: (1) There must be a motion filed by prevailing party with notice to adverse party (2) There must be a hearing of the motion for discretionary execution (3) There must be good reasons to justify the discretionary execution (4) These good reasons must be stated in a special order after due hearing

Remedy against Discretionary Execution The remedy is certiorari by Rule 65. The fact that the losing party has also appealed from the judgment does not bar certiorari proceedings as the appeal could not be an adequate remedy from such premature execution. [Hererra]

W hen Filed The motion for discretionary execution shall be filed with the trial court while (1) it has jurisdiction over the case; and 129 OF 425

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C. HOW JUDGMENT IS EXECUTED

Dispositive Execution

C.1. EXECUTION BY MOTION OR INDEPENDENT ACTION [SEC. 6, RULE 39] Modes of Execution Mode By Motion By Independent Action

Enforcement

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as

Subject

of

GENERAL RULE: The dispositive portion of the decision is that part that becomes the subject of execution

of

EXCEPTIONS: (1) Where there is ambiguity, the body of the opinion may be referred to for purposes of construing the judgment because the dispositive part of a decision must find support from decision’s ratio decidendi (2) Where extensive and explicit discussion and settlement of the issue is found in the body of the decision

When Enforced Within 5 years from date of entry of judgment After the lapse of 5 years from date of entry and before it is barred by statute of limitations which is 10 years from date of entry (Art. 1144(3))

Two W hom Issued

NOTE: The revived judgment may be enforced by motion within 5 years from date of its entry and thereafter by action before it is barred by statute of limitations.

GENERAL RULE: Only real parties in interest in an action are bound by judgment rendered therein and by the writs of execution

Once the judgment is revived, the 10-year prescriptive period commences to run from the date of finality of the revived judgment and not the original judgment. [PNB v. Bondoc, G.R. No. L-20236 (1965)]

EXCEPTIONS: There are certain cases where the writ may be issued against non-parties: (1) One who is privy to judgment debtor can be reached by an order of execution and writ of demolition [Vda. De Medina v. Cruz, G.R. No. L-39272 (1988)] (2) Issued against one who not being originally a party to the case submits his interest to the court for consideration in the same case and invites adjudication regarding said interest [Jose v. Blue, G.R. No. L-28646 (1971)] (3) Where non-parties voluntarily signed the compromise agreement or voluntarily appeared before court [Rodriguez v. Alikpala, G.R. No. L-38314 (1974)] (4) Where the remedy of a person not a party to the case which he did not avail of, was to intervene in the case in question involving rights over the same parcel of land and said person in another case was adjudged buyer in bad faith thereof [Lising v. Plan, G.R. No. 50107 (1984)] (5) In an ejectment case, where 3rd party derived his right of possession from defendant particularly when such right was acquired only after filing of ejectment suit [Cordova v. Tornilla, AM No. MTJ-94997 (1995)]

C.2. ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION [SEC. 8, RULE 39] Contents of the W rit of Execution (1) Issued in the name of the Republic from the court which granted the motion (2) States the name of the court, case number and title, dispositive part of judgment or order (3) Requiring the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms (4) In all cases, it shall also specifically state the amount of interest, cost, damages, rents, or profits due as well as the principal obligation

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C.3. RETURN OF WRIT EXECUTION [SEC. 14, RULE 39]

Rem edies against a W rit of Execution GENERAL RULE: The execution of final and executory judgments may no longer be contested and prevented, and no appeal should lie therefrom.

OF

Effectivity The writ shall continue to be in effect during the period within which judgment may be enforced by motion (5 years from entry of judgment).

EXCEPTIONS: Instances where errors may be committed prejudicial to the rights of a party, calling for correction by a higher court. Examples of these instances are: (1) When the writ varies the judgment; (2) When there has been a change in the situation of the parties rendering execution inequitable; (3) When execution is sought to be enforced against property exempt from execution; (4) When it appears that the controversy has never been submitted to the judgment of the court; (5) When the terms of the judgment are not clear enough and there remains room for interpretation; (6) When it appears that the judgment has already been satisfied; (7) When it appears the writ has been improvidently issued; (8) When it appears that the writ is defective in substance; (9) When the writ is issued against the wrong party; (10) When the writ was issued without authority.

Judgment Satisfied within 30 days Writ of execution is returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. Judgment Not Satisfied within 30 days Officer shall report to the court stating the reason for non-satisfaction, and shall continue to make a report every 30 days until judgment is satisfied in full or the writ expires. Form of Returns and Reports The returns or periodic reports made by the sheriff: (1) shall set forth the whole of the proceedings taken; (2) shall be filed with the court; and (3) shall have copies thereof furnished to the parties.

C.4. ENTRY OF SATISFACTION OF JUDGMENT [SEC. 45, RULE 39] Satisfaction of Judgment is entered by the clerk of court in the court docket and in the execution book upon: (1) Return of the writ of execution showing full satisfaction of the judgment; (2) Filing of an admission to the satisfaction, executed and acknowledged in the same manner as a conveyance of real property by the judgment creditor or his lawyer; or (3) Upon indorsement of such admission by the judgment creditor or his attorney on the face of the record of the judgment.

If motion to quash is denied, appeal from said denial An order granting the issuance of the writ is not appealable, except where: (1) The order varies the terms of the judgment, or (2) Where, being vague, the court renders what is believed to be a wrong interpretation

C.5. EXECUTION OF JUDGMENTS FOR MONEY If the award is for payment of money, execution is enforced by: (1) Immediate payment on demand (2) Satisfaction by levy 131 OF 425

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(3) Garnishment of debts and credits [Sec. 9,

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purposes of the prospective execution sale [Llenares v. Vandevella (1966)].

Rule 39]

IMMEDIATE PAYMENT ON DEMAND

If susceptible of appropriation, the officer rem oves and takes the property for safekeeping; otherwise the same is placed under sheriff’s guards. Without valid levy having been made, any sale of the property thereafter is void.

Procedure (1) The officer shall demand from judgment obligor the immediate payment of the full amount stated in the writ and all lawful fees (2) The judgment obligor shall pay the amount of the judgment debt (a) Payable in Cash, Certified bank check payable to judgment obligee, or any other form of payment acceptable to judgment obligee (i) In no case shall sheriff demand that any payment by check be made payable to him (ii) Amount of judgment under proper receipt directly to the judgment obligee or his authorized representative if present at time of payment (b) If judgment obligee or his representative is present to receive payment: (i) Judgment obligor shall delver payment to executing sheriff (ii) Sheriff shall turn over the amounts within the same day to the clerk which issued the writ or deposit the amounts to a fiduciary account in the nearest government depository bank of the RTC of the locality (3) The judgment obligor shall pay the lawful fees handed over to the sheriff. Sheriff shall turn over the said amount within the same day to the clerk that issued the writ (4) If there is any excess it shall be delivered to the judgment obligor. Lawful fees shall be retained by the clerk

W hat may be levied? All property of the judgment obligor not exempt from execution. Conditions before resort to Satisfaction by Levy (1) If the judgment obligor cannot pay all or part of the obligation then the officer shall levy upon the properties of the judgment obligor (2) Characteristics of properties to be levied (a) Properties of every kind and nature whatsoever (b) Which may be disposed of for value (c) Not otherwise exempt from execution Procedure (1) The judgment obligor have the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy judgment (2) If judgment obligor does not exercise the option: (a) The officer shall first levy on personal properties, if any (b) If personal properties are insufficient, then on the real properties (3) Sheriff shall sell only sufficient portion of personal or real property of the judgment obligor levied upon (4) If there is more property than is sufficient to satisfy judgment and lawful fees, then sell only so much as is sufficient

GARNISHMENT CREDITS

SATISFACTION BY LEVY Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the command of the writ, a part or the whole of the judgment debtor’s property.

OF

DEBTS

AND

Garnishment is considered as a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation

Levy means the act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for

The Officer may levy on: (1) Debts due the judgment obligor and other credits, 132 OF 425

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(2) Including

bank deposits, financial interests, royalties, commissions, (3) And other personal property not capable of manual delivery in possession and control of third parties

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shall be required to deliver. Otherwise, the choice shall be made by judgment obligee (4) The garnishee shall make a written report to the court within 5 days from service of notice of garnishment. The report shall state whether: (a) Judgment obligor has sufficient funds or credits to satisfy judgment, OR (b) Judgment obligor has insufficient funds or credits to satisfy judgment (5) Garnish the amount which may be in cash, or certified bank check issued in the name of judgment obligee (6) Garnished amount shall be delivered directly to judgment obligee within 10 working days from service of notice on said garnishee requiring such delivery (7) Follow procedure under “Immediate Payment on Demand” with respect to delivery (8) Lawful fees shall be paid directly to court

The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the hands of third persons. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. The Rules of Court themselves do not require that the garnishee be served with summons or impleaded in the case in order to make him liable. All that is necessary for the trial court lawfully to bind the person of the garnishee or any person who has in his possession credits belonging to the judgment debtor is service upon him of the writ of garnishment. [Perla v. Ramolete, G.R. No. L-60887 (1991)]

C.6. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS [SEC. 10, RULE 39]

Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega, G.R. No. L-34964 (1973)]

For Conveyance of Real of Land or Personal Property Judgment directs a party to: (a) Execute a conveyance of land or personal property; (b) Deliver deeds or other documents; or (c) Perform any other specific act in connection therewith

NOTES: Upon service of the writ of garnishment, the garnishee becomes a “virtual party” or “forced intervenor” to the case and the trial court thereby acquires jurisdiction to bind the garnishee to comply with its orders and processes. [BPI v. Lee, G.R. No. 190144 (2012)]

If the party fails to comply within the time specified: (1) Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court; or (2) If the real or personal property directed to be conveyed is situated in the Philippines, court may by order divest the title of any party and vest it in others, which shall have the force and effect of conveyance executed in due form.

UP’s funds, being government funds, are not subject to garnishment. Moreover, The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA. [UP v. Dizon, G.R. No. 171182 (2012)] Procedure (1) Levy shall be made by serving notice upon: (a) The person owing such debts, or (b) Having in his possession or control such credits to which judgment obligor is entitled (2) Garnishment to cover only such amount as will satisfy judgment and lawful fees (3) If there are 2 or more garnishees, holding deposits or credits sufficient to satisfy judgment, judgment obligor shall have the right to indicate the garnishee/s who

For Sale of real or personal property An order for execution shall be issued describing the property to be sold, and directing the sheriff or other proper officer to sell it, and apply the proceeds in conformity with the judgment. [Secs. 8(b), 10, Rule 39] 133 OF 425

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For Delivery or Restitution of Real Property The officer shall demand of the person against whom the judgment is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession to the judgment obligee.

Procedure (1) A writ of execution shall be issued, with a certified true copy of the judgment attached. (2) Writ shall be served by the officer upon: (a) The party against whom the judgment is rendered; or (b) Any other person required by the judgment or by the law to obey the same. (3) Failure of such party to obey is punishable by contempt.

Otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property.

Examples: (1) A judgment in mandamus to reinstate petitioner as chief clinic of the hospital. [Vital-Gozon v. CA (1992)] (2) A judgment directing defendant to remove a fence from a certain place is a special judgment. [Marquez v. Marquez, 73 Phil. 74]

Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. Rem oval of improvements on property subject of execution When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except: (1) upon special order of the court, issued upon motion of the judgment obligee after due hearing; and (2) after the judgment obligor has failed to remove these within a reasonable time fixed by the court.

C.8. EFFECT OF LEVY ON THIRD PERSONS The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. [Sec. 12, Rule 39] NOTE: The power of the court in execution extends only over properties unquestionably belonging to the judgment debtor.

Delivery of personal property The officer shall take possession of the same and forthwith deliver it to the party entitled to it, and satisfy any judgment for money as therein provided.

C.7. EXECUTION JUDGMENTS

OF

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D. PROPERTIES EXEMPT FROM EXECUTION GENERAL RULE: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution [Sec. 13, Rule 39]

SPECIAL

W hen Proper [Sec. 11, Rule 39] A judgment requires performance of any other act than payment of money or sale or delivery of property.

(1) The judgment obligor's family home as

provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (2) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (3) Three horses, or three cows, or three carabaos, or other beasts of burden, such

Such judgment is one which can only be complied with by the judgment obligor because of his personal qualifications or circumstances. 134 OF 425

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as the judgment obligor may select necessarily used by him in his ordinary occupation; (4) His necessary clothing and articles for ordinary personal use, excluding jewelry; (5) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding P 100,000.00; (6) Provisions for individual or family use sufficient for four (4) months; (7) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding P300,000.00 in value; (8) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

REMEDIAL LAW (e) benefit payments from SSS [RA 1161, as

amended; Sec. 16] EXCEPTION: However, no article or species of property mentioned in this section shall be exempt from: (1) Execution issued upon a judgment recovered for its price, or (2) Upon a judgment of foreclosure of a mortgage thereon. The exemptions must be claim ed, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. [Herrera v. Mcmicking, G.R. No. L-5329 (1909)]

E. PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSONS Sec. 16, Rule 39 and other provisions providing a mode for recovering property alleged to have been wrongfully taken by sheriff pursuant to a writ of execution or other process, refer to a stranger to an action. [Tillson v. CA, G.R. No. 89870 (1991)]

(9) So much of the salaries, wages, or

earnings of the judgment obligor for his personal services within the four (4) months preceding the levy as are necessary for the support of his family; (10) Lettered gravestones; (11) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (12) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (13) Properties specially exempted by law, such as: (a) property mortgaged to the DBP [Sec. 26, CA 458]; (b) savings of national prisoners deposited with the postal savings bank [Act. 2489]; (c) benefits from private retirement systems of companies and establishments with limitations [RA 4917]; (d) laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [Art. 1708, Civil Code];

Remedies of Third-Party Claimant (1) Summary hearing before the court which authorized the execution (2) “Terceria” or third-party claim filed with the sheriff [Sec. 16, Rule 39] (3) Action for damages on the bond posted by the judgment creditor (4) Independent reivindicatory action The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy v. Discaya, G.R. No. 86301 (1990)] For a Third-Party Claim to be Sufficient: (1) Must be filed by a person other than the defendant or his agent, at any time before sale (2) Must be under oath or supported by affidavit stating the claimant’s title to, or right of possession of, the property, and grounds therefor 135 OF 425

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(3) Must be served upon the officer making

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acted rightly or wrongly in performance of his duties. The court does not and cannot pass upon the question of title.

levy and a copy thereof upon the judgment creditor

E. 2. TERCERIA

The timing of the filing of the claim is important because it determines the remedies available to the claimant: (1) If the claim is filed under Sec. 16, Rule 39: • Claimant may vindicate his claim in a separate action • Intervention is no longer allowed since judgment has already been rendered (2) If the claim is filed under Sec. 14, Rule 57 (Attachment) or under Sec. 7, Rule 60 (Replevin) • Claimant may vindicate his claim by intervention as he has a legal interest in the matter of litigation • Intervention is allowed as these actions are still pending in court

Independent of the foregoing, a third-party claimant may also avail of the remedy of Terceria. Terceria is provided in Sec. 16, Rule 39. This is an action for damages by claimant against officer within 120 days from date of filing of bond for taking or keeping the property subject of the terceria Procedure (1) Claimant serves on the officer making levy an affidavit of his title and a copy thereof to judgment creditor (2) Officer shall not be bound to keep property • Unless judgment creditor, or his agent, on demand of officer, posts indemnity bond not lesser nor greater than value of property (3) Where a third-party claim has been filed in due form: • Prevailing party can compel the sheriff to proceed by filing of a bond to answer for damages as a consequence of the execution • If sheriff proceeds with the sale without such bond, he will be personally liable for such damages as may be sustained by and awarded to the claimant (4) Action against Indemnity • Action against indemnity bond must be filed within 120 days from date of filing of the bond • After lapse of 120 days, no claim for damages for taking or keeping of property may be enforced against the bond

W hen to file Anytime, as long as the sheriff has the possession of the property levied upon, or before the property shall have been sold under execution. Effect of Third-Party Claim When a third-party claim is filed, sheriff is not bound to proceed with the levy of the property unless judgment creditor or latter’s agent posts an indemnity bond against the claim.

E. 1. SUMMARY HEARING BEFORE COURT AUTHORIZING EXECUTION A third-person whose property was seized by a sheriff to answer for an obligation of a judgment debtor may invoke the supervisory power of the court which authorized such execution Procedure (1) Claimant files application (2) Court conducts summary hearing (a) The court may command that the property be released from the mistaken levy and restored to rightful owner or possessor (b) If claimant’s proofs do not persuade, the claim will be denied by the court

The right of a third-party claimant to file a terceria is founded on his title or right of possession. Corollary thereto, before the court can exercise its supervisory power to direct the release of the property mistakenly levied and the restoration thereof to its rightful owner, the claimant must first unmistakably establish his ownership or right of possession thereon. [Villasi v. Garcia, G.R. No. 190106 (2014)]

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E.3. REINVINDICATORY ACTION

other lien, a memorandum of the record thereof, certified by the Register of Deeds; or (c) An original or certified copy of any assignment necessary to establish his claim; and (2) An affidavit executed by him or his agent showing the amount then actually due on the lien [Sec. 30]

The aforesaid remedies are nevertheless without prejudice to any proper action that third-party claimant may file to vindicate his claim over the property. This action is separate and independent. Procedure (1) He must institute an action, distinct and separate from that which the judgment is being enforced, with the court of competent jurisdiction (2) No need to file a claim in the court which issued a writ. The latter is not a condition sine qua non for the former. (3) In such proper action, validity and sufficiency of title of claimant will be resolved. (4) A writ of preliminary injunction against sheriff may be issued

If the lien of the creditor is prior to the judgment under which the property was sold: (1) He is not a redemptioner (2) He cannot redeem since his interests in his lien are fully protected. Any purchaser at a public auction takes the same subject to such prior lien which he has to satisfy W hen Redemption Can be Made [Sec. 28, Rule 39] WHO WHEN Within 1 year from date of By the JUDGMENT registration of certificate DEBTOR of sale Within 1 year from date of By FIRST registration of certificate REDEMPTIONER of sale Within 60 days from last BY ALL redemption SUBSEQUENT PROVIDED that judgment REDEMPTIONERS debtor has not exercised his right of redemption

F. RULES ON REDEMPTION W hen Available (1) For personal property – there is NO right of redemption as the sale is absolute (2) For real property – right of redemption is available W ho May Redeem [Sec. 27, Rule 39] (1) Judgment obligor, or his successor in interest; • Successors-in-interest include, among others, one to whom the debtor has conveyed his interest in the property for purposes of redemption (2) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent to the lien under which the property was sold. • Redeeming creditors are called redem ptioner.

In all cases, judgment debtor shall have the entire 1 year period from date of registration of sale to redeem the property. If judgment debtor redeems, no further redemption is allowed [Sec. 29]. NOTE: There is no extension or interruption of redemption period. REDEMPTION PRICE (1) By the Judgment Debtor or First Redemptioner: (a) Purchase PRICE (b) 1% INTEREST thereon up to time of redemption (c) Any amount of ASSESSMENTS OR TAXES which purchaser may have paid after purchase as well as interest on such last named amount at the same rate

Unlike a judgment obligor, such redemptioner must prove his right to redeem by producing the ff. documents: (1) The documents necessary to establish his right to redeem: (a) A copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein judgment or final order was entered; 137 OF 425

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(d) If purchaser is also a creditor having a

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Right of Judgment Creditor Pending Redemption (1) Apply for injunction to restrain the commission of waste on the property

PRIOR LIEN to that of redemptioner, other than the judgment under which such purchase was made, the AMOUNT of such OTHER LIEN, also with interest (2) By all Subsequent Redemptioners (a) AMOUNT paid on last redemption (b) 2% INTEREST thereon (c) Any amount of ASSESSMENTS OR TAXES which purchaser may have paid after purchase as well as interest on such last named amount at the same rate (d) Amount of any LIENS held by said last redemptioner prior to his own, also with interest

Rights of the Judgm ent Debtor Pending Redemption (1) Remain in possession of the property (2) Cannot be ejected (3) Use the property in the same manner it was previously used (4) Make necessary repairs to buildings thereon while he occupies the property (5) Use it in the ordinary course of husbandry [Sec. 31]; and (6) Collect rents, earning and income derived from property until the expiration of period of redemption

If redemption is made by the Judgment Obligor (1) No further redemption is allowed (2) He is restored to his estate [Sec. 29, Rule 39]

EXPIRATION OF REDEMPTION PERIOD [Sec. 33, Rule 39] Judgment obligor shall have the entire period of one year from date of registration of sale to redeem the property.

When a judgment debtor redeems the property, what is effected is the elimination of the lien created by the levy on attachment or judgment on the registration of mortgage thereon. Note that he never lost ownership so there is no recovery of ownership.

ENTITLEMENT TO CONVEYANCE AND POSSESSION (1) Of Purchaser at Auction Sale • If there is no redemption made within 1 year from date of registration of the certificate of sale (2) Of Last Redemptioner • If there was redemption, and 60 days have elapsed and no other redemption has been made • Notice must have been given, and the redemption period has elapsed

Payment of redemption price may be made to the: (1) Purchaser or redemptioner, or (2) For him to the officer who made the sale The person to whom redemption payment is made must execute and deliver to him a CERTIFICATE OF REDEMPTION (1) Acknowledged by a notary public or other officer authorized to take acknowledgements of conveyances of real property (2) Filed and recorded in the registry of deeds of the place which the property is situated (3) Registrar must note the record on the margin of the record of the certificate of sale

Two Documents which the Sheriff Executes in case of Real Property (1) CERTIFICATE OF SALE • After auction sale, he will execute in favor of the purchaser the certificate of sale under Sec. 25 • From registration of said certificate, the one year redemption period starts • Certificate of sale after execution sale is merely a memorial of the fact of sale and does not operate as conveyance (2) DEED OF CONVEYANCE • Issued if after expiration of redemption period there is no redemption

RIGHTS PENDING REDEMPTION [Secs. 31-32, Rule 39]

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subpoena, to answer as a witness, or to subscribe his deposition may be punished for contempt. [Sec. 38, Rule 39]

• Operates to transfer to purchaser whatever rights the judgment debtor had in the property • The effect of a final deed of sale transfers the right as of the time of the levy

Lim itations (1) No judgment obligor shall be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. [Sec. 36, Rule 39] (2) A judgment obligor may no longer be examined after the lapse of the five years within which a judgment may be enforced by motion. [Umali v. Coquia, G.R. No. L46303 (1988)]

RECOVERY OF PURCHASE PRICE IF SALE NOT EFFECTIVE [Sec. 34, Rule 39] Purchaser may recover the purchase price when: (1) Purchaser or his successor-in-interest fails to recover possession the property; or (2) Evicted due to: (a) Irregularities in the proceedings concerning the sale; (b) Judgment has been reversed or set aside; (c) The property sold was exempt form execution; or (d) A third person has vindicated his claim to the property

Order for payment in Fixed Monthly Installments [Sec. 40, Rule 39] Upon finding that the earning of the judgment debtor for his personal services are more than necessary for the support of his family, the court may order payment in fixed monthly installments.

REMEDIES OF THE PURCHASER (1) File a motion in the same action or file a separate action to recover from judgment creditor the price paid (2) File a motion for revival of judgment in his name against judgment debtor; or (3) Bring an action to recover possession of property

The court may also, upon failure of the judgment obligor without good excuse to pay any installm ent when due, punish him for indirect contempt.

G.2 EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR

G. REMEDIES OF JUDGMENT CREDITOR IF JUDGMENT NOT SATISFIED [SECS. 36-43, RULE 39]

W hen Available (1) At any time after return is made, when it shows that judgment remains unsatisfied in whole or in part; and (2) Upon proof to the satisfaction of the court which issued the writ, that a natural person or juridical entity has property of the judgment obligor or is indebted to him

G. 1. EXAMINATION OF JUDGMENT OBLIGOR W hen Available At any time after return is made, when it shows that judgment remains unsatisfied in whole or in part

Procedure Court may, by an order, require such natural person, or any officer or member of such juridical entity, to appear and be examined before the court or a commissioner concerning such property or debt.

Procedure Judgment Obligee entitled to an order from the court which rendered the judgment to appear and be examined concerning his property and income before the court or a commissioner assigned by the court.

Attendance may be compelled by order or subpoena. Failure to obey such order or subpoena, to answer as a witness, or to subscribe his deposition may be punished for contempt. [Sec. 38, Rule 39]

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Effect Service of order shall bind all credits due to judgment debtor and all money and property in the possession or control of such person, from the time of service.

REMEDIAL LAW

receiver may be ordered to sell and convey such interest in the same manner as in a sale of real estate upon execution. [Sec. 42, Rule 39]

H. EFFECT OF JUDGMENT OR FINAL ORDERS

Note: This is not applicable if there is no issue concerning the indebtedness of the bank and there is no denial by the depositor of the existence of the deposit with the bank which is considered a credit in favor of the depositor against the bank [PCIB v. CA, G.R. No. 84526 (1991)]

IMMUTABILITY OF JUDGMENTS A judgment that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land. [PNB v. Spouses Maranon, G.R. No. 189316 (2013)]

W hen Alleged Obligor Denies Debt or Claims Property When such person claims an interest in the property adverse to the judgment obligor or denies the debt, the court may issue an order (1) authorizing the judgment creditor to institute an action against such person for the recovery of such interest or debt, and (2) forbidding transfer or disposition of such interest or debt for 120 days.

Rationale: (1) to avoid delay in the administration of justice, and procedurally to make orderly the discharge of judicial business (2) to put an end to judicial controversies at the risk of occasional errors

G.3 OTHER REMEDIES

H.1 DUAL ASPECT OF RES JUDICATA

ORDER FOR APPLICATION OF PROPERTY OR INCOME Court may order any property of judgment debtor, or any money due him, nor exempt from execution, in the hands of either himself or another person, to be applied to the satisfaction of judgment. [Sec. 40, Rule 39]

(1) Bar

by Form er Judgm ent – the judgment or final order is a bar to the prosecution of ta subsequent action based on the same claim or cause of action o Described by Sec. 47, pars. (a) and (b), Rule 39 o Also known as “Estoppel by Verdict” (2) Conclusiveness of Judgment – the judgment or final order precludes the relitigation of particular issues or facts on a different demand or cause of action o Described by Sec. 47, par. (c), Rule 39 o Also known as the Rule of Auter Action Pendant

After a writ of execution against property has been issued, a person indebted to judgment obligor may pay to the sheriff holding the writ the amount of his debt, or so much thereof as may be necessary to satisfy the judgment. Sheriff’s receipt shall be sufficient discharge for the amount so paid. [Sec. 39, Rule 39]

BAR BY FORMER JUDGMENT

APPOINTMENT OF RECEIVER The court may appoint a receiver for the property of judgment debtor not exempt from execution, and may also forbid disposition or interference with the property. [Sec. 41, Rule 39]

Requires identity of parties, subject matter, and causes of action Absolute Bar to: (a) all matters directly adjudged; and (b) those that might have been adjudged Claim Preclusion

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CONCLUSIVENESS OF JUDGMENT There is only identity of parties and subject matter Cause of action are different Conclusive as to matters directly adjudged and actually litigated Issue Preclusion

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BAR BY FORMER JUDGMENT

Res Judicata Personam

The judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. [Machoca v. Cariaga, G.R. No. 75109-10 (1989)]

REMEDIAL LAW

in

Judgments

in

In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive: (1) Between the parties and (2) Their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.

Requisites: (1) A FINAL judgment or order (2) JURISDICTION over the subject matter and the parties by the court rendering it (3) Judgment UPON MERITS (4) Between the TWO CASES, there is: (a) IDENTITY OF PARTIES (b) IDENTITY OF SUBJECT MATTER (c) IDENTITY OF CAUSE OF ACTION

CONCLUSIVENESS OF JUDGMENT Any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose or subject matter of the two suits is the same. [Machoca v. Cariaga, G.R. No. 75109-10 (1989)]

GENERAL RULE: For res judicata to apply, trial must be made on the merits of the case. EXCEPTION: Sec. 3, Rule 17 of ROC: If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court. [Development Bank v. CA, G.R. No. 110203 (2001)]

Requisites: (1) A FINAL judgment or order (2) JURISDICTION over the subject matter and the parties by the court rendering it (3) Judgment UPON MERITS (4) Between the TWO CASES, there is: (a) IDENTITY OF PARTIES (b) IDENTITY OF ISSUES

Res Judicata in Judgm ents in Rem Judgments or final Conclusive as to order Against a specific Title of the thing thing The will or administration. Probate of a will or However, the probate of administration of a will or granting of the estate of a letters of administration deceased person shall only be prima facie evidence of the death of the testator or intestate; in respect to the personal, political, or legal condition or Condition, status or status of a relationship of the particular person or person, his relationship to another

H.2 RES JUDICATA, LAW OF THE CASE AND STARE DECISIS Stare Decisis - When the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply to it all future cases where the facts are substantially the same Law of the Case - Whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. 141 OF 425

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As discussed in Ayala Corp. v. Rosa-Diana Realty, G.R. 134284 (2000): Res Law of the Stare Decisis Judicata Case The ruling Operates only in one in the case is particular and carried single case over to where the another ruling arises case and is not between carried into the same other cases as parties a precedent Once a point of law has been The ruling established by adhered to in the court, that the particular point of law will, case need not generally, be be followed as followed by the a precedent in same court and subsequent by all courts of litigation lower rank in between other subsequent parties cases where the same legal issue is raised

REMEDIAL LAW

This policy of preclusion rests on principles of comity, utility and convenience of nations. As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause [Sec. 2, Art. II, 1987 Constitution] [Regalado] Two Ways of Giving Effect to Foreign Judgment: (1) An ordinary action to enforce the foreign judgment may be filed in court; or (2) It may be pleaded in an Answer or a Motion to Dismiss.

EFFECT OF FOREIGN JUDGMENTS [Sec. 48, Rule 39] NATURE In judgments against a specific thing (in rem) In judgments against a person (in personam)

EFFECT Judgment is CONCLUSIVE upon the title to the thing Judgment is PRESUMPTIVE evidence of a right as between parties and their successors-ininterest by a subsequent title

In both cases, judgment may be repelled by evidence of: (1) Want of jurisdiction (2) Want of notice (3) Collusion (4) Fraud (5) Clear mistake of law or fact

I. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENT OR FINAL ORDERS

A foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of proceedings and the giving of due notice in the foreign forum.

PUBLIC POLICY PRINCIPLE A judgment by a foreign court is enforceable only within its territorial jurisdiction. A valid judgment rendered by a foreign tribunal may be recognized insofar as the immediate parties the underlying cause of action are concerned so long as it is convincingly shown that: (1) There has been an opportunity for a fair hearing before a court of competent jurisdiction (2) Trial upon registered proceedings has been conducted (3) There is nothing to indicate either a prejudice in court and in the system of laws under which it is sitting or fraud in procuring the judgment [Philippine Aluminum v. Fasgi Enterprises, G.R. No. 137378 (2000)]

Before our courts can give the effect of res judicata to a foreign judgment, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds under Section 48 of Rule 39 of the Rules of Court. [Roehr v. Rodriguez, G.R. No. 142480 (2003)]

Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts.

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VII. Provisional Remedies

REMEDIAL LAW

jurisdiction and order the appropriate reliefs during the pendency of an action

Nature of Provisional Remedies Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies.

Jurisdiction over Provisional Remedies The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Inferior courts may also grant all appropriate provisional remedies in an action pending with it and is within its jurisdiction [Sec. 33 (1), BP 129]

They are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and are dependent for their application the existence of a principal action.

A. PRELIMINARY ATTACHMENT The provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. [Davao Light v CA, G.R. No. 93262 (1991)]

They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo v. Roldan, G.R. No. L-252 (1946)]

Purposes (1) To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. (2) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [PCIB v. Alejandro, G.R. No. 175587 (2007)]

Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65. Purpose of Provisional Remedies (1) To preserve or protect litigants’ rights or interests during the pendency of the principal action; (2) To secure the judgment; (3) To preserve the status quo of the the things subject to the action or the relation between the parties; and (4) To preserve the subject matter of the action.

Kinds of Attachment (1) Preliminary attachment - one issued at the commencement of the action or at any time before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules; (2) Garnishment - a kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called garnishee, to his claim or the money which said third person owes the defendant; (3) Levy on execution - writ issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of

Kinds of Provisional Remedies (1) Preliminary Attachment [Rule 57] (2) Preliminary Injunction [Rule 58] (3) Receivership [Rule 59] (4) Replevin [Rule 60] (5) Support Pendente Lite [Rule 61] NOTE: The enumeration above is not exclusive. The court may invoke its equity 143 OF 425

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the property on execution before the satisfaction of a final judgment.

REMEDIAL LAW (a) Does not reside and is not found in the

Philippines; or (b) On whom summons may be served by

A.1. GROUNDS FOR ISSUANCE [SEC. 1, RULE 57]

publication. NOTE: The persons on whom summons may be served by publication are: (a) Residents defendants whose identity or whose whereabouts are unknown [Sec. 14, Rule 14] (b) Resident defendants who are temporarily out of the country [Sec. 16, Rule 14]

There are only specific situations where preliminary attachment may issue. The grounds are EXCLUSIVE: (1) Action for recovery of a specified amount of money or damages, except moral and exemplary, (a) On a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict (b) Against a party who is: (i) about to depart from the Philippines (ii) with intent to defraud his creditors; (2) Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either: (a) A public officer; (b) An officer of a corporation; (c) An attorney, factor, broker, agent, or clerk, in the course of his employment as such; or (d) Any other person in a fiduciary capacity, or for a willful violation of duty; (3) Action to recover the possession of property unjustly or fraudulently taken, detained or converted, (a) When the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; NOTE: The rule makes no distinction between real and personal property [Riano] (4) Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, OR in the performance thereof; NOTE: The delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano] (5) Action against a party who: (a) has removed or disposed of his property, or is about to do so, (b) with intent to defraud his creditors (6) Action against a party who:

A.2 REQUISITES FOR ISSUANCE (1) The case must be any of those where

preliminary attachment is proper [Sec. 1, Rule 57] (2) Applicant must file a motion, whether ex parte or with notice and hearing (3) Applicant must file an affidavit showing the required facts (4) Applicant must post a bond executed to adverse party A writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the execution of their agreement in that said debtor had a preconceived plan or intention not to pay the creditor. [Equitable v. Special Steel, G.R. No. 175350 (2012)]

A.3 ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT W hen Applied For A preliminary attachment may be applied for (1) At the commencement of the action; or (2) At any time before the entry of judgment. W ho may apply It may be applied for by the plaintiff or any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint).

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A.3. AFFIDAVIT AND BOND [SECS. 3-4, RULE 57]

Methods to Procure Preliminary Attachment (1) Writ may be prayed for in the complaint itself providing the allegations warranting its issuance (2) May be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in the original complaint

For the writ to issue, the applicant must submit an affidavit and post bond. The affidavit and bond required must be duly filed with the clerk before order issues. Construction of rules for issuance of writ: These are strictly construed against the applicant, such that if the requisites for its grant are not shown to be all present, the court shall refrain from issuing it, otherwise, the court which issues it acts in excess of its jurisdiction. [Wee v. Tankiansee, G.R. No. 171124 (2008)]

Three Stages in the Grant (1) Court issues the order granting the application (2) Writ of attachment issues pursuant to the order granting the writ (3) The writ is implemented NOTE: For the initial two stages, it is not necessary that jurisdiction over person of defendant be first obtained. However, once implementation of writ commences, court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act [Cuartero v. CA, G.R. No. 102448 (1992)]

A general averment in the affidavit is insufficient to support the issuance of the writ. In averring fraud under Sec. 1, Rule 57, the affidavit must contain: (1) such particulars as to how the fraud was committed (2) statements of factual circumstances to show that respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay. [Wee v. Tankiansee, G.R. No. 171124 (2008)]

Issuance of the Order (1) The order may be issued either: (a) Ex parte (service of summons to defendant required) (b) Or upon motion with notice and hearing (2) The order is issued by the court in which the action is pending or the CA, or the SC

Contents of the Affidavit The affidavit must establish that: (1) A sufficient cause of action exists; (2) The case is one of those mentioned in Sec. 1 (Grounds for Issuance); (3) There is no other sufficient security for the claim sought to be enforced by action; and (4) The amount due to applicant or possession of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims

Contents of the Order (1) It must require the sheriff to attach so much of the property of the party against whom it is issued as may be sufficient to satisfy applicant’s demand (a) Property must be within the Philippines (b) And must not be exempt from execution (2) It shall contain an amount for the attachment bond: (a) The amount sufficient to satisfy the applicant’s demand, or (b) The value of the property to be attached as stated by applicant

Applicant’s Bond The party applying for the order must give a bond executed to the adverse party (1) Amount is fixed by the court in its order granting the issuance of the writ (2) Conditioned that, if the court shall finally adjudge that applicant was not entitled to the writ, the bond will pay: (a) All costs which may be adjudged to adverse party and 145 OF 425

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(b) All damages which he may sustain by

REMEDIAL LAW (b) The registrar of deeds must index

reason of attachment

attachments in the names of the applicant, adverse party, or person by whom the property is held or in whose name it stands in the records (c) If attachment is not claimed on the entire area of land, description sufficiently accurate for identification of such shall be included in the registration (2) Personal property capable of manual delivery (a) Sheriff Issues a corresponding receipt therefor (b) Sheriff takes it and safely keeps it in his custody (3) Stocks or Shares, or an Interest therein, of any corporation or company (a) Leave a copy of the writ and a notice stating that these properties are attached in pursuance of such writ (b) Leave these documents with the president, or managing agent thereof (4) Debts, credits, bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery (a) Leave a copy of the writ and a notice that the debts owing, credits, and other personal property are attached in pursuance of such writ (b) Leave these documents with: (i) The person owing such debts, or (ii) Having in his possession or under his control, such credits or other personal property, or (iii) With his agent (5) The interest of the party against whom attachment is issued in property belonging to the estate of decedent, whether as heir, legatee, or devisee (a) By service of a copy of the writ, and notice that said interest is attached (b) Service is made to: (i) The executor, or administrator, or (ii) Other personal representative of the decedent (c) Copy of the writ and notice: (i) Shall be filed with the clerk in which said estate is being settled, and (ii) Served upon the heir, legatee, or devisee concerned

The bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment [Riano].

A.4 RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS GENERAL RULE: A writ of attachment may be issued ex parte even before the summons is served upon the defendant but a writ may not be implemented until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano] Exceptions to Contemporaneous Service of Sum m ons: [Sec. 5, Rule 57] (1) Summons could not be served personally or by substituted service despite diligent efforts, or (2) Defendant is a resident of the Philippines temporarily absent therefrom, or (3) Defendant is a non-resident, or (4) The action is in rem or quasi in rem.

A.5. MANNER OF ATTACHING PROPERTY [SEC. 5, RULE 57] The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand, unless (1) Party against whom writ is issued makes a deposit with the court from which the writ is issued, or (2) He gives a counter-bond executed to the applicant Attachment of specific kinds of property [Sec. 7, Rule 57] (1) Real property, or growing crops thereon, or any interest therein (a) File with the Registry of Deeds: (i) A copy of the order together with a description of the property; and (ii) A notice that the property is attached 146 OF 425

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Grounds for Discharge (1) Debtor has posted a counterbond or has made the requisite cash deposit [Sec. 12] (2) Attachment was improperly or irregularly issued [Sec. 13] (a) As where there was no ground for attachment, or (b) The affidavit and/or bond filed are defective or insufficient [Sec. 3] (3) Judgment is rendered against attaching creditor [Sec. 19] (4) Attachment is excessive, but the discharge shall be limited to the excess [Sec. 13] (5) Property attached is exempt from execution

Attachment of property in custodia legis These may be attached by: (1) Filing a copy of the writ of attachment with the proper court or quasi-judicial agency (2) Serving a notice of attachment upon the custodian of the property [Sec. 7, Rule 57] A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano]

A.6 PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON

NOTE: There is a difference between the bond for issuance of writ and bond for lifting the writ (1) Bond for issuance of writ [Sec. 4] – This is for damages by reason of the issuance of the writ (2) Bond for lifting of writ [Sec. 5 and 12] – This is to secure the payment of the judgment to be recovered

A third person who has a claim to the property attached may avail of the following remedies: (1) File terceria or third-party claim [Sec. 14, Rule 57] o A third-party claim may be filed with the sheriff while he has possession of the properties levied upon, this being the only time fixed for the purpose o The claimant makes an affidavit of his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff o Substantially identical procedure as in terceria in Sec. 16, Rule 39 (2) File independent action to recover property; or (3) File motion for intervention o Available only before judgment is rendered

Only the defendant or party whose property is attached may move for its lifting. If the attachment is proper, the discharge should be by counterbond under Sec. 12 [KO Glass v. Valenzuela, G.R. No. L-48756 (1982)] Effect of Dissolution on Plaintiff’s Attachment Bond (1) Dissolution of preliminary attachment upon security given, or a showing if its irregular issuance, does not operate to discharge the sureties on the attachment bond (2) That bond is executed to adverse party conditioned that the applicant will pay all the costs which may be adjudged to adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that applicant was not entitled thereto [Sec. 4] (3) Until that determination is made, as to applicant’s entitlement to attachment, his bond must stand and cannot be withdrawn

A.7. DISCHARGE OF ATTACHMENT AND COUNTER-BOND After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. W ays of Discharging Attachment (1) Counterbond [Sec. 12] (2) Motion for Discharge [Sec. 13]

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A.8. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED [SEC. 15, RULE 57]

establish the between them.

EXCEPTION: If the acts complained of are continuing in nature and were derogation of plaintiff’s rights at the outset.

TEMPORARY RESTRAINING ORDER A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. [Bacolod City Water v. Labayen, G.R. No. 157494 (2004)]

AND

An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Sec. 4, Rule 58]

Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act Preliminary Injunction is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain from (prohibitory), or to perform (mandatory), particular acts during the pendency of an action. It is only a temporary remedy.

Independent Action Seeks a judgment embodying a final injunction Assailed by timely appeal

relationship

GENERAL RULE: Injunction could not lie when the acts sought to be enjoined have already become a fait accompli or an accomplished or consummated act. [Aznar Bros. v. CA, G.R. No. 128102 (2000)]

B. PRELIMINARY INJUNCTION

Injunction as Main Action

pre-existing

May a preliminary injunction issue against acts already consum m ated?

Procedure (1) Pay to judgment obligee the proceeds of sale of perishable property (2) If there is any balance that remains due, sell property as may be necessary to satisfy the balance if enough remains in the sheriff or those of the clerk (3) Collection of property of garnishee and proceeds paid to judgment oblige without need of prior permission to file action but may be enforced in the same action (4) Return must be made within 10 days from receipt of writ

B.1 DEFINITIONS DIFFERENCES

REMEDIAL LAW

STATUS QUO ORDER A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order.

Preliminary Injunction Ancillary; exists only as part or incident of an independent action or proceeding Seeks to preserve the status quo until the merits can be heard Assailed by petition for certiorari

It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.

B.2 REQUISITES (1) There must be a verified application (2) The applicant must establish: (a) The existence of a clear

Purpose: To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Knecht v. CA, G.R. No. 56122 (1993)]

and unmistakable right that must be protected; that is, right in esse; (b) A material and substantial invasion of such right; and (c) An urgent and paramount necessity for the writ to prevent serious damage

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(3) The applicant must post a bond, unless

REMEDIAL LAW (c) There is an urgent and paramount

otherwise exempted by the court (4) As to a writ of preliminary injunction, there must be notice and hearing

necessity PRELIMINARY PROHIBITORY INJUNCTION Purpose is to prevent a person from the performance of a particular act

RIGHT IN ESSE The applicant's right must be clear or unmistakable, that is, that the right is actual, clear and positive especially calling for judicial protection. An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action. [Marquez v. Sanchez, G.R. No. 141849 (2007)]

IRREPARABLE INJURY

PRELIMINARY MANDATORY INJUNCTION Purpose is to require a person to perform a particular act

The act had not yet been performed

The act has already been performed and this act has violated the rights of another

Status Quo preserved

Status Quo is restored

is

W hen preventive injunction does not lie; exam ples: (1) To restrain collection of taxes [Valley Trading v. CA (1989)], except where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait v. Rafferty (1915)] (2) To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support. [Saavedra v. Estrada (1931)] (3) To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno v. Dictado (1988)] (4) To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag v. Lacson (2004)] (5) Against consummated acts. [PNB v. Adi (1982); Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]

Does not have reference to the amount of damages that may be caused but rather to the difficulty of measuring the damages inflicted. This includes: (1) that degree of wrong of a repeated and continuing kind which produce hurt, inconvenience, or damage that can be estimated only by conjecture, and not by any accurate standard of measurement. (2) damage where there is no standard by which their amount can be measured with reasonable accuracy (3) a serious charge of, or is destructive to, the property it affects, either physically or in the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of the loss thereof If full compensation can be obtained, by way of damages, equity will not apply the remedy of injunction. [Social Security Commission v. Bayona, G.R. No. L-13555 (1962)]

B.3. KINDS OF INJUNCTION

W hen mandatory injunction does not lie; exam ples (1) To compel cohabitation [Arroyo v. Vasquez (1921)] (2) Cancellation of attachment [Levy Hermanos v. Lacson (1940)] (3) Release imported goods pending hearing before the Commissioner of Customs. [Commissioner of Customs v. Cloribel (1967)] (4) To take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)]

(1) Preliminary Preventive Injunction –

Prohibits the performance of a particular act or acts (2) Preliminary Mandatory Injunction – Requires the performance of a particular act or acts. This is an extreme remedy which will be granted only on showing that: (a) The invasion of the right is material and substantial (b) Right of complainant is clear and unmistakable 149 OF 425

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B.4 ISSUANCE OF WRIT

REMEDIAL LAW the issuance or continuance thereof, would cause irreparable damage to party enjoined while applicant can be fully compensated for such damages as he may suffer. In this case, the party enjoined shall file a bond o Amount: Fixed by Court o Undertaking That he will pay all damages which the applicant may suffer by denial or dissolution of the injunction or TRO

W hen: It may be issued at any stage prior to the judgment or final order By W hom : It may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. [Sec. 2, Rule 58]

B.5. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION [SEC. 3, RULE 58]

If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.

Preliminary injunction may be granted when it is established: (1) That applicant is entitled to the relief demanded, which consists in whole or in part in restraining commission or continuance of an act, or in requiring the performance of an act, either for a limited time or perpetually; (2) That commission, continuance, or nonperformance of the act complained of during the litigation would probably work injustice to applicant; or (3) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual

B.7 TEMPORARY ORDER

RESTRAINING

GENERAL RULE: Before preliminary injunction may be granted, there must be prior notice to person sought to be enjoined and there must be a hearing Procedure When an application for a writ of preliminary injunction or TRO is included in a complaint or initiatory pleading, the case, if filed in a multiple-sala, shall proceed as follows: (1) Verified complaint and bond is filed (2) Determine if there is great or irreparable injury or extreme urgency, which warrants the issuance of a TRO o If yes, go to Procedure for Issuance of TRO (3) In both cases, Notice shall then be served to the party sought to be enjoined. There must be prior and contemporaneous service of summons (exceptions also apply)

B.6. GROUNDS FOR OBJECTION, OR MOTION FOR DISSOLUTION [SEC. 6, RULE 58] The application for injunction or restraining order may be denied: (1) Upon a showing of its insufficiency. o Application is not verified o Application is not supported by the grounds in Sec. 3 o Application does not show facts entitling the applicant to the relief demanded o Application is not supported by the required bond (2) On other grounds upon affidavits of the party enjoined, which may be opposed by the applicant also by affidavits (3) If it appears after hearing that, although applicant is entitled to injunction or TRO,

Procedure for Issuance of TRO (1) If it appears that great or irreparable injury would result to the applicant before the matter can be heard on notice: (a) Summary hearing on the application of the TRO within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle (b) The court may issue a TRO effective for 20 days from service on the party sought to be enjoined Within the 20 day period: 150 OF 425

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o The applicant must show cause why injunction should not be granted o The court will determine WON the preliminary injunction shall be granted. If granted, the court will issue the corresponding order (2) If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury (a) A TRO may be issued ex parte (after raffling of case) ordered by the Executive judge of a multiple sala court or the presiding judge of a single-sala court (b) Effective for 72 hours from issuance (i) The applicant must then immediately comply with Sec. 4 as to service of summons and documents (ii) The Executive Judge shall then summon the parties to a conference and raffle the case in their presence Within the 72-hr period o The Presiding Judge before whom the case is pending shall conduct a summary hearing to determine whether the TRO shall be extended until application for preliminary injunction can be heard o In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hours

TRO ISSUED BY EXECUTIVE JUDGE (MULTI-SALA) OR ORDINARY JUDGE (SINGLE-SALA) Matter is of extreme urgency and that grave injustice and irreparable injury will arise unless immediately issued May be issued ex parte Good for 72 hours Issued before raffling Issued ex parte

REMEDIAL LAW

TRO ISSUED BY ORDINARY JUDGE

If it appears that great or irreparable injury would result A summary hearing must be done before issuance Good for 20 days including first 72 hours Issued after raffling Issued after summary hearing

Upon the expiration of the non-extendible period, the TRO is automatically terminated. No judicial declaration necessary.

B.8 IN RELATION TO RA 8975 No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: (1) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project (2) Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof; (3) Commencement prosecution, execution, implementation, operation of any such contract or project; (4) Termination or rescission of any such contract/project; and (5) The undertaking or authorization of any other lawful activity necessary for such contract/project.

Effectivity of TRO o Effectivity is not extendible. No court shall have authority to extend or renew the same on the ground for which it was issued o If issued by the CA – effective for 60 days from service o If issued by SC – effective until further orders

This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to 151 OF 425

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have rights through such bidders involving such contract/project.

REMEDIAL LAW

the provisions of Sec. 4, Rule 38, Sec. 4 as to service of summons and the documents to be served therewith. [Rule 38, Sec. 5]

This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. [Sec. 3, RA 8975]

B.10 GRANT OF FINAL INJUNCTION If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. [Sec. 9, Rule 58]

Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. [Sec 4]

C. RECEIVERSHIP Receiver – A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation if it were left in the possession of any of the parties.

B.19 RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS

Purpose: The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied.

When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines.

The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Receivership under Rule 59 is ancillary to the main action. [Riano]

Exceptions: The requirement of prior or contemporaneous service of summons shall not apply: [Sec. 4, Rule 58] (1) The summons could not be served personally or by substituted service despite diligent efforts, or (2) The adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof

The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. [Commodities Storage v. CA, G.R. No. 125008 (1997)]

C.1. CASES WHEN RECEIVER MAY BE APPOINTED [SEC. 1, RULE 59]

The executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a TRO effective for only 72 hours from issuance if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. However, he shall immediately comply with

(1) When

it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or

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C.2 REQUISITES; REQUIREMENTS BEFORE ISSUANCE

fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (2) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (3) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (4) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

Procedure (1) Verified application filed by the party requesting for the appointment of the receiver; (2) Applicant must have an interest in the property or funds subject of the action; (3) Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated; (4) Application must be with notice and must be set for hearing; (5) Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party. (6) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully and shall file a bond. W ho Appoints Receiver (1) Court where the action is pending (2) CA (3) SC (4) During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. [Sec. 1, Rule 59]

Specific Cases (1) If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Art. 101, Family Code] (2) The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Sec. 41, Rule 39] (3) After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Sec. 9, Rule 41; Acuña v. Caluag (1957)] (4) After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v. Santamaria (1929)] (5) Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v. Sundiam (1971)]

Receivership may be denied or lifted (1) If the appointment was sought or granted without sufficient cause [Sec. 3] (2) Adverse party files a sufficient bond to answer for damages [Sec. 3] (3) Bond posted by applicant for grant of receivership is insufficient [Sec. 5] (4) Bond of the receiver is insufficient [Sec. 5] Appointment is not proper where the rights of the parties, one of whom is in possession of the property, are still to be determined by the trial court. [Vivares v. Reyes, G.R. No. 155408 (2008)]

C.3 THE RECEIVER W hat is a Receiver? A person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court. 153 OF 425

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REMEDIAL LAW proceeding, and ask for consequent judgment on the acts complained of; or (b) Ask for leave of court to bring him an action directly

W ho May Be Appointed The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. [Alcantara v. Abbas, G.R. No. L-14890 (1963))

C.4 TWO KINDS OF BOND APPLICANT’S BOND Applicant must file a bond executed to the party against whom the application is presented o Amount: to be fixed by the court o Undertaking: applicant will pay such party all damages he may sustain by reason of the appointment, in case the applicant shall have procured such without sufficient cause

A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. [Abrigo v. Kayanan, G.R. No. L28601 (1983)] Powers of a Receiver (1) Bring and defend in such capacity actions in his own name with leave of court (2) Take and keep possession of the property in controversy (3) Receive rents (4) Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver (5) Compound for and compromise the same (6) Make transfers (7) Pay outstanding debts (8) Divide the money and other property that shall remain among the persons legally entitled to receive the same’ (9) Generally, to do such acts respecting the property as the court may authorize (10) Invest funds in his hands, only by order of the court upon the written consent of all the parties. [Sec. 6, Rule 59]

The court may require additional bond after appointment in the exercise of its discretion as further security for such damages [Sec. 2, Rule 59]

RECEIVER’S BOND As a precondition before entering into his duties, receiver must file a bond. o Executed to the person against whom the application is presented o Amount: in such sum as the court may direct. o Undertaking: To the effect that he will faithfully discharge his duties and obey the orders of the court [Sec. 4, Rule 59] DAMAGES RESULTING FROM APPOINTMENT

Liability for refusal or neglect to deliver property to receiver (1) May be punished for contempt; and (2) Shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Sec. 7, Rule 59]

Damages resulting from appointment The right is statutory The damages may be caused before the receiver qualifies or takes possession of the property The applicant’s bond is responsible

Rem edies Against the Receiver (1) No action against receiver can be maintained without leave of court (2) An aggrieved party may: (a) Take the matter into the court which appointed the receiver and ask either for an accounting or take some other 154 OF 425

DAMAGES ARISING AFTER APPOINTMENT Damages which arise due to receiver’s negligence or mismanagement The right rests on general principles of law Liability rests on the mismanagement or negligence of receiver The receiver’s bond is responsible

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C.5 TERMINATION

REMEDIAL LAW REPLEVIN

May be sought only when the principal action is for the recovery of personal property Can be sought only when defendant is in actual or constructive possession of the property Cannot be availed of when property is in custodia legis

Ground: The necessity for a receiver no longer exists Procedure (1) The court shall determine that the necessity for a receiver no longer exists o Motu proprio, or on motion of either party (2) Due notice shall be given to all interested parties (3) A hearing shall be conducted (4) The court shall then settle the accounts of the receiver (5) The court directs delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them (6) The court will then order the discharge of the receiver

Available before defendant answers Bond is double the value of the property Extends only to personal property capable of manual delivery

Effect (1) Settle accounts of receiver (2) Delivery of funds to person entitled (3) Discharge of receiver (4) Receiver entitled to reasonable compensation to be taxed as costs against defeated party

Available to recover personal property even if the same is not being concealed, removed, or disposed of

D. REPLEVIN Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin. Replevin may also be a main action with the ultimate goal of recovering personal property capable of manual delivery wrongfully detained by a person. In this sense, it is a suit in itself PRELIMINARY REPLEVIN ATTACHMENT The purpose is to have the property put in the The purpose is to custody of the court to recover personal secure the satisfaction of property capable of the judgment that may manual delivery be rendered in favor of from the defendant the plaintiff at some future time The property either belongs to the The property does not plaintiff or one over belong to the plaintiff which the plaintiff but to the defendant has a right of possession

PRELIMINARY ATTACHMENT Available even if recovery of property is only incidental to the relief sought May be resorted to even if property is in possession of a third person Can be availed of even if property is in custodia legis Available from commencement but before entry of judgment Bond is fixed by the court Extends to all kinds of property whether real, personal, or incorporeal Attachment to recover possession of personal property unjustly detained presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant

NOTE: There can be no replevin and preliminary attachment in the same case because the purposes are different. (1) In Rule 57, it is for security (2) In Rule 60, it is for recovery of possession

D.1. WHEN WRIT MAY BE ISSUED The provisional remedy of replevin is available where the principal purpose of the action is to recover the possession of personal property. W hen Applied For A writ of replevin must be applied for: (1) At the commencement of the action, or (2) At any time before defendant files his answer NOTE: There can be no replevin before the appellate courts 155 OF 425

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W ho May Avail (1) Plaintiff – where the complaint prays for recovery of possession of personal property (2) Defendant – where a counterclaim was set out in the answer for recovery of personal property It is available to any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained.

REMEDIAL LAW (b) Requiring the sheriff to take such

property into his custody NOTE: The writ of replevin may be served anywhere in the Philippines.

D.3. AFFIDAVIT AND REDELIVERY BOND

BOND;

Contents of the Affidavit The affidavit shall: (1) Particularly describe the property (2) State that the applicant is: (a) the owner of the property claimed; or (b) entitled to possession (3) State that the property is wrongfully detained by adverse party, allege the cause of detention according to his best knowledge, information, belief (4) State either (a) That the property has not been: (i) Distrained, (ii) Taken for a tax assessment, (iii) Taken as a fine pursuant to law, (iv) Seized under a writ of execution or preliminary attachment, or (v) otherwise under custodia legis (b) That, if the property is so taken, it is exempt from such seizure or custody. (5) State the actual value of the property subject of replevin and not just its probable value.

Does the applicant have to be the holder of the legal title to the property? GENERAL RULE: No. It is in the nature of a possessory action. It is sufficient that at the time he applied for a writ of replevin he is found to be entitled to a possession thereof. Primarily, the action of replevin is possessory in character and determines nothing more than the right of possession. However, when the title to the property is distinctly put in issue by the defendant's plea, the question of ownership may be resolved in the same proceeding because a replevin action is sufficiently flexible to authorize a settlement of all equities between the parties, arising from or growing out of the main controversy. [Chiao Liong v. CA, G.R. No. 106251 (1993)]

D.2. REQUISITES

Applicant’s Bond (1) Executed to the adverse party (2) Amount is DOUBLE the value of the property stated in the affidavit (3) Conditions of the Bond: (a) The return to of property to adverse party, if such return be adjudged, and (b) The payment to adverse party of such sum as he may recover from the applicant in the action

(1) Applicant is

owner of the property claimed or is entitled to possession (2) Property is wrongfully detained by the adverse party (3) Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt) (4) Principal purpose of the action is to recover possession of personal property

Return of Property[Sec. 5] If the adverse party does not object to the sufficiency of the bond, he may require the return of the property W hen: At any time before delivery to applicant How: By filing a redelivery bond

Procedure [Secs. 2-3, Rule 60] (1) An application is filed at the commencement of the action or at any time before answer of defendant (2) Application must contain an affidavit (3) Applicant must file a bond (4) Approval of the bond by the court (5) Court shall then issue an order and the writ of replevin: (a) It must describe the personal property alleged to be wrongfully detained

Redelivery Bond This is executed to the applicant and filed where the action is pending 156 OF 425

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o Amount: double the value of the property as stated in the affidavit of the applicant o Undertaking: (a) The delivery thereof to the applicant, if such delivery be adjudged, and (b) The payment of such sum to him as may be recovered against the adverse party

D.4. SHERIFF’S IMPLEMENTATION

DUTY

REMEDIAL LAW

The adverse party is entitled to the return of the property taken under writ of replevin, if: (1) He seasonably posts a redelivery bond (2) The applicant’s bond is found to be insufficient or defective and is not replaced with a proper bond (3) The property is not delivered to the plaintiff for any reason

D.5. WHEN PROPERTY CLAIMED BY THIRD PARTY

IN

Procedure Third party claiming the property must: (1) Make an affidavit of his title to the property, stating his grounds; (2) Serve such affidavit upon the sheriff while the latter has possession of the property; and (3) Serve a copy upon the applicant.

Duties of the Sheriff [Sec. 4, Rule 60] (1) Serve a copy of the order, together with the copies of the application, the affidavit, and bond to the adverse party (2) Take the property: (a) If it be in the possession of the adverse party or his agent – Take the property into custody (b) If property is concealed in a building or enclosure: (i) Demand delivery of the property (ii) If not delivered, cause the building or enclosure to be broken open and then take the property into possession (3) After taking possession: (a) Keep the property in a secure place (b) He shall be responsible for delivery to party entitled Unlike a preliminary attachment and preliminary injunction, the rule on prior or contemporaneous jurisdiction is not provided for in replevin. However, the rule requires that upon such order, the sheriff must serve a copy on the adverse party together with the required documents. A sheriff’s prerogative does not give him the liberty to determine who among the parties is entitled to possession. When a writ is placed in the hands of a sheriff, it is his duty to proceed with reasonable celerity and promptness to execute it according to its mandate.

Effect The sheriff shall not be bound to keep property under replevin or deliver property to the applicant, unless the applicant files a bond approved by the court to indemnify the third person, in an amount not less than the value stated in the affidavit of the applicant. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action is filed within 120 days from filing of the bond. NOTE: The procedure in Sec. 7, Rule 60 is similar to that in third-party claims in execution [Sec. 16, Rule 39] and in attachment (Sec. 14, Rule 57]. Difference in Service of Affidavits: o Sec. 14, Rule 57 – affidavit is served upon the sheriff while he has possession of the attached property o Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has possession (in connection with Sec. 6)

D.6. JUDGMENT [Sec. 9, Rule 60] After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs.

Disposition of Property by Sheriff The sheriff shall retain the property for 5 days. Within such period, the adverse party: (1) May object to the sufficiency of the applicant’s bond or surety; or (2) May file a redelivery bond, if he does not object to the sufficiency of the bond 157 OF 425

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A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES Preliminary Attachment To have the property of adverse party attached as security for satisfaction of judgment that may be recovered in cases falling under Sec. 1, Rule 57 To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on creditor cannot be effected Personal or real property

Preliminary Injunction To require a party or a court, agency, or a person to reframe from doing a particular act/s

Receivership

Replevin

To place the property subject of an auction or proceeding under the control of a third party for its preservation and administration pendente lite or as an aid to execution

To recover possession of personal property

Particular act/s

Personal or real property

At the commencement of action OR `At any time prior to entry of judgment

At any stage prior to final judgment or final order

HOW APPLIED FOR

File affidavits and applicant’s bond

REQUIREMENT OF A HEARING

Not required May be issued ex parte

File verified application and applicant’s bond If application is included in initiatory pleading, adverse party should be served with summons together with a copy of initiatory pleading and applicant’s bond Required EXCEPT: Great or irreparable injury would result or

At any time prior to satisfaction of judgment It may be availed of even after judgment becomes final under Sec. 41, Rule 39 File verified application and applicant’s bond Application may also be included in initiatory pleading in actions for foreclosure of mortgage

Personal property capable of manual delivery At the commencement of the action BUT before the filing of answer

W HEN APPLIED/ GRANTED

PURPOSE

SUBJECT MATTER

Or to require the performance of particular act/s

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Required

File affidavits and applicant’s bond

Not Required May be issued ex parte

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CIVIL PROCEDURE Preliminary Attachment

W HO MAY GRANT

REQUISITES FOR GRANTING APPLICATION

Courts where the action is pending, the CA or the SC even if action is pending in lower court

Preliminary Injunction Extreme urgency and applicant will suffer grave injustice and irreparable injury (Sec. 5, Rule 58 Only the court where the action is pending Lower court, CA or SC provided action is pending in the same court which issues the injunction Also with the Sandiganbayan and CTA

REMEDIAL LAW Receivership

Replevin

Court where Only the court action is pending were action is The CA or SC even pending if action is pending in the lower court Appellate court may allow application for receivership to be decided by the court of origin 1. Sufficient cause 1. Applicant is 1. Applicant has 1. Applicant is of action entitled to relief interest in owner of the 2. Case is covered demanded property or property by Sec. 1, Rule 2. Act/s complained fund, subject claimed or is 57 of would work matter of entitled to 3. No other injustice to action possession sufficient applicant if not 2. Property or 2. Property is security for the enjoined fund is in wrongfully claim exists 3. Acts sought to be danger of detained by 4. Amount due to enjoined probably being lost, or the adverse applicant or violates removed, or party value of applicant’s rights material 3. Property is not property he is respecting the injured distrained or entitled to subject of the 3. Appointment taken for tax recover is equal action or is the most assessment or to the sum proceeding convenient fine pursuant which the order 4. Threatened injury and feasible to law, or of attachment incapable of means of seized (if is granted pecuniary preserving, seized, that estimation administering, the property is disposing of exempt) property in litigation

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VIII. Special Civil Actions

The Special Civil Actions (SCA) under the Rules of Court (1) SCAs initiated by complaints: (a) Interpleader (b) Foreclosure of Real Estate Mortgage (c) Forcible Entry and Unlawful Detainer (d) Partition (e) Expropriation (2) SCAs initiated by petitions: (a) Declaratory Relief (b) Review or Adjudication of COMELEC/COA Decisions (c) Certiorari (d) Prohibition (e) Mandamus (f) Quo Warranto (g) Contempt

A. IN GENERAL A.1 NATURE Special civil actions are civil actions primarily governed by special rules, and secondarily by rules for ordinary civil actions. [SeeSec. 3, Rule 1] Since a civil action in general is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong, a special civil action is generally brought or filed for the same purpose. [Riano]

A.2 ORDINARY CIVIL ACTIONS V. SPECIAL CIVIL ACTIONS A special civil action is governed by the rules of ordinary civil actions but there are certain rules that are applicable only to special civil actions. ORDINARY CIVIL ACTION Governed by ordinary rules Must be based on a cause of action which means that the defendant has violated plaintiff’s rights Venue is determined by either the residences of the parties when action is personal or by the location of the property when the action is real. [Secs. 12, Rule 4] Initiated by complaint

It may be filed initially either in the MTC or the RTC

REMEDIAL LAW

A.3 JURISDICTION AND VENUE Jurisdiction over special civil actions is determined by the Constitution [Sec. 5, Art. VIII, for the Supreme Court] and statutes [e.g. BPBlg 129). Venue is a procedural matter and generally set by the Rules of Court. Hence, the venue of civil actions is determined by the general rules on venue, unless otherwise subject to special rules for special civil actions (e.g. quo warranto, seeSec. 7, Rule 66).

SPECIAL CIVIL ACTION Also governed by ordinary rules but subject to specific rules prescribed [Sec. 3, Rule 1] The concept of cause of action in an ordinary action does not always fit in a special civil action (e.g. interpleader)

Jurisdiction of inferior courts Special civil actions that can be filed in or are within the jurisdiction of the inferior courts (i.e. MTC, MeTC, MCTC): (1) Interpleader - Provided that amount involved is within its jurisdiction (2) Ejectment suits – Original and exclusive (3) Contempt

Venue is generally governed by the general rules on venue, except as otherwise indicated by special rules. [Regalado]

Application of hierarchy of courts In the absence of special reasons, the SC will decline to exercise original jurisdiction in certiorari, prohibition, and mandamus since it is not a trier of facts and, that is a function which can be better done by the trial courts. The same rule applies for quo warranto wherein the SC has concurrent jurisdiction with the RTC. [Regalado, citing Fisher v. Yangco Steamship Co. (1915) and Veraguth v. Isabela Sugar Co. (1932)]

Some initiated by complaint, some by petition. Some special civil actions can only be filed in the MTC (e.g. forcible entry and unlawful detainer) while there are some which could not be commenced in the MTC (e.g. certiorari) 160 OF 425

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B.2 REQUISITES INTERPLEADER

B. INTERPLEADER B.1 NATURE

subject matter or his claim thereto is not disputed (2) The parties to be interpleaded must make effective claims (3) There must be at least two conflicting claimants with adverse or conflicting interests to a property in custody or possession of the plaintiff; and (4) The subject matter must be one and the same. [see Lim v. Continental Dev’t Corp., G.R. No. L-41818(1976)] NOTE: Interpleader applies regardless of nature of subject matter. [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L23851(1976), interpreting Rules of Court (1964), Sec.1, Rule 63, which was virtually unchanged by the now Sec. 1, Rule 62] NOTE: Interpleader cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran v. PHHC, G.R. No. L-25138(1969)].

Purposes (1) To compel conflicting claimants to interplead and litigate their several claims among themselves. [Sec. 1, Rule 62] (2) To protect a person against double vexation in respect of one liability [Beltran v. PHHC, G.R. No. L-25138(1969); RCBC v. Metro Container Corp, G.R. No. 127913(2001)]

B.3 WHEN TO FILE W hen to File: GENERAL RULE: Within a reasonable time. An action for interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending parties. Otherwise, it may be barred by laches. [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L-23851(1976)] Exception: Where the stakeholder acts with reasonable diligence in view of environmental circumstances, the remedy is not barred. [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L-23851(1976)] W ho Files: A complaint for interpleader is filed by the person against whom the conflicting claims are made. Jurisdiction and Venue: General rules on jurisdiction and venue apply as in ordinary civil actions. Hence, first-level courts have jurisdiction where the amount is within the limit. [see Makati Dev’t Corp. v. Tanjuatco, G.R. No. L-26443(1969)]

INTERPLEADER v. INTERVENTION Original action Plaintiff either has (a) no interest or (b) an interest in the subject matter undisputed by the other parties Defendants are sued to be impleaded

FOR

(1) The plaintiff clams no interest in the

A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation. [Beltran v. PHHC, G.R. No. L-25138(1969)] The peculiar characteristic of an interpleader is that there is NO CAUSE OF ACTION on the part of the plaintiff but only a threat of cause of action.

INTERPLEADER

REMEDIAL LAW

INTERVENTION Ancillary action, i.e. there is a pending action Intervenor claims an interest that is adverse to at least one of the existing parties, or will be adversely affected by judgment in favor of either of the existing parties Defendants to a complaint-inintervention are parties to a pending suit

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C. DECLARATORY RELIEFS AND SIMILAR REMEDIES

PROCEDURE (1) A complaint is filed. (2) Upon filing of complaint, the court issues

an Order [Sec. 2] requiring conflicting claimants to interplead with one another. (3) Summons shall then be served upon the conflicting claimants with a copy of the complaint and the order to interplead [Sec. 3]. (4) Each claimant has a 15-day period to file any of the following [Sec. 5]: (a) Answer, which must also be served upon the other conflicting claimants. (b) Motion to dismiss [Sec. 4]. If filed, period to answer is o Grounds: (1) Same as in Rule 16, plus (2) Impropriety of interpleader action o If motion is denied, movant may file his answer within the remaining period but it shall not be less than 5 days in any event from notice of denial. (5) From service of Answer, the claimants may file their Reply serving copies to all parties. Parties may file counterclaims, cross-claims, third-party complaints, responsive pleadings Effect of Failure to Answer: Default. (a) The claimant may be declared, on motion, in default (b) Unlike ordinary default, default in interpleader allows the court to render judgment barring him from any claim in respect to the subject matter (6) Pre-trial is conducted. (7) After all pleadings have been fled, the court shall then determine the respective rights and adjudicate their several claims [Sec. 6] NOTE: The parties in an interpleader action may file counterclaims, cross claims, third party complaints and responsive pleadings [Arreza v. Diaz, G.R. 133113(2001)]

C.1. Nature Subject m atter Deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance The enumeration of the subject matter is exclusive. Hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief [Mangahas v. Paredes, G.R. No. 157866 (2007)] Issue The validity or construction of the subject matter. This is the only question that may be raised in declaratory relief. [Atlas Consolidated Mining & Dev’t Corp. v. CA, G.R. No. L-54305 (1990)] Relief Declaration of the petitioner’s rights and duties Purpose: (1) To secure an authoritative statement of the rights and obligations of the parties under a statute, deed, contract, etc. for their guidance in its enforcement or compliance and not to settle issues arising from its alleged breach. [Tambunting v. Sumabat and Baello, G.R. No. 144101 (2005)] (2) To relieve the litigants of the common law rule that no declaration of rights may be judicially adjudged unless a right has been violated and for the violation of which relief may be granted. Characteristics The concept of a cause of action does not strictly apply to declaratory relief since this SCA presupposes that there has been no breach or violation of the instruments involved. However, a breach or violation must be impending, imminent, or at least threatened. [Velarde v. Social Justice Society, G.R. No. 159357(2004)] Hence, unlike other judgments, judgment in an action for declaratory relief does not essentially entail any execution process. [Regalado] 162 OF 425

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(4) Doubtful as to the terms and validity of the document and require judicial construction (5) Issue is ripe for judicial determination, as where all administrative remedies have been exhausted (6) Adequate relief is not available through other means or other forms of action or proceeding [Regalado] A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. [Velarde v. Social Justice Society, G.R. No. 159357(2004)]

C.2.WHO MAY FILE THE ACTION [Sec. 1, Rule 63] (1) Any person interested under a deed, will,

contract or other written instrument, before abreach thereof. (2) Any person whose rights are affected by a statute, executive order or regulation, or ordinance, or any other governmental regulation, before a violation thereof.

PARTIES (1) All persons who have or claim any interest

which would be affected by the declaration [Sec. 2, Rule 63] (2) If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Sec. 3, Rule 63] (3) If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Sec. 4, Rule 63] Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. [Baguio Citizens Action v. City Council of Baguio, G.R. No. L-27247 (1983)]

C.4. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION Court has discretion to refuse,motu proprio or on motion, to grant Declaratory Relief when: (1) The decision will not terminate the controversy or uncertainty giving rise to the action; or (2) The declaration or constitution is not necessary and proper under the circumstances. [Sec. 5, Rule 63]

C.5. CONVERSION TO ORDINARY ACTION [Sec. 6, Rule 63] W hen proper If before the final termination of the case, a breach or violation of the instrument or status occurs. Then, petition is converted into an ordinary action.

WHERE TO FILE Jurisdiction: Exclusive and original jurisdiction is with the RTC (BP Blg. 129, sec. 19, i.e. incapable of pecuniary estimation). SC has no original jurisdiction over declaratory relief petitions, but has appellate jurisdiction over them. [Liga ng mga Barangay National v. City Mayor of Manila, G.R. No. 154599(2004)]

Effect of Conversion Parties shall be allowed to file such pleadings as may be necessary or proper. NOTE: If there has been breach or violation BEFORE filing of the petition, declaratory relief cannot be availed of.

Venue: General rule on venue applies.

C.3 Requisites Of Declaratory Relief

Action

REMEDIAL LAW

For

C.6. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES

(1) Subject matter of controversy must be a deed, will, contract, or other written instrument, statute, executive order or regulation, or ordinance. The enumeration is exclusive. [Vda. de Aviles v. CA, G.R. No. 95748(1996)] (2) Actual justiciable controversy or “ripening seeds” of one between person whose interests are adverse (3) No breach of documents in question

Actions similar to Declaratory Relief and may be brought under Rule 63: (may be filed with the MTC) (1) Action for reformation [See Art. 1359-1369, Civil Code] (2) Action to quiet title or remove cloud [See Art. 476-481, Civil Code] (3) Action to consolidate ownership [See Art. 1607, Civil Code] 163 OF 425

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These remedies are considered similar to declaratory relief because they also result in the adjudication of the legal rights of the litigants often without the need of execution to carry the judgment into effect. [Malana v. Tappa, G.R. No. 181303(2009)] However, distinction must be made between: (1) Cases similar to declaratory relief, where the court is BOUND to render judgment; and (2) Actions for declaratory relief, where the court MAY REFUSE to exercise the power to declare rights and to construe instruments. [Sec. 5, Rule 63]

REMEDIAL LAW

resolution sought to be reviewed. This follows the express provision of the Constitution, and is different from Rule 65 which provides for 60 days. Interruption of the 30-day period Filing of MFR or MNT, if allowed under the procedural rules of the Commission, shall interrupt the 30-day period. If denied, aggrieved party may file petition within the remaining period but it shall not be less than 5 days in any event from notice of denial. [Sec. 3, Rule 64] NOTE: The Fresh Period Rule is NOT applicable. Its application to Rule 65 cannot be automatically extended because Rule 64, Sec. 3 is a special rule. In the case of COMELEC decisions, the Court has chosen not to extend it in view of the Constitutional policy of prompt resolution of election cases. [Pates v. COMELEC, G.R. No. 184915(2009)] Failure to file a motion for reconsideration before the issuing forum results in the dismissal of the petition, except: (1) To prevent a miscarriage of justice (2) When the issue involves the principle of social justice or the protection of labor (3) The decision or resolution is a nullity (4) Need for relief is extremely urgent and certiorari is the only adequate remedy [ABS-CBN v. COMELEC, G.R. No. 133486(2000)]

D. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA SCOPE [Sec. 1, Rule 64] Applicable only to judgments and final orders of the COMELEC and COA[Sec. 1, Rule 64] This new rule is based on the provisions of CONST. art. IX-A, sec. 7, which states that “[u]nless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari within thirty days from receipt of a copy thereof.” Hence, judgments/orders of the Civil Service Commission are now reviewable by the CA under Rule 43, eliminating recourse to the SC. [RA 7902; SC Revised Administrative Circular No. 1-95]

PROCEDURE (1) A verified petition is filed [Sec. 5] with

payment of docket and lawful fees [Sec. 4]

D.1 APPLICATION OF RULE 65 UNDER RULE 64

(2) Service of petition to the Commission and

parties concerned [Sec. 5] (3) SC shall act on the petition:

The aggrieved party may bring a judgment or final order or resolution of the COMELEC and COA to the SC on certiorari under Rule 65 and not on appeal by certiorari under Rule 45. [Sec. 2, Rule 64] NOTE: The petition should be filed EXCLUSIVELY with the SC. o Certiorari is the mode of review. Rule 65 is followed unless it conflicts with particular rules under Rule 64.

(a) It may dismiss the petition: (i) Due to failure to comply with the form and content requirements in Sec. 5; (ii) If SC finds the petition insufficient in form and substance [Sec. 6]; (iii)If it was filed manifestly for delay [Sec. 6]; or (iv) Questions raised are too unsubstantial to warrant proceedings [Sec. 6]. (b) If sufficient in form and substance, the SC will require the respondents to file their Comments [Sec. 6] within 10 days from notice

SPECIAL RULES UNDER RULE 64 Reglementary Period The petition should be filed within 30 days from notice of judgment or final order or 164 OF 425

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(4) SC may also require oral argument or

as a duty resulting from an office, trust, or station. [Sec. 3, Rule 65]

submission of memoranda [Sec. 9] (5) The case is then submitted for decision [Sec. 9]

CERTIORAR I

D.2 DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS RULE 64 Directed only to the judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of the judgment Fresh period rule does not apply. Rule 64, sec. 3 (supra) is applicable.

Directed against an entity or person exercising judicial or quasijudicial functions

RULE 65 Directed to any tribunal, board, or officer exercising judicial or quasijudicial functions Filed within 60 days from notice of the judgment Fresh period applies

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PROHIBITIO N Directed against an entity or person exercising judicial, quasijudicial, or ministerial functions

Entity or person is alleged to have acted: (1) Without jurisdiction (2) In excess of jurisdiction; or (3) With grave abuse of discretion amounting to lack or excess of jurisdiction

rule

E. CERTIORARI, PROHIBITION, MANDAMUS PURPOSE To annul or nullify a proceeding

E.1 DEFINITIONS AND DISTINCTIONS Certiorari is a writ emanating from a superior court directed against an inferior court, tribunal, or officer exercising judicial or quasi-judicial functions, the purpose of which is to correct errors of jurisdiction—i.e. without or in excess of jurisdiction, or with grave abuse of discretion amounting to the same. [Sec. 1, Rule 65]

Covers discretionary acts

Prohibition is a writ issued by a superior court and directed against an inferior court, board, officer or other person whether exercising judicial, quasi-judicial, or ministerial functions for the purpose of preventing or restraining the latter from usurping jurisdiction with which it is not legally vested. [Sec. 2, Rule 65]

Corrective remedy: To correct usurpation of jurisdiction

Mandamus is a writ issued in the name of the State, to an inferior tribunal, corporation, board, or person, commanding the performance of an act which the law enjoins 165 OF 425

PURPOSE: To have respondent desist from further proceeding Covers discretionary and ministerial acts Negative and preventive remedy To restrain or prevent the said usurpation

MANDAMU S Directed against an entity or person exercising ministerial functions Entity or person is alleged to have: (1) Neglected a ministerial duty; or (2) Excluded another from a right or office PURPOSE: For respondent to: (1) do the act required, and (2) pay damages Covers ministerial acts

May be affirmative, positive, or negative

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E.1.1 CERTIORARI AS A MODE OF APPEAL AND AS A SPECIAL CIVIL ACTION CERTIORARI AS A CERTIORARI AS A MODE OF APPEAL SPECIAL CIVIL (Rule 45) ACTION (Rule 65) A continuation of the appellate An original action and process over the not a mode of appeal original case May be directed against an interlocutory order of Seeks to review the court or where no final judgment or appeal or plain or final orders speedy remedy is available in the ordinary course of law Raises questions of jurisdiction, i.e. whether a tribunal, board or officer exercising judicial or quasi-judicial Raises only functions has acted questions of law without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction Filed not later than 60 Filed within 15 days days from notice of from notice of judgment, order, or judgment or final resolution sought to order appealed be assailed. In case a from, or of the motion for denial of reconsideration or petitioner’s motion new trial is timely for reconsideration filed, the 60-day or new trial. period is counted from notice of said denial. Extension of 30 Extension granted days may be only under granted for exceptional cases justifiable reasons. (infra). Motion for Does not require a reconsideration is a prior motion for condition precedent, reconsideration subject to exceptions Does not stay the judgment or order Stays the judgment subject of the petition, appealed from unless enjoined or restrained

CERTIORARI AS A MODE OF APPEAL (Rule 45) Parties are the original parties with the appealing party as the petitioner and the adverse party as the respondent, without impleading the lower court or its judge Filed only with the SC

Review by the SC is discretionary and will be granted only when there are special or important reasons. [Rule 45, sec. 6]

REMEDIAL LAW CERTIORARI AS A SPECIAL CIVIL ACTION (Rule 65) The tribunal, board, or officer, exercising judicial or quasijudicial functions is impleaded as respondent May be filed with the SC, CA, Sandiganbayan, or RTC If the order is sufficient in form and substance: • The RTC shall (1) order respondents to comment, and then (2)(a) hear the case or (2)(b) require the parties to file memoranda. • But the SC/CA may require a comment before giving the petition due course.

E.1.2 PROHIBITION AND MANDAMUS, DISTINGUISHED FROM INJUNCTION INJUNCTION PROHIBITION Ordinary civil action Special civil action Directed to the court Directed only to the itself, commanding it to party litigants, cease from the exercise without in any of a jurisdiction to manner interfering which it has no legal with the court claim It is based on the ground that the court Does not involve against whom the writ the jurisdiction of is sought had acted the court without or in excess of jurisdiction Main action or Main action provisional remedy 166 OF 425

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INJUNCTION Ordinary civil action Directed against a litigant Purpose is to either refrain the defendant from performing an act or to perform not necessarily a legal and ministerial duty

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REMEDIAL LAW o However, mandamus “will lie to compel the discharge of the discretionary duty itself but not to control the discretion to be exercised. In other words, mandamus can issue to require action only but not specific action.” [Assoc. of Small Landowners in the Phils., Inc. v. Sec. of Agrarian Reform, G.R. No. 78742(1989)] (3) The duty to be performed must be existing. o A correlative right will be denied if not performed by the respondents. (4) There is no other plain, speedy, and adequate remedy in the ordinary course of law.

MANDAMUS Special civil action Directed against a tribunal, corporation, board, or officer Purpose is for the tribunal, corporation, board, or officer, to perform a ministerial and legal duty

E.2 REQUISITES CERTIORARI

DISCRETIONARY ACT

(1) Respondent is exercising judicial or quasi-

judicial function (2) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and (3) There must be no appeal or other plain, speedy, and adequate remedy [Barbers v. COMELEC, G.R. No. 165691(2005)]

One where public functionaries, by virtue of a power or right conferred upon them by law, can act officially under certain circumstances, uncontrolled by the judgment or conscience of others

PROHIBITION (1) Respondent is exercising judicial, quasijudicial, or ministerial functions (2) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and (3) There must be no appeal or other plain, speedy, and adequate remedy [Barbers v. COMELEC, G.R. No. 165691(2005)]

MINISTERIAL ACT One which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done [Roble Arrastre, Inc. v. Villaflor (2006)]

E.3 WHEN PETITION FOR CERTIORARI, PROHIBITION, AND MANDAMUS IS PROPER NOTE:The common requisite among certiorari, prohibition, and mandamus is that there is no other plain, speedy, or adequate rem edy in the ordinary course of law.

MANDAMUS (1) There must be a well-defined, clear legal

right or duty. [Valmonte v. Belmonte, G.R. No.74930 (1989)] o The duty must be enjoined by law; hence, a contractual duty cannot be enforced by mandamus. [Province of Pangasinan v. Reparations Commission, G.R. No. L-27448(1977)] (2) Respondent must be exercising a ministerial duty. [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509(2006)] o A duty which is absolute and imperative and involves merely its execution

WHEN PETITION FOR CERTIORARI IS PROPER Only to correct errors of jurisdiction, not errors of judgment. Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. [Suarez v. NLRC, G.R. No. 124723(1998)]

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GENERAL RULE: Where appeal is available, certiorari will not lie. [Jose v. Zulueta, G.R. No. L-16598(1961)] EXCEPTIONS: (1) Where the appeal does not constitute a speedy and adequate remedy (2) Where orders were also issued either in excess or without jurisdiction (3) For certain special considerations, as public welfare or public policy (4) Where, in criminal actions, the court rejects the rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (5) Where the order is a patent nullity (6) Where the decision in the certiorari case will avoid future litigations [Villarica Pawnshop v. Gernale, G.R. No. 163344(2009)

REMEDIAL LAW or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [REGALADO] Grounds for M andam us: (1) When any tribunal, corporation, board, officer or person, UNLAWFULLY NEGLECTS the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. (2) When any tribunal, corporation, board, officer, or person, UNLAWFULLY EXCLUDES another from the due and enjoyment of a right or office to which the other is entitled. [Sec. 3, Rule 65] Mandamus is the proper remedy when the respondent unlawfully excludes the petitioner from an office to which the latter is entitled without usurping, intruding into or unlawfully holding the office. On the other hand, if the respondent claims any right to the office and usurps, intrudes into or unlawfully holds it against the petitioner, quo warranto is the proper remedy [FERIA]

WHEN PETITION FOR PROHIBITION IS PROPER Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [REGALADO] The office of prohibition is not to correct errors of judgment but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdictions. [HERRERA]

E.4 INJUNCTIVE RELIEF INDEPENDENT ACTION

GENERAL RULE:Prohibition does NOT ordinarily lie to restrain an act which is already fait accompli. EXCEPTION: Writ of prohibition will lie to prevent the unlawful creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality [Tan v. COMELEC, G.R. No. 73155(1986)]

An original action for Certiorari, Prohibition, or Mandamus is an independent action, and as such: (1) Does not interrupt the course of the principal action; (2) Does not affect the running of the reglementary periods involved in the proceedings; (3) Does not stay the execution of judgment unless a TRO or writ of preliminary injunction has been issued. [Sec. 7, Rule 65]

WHEN PETITION FOR MANDAMUS PROPER The purpose of mandamus is to compel the performance, when refused, of a ministerial duty, this being its main objective. A writ of mandamus will not issue to control the exercise of official discretion or judgment,

INJUNCTIVE RELIEF GENERAL RULE:The mere elevation of an interlocutory matter through a petition for certiorari does not by itself merit a suspension 168 OF 425

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of the proceedings before a public respondent, applying Sec. 7, Rule 65. The public respondent shall proceed with the principal case WITHIN 10 DAYS from filing of the petition for certiorari with the higher court, absent a TRO or preliminary injunction, or upon its expiration. Failure may be a ground for an administrative charge [AM No. 07-7-12SC] EXCEPTIONS: (1) W hen a writ of preliminary injunction or TRO is issued: The burden is on petitioner to show that there are meritorious grounds, i.e. there is an urgent necessity in order to prevent serious damage; or (2) Judicial courtesy:Even if there is no injunction issued, lower court should defer to higher court where there is a strong probability that the issues before the higher court would be rendered “moot and moribund as a result of the continuation of the proceedings in the” court of origin. [Republic v. Sandiganbayan, G.R. No. 166859(2006)]

REMEDIAL LAW (5) Where petitioner was deprived of due

process and there is extreme urgency for relief (6) Where, in a criminal case, relief from an order of arrest is urgent and granting such relief by trial court is improbable (7) Where the proceedings in the lower court are a nullity for lack of due process (8) Where the proceeding was ex parte or in which the petitioner had no opportunity to object (9) Where the issue raised is one purely of law or where public interest is involved (10) Where the subject matter of the action is perishable [Ombudsman v. Laja, G.R. No. 169241(2006)]

E.6 RELIEFS ENTITLED TO

PETITIONER

IS

RELIEFS, IN GENERAL Petitioner may be entitled to: (1) Injunctive relief – Court may may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties [Sec. 7, Rule 65] (2) Incidental reliefs as law and justice may require [Secs. 1-2, Rule 65] (3) Other reliefs prayed for or to which the petitioner is entitled [Sec. 8, Rule 65]

E.5 EXCEPTIONS TO FILING MOTION FOR RECONSIDERATION BEFORE FILING PETITION GENERAL RULE: An MR is an essential precondition for the filing of a petition for certiorari, prohibition, or mandamus. It is a plain, speedy, and adequate remedy. This is to enable the lower court, in the first instance, to pass upon and correct its mistakes without the intervention of the higher court EXCEPTIONS: MR may be dispensed with in some cases: (1) Where the order is a patent nullity (2) Where questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court (3) Where there is urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government (4) Where under the circumstances, an MR would be useless, as where the court had already indicated that it would deny any motion for reconsideration of its questioned order

PRAYERS (1) In certiorari

(a) That the judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer; and (b) Granting such incidental reliefs as law and justice may require [Rule 65, Sec. 1] (2) In prohibition (a) That the judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified; or (b) Otherwise granting such incidental reliefs as law and justice may require [Rule 65, Sec. 2] (3) In mandamus (a) That the judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act 169 OF 425

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required to be done to protect the rights of the petitioner; and (b) To pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent [Sec. 3, Rule 65]

REMEDIAL LAW W hen filed: (a) Not later than 60 days from notice of judgment/order/resolution (b) If a motion for reconsideration/new trial is filed, the 60-day period shall be counted from notice of denial of motion.

E.7 ACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES

Rule on Extension of Tim e for Filing GENERAL RULE: The sixty (60)-day period within which to file a petition for certiorari under Rule 65 is non-extendible. Exceptions:Under the following exceptional circumstances, the Court may extend the period according to its sound discretion: (1) Most persuasive and weighty reasons; (2) To relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure; (3) Good faith of the defaulting party by immediately paying within a reasonable time from the time of the default; (4) The existence of special or compelling circumstances; (5) The merits of the case; (6) A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (7) A lack of any showing that the review sought is merely frivolous and dilatory; (8) The other party will not be unjustly prejudiced thereby; (9) Fraud, accident, mistake or excusable negligence without appellant's fault; (10) Peculiar legal and equitable circumstances

In election cases involving an act or an omission of a municipal or regional trial court, the petition [for certiorari, prohibition, or mandamus] shall be filed EXCLUSIVELY with the Commission on Elections, in aid of its appellate jurisdiction [Sec. 4, par. 3, Rule 65 as amended by AMNo. 07-7-12-SC (2007)]

E.8 WHEN AND WHERE TO FILE PETITION PETITION AND CONTENTS (1) A verified petition is filed in the proper

court accompanied by: (a) Certified true copy of the judgment, order, resolution subject thereof (b) Copies of all pleadings and relevant and pertinent documents (c) Sworn certification of non-forum shopping (2) Contents of the petition (a) Allegation of facts with certainty (3) Prayer ACQUISITION OF JURISDICTION In original actions for Certiorari, Prohibition, Mandamus, when does the court acquire jurisdiction over the person of the respondent? (1) If action is filed with the RTC:Follow rules on ordinary civil actions. Jurisdiction is acquired by: (a) Service of summons to respondent or (b) By his voluntary appearance in court (2) If the action is filed with the SC/CA: Court acquires jurisdiction over respondents by: (a) Service on them of its orders indicating its initial action on the petition or (b) By their voluntary submission to such jurisdiction PROCEDURE A petition for certiorari/ mandamus/ prohibition is filed

F. QUO WARRANTO F.1. NATURE Literally means “by what authority”; a prerogative writ by which the court can call upon any person to show by what warrant he holds a public office or exercises a PUBLIC franchise. When the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto or any other direct proceeding. Subject Matter: The subject matter of a quo warranto may be a public office, franchise, or position.

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F.2. AGAINST WHOM MAY THE ACTION BE BROUGHT

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F.3. DISTINGUISHED FROM QUO WARRANTO IN THE OMNIBUS ELECTION CODE

(1) A PERSON who usurps, intrudes into, or unlawfully holds or exercises a public office, position, or franchise; (2) A PUBLIC OFFICER who does or suffers an act, which, by provision of law, constitutes a ground for forfeiture of office; or (3) An ASSOCIATION which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to act. [Sec. 1, Rule 66] W hen Not Proper: (1) Against persons who usurp an office in a private corporation [Calleja v. Panday, G.R. No. 168696 (2006)] (2) Dispute as to the counting of votes or matters connected with the conduct of the election (the proper remedy is an election protest) [Cesar v. Garrido, G.R. No. L30705 (1929)]

ROC RULE 66 OEC SEC. 253 Filed by whom (1)Solicitor General or Public Prosecutor, (a) in behalf of the Republic [Rule 66, sec. 2] or (b) upon the request or relation of another person [sec. 3]; or Any voter (2) Individual claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another [sec. 5] Where filed [Jurisdiction] (1) If against [Venue] election of a (1) Commenced by Member of Sol. Gen.: (a) RTC Congress, Manila, (b) CA or Regional, (c) SC; Provincial or City (2) Otherwise: (a) Officer: RTC with COMELEC jurisdiction over (2) If against a territorial area municipal or where respondent barangay officer: resides, (b) CA or appropriate RTC (c) SC or MTC, respectively.

JURISDICTION (1) Original jurisdiction to issue the writ of quo warranto is vested in the SC, CA, and RTC. [CONST. art. VIII, sec. 5(1); Secs. 9 and 21, BPBlg. 129] (2) Actions for quo warranto against corporations (as opposed to associations without authority) with regard to franchises and rights granted to them, as well as the dissolution of corporations now fall under the jurisdiction of the RTC [PD No. 902-A, in relation to Sec. 5.2, RA No. 8799.SEC. REG. CODE, sec. 5.2.; Unilongo v. CA, G.R. No. 123910 (1999)] (3) Usurpation of an office in a private corporation falls under the jurisdiction of the SEC under PD No. 902-A, in relation to Sec. 5.2, RA No. 8799.

Period for filing Within 1 year from ouster or from the Within 10 days after time the right to the proclamation of position arose. [sec. results 11] Grounds (against occupants of public offices) (1) A person, who usurps, intrudes into or unlawfully (1) Ineligibility; or holds or exercises (2) Disloyalty to the a public office, Republic position or franchise; (2) A public officer, 171 OF 425

UP LAW BOC ROC RULE 66 who does or suffers an act which, by provision of law, constitutes a ground for forfeiture of office. [sec. 1] Effect

The Court will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office.

CIVIL PROCEDURE OEC SEC. 253

REMEDIAL LAW

F.5. WHEN INDIVIDUAL COMMENCE AN ACTION

MAY

An individual may commence the action if he claims to be entitled to the office or position usurped or unlawfully held or exercised by another. (1) He may institute the action in his own name. [Sec. 5] (a) He does not have to secure the intervention of the Solicitor General or public prosecutor. (b) No leave of court necessary. (2) He must aver and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage. [General v. Urro, G.R. No. 191560 (2011)] (3) A public utility may bring a quo warranto action against another public utility which has usurped the rights of the former granted under a franchise [Cui v. Cui, G.R. No. 39773 (1934)]

The occupant who was declared ineligible or disloyal will be unseated but the petitioner may be declared the rightful occupant of the office if the respondent is disqualified and the petitioner received the second number of votes [Maquiling v. COMELEC, G.R. No. 195649 (2013)]

F.6. PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE REDUCED Period to File The action must be commenced within 1 year from the date after the cause of such ouster or the right of the petitioner to hold such office or position arose. [Sec. 11] Laches does not attach and failure to file quo warranto proceedings does not operate adversely against a dismissed government employee where it was the act of responsible government official which contributed in the delay of filing of complaint for reinstatement [Cristobal v. Melchor, G.R. No. L-43203 (1980)]

In sum, Rule 66 applies to quo warranto IN GENERAL while election law governs quo warranto against SPECIFIED elective officials.

F.4. WHEN GOVERNMENT MAY COMMENCE AN ACTION AGAINST INDIVIDUALS The Government, through the Solicitor General or public prosecutor commences the action for quo warranto. (1) Mandatory: When to commence: (a) When directed by the President; OR (b) When upon complaint or otherwise he has good reason to believe that any case in Sec. 1 [supra] can be established by proof. [Sec. 2] (2) Discretionary: When to commence: (a) Upon permission of the court; AND (b) At the request and upon the relation of another person [ex relatione], provided officer bringing it may require an indemnity bond.

Reduction of Period The court may reduce the period for filing and for all other proceedings in the action to secure most expeditious determination of the matters involved therein, consistent with the rights of the parties. [Sec. 8]

F.7. JUDGMENT WARRANTO ACTION

IN

QUO

When respondent is found guilty of usurping, intruding, or unlawfully holding or exercising a public office, judgment shall be rendered: 172 OF 425

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(1) That such respondent is ousted and altogether excluded therefrom; and (2) That petitioner or relator, as the case may be, recover his costs; and (3) Court may further determine the respective rights in and to the public office, position, or franchise of all parties. [Sec. 9]

REMEDIAL LAW (d) Taking must be for public use (e) There must be genuine necessity to take the property [Manapat v. CA, G.R. No. 110478 (2007)] There is taking when the expropriator enters private property not only for a momentary period but for a more permanent duration for the purpose of devoting the property to a public use in such a manner as to oust the owner and deprive him of all the beneficial enjoyment thereof. [RP v. Sarabia, G.R. No. 157847 (2005)] Public use means public usefulness, utility, or advantage, or what is productive of the general benefit, so that any appropriation of private property by the State under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use. [Reyes v. National Housing Authority, G.R. No.147511 (2003)]

F.8. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE Rights of persons adjudged entitled to office [Sec. 10]: (1) Execution of the office After taking oath of office and executing any official bond required by the law (2) Demand from respondent all the books and papers appertaining to the office to which judgment relates. Respondent’s neglect or refusal to comply with the demand is punishable by contempt (3) Bring an action for damages against respondent for damages sustained by him by reason of the usurpation. Must be commenced within 1 year after entry of judgment establishing petitioner’s right to the office in question [Sec. 11] because it is not proper that the title to public office should be subjected to continued uncertainty, and the people’s interest requires that such right should be determined as speedily as practicale [Cuyo v. City Mayor, G.R. No. L-9912(1957)]

G.3. MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION Contents of the Complaint The complaint shall: (1) State with certainty the right and purpose of expropriation NOTE: Where the right of the plaintiff to expropriate is conferred by law, complaint does not have to state with certainty the right of expropriation [Manila Railroad Co. v. Mitchel (1923)] (2) Describe the real or personal property sought to be expropriated (3) Join defendants All persons owning or claiming to own, or occupying, any part thereof or interest therein, showing separate interest of each defendant, as far as practicable (4) Make the following averments, if needed: (a) If title appears to be in the Republic, although occupied by private individuals (b) If title is otherwise obscure or doubtful so that plaintiff cannot with accuracy or certainty specify who the real owners are [Sec. 1, Rule 67]

G. EXPROPRIATION G.1. NATURE Eminent Domain is the right and authority of the State, as sovereign, to take private property for public use upon observance of due process and payment of just compensation. It is in the nature of a compulsory sale to the State.

G.2. REQUISITES FOR THE VALID EXERCISE OF THE RIGHT

W here to File RTC where property is located. MTC has no jurisdiction since an action for expropriation is incapable of pecuniary estimation.

(a) The property must be private (b) There must be due process of law (c) Payment of just compensation 173 OF 425

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[Barangay San Roque v. Heirs of Pastor, G.R. No. 138816 (2000)] There is no reason for the institution of expropriation proceedings when the owner is willing to part with his property. The commencement of the complaint for expropriation is necessary only when the owner does not agree to sell his property, or if he is willing to sell but does not agree with the price offered. [RIANO]

REMEDIAL LAW Preliminary deposit [Sec. 2, Rule 67]: • Provide damages if court finds that the plaintiff has no right to expropriate Purposes • Advance payment for just compensation, if property is finally expropriated [Visayan Refining Co. v. Camus (1919)] If Real Property: Equivalent to the assessed value of the property for purposes of taxation. Value If Personal Property: Value shall be provisionally ascertained and fixed by the court. With the authorized government Where to depositary. (Amount is to be held deposit by such bank subject to the orders of the court.) General Rule: Money. Exception: In lieu of money, court authorizes deposit of a certificate of Form of deposit of a government bank of Deposit the Republic, payable on demand to the authorized government depositary.

G.4. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION (First Stage) Propriety of Expropriation: Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved. This ends with either: (1) An order of dismissal, or (2) An order of expropriation (Second Stage) Just Com pensation: Determination of the just compensation for the property sought to be taken. [HERRERA] NOTE: Multiple appeals are allowed in expropriation. Aggrieved party may appeal in each stage separately.

The deposit shall be in money unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the RP payable on demand to the authorized depositary [HERRERA] After the deposit, court shall order sheriff or proper officer to place plaintiff in possession of the property. Such officer shall promptly submit a report to the court with service of copies to parties. NOTE: Preliminary deposit is only necessary if the plaintiff desires entry on the land upon its institution of the action. Otherwise, he could always wait until the order of expropriation is issued before it enters upon the land. Once the preliminary deposit has been made, the expropriator is entitled to a writ of possession as a matter of right, and the issuance of said writ becomes ministerial on the part of the trial court. [Biglang-Awa v. Bacalla, G.R. No. 139927(2000)]

G.5. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO R.A. NO. 8974 Plaintiff shall have the right to take or enter upon possession of the real property upon: (1) Filing of complaint or at any time thereafter, and after due notice to defendant (2) Making preliminary deposit [Sec. 2, Rule 67]

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Republic Act No. 8974 (2000): An Act to Facilitate the Acquisition of Right-of-Way, Site or Location for National Government Infrastructure Projects and for Other Purposes Sec. 2, Rule 67 Expropriation in general, for both real and personal properties

Scope

For writ of possession to issue

Government is required to make preliminary deposit

Amount payment deposit

Equal to assessed value of real property for purposes of taxation

of or

REMEDIAL LAW upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of: (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and (2) The value of the improvements and/or structures as determined under Sec. 7 of R.A. 8974, supra [Sec. 4, RA 8974]

RA 8974 Only when national government expropriates real property for national government infrastructure projects Government is required to make immediate payment to owner upon filing of complaint Equal to the market value of the property as stated in the tax declaration or current relevant zonal value of BIR, whichever is higher, and value of improvements and/or structures using replacement cost method

G.7. DEFENSES AND OBJECTIONS [Sec. 3, Rule 67] No Objection to or With Objection to or Defense against Defense against Taking Taking What to file and serve Notice of appearance and manifestation

Answer complaint

to

the

Period to file Time stated in the summons Contents (1) Specifically designating/identi (1) Manifestation to fying the property the effect that he in which he claims has no objection to have an interest or defense; in; (2) Specifically (2) Nature and extent designating/ident of the interest; ifying the and property in which (3) ALL his objections he claims to be and defenses to interested the complaint or any allegation therein Prohibited Counterclaim, crossclaim, third party complaint in any pleading

Applicable Special Laws: (1) R.A. No. 8974 specifically governs expropriation for national government infrastructure projects (2) Sec. 19, Local Gov’t Code governs the exercise of the power of eminent domain by LGUs through an enabling ordinance

Amended answers A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof.

G.6. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION

Just compensation may be proven with or without objections/defense, and whether or not defendant appeared/answered: In any

For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation, 175 OF 425

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case, in the determination of just compensation, defendant may present evidence as to the amount of compensation to be paid.

such terms as the court deems just and equitable; and (2) Order forecloses any further objections to the right to expropriate, including the public purpose of the same. [Robern Development Corporation v. Quitain, G.R. No. 135042 (1999)] Multiple appeals are permitted in expropriation. An appeal may be taken from the order authorizing expropriation and, thereafter, another appeal on the judgment on the just compensation to be paid. Thus, the reglementary period to appeal shall be 30 days and a record on appeal shall be required for each of the permissible appeals [REGALADO]

Effect of failure to file answer Failure to file answer does not produce all consequences of default as in ordinary civil actions: (1) There is default as to the first stage of expropriation, supra; but (2) Said judgment is without prejudice to the second stage, i.e. defendant still has the right to present evidence on the just compensation and to share in the distribution of the award. [Robern Development Corporation v. Quitain, G.R. No. 135042 (1999)]

G.9. ASCERTAINMENT OF JUST COMPENSATION [Sec. 5, Rule 67]

G.8. ORDER OF EXPROPRIATON [Sec. 4, Rule 67]

Upon rendition of the Order of Expropriation, the court issues an Order of Appointment.

ORDER OF EXPROPRIATION

ORDER OF APPOINTMENT

It is the order declaring that the plaintiff has lawful right to take the property.

(1) Court appoints not more than 3 commissioners to ascertain and report to the court the just compensation for the property (2) Contents: Order shall (a) Designate the time and place of the first session of hearing to be held by commissioner (b) Specify the time within which their report shall be submitted to court (3) Procedures: (a) Copies of the Order shall be served on the parties (4) Objections to appointment: (a) Filed with the court within 10 days from service (b) Objections shall be served to all commissioners (c) Resolved within 30 days after all commissioners shall have received copies

W hen Issued It is issued when: (1) Objections or defenses against the right of plaintiff to expropriate are overruled; or (2) No party appears to defend the case Contents of the Order (1) That the plaintiff has a lawful right to take the property sought to be expropriated: (2) For the public use or purpose described in the complaint; and (3) Upon payment of just compensation (a) To be determined as of the date of taking, or (b) The filing of the complaint, whichever came first.

REMEDY OF DEFENDANT Order of condemnation is final, interlocutory. Hence, it is appealable.

REMEDIAL LAW

not

JUST COMPENSATION

NOTE: Appeal shall not prevent court a quo from determining just compensation.

The full and fair equivalent of the property taken from its owner by the expropriator. Just compensation means not only (1) the correct determination of the amount to be paid but also the (2) payment of the land within a reasonable time from its taking. [Land Bank of the Phils. v. Obias, G.R. No. 184406 (2012)]

EFFECTS OF THE ORDER (1) Plaintiff not permitted to dismiss or discontinue the proceeding, except on 176 OF 425

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(a) Consequential benefits are those proximately resulting from the improvements consequent to the expropriation and accruing to the remaining portion of the land. [REGALADO] (b) In no case shall the consequential benefits assessed exceed the consequential damages. [Sec. 6] (c) In no case shall the owner be deprived of the actual value of his property taken. [Sec. 6]

MARKET VALUE “Sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore.” [BPI v. CA, G.R. No. 160890 (2004)] Time when market value should be fixed: (1) When plaintiff takes possession before institution of proceedings: value fixed as of TIME OF TAKING; or (2) When the taking coincides with or subsequent to the commencement of proceedings: value fixed as of DATE OF FILING of the complaint

REPORT BY COMMISSIONERS [Sec. 7, Rule 67] (1) Commissioners shall make a full and accurate report to the court of all their proceedings. (2) Such proceeding shall not be effectual until court has accepted their report and rendered judgment in accordance with their recommendations. (3) Report shall be filed within 60 days from date commissioners were notified of their appointment. Time may be extended by court discretion, (4) Upon filing, clerk shall serve copies of the Commissioners’ Report to all interested parties. Clerk includes a notice that parties are allowed to file objections to the report within 10 days from notice.

G.10. APPOINTMENT OFCOMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON REPORT QUALIFICATIONS (1) Competent; and (2) Disinterested

PROCEEDINGS BY [Sec. 6, Rule 67]

REMEDIAL LAW

COMMISSIONERS

(1) Oath: Commissioners shall first take and subscribe an oath that they will faithfully perform their duties. Oath shall be filed in court together with other proceedings. (2) Introduction of evidence: Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them

ACTION UPON COMMISSIONERS’ REPORT [Sec. 8, Rule 67] (1) When court renders judgment: Upon (a) Filing of objections to the report or of the agreement thereon of all interested parties; OR (b) Expiration of 10-day period to object from the report (2) Court may: (a) After hearing, accept the report and render judgment in accordance therewith; (b) Recommit to commissioners for further report of facts, for cause shown; (c) Set aside the report and appoint new commissioners; OR (d) Accept the report in part and reject in part; AND (e) Make such order or render such judgment as shall secure the plaintiff (as to its right to expropriate) and the

DUTIES OF COMMISSIONERS (1) View and examine the property sought to be expropriated and its surroundings, and may measure the same. (a) Parties may agree not to have the property inspected. (b) Due notice to parties to attend must first be given. (c) After this, each party may argue the case. (2) Assess the consequential damages to the property not taken and deduct from such the consequential benefits to be derived by owner. 177 OF 425

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defendant (as to his right to just compensation)

REMEDIAL LAW have the right to recover possession of their property. [Yujuico v. Atienza, G.R. No. 164282(2005)]

The appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases. [RIANO]

G.12. EFFECT OF RECORDING OF JUDGMENT Contents of the Judgment (1) Statement of the particular property or interest therein expropriated, with adequate description; and (2) Nature of the public use or purpose for which it is expropriated. [Sec. 13]

The trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or for no reason at all. The absence of such trial or hearing constitutes a violation of the right to due process [NPC v de la Cruz, G.R. No. 156093(2007)]

W hen title to property vests: (1) If personal property, upon payment of just compensation [Sec. 10] (2) If real property, upon (i) payment of just compensation and (ii) registration of property (by recording of the judgment in the registry of deeds where the property is situated.) [Sec. 13]

G.11. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT [Sec. 10, Rule 67] RIGHTS Either: (1) Right to retain: Applies when plaintiff immediately entered upon the property after making the required deposit (and therefore already has possession of the property), supra. (2) Right to enter and appropriate: Applies when plaintiff does not take immediate possession of the property. Appropriation must be for the public use or purpose defined in the judgment.

H. FORECLOSURE ESTATE MORTGAGE

OF

REAL

H.1. NATURE Foreclosure of Mortgage is a proceeding by which the mortgagee or his successors or one who has by law succeeded to the rights and liabilities of the mortgagee undertakes to dispose of, to ban, to cut-off the legal and equitable claims of lien holders or of the mortgagors or those who have succeeded to the rights and liabilities of the mortgagor.

Conditions for exercise: (1) Upon payment by plaintiff to defendant of compensation fixed by judgment, with legal interest from taking; or (2) After tender to defendant of the said amount and payment of the costs. N.B. If defendant or counsel absent themselves from the court or decline the amount tendered, the amount shall be deposited in court and shall have the effect of actual payment.

The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. Foreclosure may be made: (1) Judicially: governed by Rule 68 (2) Extrajudicially: proper only when so provided in contracts in accordance with Act No. 3135; governed by AM No. 99-1005.

EFFECT OF NON-PAYMENT OF JUST COMPENSATION Non-payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots. However, in cases where the government failed to pay just compensation within 5 years from the finality of judgment in the expropriation proceedings, the owners concerned shall 178 OF 425

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H.2. COMPLAINT IN AN ACTION FOR FORECLOSURE [Sec. 1, Rule 68]

REMEDIAL LAW substantive right of the mortgagor. It cannot be omitted in judicial foreclosure nor can the parties by agreement change the procedure outlined. [REGALADO]

Venue A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated.

Contents of judgment If upon trial, the facts set forth in the complaint are true, the court shall: (1) Ascertain the amount due to the plaintiff upon the mortgage debt or obligation including interests, other charges approved, and costs; (2) Render judgment for the sum found due; (3) Order that the amount be paid to the court or to judgment obligee within a period of not less than 90 days but not more than 120 days from entry of judgment In default of such payment, property shall be sold at public auction to satisfy judgment.

Contents of the Complaint: (1) The following dates: (a) Date and due execution of the real mortgage; (b) Date of the note or other documentary evidence of the obligation secured by the mortgage; (2) Its assignments, if any; (3) The following names and residences: (a) Of the mortgagor and mortgagee (b) Of all persons having or claiming an interest in the property subordinate in the right to that of the holder of the mortgage (4) Description of the mortgaged property (5) Amount claimed to be unpaid

Multiple appeals Multiple appeals are allowed under Rule 68. (1) Judgment of foreclosure is appealable. (2) Order confirming foreclosure sale is a final disposition with respect to the issue of validity and regularity of the sale. (3) Deficiency judgment is a disposition on the merits of the correctness of such award. [REGALADO]

Defendants in a judicial foreclosure: (1) Persons obliged to pay the mortgage debt (2) Persons who own, occupy, or control the mortgaged premises or any part thereof (3) Transferee or grantee of the property (4) Second mortgagee or junior encumbrancers or any person claiming a right or interest in the property subordinate to the mortgage sought to be foreclosed to foreclose their equity of redemption But if the action is by the junior encumbrancer, first mortgagee MAY also be joined as defendant (5) Mortgagor even if not owner of the mortgaged property should be included (to satisfy the deficiency).

H.4. SALE OF MORTGAGED PROPERTY; EFFECT [Sec. 3, Rule 68] W hen proper When Defendant fails to pay the amount of judgment within the period specified, the court shall order the property to be sold. How By motion and under the provisions of Rule 39. It is the ministerial duty of the court to order the foreclosure of the property when the debt is not paid within the period specified. A motion for such order of sale is nonlitigable and may be made ex parte. [Gov’t of the Phil. Islands v. De las Cajigas, G.R. No. L33913 (1931)]

H.3. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE [Sec. 2, Rule 68] Judgment on Foreclosure is the judgment of the court ordering the debtor to pay within 90-120 days from entry of judgment after ascertaining the amount due to plaintiff. The period of payment by the mortgagor is a mandatory directive and constitutes a

Lim itation: Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof. 179 OF 425

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If the order of foreclosure sale does not push through, there is a need for re-publication and reposting of the notice thereof [Metrobank v. Nikko Resources Int’l Corp., G.R. No. 178479 (2009)]

REMEDIAL LAW authorized agent, or any other person entitled to it. [Sec. 4, Rule 68]

H.6. DEFICIENCY JUDGMENT; INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT [Sec. 6, Rule 68]

ORDER OF CONFIRMATION When confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. [Sec. 3] Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption. It retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lonzame v. Amores, G.R. No. L53620 (1985)]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v. Botones, G.R. No. L-3619(1951)] (e.g. by proof of irregularities therein, gross inadequacy of the price, lack of notice vitiates the confirmation of the sale). [REGALADO]

Deficiency Judgm ent is judgment rendered by the court holding defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. [Sec. 6] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. [Governor of the Philippine Islands v. Torralba Vda. de Santos, G.R. No. 41573(1935)] NOTE: If the debtor dies, the deficiency may be filed as a claim against his estate. [Sec. 7, Rule 86] A deficiency judgment is an action in personam while a judgment of foreclosure is an action quasi in rem. How Done: (1) Judgment creditor files motion for deficiency judgment. (2) Court shall then render judgment against defendant for any such balance for which he may personally be liable to plaintiff. (3) Execution may then issue immediately if balance is all due at the time of rendition of judgment. If not, plaintiff shall be entitled to execution at such time as the balance remaining becomes due. [Sec. 6]

WRIT OF POSSESSION Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property. EXCEPTION: Third party is actually holding the same adversely to the judgment obligor.

W hen deficiency judgment cannot be rendered: (1) Under the Recto Law [Art. 1484, par. 3, Civil Code]. (2) When mortgagor is a non-resident and is not found in the Philippines. (Rationale: The proceeding would be procedurally infeasible as a deficiency judgment is in personam, and under this situation, jurisdiction over the obligor cannot be had. [RIANO]) (3) When mortgagor dies, mortgagee may file his claim with the probate court. [Sec. 7, Rule 86]

H.5. DISPOSITION OF PROCEEDS OF SALE (1) Amount realized from the foreclosure sale, less costs of the sale, shall be paid to the person foreclosing. (2) When there is a balance or residue after paying the mortgage debt, the same shall be paid to junior encumbrancers in the order of priority as ascertained by the court. (3) If there are no junior encumbrancers, the residue goes to the mortgagor or his 180 OF 425

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(4) If mortgagor is a third party mortgagor but not solidarily liable with debtor. [Phil. Trust Co. v. Tan Suisa (1929)] (a) No deficiency judgment may be rendered against owner who is not a mortgagor and has not assumed personal liability for the debt. (b) Remedy is ordinary action against debtor. (5) In case of a mortgage debt due from the estate of a deceased mortgagor and the mortgage creditor availed of the third remedy which is to rely upon his mortgage alone and foreclosing the same within the statute of limitations. [Sec. 7, Rule 86] (6) When the deficiency arises under an extrajudicial foreclosure. The mortgagee can recover by action (not by motion) any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)]

exercise right of redemption within one year after the sale, when the loan or credit accommodation is granted by a bank. [Sec. 47, General Banking Law (2000)]

Equity of Redem ption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90 to 120 day period after entry of judgment or even after the foreclosure sale but prior to its confirmation. Equity Of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90 to 120 day period after entry of judgment or even after the foreclosure sale but prior to its confirmation Period is 90-120 days after entry of judgment or even after foreclosure sale but prior to confirmation

H.7. JUDICIAL FORECLOSURE VS. EXTRAJUDICIAL FORECLOSURE Requires court intervention There is only an equity of redemption Governed by Rule 68

Extrajudicial Foreclosure No court intervention necessary Right of redemption exists Governed by Act 3135

There could be a Deficiency Judgment.

No Deficiency Judgment because there is no judicial proceeding.

Recovery of deficiency can be done by mere motion.

Recovery of deficiency is through an independent action.

No right of redemption, only equity of redemption Exception: Mortgagor may

foreclosure, juridical persons shall have the right to redeem until, but not after, the registration of the certificate of foreclosure sale with the Register of Deeds which in no case shall be more than 3 months after foreclosure, whichever is earlier. [Sec. 47, General Banking Law (2000)]

H.8. EQUITY OF REDEMPTION VS. RIGHT OF REDEMPTION

W hen there is a surplus instead of a deficiency It is the duty of the mortgagee to return to the mortgagor any surplus in the selling price during the foreclosure sale [Sulit v. CA, G.R. No. 119247 (1997)]

Judicial Foreclosure

REMEDIAL LAW

Governed by Rule 68

Mortgagor has a right to redeem the property within one year from registration of the deed of sale Exception: In case of extrajudicial

Right Of Redemption

Right of the debtor, his successor in interest, or any judicial creditor of said debtor or any person having a lien on the property subsequent to the mortgage.

Period is 1 year from date of registration of certificate of sale Governed by Sec. 2931, Rule 39

NOTE: What Rule 68, secs. 2-3 provide for is the mortgagor’s EQUITY of redemption.This may be exercised by him even beyond the period to pay the judgment obligation (i.e. 90-120 days) and even after the foreclosure 181 OF 425

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sale itself, provided it be before the order of the confirmation of sale. [Rosales v. Alfonso (1999)]

REMEDIAL LAW (3) When partition is prohibited by law (e.g. ACP, party wall); [Art. 494, Civil Code] (4) When the property is not subject to a physical division and to do so would render it unserviceable for the use for which is it intended; [Art. 495, Civil Code] or (5) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084, Civil Code]

I. PARTITION I.1. NATURE Partition is the process of dividing and assigning the property owned in common among the various co-owners thereof in proportion to their respective interests in said property.

I.4. WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS [Sec. 1, Rule 69]

Partition may be: (1) Judicial – Procedure is Rule 69 (2) Extrajudicial – No court intervention require The partition of property may be made voluntarily (by agreement) or compulsorily under the Rules. Even if the parties had resorted to judicial partition, they may still make an amicable partition of the property. [Sec. 12] An action for partition and accounting under Rule 69 is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant’s interest in a specific property and not to render a judgment against him.

W ho May File A person having the right to compel partition of real estate, or of personal property, or both real and personal property [Sec. 1, Sec. 13] Venue and Jurisdiction An action for partition should be filed in the RTC of the province where the property or part thereof is situated. An action for partition is not a conveyance of property. [Heirs of Urieta, Sr. v. Heirs of Urieta (2011)] Because the controversy in partition is whether or not the plaintiff has a right to partition, the issue is incapable of pecuniary estimation. [RIANO]

I.2. WHEN CAN PARTITION BE MADE

Parties (1) The plaintiff is the person who is supposed to be a co-owner of the property. [RIANO] (2) Defendants are (i) all the co-owners, who are indispensable parties, and (ii) all other persons having an interest in the property [Id., citingMORAN]

GENERAL RULE: It can be made anytime. The right to demand partition is imprescriptible. Rationale: Prescription does not run against a co-owner. No co-owner shall be obliged to remain in the co-ownership. EXCEPTION: If a co-owner asserts adverse title to the property, in which case, period of prescription runs from such time of assertion of adverse title. [De Castro v. Echarri, G.R. No. 5609 (1911)]

I.5. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION Contents of the Complaint: (1) Nature and extent of his title (2) Adequate description of the real estate sought to be partitioned (3) Joining of Defendants – All other persons interested in the property [Sec. 1] (4) Demand for accounting of the rents, profits, and other income from the property to which he may be entitled to as his share. [Sec. 8] Since these cannot be demanded in another action (because they

I.3. WHEN PARTITION CANNOT BE MADE: (1) When there is a stipulation against it, not exceeding 10 years; [Art. 494, Civil Code] (2) When partition is prohibited by the donor or testator for a period not exceeding 20 years; [Arts. 494, 1083, Civil Code] 182 OF 425

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are part of the cause of action for partition), they are barred if not set up. [RIANO]

The parties may make the partition proper them selves, by agreem ent: (1) After the issuance of the order of partition, the parties will be asked if they agree to make partition of the property among themselves. (2) If they agree, proper instruments of conveyance will be executed to effect the partition. (3) After the execution of instruments of conveyance, the court shall confirm the partition through a final order. (4) The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Sec. 2, Rule 69]

I.6. TWO STAGES IN EVERY ACTION FOR PARTITION FIRST STAGE: DETERMINATION OF THE PROPRIETY OF PARTITION This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. [See Lacbayan v. Samoy, G.R. No. 165427(2011)] The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. [Miranda v. Court of Appeals, G.R. No. L-33007(1976)] If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. [De Mesa v. CA, G.R. No.109387(1994)]

SECOND STAGE: PARTITIONING OF THE PROPERTY

REMEDIAL LAW

I.8. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT W hen proper If parties fail to agree on the manner of partition, commissioners are appointed to make partition.

ACTUAL SUBJECT

This is also a complete proceeding and the order or decision is appealable.

How Done The court appoints not more than 3 competent and disinterested commissioners to make the partition. [Sec. 3]

When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. [Noceda v. CA, G.R. No. 119730 (1999)] The action for partition is subject to multiple appeals and would require a record on appeal [Roman Catholic Archbishop of Manila v. CA, G.R. No. 77425 (1991)]

OATH OF THE COMMISSIONERS Before entering into their duties, commissioners must first make an oath that they will faithfully perform their duties as commissioners. Such oath is to be filed in court. [Sec. 4]

DUTIES OF THE COMMISSIONERS (1) They shall view and examine real estate, after due notice to parties to attend at such view and examination; (2) They shall hear the parties as to their preference in the portion to be set apart to them; (3) They shall also determine the comparative value thereof; and (4) They shall set apart the same to the parties in lots or parcels as will be most

I.7. ORDER OF PARTITION AND PARTITION BY AGREEMENT ORDER OF PARTITION The court issues an order of partition AFTER the trial and the court finds that the plaintiff has a right to partition. The court orders the partition of the property. 183 OF 425

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advantageous and equitable considering the improvements, situation, and quality of the parts thereof. The provision authorizes the commissioners merely to make or effect the partition. It does not grant them the authority to adjudicate on questions of title or ownership. [RIANO]

REMEDIAL LAW (a) Upon expiration of the 10 day period for filing objections; or (b) Even before expiration but after the interested parties have filed their objections or their statement of agreement therewith (2) The court may: (a) Accept the report and render judgment in accordance therewith; or (b) Recommit the same to commissioners for further report of facts, for cause shown; or (c) Set aside the report and appoint new commissioners; or (d) Accept the report in part and reject in part; and (e) Make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold

ASSIGNMENT OF REAL ESTATE TO ONE PARTY GENERAL RULE: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same provided he pays to the other parties such amounts as the commissioners deem equitable. EXCEPTION: If one of the parties asks that the property be sold instead of being so assigned, then the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine [Sec. 5]

I.9. JUDGMENT AND ITS EFFECTS [Sec. 11, Rule 69] Contents of Judgment

Requisites of Assignm ent: (1) Assignment is in favor of one of the parties, not to 3rd persons (2) Payment to the other parties (3) Amount to be paid is based on the amounts which the commissioners deem equitable (4) Other interested parties do not ask the court that the property be sold instead.

Effects of Judgment

If actual partition is properly made Judgment shall state Judgment shall vest definitely, by metes in each party to the and bounds and action in severalty the adequate description, portion of the real the particular portion estate assigned to of the real estate him. assigned to each party. If the whole property Is assigned to one of the parties after payment Judgment shall vest Judgment shall state in the party making the fact of such the payment the payment and of the whole of the real assignment of the real estate free from any estate to the party interest on the part of making the payment. the other parties.

COMMISSIONER’S REPORT Commissioners shall make a full accurate report to the court on: (1) All proceedings as to the partition, or (2) The assignment of real estate to one of the parties, or (3) The sale of the same.

If property is sold and sale is confirmed by the court

Upon filing of Com m issioner’s Report: (1) Clerk shall serve copies on all interested parties with notice that they are allowed to file objections (2) Parties may file objections within 10 days upon receipt of notice

Judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser

HEARING ON THE REPORT [Sec. 7] (1) When Conducted: 184 OF 425

Judgment shall vest the real estate in the purchaser(s), making the payment(s) free from the claims of any parties to the action.

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J.2. DEFINITIONS DISTINCTIONS [RIANO]

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Sec. 11, Rule 69]

I.10. PARTITION PROPERTY

OF

Forcibly Entry (Detentacion) Possession of land by defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat, or stealth (FISTS).

PERSONAL

The provisions of Rule 69 shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. [Sec. 13]

No previous demand for defendant to vacate the premises is necessary. Plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by defendant. The 1-year period is generally counted from date of actual entry on land.

I.11. PRESCRIPTION OF ACTION The right of action to demand partition does not prescribe De Castro v. Echarri, G.R. No. 5609 (1911)], except where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova (1958)] in which case, acquisitive prescription may set in. If a co-owner repudiates the co-ownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC, G.R. No. 75886(1988)]

J. FORCIBLE ENTRY UNLAWFUL DETAINER

REMEDIAL LAW

The issue centers on who was in prior possession de facto.

AND

AND

Unlaful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to possession of the property under his contract (express or implied) with the plaintiff. Demand is jurisdictional.

Plaintiff need not have been in prior physical possession. Period is counted from the date of last letter of demand. The issue centers on whether the defendant’s right to possess has expired or not.

In ejectment cases, possession means nothing more than actual physical possession, not legal possession in the sense contemplated in civil law [Antazo v. Doblada, G.R. No. 178908 (2010)] In order to constitute force, the act of going to the property and excluding the lawful possessor necessary implies the exertion of force over the property which is all that is necessary and sufficient to show that the action is based on Sec. 1, Rule 70. [Bunyi v. Factor, G.R. No. 172547 (2009)]

J.1. NATURE Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession of property. [Tubiano v. Razo, G.R. No. 132598(2000)] Rationale: The owners of property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law in their own hands.

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J.3. DISTINGUISHED FROM ACCION PUBLICIANA, ACCION REINVINDICATORIA, AND ACCION INTERDICTAL The Three Kinds of Action Accion Interdictal Summary action for recovery of physical possession where the dispossession has not lasted for more than 1 year Issues is possession de facto Real action In personam All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

for Recovery of Possession Accion Publiciana A plenary action for recovery of real right of possession when dispossession has lasted for more than one year Issue involves determination of who has better right to possession Real action In personam

Accion Reinvindicatoria An action for recovery of possession based on ownership Issue involves ownership (and consequently, possession) Real action Quasi in rem

RTC has jurisdiction if value of the property exceeds P20,000 outside Metro Manila or P50,000 within Metro Manila. MTC has jurisdiction if value of property does not exceed the above amounts. [B.P. Blg. 129, as amended]

J.5. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED

J.4. TO DETERMINE JURISDICTION IN ACCION PULICIANA, ACCION REINVINDICATORIA, AND ACCION INTERDICTAL

WHO MAY INSTITUTE PROCEEDINGS

IN ACCION INTERDICTAL Exclusive original jurisdiction over forcible entry and unlawful detainer suits is with the MTC. [Sec. 33(2), BP 129] Amount of rents and damages claimed does not affect the jurisdiction of the MTC because they are only incidental or accessory to the main action. However, municipal courts have no jurisdiction over a forcible entry/unlawful detainer case involving agricultural tenants. Jurisdiction is with the HLURB.

(1) In Forcible Entry: A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth. (2) In Unlawful Detainer: (a) Lessor, vendor, vendee or other person against whom any land or building is unlawfully withheld; or (b) His legal representatives or assigns. [Sec. 1, Rule 70]

IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA

Within ONE (1) year after such unlawful deprivation or withholding of possession. [Sec. 1]

PERIOD OF FILING

(1) RTC has jurisdiction where the assessed value of the property exceeds P20,000 or, in Metro Manila, P50,000; (2) MTC has jurisdiction if the assessed value does not exceed said amounts. [Secs. 19, 33,BP 129, as amended] Where the basic issue is not possession but interpretation, enforcement and/or rescission of the contract, the same is no longer an ejectment suit. [Villena v. Chavez, G.R. No. 148126 (2003)]

Reckoning points: (1) For forcible entry, it is counted from date of entry or taking of possession; EXCEPTION: In case of stealth or strategy, from the time plaintiff learned of entry. [Vda. de Prieto v. Reyes, G.R. No. L21740(1965)] (2) For unlawful detainer, it is counted from: 186 OF 425

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(a) Date of last demand to vacate in case of non-payment of rent or noncompliance with conditions of the lease; or (b) Date of notice to quit, in case of tacit renewal of lease; or (c) Date of revocation of the permit in case of occupancy on mere tolerance or under temporary permit.

REMEDIAL LAW W hat must be alleged in the com plaints: Forcible Entry Unlawful Detainer (1) That plaintiff was (1) That defendant is in prior physical unlawfully possession of the withholding property in possession from litigation until he plaintiff because was deprived his right to possess thereof by had expired defendant (2) That landlord has (2) That the made a demand dispossession upon tenant to was through comply with the FISTS. [NOTE: terms of the First two contract and to requirements are return the jurisdictional possession of the [Abad v. Farrales, property, and that G.R. No. 178635 the tenant failed to (2011)] satisfy the demand (3) That the within 15 or 5 days, complaint was in case of buildings filed within 1 year (3) That the complaint from is filed within 1 year dispossession. from last demand. [Romullo v. Samahang Magkakapitbahay, G.R. No. 180687 (2010)]

Against whom may the action be maintained: Person or persons unlawfully withholding or depriving of possession, or any person/s claiming under them [Sec. 1]. Action may be maintained only against one in possession at the commencement of the action. Tenant with right of [de facto] possession may bring action against another tenant. Vendor may bring action for ejectment against vendee upon failure to pay installments. Action may lie against the very owner of the property. Action may be maintained against government officials or agents acting in behalf of the government, even if government is not made a party to the action. [REGALADO]

J.6. PLEADINGS ALLOWED ONLY allowed pleadings: (1) Complaint (2) Compulsory Counterclaim pleaded in the answer (3) Cross-claim pleaded in the answer (4) Respective answers. [Sec. 4, Rule 70]

Mere failure to pay rent does not ipso facto make unlawful the tenant’s possession. It is the demand to vacate and refusal to vacate which makes unlawful the withholding of possession [Canaynay v. Sarmiento, G.R. No. L-1246(1947)]

NOTE: Pleadings must be VERIFIED. [Sec. 4, Rule 70]

J.7. ACTION ON COMPLAINT MOTU PROPRIO DISMISSAL From the examination of allegations in the complaint, the court may dismiss the case outright on any grounds mentioned in Rule 16. [Sec. 5]

ISSUANCE OF SUMMONS If there is no ground for dismissal, court issues summons. [Sec. 5]

ANSWER BY DEFENDANT Defendant shall file his answer within 10 days from service of summons. [Sec. 6] 187 OF 425

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Effect of failure to answer Court shall render judgment, motu proprio or upon motion. [Sec. 7] (1) Judgment is limited to what is prayed for in the complaint. (2) Court may reduce the amount of damages and attorney’s fees claimed (a) For being excessive or otherwise unconscionable (b) In the exercise of its discretion (c) No prejudice to applicability of Sec. 3(c), Rule 9 if there are 2 or more defendants

Period to comply w ith dem and: Lessor may file unlawful detainer suit if lessee fails to comply with the demand: (1) After 15 days in the case of lands; or (2) After 5 days in case of buildings. [Sec. 2] W hen demand not required: (1) When parties stipulate that demand shall not be necessary [Sec. 2]; or (2) When the action is predicated on the expiration of the lease. [Labastida v. CA, G.R. No. 110174 (1998)] (Since it is not based on failure to pay or comply with the conditions [see Sec. 2].) It is only where defendant fails to comply with the demand within the periods provided by Sec. 2 will his possession become unlawful. A demand to pay or vacate does not give rise to a cause of action for unlawful detainer. [Peñas v. CA, G.R. No. 112734 (1994)] A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. [Dakudao v. Consolacion, G.R. No. L-54753 (1983)] Demand is not required in forcible entry suits.

PRELIMINARY CONFERENCE Preliminary conference shall be held not later than 30 days after filing of last answer. [Sec. 8]

SUBMISSION OF POSITION PAPERS

AFFIDAVITS

REMEDIAL LAW

AND

Affidavits and position papers are to be submitted within 10 days from receipt of the Order stating the matters taken in the preliminary conference. [Sec. 10]

RENDITION OF JUDGMENT Court shall render judgment within 30 days after receipt of affidavits and position papers. [Sec. 11]

J.9. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION

J.8. WHEN DEMAND NECESSARY GENERAL RULE:In unlawful detainer cases, a prior written demand against the lessee is required before the lessor can proceed against him. [Sec. 2]

Court may grant preliminary injunction in accordance with Rule 58 to prevent defendant from committing further acts of dispossession against plaintiff. [Sec. 15, Rule 70]

Contents of demand: The demand must be two-fold: (1) To (a) pay or (b) comply with the conditions of the lease; and (2) To vacate.

There is no distinction as to the type of ejectment case involved. A preventive injunction is governed by Rule 58. A mandatory injunction is governed by the rules in Rule 70.

Form of Demand: Demand may be: (1) By service of written notice of such demand upon the person found on the premises; [Sec. 2] (2) By posting of the written notice on the premises if no person is found there; [Sec. 2] or (3) Oral. [Jakihaca v. Aquino, G.R. No. 83982(1990)]

PRELIMINARY INJUNCTION

MANDATORY

Possessor may present a motion for issuance of preliminary mandatory injunction in the action for forcible entry or unlawful detainer within 5 days from filing of complaint to restore him in his possession. Court shall 188 OF 425

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decide the motion within 30 days from filing. [Sec. 30] Preliminary mandatory injunction shall be available: (1) At the start of the action; [Sec. 15] (2) On appeal to the RTC upon motion of plaintiff within 10 days from perfection of appeal. [Sec. 20] NOTE: The injunction on appeal is to restore to plaintiff in possession: (1) If the court is satisfied that the defendant’s appeal is frivolous or dilatory; or (2) That the appeal of plaintiff is prima facie meritorious. [Sec. 20] MTC can also issue a preliminary mandatory injuction in an unlawful detainer case. [Day v. RTC of Zamboanga, G.R. No. 71119 (1990)]

(a) Hence, if prior possession may be ascertained in some other way, the inferior court cannot intrude into the issue of ownership. (5) Where the question of who has prior possession hinges on the issue of who is the real owner: (a) The inferior court may resolve issue of ownership, but such pronouncement is merely provisional. (b) It does not bar or prejudice an action between the same parties involving title. [Refugia v. CA, G.R. No. 118284(1996)] Judgment for ejectment cannot be enforced against a co-owner who was not made a party to the action. [Cruzcosa v. Concepcion, G.R. No. L-11146 (1957)]

PRELIMINARY INJUNCTION

J.11. HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT [Sec. 19, Rule 70]

PREVENTIVE

Preliminary preventive injunction is available in either case. Note that Sec. 15 makes the provisions of Rule 58 applicable to Rule 70.

J.10. RESOLVING OWNERSHIP

DEFENSE

JUDGMENT OF THE MTC GENERAL RULE: Judgment of the MTC against defendant in ejectment cases is immediately executory. EXCEPTION: When the following concur: (1) The defendant perfects his appeal; (2) He files a sufficient supersedeas bond to pay the rents, damages, and costs accruing down to the time judgment appealed from; and (3) He deposits with the appellate court: (a) The amount of rent due from time to time under the contract, or (b) In the absence of contract, the reasonable value of the use and occupation of premises for the preceding month or period determined by judgment on or before the 10th day of each succeeding month or period [Chua v. CA, G.R. No. 113886 (1998)] All of these requisites must concur. The deposit is a mandatory requirement; hence, if it is not complied with, execution will issue as a matter of right. [Antonio v. Geronimo, G.R. No. 124779(2005)]

OF

Under Sec. 33(2), BP Blg 129, when in an ejectment suit, the defendant raises the question of ownership in his pleadings, and the issue of ownership, the MTC nevertheless has undoubted competence to resolve the issue of ownership only to determine the issue of possession. Hence: (1) Primary rule is that the principal issue must be that of possession. (a) Ownership is merely ancillary. (b) Issue of ownership may be resolved but only for the purpose of determining the issue of possession. (2) It must sufficiently appear from allegations of the complaint that what plaintiff really and primarily seeks is restoration of possession. (3) Inferior court cannot adjudicate on the nature of ownership where relationship of lease has been sufficiently established (a) Unless it be proven that there has been a subsequent change in or termination of that relationship between parties. (4) In forcible entry, a party who can prove prior possession can recover such possession even against the owner himself.

JUDGMENT OF THE RTC The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further 189 OF 425

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appeal that may be taken therefrom. [Sec. 21, Rule 70]

REMEDIAL LAW administration of justice. [Siy v. NLRC, G.R. No. 158971(2012)] The power to declare a person in contempt of court and in dealing with him accordingly is an inherent power of the court. It is used as a means to protect and preserve the dignity of the court, the solemnity of the proceedings, and administration of justice. [Montenegro v. Montenegro, G.R. No. 156829 (2004)] Contempt proceedings have a dual function: (a) vindication of public interest by punishment of contemptuous conduct; and (b) coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also to secure the rights of the parties to a suit awarded by the Court. [Regalado v. Go, G.R. No. 167988 (2007)]

J.12. SUMMARY PROCEDURE, PROHIBITED PLEADINGS GENERAL RULE: All actions for forcible entry and unlawful detainer shall be governed by the summary procedure of Rule 70, irrespective of the amount of damages or unpaid rentals sought to be recovered. [Sec. 3] EXCEPTIONS: (1) In cases covered by the agricultural tenancy laws; or (2) When the law otherwise expressly provides. [Sec. 3]

PROHIBITED PLEADINGS [Sec. 13] (1) Petition for relief from judgment; (2) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (3) Reply; (4) Third-party complaints;

K.2. KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH According to Nature (1) Criminal contempt: Conduct directed against the authority and dignity of the court or a judge acting judicially. (2) Civil contempt: Failure to do something ordered to be done by a court or by a judge for the benefit of the opposing party. [Lorenzo Shipping v. Distribution Management, G.R. No. 155849 (2011)]

PROHIBITED MOTIONS {Sec. 13} (1) Motion to dismiss; only to exceptions: (a) Lack of jurisdiction over subject matter; or (b) Failure to comply with conciliation, when such is required; (2) Motion for bill of particulars; (3) Motion for new trial, reconsideration of a judgment, or reopening of trial; (4) Motion for extension of time to file pleadings, affidavits, or other paper; (5) Memoranda; (6) Motion to declare defendant in default; (7) Dilatory motions for postponement; (8) Interventions.

Criminal Contempt Punitive in nature Purpose is to preserve the court’s authority and to punish for disobedience of its orders Intent is necessary

K. CONTEMPT

State is the real prosecutor

K.1. NATURE Contempt of court is disobedience to the court by acting in opposition to its authority, justice, and dignity. It signifies not only a willful disregard or disobedience to the court’s orders but also conduct tending to bring the authority of the court and administration of law into disrepute, or, in some manner, to impede the due

Proof required is proof beyond reasonable doubt If accused is acquitted, there can be no appeal

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Civil Contempt Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order; for the preservation of the rights of private persons Intent is not necessary Instituted by the aggrieved party, or his successor, or someone who has a pecuniary interest in the right to be protected Proof required is more than mere preponderance of evidence If judgment is for respondent, there can be an appeal

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K.3. DIRECT CONTEMPT

According to Manner of Commission (1) Direct contempt: Act committed in the presence of or so near the court or judge as to obstruct or interrupt the proceedings before the same. (2) Indirect contempt: One not committed in the presence of the court. It is an act done at a distance which tends to belittle, degrade, obstruct, or embarrass the court and justice. [Lorenzo Shipping v. Distribution Management, G.R. No. 155849 (2011)] Direct Contempt Committed in the presence of or so near a court Summary in nature Punishment: If committed against the RTC: Fine of not exceeding P2,000 and/or imprisonment not exceeding 10 days or both If committed against the MTC: Fine not exceeding P200 and or imprisonment not exceeding 1 day or both Remedy is certiorari or prohibition Otherwise known as Contempt in Facie Curiae

REMEDIAL LAW

For a person to be adjudged guilty of direct contempt, he must commit a misbehavior in the presence of or so near a judge as to interrupt the administration of justice. [SBMA v. Rodriguez, G.R. No. 160270(2010)] GROUNDS (1) Disrespect toward the court; (2) Offensive personalities toward others; (3) Refusal to be sworn or answer as witness or subscribe an affidavit when lawfully required to do so; (4) Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings; or [Sec. 1, Rule 71] (5) When the counsel willfully and deliberately engages in forum shopping. [Sec. 5, Rule 7]

Indirect Contempt Not committed within the presence of the court There is charge and hearing Punishment: If committed against RTC: Fine not exceeding P30,000 and/or imprisonment not exceeding 6 months or both If committed against MTC: Fine not exceeding P5,000 and/or imprisonment not exceeding 1 month or both

Other examples of direct contempt: (1) Willful and deliberate forum shopping [Sec. 5, Rule 7] (2) Submission of pleadings containing derogatory, offensive, and malicious statements submitted to the court [Re: Letter of Atty. Noel Sorreda, AM No. 05-34-SC(2005)] PROCEDURE Summarily adjudged in contempt by such court. By whom initiated: (1) Generally, civil contempt proceedings should be instituted by an aggrieved party, or his successor, or someone who has pecuniary interest in the right to be protected; (2) In criminal contempt proceedings, it is generally held that the State is the real prosecutor.

Remedy is appeal Otherwise known as Constructive Contempt

Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of contemptuous act. The real character of the proceedings in contempt cases is to be determined by the relief sought or by the dominant purpose. The proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial. [Montenegro v. Montenegro, G.R. No. G.R. No. 156829 (2004)]

Penalties [Sec. 1, Rule 71] Offense Penalty Fine not exceeding If RTC or a court of P2,000 and/or equivalent or higher Imprisonment not rank exceeding 10 days or both Fine not exceeding P200 and/or If lower court: Imprisonment not exceeding 1 day or both 191 OF 425

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TWO MODES OF COMMENCING A PROCEEDING

REMEDY OF A PERSON ADJUDGED IN DIRECT CONTEMPT [Sec. 2, Rule 71]

(1) Motu proprio by the court against which contempt was committed: By order or any other formal charge requiring respondent to show why he should not be punished for contempt; or (2) Independent action via verified petition in all other cases: By a charge commenced by a verified petition with supporting particulars. [Sec. 4, Rule 70]

(1) He cannot appeal, but he may file certiorari or prohibition. (2) Execution of judgment shall be suspended pending resolution of such petition, provided: (a) He files a bond fixed by the court which rendered judgment; and (b) Conditioned that he will abide by and perform the judgment should the petition be decided against him.

WHERE TO FILE CHARGE GENERAL RULE: Proceeding for Indirect Contempt shall be filed and tried by the court against which the contumacious conduct was committed. EXCEPTIONS: (1) If committed against a lower court, it may be tried by the RTC, regardless of the imposable penalty; or (2) If committed against the SC, it may cause it to be investigated by the prosecutor and filed with the RTC, or for hearing and recommendation where the charge involves questions of fact [Sec. 5, Rule 70]

K.4. INDIRECT CONTEMPT SPECIFIC ACTS INDIRECT CONTEMPT

CONSTITUTING

(1) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. (2) Abuse of or any unlawful interference with processes or proceedings of a court not constituting direct contempt. (3) Disobedience or resistance to lawful writ, process, order, or judgment of a court, or any unlawful intrusion to any real property after being ejected. (4) Failure to obey subpoena duly served. (5) Assuming to be an attorney or officer of a court, and acting as such without authority. (6) Improper conduct tending to impede, obstruct, or degrade administration of justice. (7) Rescue, or attempted rescue, of a person or property in custody of an officer. [Sec. 3, Rule 71] (8) Failure of counsel to inform the court of the death of his client. [RIANO, since it constitutes improper conduct tending to impede the administration of justice.]

PROCEDURAL PROCEEDINGS

REQUISITES

REMEDIAL LAW

PENALTIES [Sec. 7, Rule 71] Offense If against RTC, or court of equivalent or higher rank If committed against lower court

FOR

If contempt consists in violation of a writ of injunction, TRO, or status quo order

(1) A charge in writing or an order of the court to appear and explain; and (2) An opportunity for respondent to comment on the charge and to appear and explain his conduct. (3) To be heard by himself or counsel [Regalado v. Go, G.R. No. 167988 (2007)] 192 OF 425

Penalty Fine not exceeding P30,000 and/or Imprisonment not exceeding 6 month, or both Fine not exceeding P500, and/or Imprisonment not exceeding 1 month, or both Offender may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. If there is nothing more to return, offender is personally liable for the restitution of the money equivalent to the lost thing [Rosario Textile Mills v. CA, G.R. No. 137326 (2003)]

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CIVIL PROCEDURE

REMEDIAL LAW exercising quasi-judicial functions or have suppletory effect to such rules as they may have adopted. RTC of the place where the contempt was committed shall have jurisdiction. It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (e.g. DARAB has no power to decide the contempt charge filed before it). [Land Bank v. Listana, G.R. No. 152611(2003)] Sec. 12, Rule 71 confers contempt powers on all Quasi-Judicial entities or supplements their rules, unless the applicable law provides otherwise. Acts or violations against quasi-judicial bodies punishable as contempt: Where a person, without lawful excuse, fails to appear, make oath, give testimony or produce documents when required to do so by the official or body exercising such powers. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt, and providing the corresponding penalty. [People v. Mendoza (1953);ADMIN. CODE, Bk. VII, Ch. 3, sec. 13]

Penalty Penalty shall depend upon the provisions of the law which authorizes penalty for contempt against such persons or entities [Sec. 12, Rule 71]

REMEDY OF A PERSON ADJUDGED IN INDIRECT CONTEMPT May be appealed to the proper court as in criminal cases, but execution shall not be suspended until bond is filed. [Sec. 11, Rule 71] Generally, a non-party may not be liable for contempt unless he is guilty of conspiracy with any of the parties in violating the court’s orders. [Desa Ent. Inc. v. SEC, G.R. No. L45430(1982)] A contempt proceeding, whether civil or criminal, is still a criminal proceeding, hence, acquittal is a bar to a second prosecution. The distinction is for the purpose only of determining the character of the punishment to be administered. [Santiago v. Anunciacion, G.R. No. 89318(1990)]

K.5. WHEN IMPRISONMENT SHALL BE IMPOSED (1) When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. [Rule 71, Sec. 8] (2) When the respondent “carried the keys to his prison in his own pocket.” [Galvez v. Republic Surety & Insurance Co., Inc., G.R. No. L-12581(1959)] Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release. [Inoturan v Limsiaco, Jr., AM No. MTJ-01-1362(2005)] Sec. 8, Rule 71 does not apply to tenants who refused or failed to pay their rentals to the special administratrix of the property. The non-payment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment. [REGALADO]

K.6. CONTEMPT AGAINST QUASIJUDICIAL BODIES [Sec. 12, Rule 71] Rule 71 shall apply to contempt committed against persons, entities, bodies, or agencies 193 OF 425

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THE SPECIAL CIVIL ACTIONS

INTERPLEADER

JURISDICTION Personal Property: 1. MTC: If value not more than P300,000 outside Metro Manila, or not more than P400,000 in Metro Manila (B.P. Blg. 129, sec. 33) 2. RTC: If value exceeds P300,000 outside Metro Manila, or P400,000 in Metro Manila, or if incapable of pecuniary estimation (B.P. Blg. 129, sec. 19) Real Property: 1. MTC: assessed value not more than P20,000 outside Metro Manila or not more than P50,000 in Metro Manila (Sec. 33, BP 129) 2. RTC: value exceeds P20,000 if outside Metro Manila, or P50,000 if in Metro Manila, or incapable of pecuniary estimation (Sec. 19, BP129) General rule: In the appropriate RTC, since the subject in declaratory relief is incapable of pecuniary estimation.

DECLARATORY RELIEF

REVIEW OF JUDGMENTS AND FINAL ORDERS OF COMELEC/COA

CERTIORARI PROHIBITION MANDAMUS

Exception: Where the action is a proceeding similar to declaratory relief (e.g. quieting of title to real property), jurisdiction will depend on the assessed value of the property, supra. SC

VENUE

Apply Rule 4: Real action: If the action affects title to or possession of real property, venue is where the real property involved or a portion thereof is situated. Personal action: All other actions—At the election of the plaintiff 1. Where plaintiff or any of the principal plaintiffs reside; or 2. Where defendant or any of the principal defendants resides; or 3. In case of an non-resident, where he may be found

Apply Rule 4, i.e. personal action, where the petitioner or the respondent resides

SC

• • •

• • QUO WARRANTO •

RTC, CA, SC; Sandiganbayan, in aid of its appellate jurisdiction; COMELEC, in election cases involving an act or omission by MTC or RTC, in aid of its appellate jurisdiction. RTC, CA, SC Sandiganbayan, which has exclusive original jurisdiction over quo warranto cases filed by the PCGG COMELEC, exclusive jurisdiction over cases falling under the

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RTC where the respondent is situated, where petition relates to an act or omission of a corporation, board, an officer, or person. [Rule 65, Sec. 4] •

•

Generally, action can be brought in the SC, CA, or RTC exercising jurisdiction over the territorial area where respondent resides or any of the respondent resides If commenced by the SolGen, it may be filed with the RTC Manila, CA, or

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•

EXPROPRIATION JUDICIAL FORECLOSURE PARTITION FORCIBLE ENTRY AND UNALWFUL DETAINER

JURISDICTION Omnibus Election Code Special Commercial Courts, for quo warranto against duly licensed associations. (CORP. CODE rules apply, not the RULES OF COURT.)

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VENUE SC • The Sandiganbayan has exclusive original jurisdiction on quo warranto arising or that may arise in cases filed under EO 1,2,14, 14-A but this must be in aid of its appellate jurisdiction and not exclusive of the SC. Apply Rule 4, i.e. where the real property involved, or a portion thereof, is situated

RTC In cases of personal property, where the plaintiff or defendant resides Apply Rule 4, i.e. where the real property involved, or a portion thereof, is situated Apply Rule 4

RTC RTC

Apply Rule 4, i.e. where the real property involved, or a portion thereof, is situated

MTC

•

• CONTEMPT

MTC, RTC, CA, SC •

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If committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it: File with such court If committed against a first-level court: File with the RTC of the place in which lower court is sitting If act was committed against persons or entities exercising quasi-judicial functions: File with the RTC of the place wherein contempt was committed

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IX. Special Rules A. REVISED RULES SUMMARY PROCEDURE

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(2) To a criminal case where offense charged is necessarily related to another criminal case subject to ordinary procedure

ON

A.2. EFFECT OF ANSWER [Sec. 6]

A.1. CASES COVERED BY THE RULE [Sec. 1]

FAILURE

TO

If defendant fail to answer the complaint within the period provided, court (motu proprio or on motion of plaintiff) shall render judgment The judgment: (1) As may be warranted by the facts alleged in the complaint and (2) Limited to what is prayed for The court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive or unconscionable without prejudice to the applicability of Sec. 4, Rule 18 ROC, if there are 2 or more defendants

Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction:

CIVIL CASES (1) Cases of forcible entry and unlawful detainer (a) Irrespective of the amount of damages or unpaid rentals sought to be recovered (b) Where attorney’s fees are awarded, it shall not exceed P20,000 (2) All other civil cases where total amount of plaintiff’s claim does not exceed P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costs (a) EXCEPT: probate proceedings

A.3. PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES [Sec. 7] A preliminary conference shall be held not later than 30 days after the last answer is filed. Rules on pre-trial in ordinary cases shall be applicable unless inconsistent with the provisions of this Rule

CRIMINAL CASES (1) Traffic laws, rules, and regulations violation (2) Rental law violations (3) Municipal or city ordinance violations (4) All other criminal cases where penalty prescribed by law for offense charged is imprisonment not exceeding 6 months and/or a fine not exceeding P1,000 (a) Irrespective of other imposable penalties, accessory or otherwise, or of civil liability arising therefrom (b) In offenses involving damage to property through criminal negligence, this rule shall govern where imposable fine does not exceed P10,000

Failure of plaintiff to appear in preliminary conference (1) Cause for dismissal of complaint (2) Defendant who appears in the absence of plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. 6 (3) All cross-claims shall be dismissed If sole defendant shall fail to appear (1) Plaintiff entitled to judgment in accordance with Sec. 6 (2) Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at preliminary conference

RULE SHALL NOT APPLY (1) To a civil case where plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to ordinary procedure

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(6) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; (7) Such other classes of disputes which the President may determine in the interest of Justice or upon the recommendation of the Secretary of Justice. The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial motu propio refer the case to the lupon concerned for amicable settlement.

B. KATARUNGANG PAMBARANGAY LAW (PD 1508; RA 7160, AS AMENDED) B.1. SCOPE AND APPLICABILITY OF THE RULE Secs. 399-422 and 515,RA 7610 is applicable. The LGC is now the governing law on Katarungang Pambarangay. PD 1508 was expressly repealed.

B.2. CASES COVERED All disputes, civil and criminal in nature, where parties actually reside in the SAME CITY/MUNICIPALITY are subjected barangay conciliation.

B.5. VENUE [Sec. 409, RA 7610] Parties Between actual residents of the same barangay

B.3. SUBJECT MATTER FOR AMICABLE SETTLEMENT [Sec. 408, RA 7160] The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes.

Between actual residents of different barangays but within same city/municipality

B.4. WHEN PARTIES MAY GO DIRECTLY TO COURT

Involving property or interest therein

In these cases, referral to barangay conciliation is not a condition precedent for filing a case to court: (1) Where one party is the government, or any subdivision or instrumentality thereof; (2) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; (3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5,000.00); (4) Offenses where there is no private offended party; (5) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

real any

Between parties arising at the workplace or at institutions of learning

Lupon Lupon of barangay

said

Lupon of the barangay where the respondent or any of the respondents actually resides at the option of complainant Lupon of barangay were the real property or the larger portion thereof is located Lupon of the barangay were the workplace or institution is located

B.6. EXECUTION The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. [Sec. 417, RA 7160]

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B.7. REPUDIATION

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repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided. [Sec. 418, RA 7160]

Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such

B.8. FLOWCHART

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C. RULES OF PROCEDURE FOR SMALL CLAIMS CASES [AM No. 08-8-7-SC, effective February 2016]

REMEDIAL LAW

are subject to the regular rules on venue. [Sec. 7] If a plaintiff who is engaged in the aforementioned businesses but misrepresents that he/she/it is not engaged in them, then the Statement of Claim/s shall be dismissed with prejudice; the plaintiff shall be meted the appropriate sanctions, such as direct contempt. [Sec. 11]

C.1. SCOPE AND APPLICABILITY OF THE RULE This Rule shall govern the procedure in actions before the MeTC, MTC in Cities, MTC and MCTC for payment of money where the value of the claim does not exceed P200,000 exclusive of interest and costs. [Sec. 2] This Rule is applicable in all actions which are purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money. [Sec. 4] These claims or demands may be; (1) For money owned under any of the following; (a) Contract of Lease; (b) Contract of Loan; (c) Contract of Services; (d) Contract of Sale; or (e) Contract of Mortgage; (2) For liquidated damages arising from contracts; (3) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417, LGC.

Attachments to the Statement of Claim : [Sec. 6] (1) Certification of Non-forum Shopping, Splitting a Single Cause of Action, and Multiplicity of Suits (2) Two (2) duly certified photocopies of the actionable document/s subject of the claim (3) Affidavits of witnesses and other evidence to support the claim NOTE: No evidence shall be allowed during the hearing which was not attached to or submitted together with the Claim. UNLESS good cause is shown for admission of additional evidence. [Sec. 6] No formal pleading, other than the Statement of Claim, is necessary to initiate a small claims action. [Sec. 6]

PAYMENT OF FILING FEES[Sec. 10] GENERAL RULE: The prescribed legal fees prescribed under Rule 141 of the Rules of Court must be paid by the plaintiff EXCEPTION: allowed to litigate as an indigent. Any exemption from the payment of filing fees shall be granted only by the SC.

C.2. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE How com m enced By filing with the court an accomplished and verified STATEMENT OF CLAIM in duplicate [Sec. 6] NOTE: The plaintiff must state in the Statement of Claim if he/she/it is engaged in the business of lending, banking and similar activities, and the number of small claims cases filed within the calendar year regardless of judicial station. [Sec. 6] Plaintiffs engaged in the aforementioned businesses who have a branch within the municipality/city where the defendant resides must file the Statement of Claim/s in such municipality/city. Other plaintiffs

If a claim is filed with a motion to sue as an indigent It shall be referred to the Executive Judge for immediate action. If the motion is granted, the case shall be raffled off or assigned to the court designated to hear small claims cases. If the motion is denied, the plaintiff shall be given 5 days within which to pay the docket fees – otherwise the case shall be dismissed without prejudice. In no case shall any party – even one declared an indigent – be exempt from the

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RESPONSE

payment of the 1,000 fee for service of summons and processes.

If no ground of dismissal is found, the court shall issue Summons directing defendant to submit a verified response. [Sec. 12] The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a non extendible period of ten (10) days from receipt of summons. [Sec. 13]

If more than 5 claims are filed by one party within the calendar year, additional filing fees shall be paid (1) P500 for every claim filed after the 5th claim; and, (2) An additional P100 (or a total of P600) for every claim filed after the 10th claim; and, (3) Another additional P100 (or a total of P700) for every claim filed after the 15th claim, progressively and cumulatively.

Attachments (to Response): (1) Certified photocopies of documents (2) Affidavits of witnesses (3) Evidence in support [Sec. 13]

DISMISSAL [Sec. 11]

NOTE: No evidence shall be allowed during hearing which was not attached or submitted together with the Response. [Sec. 13] Should the defendant fail to file his response within the required period, and likewise fail to appear on the date set for hearing – the court by itself shall render judgment as may be warranted by the facts alleged in the Statement of claim limited to what is prayed for. [Sec. 14] Should the defendant fail to file his response within the required period, but appears on the date set for hearing – the court shall ascertain what defense he/she/it has to offer which shall constitute his/her/its Response, and proceed to hear or adjudicate the case on the same day as if a Response has been filed. [Sec. 14] NOTE: The following is not expressly provided in the section: “The court may, in its discretion, reduce the amount of damages for being excessive or unconscionable.”

After examination of allegations of the Claim, and such evidence attached thereto – the court may dismiss outright the case for any of the grounds apparent for the dismissal of a civil action. During the hearing, the court may, by itself, dismiss the case if it is able to determine that there exists a ground for dismissal of the Statement of Claim/s – even if such ground is not pleaded in the defendant’s Response. If the case does not fall under the Rules on Small Claims, but instead falls under Summary or Regular procedure, the case shall not be dismissed – instead it shall be re-docketed under the appropriate procedure, and returned to the court where it was assigned (subject to the payment of any deficiency in filing fees). On the other hand, if a case is filed under Summary or Regular procedure but actually falls under the Rules on Small Claims – the case shall be referred to the Executive Judge for appropriate assignment.

C.3. PROHIBITED PLEADINGS AND MOTIONS [Sec. 16] The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule: (1) Motion to dismiss the compliant except on the ground of lack of jurisdiction; (2) Motion for a bill of particulars; (3) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;

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(4) Petition for relief from judgment; (5) Motion for extension of time to file pleadings, affidavits, or any other paper; (6) Memoranda; (7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (8) Motion to declare the defendant in default; (9) Dilatory motions for postponement; (10) Reply and Rejoinder; (11) Third-party complaints; and (12) Interventions.

At the hearing, the judge shall first exert efforts to bring the parties to an amicable settlement of their dispute. [Sec. 23] If the attem pt at an am icable settlement fails, the hearing shall so proceed in an informal and expeditious manner and shall be terminated within the same day. [Sec. 23] Any settlement or resolution of the dispute shall be: (1) Reduced into writing; (2) Signed by the parties; and, (3) Submitted to the court for approval.

C.4. APPEARANCES

C.6. FINALITY OF JUDGMENT

The parties shall appear at the designated date of hearing personally or through a representative authorized under a Special Power of Attorney to: (1) Enter into an amicable settlement; and, (2) Enter into stipulations or admissions of facts and of documentary exhibits [Sec. 16] NOTE: There must be a valid cause to bring about the necessity of sending a representative. No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. [Sec. 19]

After the hearing, the court shall render its decision within 24 hours from termination of the hearing, based on the facts established by the evidence. The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties. The decision shall be final, executory, and unappealable. [Sec. 24]

FAILURE TO APPEAR (1) If plaintiff fails to appear – it shall be a cause for dismissal without prejudice. Defendant present shall be entitled to judgment on permissive counterclaim. (2) If defendant fails to appear – same effect as failure to file Response. (3) If both plaintiff and defendant fail to appear – dismissal with prejudice of both the Statement of Claim and the Counterclaim. [Sec. 20]

C.5. HEARING; DUTY OF THE JUDGE At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases. [Sec. 22]

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D. EFFICIENT USE OF PAPER RULE [AM No. 11-9-4-SC]

All members of the Court shall share the extra copies of annexes in the interest of economy of paper.

D.1. FORMAT AND STYLE

In the Court of Appeals and the Sandiganbayan, (1) One original (properly marked) and (2) Two copies with their annexes;

All pleadings, motions and similar papers intended for the court and quasi-judicial body’s consideration and action (courtbound papers) shall: (1) Be written in single space with one-anda –half space between paragraphs, (2) Use an easily readable font style of the party’s choice, of 14-size font, and on a 13 –inch by 8.5- inch white bond paper All decisions, resolutions and orders issued by courts and quasi-judicial bodies under the administrative supervision of the Supreme Court shall comply with these requirements. Similarly covered are the reports submitted to the courts and transcripts of stenographic notes.

In the Court of Tax Appeals, (1) One original (properly marked) and (2) 2 copies with annexes On appeal to the Court of Tax Appeals En Banc, (1) One Original (properly marked) (2) 8 copies with annexes; and In other courts, (1) One original (properly marked) (2) With the stated annexes attached to it.

D.2. MARGINS AND PRINTS

D.4. ANNEXES ADVERSE PARTY

The parties shall maintain the following margins on all court-bound papers: (1) Left hand margin of 1.5 inches from the edge; (2) Upper margin of 1.2 inches from the edge; (3) Right hand margin of 1.0 inch from the edge; (4) Lower margin of 1.0 inch from the edge. Every page must be consecutively numbered.

SERVED

ON

A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession. In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt.

D.5. APPLICABILITY

D.3. COPIES TO BE FILED

This Rule applies to all courts and quasijudicial bodies under the administrative supervision of the Supreme Court.

Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file shall be as follows: In the Suprem e Court, (1) One original (properly marked) and 4 copies (2) Two sets of annexes, one attached to the original and an extra copy If the case is referred to the Suprem e Court En Banc, (1) Parties shall file 10 additional copies. (2) For the En Banc, the parties need to submit only 2 sets of annexes, one attached to the original and an extra copy. 205 OF 425

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I. Special Proceedings

• List under Rule 72 is not exclusive [Festin at 1]

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

APPLICABLE RULES If special rules are provided, they shall apply. But in the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. [Sec. 2, Rule 72]

A. SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES

There are special proceedings which are not part of the ROC but are provided for under special laws and Supreme Court circulars (e.g. Writs of amparo and habeas data)

Rule 72 Sec 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the following cases: (1) Settlement of estate of deceased persons (2) Escheat (3) Guardianship and custody of children (4) Trustees (5) Adoption (6) Rescission and revocation of adoption (7) Hospitalization of insane persons (8) Habeas corpus (9) Change of name (10) Voluntary dissolution of corporations (11) Judicial approval of voluntary recognition of minor natural children (12) Constitution of family home (13) Declaration of absence and death (14) Cancellation of correction of entries in the civil registry.

The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability is not strictly applicable to orders in special proceedings. Rule 109 specifies the orders from which appeals may be taken [Regalado] Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings [Matute v. CA, G.R. No. 26751 (1969)]. DISTINCTION BETWEEN ORDINARY CIVIL ACTION AND SPECIAL PROCEEDINGS Ordinary Civil Action

Special Proceeding

To protect or enforce To establish a right, a right or prevent or status, or particular redress a wrong fact

NOTES • Rule 99 on Adoption and Rule 100 on Rescission and Revocation of Adoption had been expressly repealed by the new Rules on Adoption (effective August 22, 2002). [Festin at 136] • Rule 104 is likewise deemed repealed by Sec. 119 of the Corporation Code. A Petition for Voluntary Dissolution of Corporations is now to be filed with the Securities and Exchange Commission and not with the courts. [Bautista] • Rules 105 and Rule 106 are deemed obsolete because under the Family Code, there are no more natural children and a family home is deemed automatically constituted.

Generally adversarial Non-adversarial, may in nature, involves two involve only one party or more parties Governed by ordinary Governed by special rules supplemented rules, supplemented by special rules by ordinary rules Courts of general Courts of jurisdiction jurisdiction

lim ited

Initiated by pleading, Initiated by petition, and parties respond parties respond through an answer through an opposition Laws on pleadings Laws on pleadings applicable: filing of an generally not answer, counterclaim, applicable. cross-claim, thirdparty complaint 207 OF 425

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An action is a formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law. It is a method of applying legal remedies according to definite established rules. [Natcher v. CA, G.R. No. 133000 (2001)] A special proceeding is an application or proceeding to establish the status or right of a party or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings the remedy is granted generally upon an application or motion. It is in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice. [Natcher v. CA, G.R. No. 133000 (2001)]

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II. Settlement of Estate of Deceased Persons A. MODES OF SETTLEMENT OF ESTATE (1) Extrajudicial (a) If only one heir: Affidavit of Selfadjudication (b) If two or more heirs: Deed of Extrajudicial Settlement or Partition [Sec. 1, Rule 74] (2) Judicial (a) Partition [Rule 69] (b) Summary Settlement of Estate of Small Value [Sec. 2, Rule 74] (c) Petition for Letters of Administration [Rule 79] (d) Probate of a Will [Rules 75-79] (i) Petition for Letters Testamentary; or (ii) Petition for Letters of Administration with the will annexed (if no named executor)

B. JURISDICTION Exclusive original jurisdiction over all matters of probate, both testate and intestate, shall lie with: MTC if gross value of the Outside Metro estate does not exceed Manila P300,000; If it exceeds such value then RTC MTC if gross value of the In Metro estate does not exceed Manila P400,000; Otherwise RTC Court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts and cannot be divested by subsequent act of interested parties. Testate proceedings take precedence over intestate proceedings of the same estate. [Sandoval v. Santiago, G.R. No. L-1723 (1949)] Thus, if in the course of intestate proceedings pending before a court of first instance, it is found that the decedent had left a last will and testament, proceedings for the probate PAGE 208 OF 425

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of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged will be rejected or is disapproved, the proceeding shall continue as an intestacy. [Uriarte v. CFI, G.R. No. L-21938 (1970]

C. VENUE Inhabitant of the Philippines at the time of death (citizen or alien) Inhabitant of foreign country at the time of death [Sec. 1, Rule 73]

Court of the province where decedent resided at time of death Court of any province where decedent had estate

Residence In the application of venue statutes and rules, residence rather than domicile is the significant factor. The word “resides” means personal, actual, or physical habitation of a person, or his actual residence or place of abode. It does not mean legal residence or domicile. [Fule v. CA, G.R. No. L-40502 (1976)] Even where the statute uses the word ‘domicile’, it must be construed as meaning residence. [Festin at 16] NOTE: “Jurisdiction” as used in Rule 73 means venue. If venue is improperly laid: General Rule: Ordinary appeal Exceptions: Certiorari may be resorted to if impropriety of venue (due to residence or location of estate) appears on the record. [Sec. 1, Rule 73]

D. EXTENT OF JURISDICTION OF PROBATE COURT

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(1) Liquidation of estate; (2) Administration of the estate; and (3) Distribution of the estate [Herrera] (4) Testamentary capacity of testator (5) If will was executed in accordance with formalities prescribed by law [Camaya v. Patulandong, G.R. 144915 (2004)] General rule: Questions as to title to property cannot be passed upon on testate or intestate proceedings. Exceptions: (1) In a provisional manner to determine whether said property should be included or excluded in the inventory, without prejudice to final determination of title in a separate action [Cuizon v. Ramolete, G.R. No. L-51291 (1984)] (2) With consent of all the parties, without prejudice to the rights of third persons [Trinidad v. CA, G.R. No. 75579 (1991)] (3) If the question is one of collation or advancem ent [Coca v. Borromeo, G.R. No. L-27082 (1978)] (4) When the estate consists of only one property [Portugal v. Portugal-Beltran, G.R. No. 155555 (2005)] Not the court where petition is first filed but court which first takes cognizance The court first taking cognizance of the settlement of estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. [Sec. 1, Rule 73] Under the rule of venue, the court with whom a petition is first filed must also first take cognizance of the petition in order to exclude other courts. [Bautista]

E. POWERS AND DUTIES OF A PROBATE COURT It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by intervening in the administration thereof in order to remedy or repair any injury that may be done thereto [Dariano vs. Fernandez Fidalgo, G.R. No. L-4918 (1909)]

A probate court is of limited jurisdiction. It may only determine and rule upon issues There seems, however, to be a general relating to the settlement of estates namely: tendency, in the absence of express and PAGE 209 OF 425

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specific restrictions to the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same. [In Re: Baldomero Cosme, G.R. No. 43351 (1937)] Ancillary powers of a probate court (1) Issue warrants and processes to compel attendance of a witness and to carry into effect their orders and judgments; (2) Issue warrant for apprehension and imprisonment of a person who refuses to perform an order or judgment; (3) All other powers granted to them by law [Sec. 3, Rule 73]

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III. Summary Settlement of Estates General rule: The settlement of the estate of the decedent should be judicially administered through an administrator or executor. Exceptions: Law allows heirs to resort to: (1) Extrajudicial settlement of estate (decedent died intestate and left no debts); (2) Summary settlement of estate (for estates of small value, when gross estate does not exceed P10,000) Ratio: Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. [Pereira v. CA, G.R. No. L-81147 (1989)] No preclusion from instituting adm inistrative proceedings While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do so (not precluded from instituting administration proceedings) if they have good reasons to take a different course of action. “Good reasons” depend on circumstances of each case. [Ibid]

A. EXTRAJUDICIAL SETTLEMENT OF ESTATES Requisites [Sec. 1, Rule 74] (1) Decedent died intestate (2) Left no debts or heirs have already paid such at the time of partition (3) Heirs are all of age, minors represented by their legal or judicial representatives Modes: [Sec. 1, Rule 74] (1) If sole heir: Affidavit of Selfadjudication (of the whole estate) (2) If more than one heir: Deed of Extrajudicial Settlement or partition PAGE 210 OF 425

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Deed of Extrajudicial Settlement is resorted to if there is no disagreem ent among the heirs. If there is a disagreement, then they may resort to an action for partition (judicial) Procedure: Division of estate in a public instrument or affidavit of adjudication. Pubic instrument/affidavit filed with proper Registry of Deeds and posting of a bond if estate has personal property (bond equivalent to amount of personal property). Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct.

Extrajudicial settlem ent not binding on those who did not participate or had no notice The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. [Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008), citing Cua v. Vargas, G.R. No. 156536 (2006)]

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the court to enter into such agreement. [Borja v. Vda. De Borja, G.R. No. L-28040 (1972)] TWO-YEAR PERIOD Disputable presumption of no debt: If within two years after the death of the decedent no creditor files a petition for letters of administration, then it shall be presumed that decedent left no debts. Two-year prescriptive period: Heirs or persons deprived of lawful participation in the estate may compel settlement of estate within 2 years from settlem ent and distribution. A lien shall be constituted on the real property of the estate and together with the bond, it shall be liable to creditors, heirs or other persons for a full period of 2 years after such distribution. Such lien will not be cancelled before the lapse of two years even if a distributee offers to post bond to answer for contingent claims [Rebong v. Ibanez, G.R. No. L-1578 (1947)]

B. SUMMARY SETTLEMENT ESTATES OF SMALL VALUE

OF

W hen allowed: Whenever the gross value of estate of the decedent does not exceed P10, 000.

Procedural Requirements: (1) Petition by an interested person alleging fact that estate does exceed P10,000Notice (a) Which shall be published once a week for 3 consecutive weeks (b) n a newspaper of general circulation in the province Oral partition is valid (c) It is not required that publication be for Because there is no law that requires a complete 21 days. What is required is partition among heirs to be in writing to be that it be published for once a week for valid. [Pada-Kilario v. CA, G.R. No. 134329 3 consecutive weeks. (2000)] (2) Other notice to interested persons as the court may direct [Sec. 2, Rule 74] Validity of com prom ise agreement (3) Hearing which shall be Such is VALID, binding upon the parties as (a) Held not less than 1 month nor more individuals, upon the perfection of the than 3 months contract, even without previous authority of (b) Counted from the date of the last publication of a notice PAGE 211 OF 425

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(4) Bond in an amount to be fixed by court if personal property is to be distributed [Sec. 3, Rule 74] Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an executor/administrator and without delay, (1) to grant, if proper, allowance of the will, if there be any (2) to determine who are persons legally entitled to participate in the estate (3) to apportion and divide among them after the payment of such debts of the estate (4) persons in own right if of lawful age, or their guardians, will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively. [Sec. 2, Rule 74] PROCEDURE Death of the decedent ↓ Petition for summary settlement with allegation that the gross value of the estate does not exceed P10K ↓ Publication of notice of the fact of summary settlement once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct ↓ Hearing held not less than 1 month nor more than 3 months from the date of the last publication of notice ↓ Court to proceed summarily, without appointing an executor/administrator (executor/administrator), and to make orders as may be necessary such as: (1) Grant allowance of will, if any; (2) Determine persons entitled to estate; (3) Pay debts of estate which are due; ↓ Filing of bond fixed by the court ↓ Partition of estate

COMPARISON Extrajudicial Settlement

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Summary Settlement

Court intervention not Summary judicial required adjudication needed Decedent left no will (allowed only in intestate succession)

Decedent may or may not have left a will (died intestate/testate)

Decedent left no debts

Decedent may have left debts

Heirs are all of age or No such requirement minors are represented Instituted only at the May be instituted by instance and by any interested party agreement of all heirs even by a creditor without consent of the heirs Value of the estate is immaterial

Gross value of the estate must not exceed P10, 000

Bond filed with the Register of Deeds in an amount equal to the value of the personal property of the estate

Bond filed with and amount to be determ ined by the court

C. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE WITHIN REGLAMENTARY PERIOD OF TWO YEARS: (1) Claim on the bond (2) Claim on lien on real property – notwithstanding any transfers of real property that may have been made. (3) Reopening by intervention before rendition of judgment (4) Action to Annul Settlement W hen applicable: there is an heir or other person who (1) has been unduly deprived of his lawful participation in the estate: (a) He shall have a right to compel the settlement of the estate in the courts

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for the purpose of satisfying such lawful participation (b) If annulment on the ground of fraud – an action for reconveyance based on an implied or constructive trust must be filed within 10 years from accrual of the cause of action [Amerol v. Bagumbaran, G.R. No. L-33261 (1987)] (2) has been unduly deprived of his lawful participation payable in m oney: The court having jurisdiction of the estate may, by order for that purpose, after hearing, (a) settle the amount of such debts or lawful participation, and (b) may issue execution against the bond or against the real estate belonging to the deceased, or both. [Sec. 4, Rule 74]

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OTHERS: (1) Action for reconveyance of real property – based on an implied trust, reckoned 10 years from issuance of title [Marquez v. CA, G.R. No. 125715 (1998)] (2) Rescission – in case of preterition of compulsory heir in partition tainted with bad faith [Art 1104, NCC] (3) Petition for Relief – on ground of fraud, accident, mistake, excusable negligence; within 60 days after petitioner learns of judgment or final order, or other proceedings to be set aside, and not more than 6 months after such judgment or order is entered or taken [Rule 38]

W hen not applicable: (1) To persons who have participated or taken part or had notice of the extrajudicial partition (2) When the provisions of Sec. 1 of Rule 74 have been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians) Additional Period for Claim of Minor or Incapacitated Person If on the date of the expiration of the period of 2 years, the person authorized to file a claim is: (1) a minor or mentally incapacitated, (2) is in prison or (3) outside the Philippines, He may present his claim within 1 year after such disability is removed. [Sec. 5, Rule 74] Within the reglementary period, the judge of a probate court has the power to reopen estate proceedings even after the issuance of an order approving a project of partition and closing the proceedings. Rather than requiring an allegedly preterited party to air his grievances in a separate and independent proceeding, he may, within the reglementary period, claim his relief sought in the same case by reopening the same even after a project of partition and final accounting had been approved. This is proper to avoid needless delay in the resolution of cases. [Jerez v. Nietes, G.R. No. L-26876 (1969)] PAGE 213 OF 425

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IV. Production Probate of Will A. NATURE PROCEEDINGS

OF

and PROBATE

(1) In rem proceedings (2) Mandatory – no will shall pass either real or personal property unless it is proved and allowed in the proper court [Sec. 1, Rule 75] (3) Right to ask for probate does not prescribe [Guevara v. Guevara, G.R. No. L5405 (1956)] (4) Doctrine of estoppel does not apply [Fernandez v. Dimagiba, G.R. No. L23638 (1967)] Before any will can have force or validity, it must be probated. Until admitted to probate, a will has no effect whatsoever and no right can be claimed thereunder. [Sps Pascual v. CA, G.R. No. 115925 (2003)] The presentation of the will for probate is mandatory and is a matter of public policy. Unless the will is probated, the right of a person to dispose of his property may be rendered nugatory. [Maninang v. CA, G.R. No. L-57848 (1982)] Duty of custodian, executor Within 20 days after he knows for the testator’s death, the person who has custody of the will shall deliver the will to the court having jurisdiction, or to the executor named in the will. [Sec. 2, Rule 75] The person named executor shall present the will to the court having jurisdiction, unless the will has reached it in any manner, and signify acceptance/refusal of the trust within 20 days after he knows of the death of the testator, or within 20 days after he knows that he is named executor. [Sec. 3, Rule 75] Penalty for neglect without excuse satisfactory to the court: Fine not exceeding P2,000 [Sec. 4, Rule 75]

REMEDIAL LAW

Person retaining will may be com m itted to prison if: (1) He has custody of the will (2) There is a court order directing him to deliver the will; and (3) He neglects without reasonable cause to deliver the same [Sec. 5, Rule 75] V. Allowance or Disallowance of Will Probate or allowance of wills is the act of proving in court a document purporting to be the last will and testament of the deceased for the purpose of its official recognition, registration and carrying out its provision in so far as they are in accordance with law. [Festin at 40] General Rule: A probate proceeding only looks at extrinsic validity. Exception: Principle of Practical Consideration The probate court may pass upon the intrinsic validity of the will because there is apparent defect on its face – this is also known as the principle of practical consideration [Nepomuceno v. CA, G.R. No. L-62952 (1985)]. (e.g. When on the face of the will the petitioner appears to be preterited) But the remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings) Extrinsic validity: due execution of the will Due execution of the will m eans: (1) That the will was executed strictly in accordance with the formalities required by law; (2) That the testator was of sound and disposing mind when the will was executed; (3) That there was no vitiation of consent through duress, fear or threats; (4) That it was not procured by undue and improper pressure or influence on part of beneficiary or other person for his benefit; (5) That the testator’s signature is genuine (not procured through fraud, and that the

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testator intended that what he executed was his last will and testament) [Festin]

A. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE TIMING AND WHO MAY PETITION A will may be probated: (1) Before the testator’s death - By testator himself (ante-mortem probate) Rationale: Easier for courts to determine mental condition of testator. Fraud intimidation and undue influence are minimized. And if will does not comply with requirements prescribed by law, they can be easily corrected. (2) After the testator’s death – By executor, devisee, or legatee named in the will or any person interested in the estate MEANING OF INTEREST IN ESTATE An interested party is one who would be benefited by the estate such as an heir or one who has claim against the estate like a creditor. [Sumilang v. Ramagosa, G.R. No. L23135 (1967)] Persons entitled to notice (1) Known heirs, legatees and devisees; (2) Named executor or his co-executor if they are not the petitioner [Sec. 4, Rule 76] (3) Compulsory heirs, if the testator himself asks for probate of his own will. Periods to give notice (1) Personal service: At least 10 days before hearing (2) By mail: at least 20 days before hearing

B. CONTENTS OF PETITION FOR ALLOWANCE OF WILL

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(3) Probable value and character of the property of the estate (4) Name of the person for whom letters are prayed (5) If the will has not been delivered to the court, the name of the person having custody of it. [Sec. 2, Rule 76] EFFECTS OF DEFECT IN PETITION No defect in petition shall render void the allowance of will, or the issuance of letters testamentary or of administration with the will annexed. [Sec. 2, Rule 76] JURISDICTION, HOW ACQUIRED (1) Attaching a mere copy of will to the petition or (2) Delivery of will, even if no petition is filed or (3) Filing of the original petition and compliance with Sec. 3-4 Rule 76. (a) Publication for 3 weeks of the order (b) Notice to all interested persons (If by mail, 20 days before hearing; if through personal service, 10 days before hearing) If testator files for probate of his will, no publication is required and notice is only to the compulsory heirs. [Sec. 3, Rule 76] EVIDENCE REQUIRED IN SUPPORT OF A WILL Uncontested will (1) Notarial W ill – Testimony of at least one subscribing witness that the will was executed as required by law. [Sec. 5, Rule 76] (a) If all subscribing witnesses reside outside of the province their testimony can be taken through a deposition by presenting a photocopy of the will and propounding questions thereat. [Sec. 7, Rule 76] (b) Other witnesses who are not subscribing witnesses may be presented if all subscribing witnesses are dead, insane or do not reside in the Philippines. [Sec. 8, Rule 76]

(1) Jurisdictional facts (a) Death of the decedent (b) Residence at the time of death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, his leaving his estate in such province; (2) Names, ages, and residences of the heirs, (2) Holographic wills – At least one legatees, and devisees of the testator or witness who knows the handwriting decedent PAGE 215 OF 425

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and signature of the testator who will explicitly declare that the will and signature are in the handwriting of the testator. (a) Expert Testimony – may be resorted to in the absence of such competent witness, and if the court deems it necessary. If the testator himself petitions for probate of holographic will and it is not contested: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of genuineness and due execution thereof. [Sec. 12, Rule 76] It is not mandatory that witnesses be presented first before expert testimony may be resorted to unlike in notarial wills wherein attesting witnesses must first be presented. [Azaola v. Singson, G.R. No. L-14003 (1960)] Contested will Anyone appearing to contest the will must state in writing his grounds for opposing the allowance and serve a copy to petitioner and other interested parties. [Sec. 10, Rule 76] (1) Notarial W ill – All subscribing witness and the notary if present in the Philippines and not insane must be presented. [Sec. 11, Rule 76] (a) If dead, insane or absent – said fact must be satisfactorily shown in court. (b) If present in the Philippines but outside the province – deposition may be taken. Can testimony of the subscribing witnesses be dispensed with in a contested will? YES. If all or som e of the subscribing witness i) testify against the due execution of the will; or ii) do not remember having attested to it; or iii) are otherwise of doubtful credibility Court may allow the will if it is satisfied from testimony of other witnesses and evidence presented that the will was executed and

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attested in the manner required by law. [Sec. 11, Rule 76] (2) Holographic W ill – at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator. (a) Expert testimony may be resorted to in the absence of such witnesses. If the testator himself petitions for probate of holographic will and it is contested: Contestant has the burden of disproving genuineness. Testator may present additional proof to rebut contestant’s evidence. [Sec. 12, Rule 76] Lost will (1) Notarial W ills – even if lost may be proved Facts to be proved in order that lost or destroyed will m ay be allowed: (i) Due execution and validity of the will; and (ii) Existence at the time of testator’s death or that it has been fraudulently or accidentally destroyed during testator’s lifetime without his knowledge; and (iii) Provisions of the will (clearly and distinctly proved by at least two credible witnesses) If lost will is proved, its provisions must be distinctly stated and certified by the judge, under seal of court, and the certificate must be filed and recorded as other wills are filed and recorded. [Sec. 6, Rule 76] (2) Holographic W ills General Rule: If a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. Exception: A photostatic copy or xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator. [Rodelas v. Aranza, G.R. No. L-58509 (1982)]

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C. GROUNDS FOR DISALLOWING A WILL The will shall be disallowed in any of the following cases: (1) If not executed and attested as required by law; (2) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (3) If executed under duress, or the influence of fear, or threats; (4) If procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (5) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto [Sec. 9, Rule 76] The list is exclusive. [Sps Ajero v. CA, G.R. No. 106720 (1994)]

D. REPROBATE Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines (now RTC). [Sec. 1, Rule 77] Requisites for Allowance (1) Duly authenticated Copy of the will; (2) Duly authenticated Order or decree of the allowance in foreign country; A petition for allowance in the Philippines may be filed by executor or other person interested. The Court having jurisdiction shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance. [Sec. 2, Rule 77]

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(3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills [Vda. De Perez v. Tolete, G.R. No. 76714 (1994)] Effect (1) The will shall have the same effect as if originally proved and allowed in such court; (2) The grant of letters testamentary or administration shall extend to all estates of the testator in the Philippines; (3) After payment of just debts and expenses of administration the estate shall be disposed of according to the will (4) Residue disposed of in accordance with law [Sec. 4, Rule 77]

F. EFFECTS OF PROBATE Effect of Probate of W ill Decree of probate is conclusive as to its due execution, subject to the right of appeal. (Thus, no suit for forgery of a will which has been duly probated with the order becoming final). If a decision admitting a will to probate becomes final, there can no longer be any challenge to its due execution and authenticity. Thus, a criminal action will not lie against an alleged forger of a will which had been duly admitted to probate by a court of competent jurisdiction. [Mercado v. Santos, G.R. No. 45629 (1938)] Order allowing or disallowing a will may be the subject of an appeal. [Sec. 1, Rule 109]

Evidence necessary for reprobate (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; PAGE 217 OF 425

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VI. Letters Testamentary and of Administration

Executor

Who may administer the estate of a deceased person? (1) Executor (2) Administrator Administrator

Appointed when: 1. Testator did not Person named appoint an executor expressly by deceased 2. The appointment person in his will to was refused administer, settle, 3. The executor is and liquidate estate, incompetent to serve and subsequently 4. The will was appointed by court disallowed 5. No will (intestate succession) Has duty to present the will to court within 20 days after (1) he learns of the death of testator or (2) after he knew he was appointed as executor No such duty (if he obtained such knowledge after death of testator), unless will has reached the court in any manner

If there’s no provision for compensation, Sec. 7 of Rule 85 shall apply. Any competent person may serve as an executor or adm inistrator. Married woman may serve as executor or administrator and a marriage of a single woman shall not affect her authority so to serve under a previous appointment. [Sec. 3, Rule 78] WHO ARE INCOMPETENT TO SERVE AS EXECUTOR OR ADMINISTRATOR (1) Minor; (2) Non-resident (3) One who, in the opinion of the court, is unfit to exercise the duties of the trust by reason of (a) Drunkenness (b) Improvidence (c) Want of understanding (d) Want of integrity; or (e) Conviction of an offense involving moral turpitude. [Sec. 1, Rule 78] (4) Executor of an executor cannot, as such, administer estate of the first testator [Sec. 2, Rule 78] The list above is not exclusive.

The testator may provide that he may serve without a bond Required to file bond but the court shall unless exempted by direct him to post a law bond conditioned only to pay debts. Compensation provided in the will controls, unless

Administrator

renounced.

A. WHEN AND TO WHOM LETTERS OF ADMINISTRATION ARE GRANTED

Executor

REMEDIAL LAW

First part of Rule 85 Sec 7 applies

In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate. [Lim v. Diaz-Millarez, G.R. No. L17633 (1966)] The administrator should be indifferent between the estate and claimants of the property, except to preserve it for due administration, and should be removed when his interests conflicts with such right and duty. [Medina v. CA, G.R. No. L-34760 (1973)] The regular adm inistrator is charged with the task of accomplishing and terminating the administration of the estate with the utmost reasonable dispatch, with a view to an early distribution of the net estate among the

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heirs and persons entitled thereto. [Medina v. CA, G.R. No. L-34760 (1973)] WHEN ARE LETTERS TESTAMENTARY OR OF ADMINISTRATION GRANTED Letters testam entary – it is an authority issued to an executor named in the will to administer the estate. It is issued once the will has been proved and allowed and if the executor named is competent, accepts the trust and gives bond. [Sec. 4, Rule 78] Letters adm inistration – authority issued by court to a competent person to administer the estate if: (1) No executor is named in will (2) Executor or executors named are incompetent, refuse the trust, or fail to give bond or (3) Person dies intestate. [Sec. 6, Rule 78]

B. ORDER OF PREFERENCE Order of preference in the grant of adm inistration (1) Surviving spouse or next of kin, or both, or to such person as the surviving spouse, or next of kin requests to have appointed, if competent and willing to serve. (2) If those enumerated above be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve. (3) If there is no (2), it may be granted to such other person as the court may select. [Sec. 6, Rule 78] Next of kin are those entitled by law to receive the decedent’s properties. [Ventura v. Ventura, G.R. No. L-26306 (1988)] Reason for order of preference Those who would reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest

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and most influential motive to administer the estate correctly. [Gonzalez v. Aguinaldo, et al., G.R. No. 74769 (1990)] Mere failure to apply for letters of administration does not remove preference. [1 ALR 1247] General Rule: The court cannot set aside order of preference Exception: If the person enjoying such preferential rights is (1) Unsuitable (2) Incompetent (3) Unwilling (4) Neglect to apply for letters 30 days after the death of the decedent Court may reject order of preference when circumstances warrant. The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. The selection of an administrator lies in the sound discretion of the trial court. [In Re Suntay, G.R. No. 183053 (2010)] 30-DAY PERIOD MAY BE WAIVED Just as the order of preference is not absolute and may be disregarded for valid cause, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative, “may be granted to one or more of the principal creditors.” [Herrera] Co-administrators may be appointed. [Matute v. Court of Appeals, G.R. No. 26751 (1969)]

C. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION W ho may oppose Any person interested in a will. [Sec. 1, Rule 79]

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Meaning of interested person One who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor; thus interest must be material and direct, not merely indirect or contingent. [Saguinsin v. Lindayag, G.R. No. L-17759 (1962)]

Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings. NOT lack of jurisdiction on part of court. [Herrera]

Grounds (1) Incompetency of the person/s for whom letters are prayed, or (2) Contestant’s own right to the administration (ex. preferential right under Rule 78 Sec 6) [Sec. 4, Rule 79]

W hen Letters of Administration is issued: If proven at a hearing that: (1) Notice has been given as required; and (2) That decedent left no will or there is no competent and willing executor [Sec. 5, Rule 79]

Form required Grounds for opposition must be stated in writing; court shall then hear and pass upon sufficiency of such grounds. [Sec 1, Rule 79] Contents of a Petition for Letters of Administration (1) Jurisdictional facts; (a) Death of testator; (b) Residence at time of death in the province where probate court is sitting; or (c) If he is an inhabitant of foreign country, his having left his estate in such province [Diez v. Serra, G.R. No. L27650 (1927)] (2) Name, age and residence of heirs and the name and age of creditors; (3) Probable value and character of the estate; (4) Name of person for whom letter is prayed [Sec. 2, Rule 79] Defect in petition would not render void issuance of letters of administration. Publication and Notice Publication of notice for 3 weeks successively and notice to heirs, creditors and interested persons, if place of residence is known, are jurisdictional. [Sec. 3, Rule 79 and Secs. 3-4, Rule 76] Sim ultaneous filing of Opposition and Petition: A petition may, at the same time, be filed for letters of administration to himself, or to any competent person or persons named in the opposition. [Sec. 4, Rule 79]

Order appointing regular administrator is appealable. [Rule 109]

One who is named as executor in the will or one who enjoys preference under the rules is not autom atically entitled to the issuance of letters testamentary/of administration. A hearing has to be held in order to ascertain her fitness to act as executor/administrator. [Baluyut v. Cruz Paño, G.R. No. L-42088 (1976)] Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right if such persons fail to appear when notified and claim the issuance of letters to themselves. [Sec. 6, Rule 79]

D. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS Posting of bond Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond in such sum as the court directs. Purpose The bond posted by the administrators and executors is intended as an indemnity to the creditors, the heirs and the estate. How is liability on the bond enforced? By motion or in a separate action. [Festin at 56]

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Conditions on the bond (1) Make a return to the court, within 3 months, a true and complete inventory of all goods, chattel, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him; (2) To administer according to these rules, and if an executor, according to the will of the testator, all goods, chattel, rights, credits, and estate of the deceased which shall come to his possession or to the possession of any other person for him and from the proceeds to pay and discharge all debts, legacies, charges on the same, and dividends as shall be decreed by court. (3) Render a true and just account within 1 year and when required by court; and (4) Perform all orders of the court [Sec. 1, Rule 81] If the testator provides in his will that executor shall serve without a bond, the court may still require him to file a bond conditioned only to pay debts of testator. [Sec. 2, Rule 81] Joint bond Joint executors or administrators may be required by court to file either a separate bond from each or joint bond from all. [Sec. 3, Rule 81] Special Adm inistrator Condition on the bond (1) Make and return true inventory; (2) Render accounting when required by court; (3) Deliver the estate of the deceased to the person appointed as regular executor or administrator, or other authorized person. [Sec. 4, Rule 81]

D.1. GENERAL POWERS DUTIES OF EXECUTORS ADMINISTRATORS

AND AND

HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY AT ALL TIMES (a) Have access to, and may examine and take copies of, books and papers relating to the partnership business,

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(b) Examine and make invoices of the property belonging to such partnership (c) Request the surviving partner or partners to exhibit to him all such books, papers, and property in their hands or control. [Sec. 1, Rule 84] Failure to freely permit the exercise of these may subject any partner for contempt. KEEP BUILDINGS IN TENANTABLE REPAIR (a) Houses and other structures and fences belonging to the estate, and (b) Deliver the same in such repair to the heirs or devisees when directed so to do by the court. [Sec. 2, Rule 84] RIGHT TO POSSESSION AND MANAGEMENT OF THE REAL AND PERSONAL PROPERTIES (a) So long as it is necessary for the payment of the debts and the expenses of administration [Sec. 3, Rule 84] (b) Administrator cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administrator. [Caro v. CA, G.R. No. L-46001 (1982)] When the estate of a deceased is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the probate court. [Estate of Olave v. Reyes, G.R. No. L-29407 (1983)]

D.2. RESTRICTIONS ON POWERS OF EXECUTORS AND ADMINISTRATORS EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE AND INCOME Chargeable in his account with the whole of the estate which has come into his possession, at the value of the appraisement contained in the inventory, with: (a) Interest, (b) Profit (c) Income of such estate; and

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(d) Proceeds of as much of the estate as is sold by him, at the price at which it was sold. [Sec. 1, Rule 85] PROHIBITED FROM PROFITING BY INCREASE OR LOSING BY DECREASE IN VALUE (a) No executor/administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate (b) Account for the excess (when sold for more) (c) If sold for less than appraisement, not responsible for loss, if justly made (d) If settled claim for less than nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement [Sec. 2, Rule 85] (e) Not accountable for debts due the deceased which remain uncollected without his fault [Sec. 3, Rule 85] ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM If the executor/administrator uses or occupies any part of the real estate himself, he shall account for it: (a) as may be agreed upon between him and the parties interested, or (b) adjusted by the court with the parties’ assent (c) if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final. [Sec. 4, Rule 85] ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY Damages sustained are considered waste, and may be charged and allowed against him in his account, and s/he is liable on his/her bond if s/he: (a) Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or (b) Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss. [Sec. 5, Rule 85]

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ONLY NECESSARY EXPENSES SHALL BE ALLOWED (a) The amount paid by an executor/administrator for costs awarded against him shall be allowed in his administration account [Sec. 6, Rule 85] Unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith. (b) When the executor is an attorney, cannot charge against estate any professional fees for legal services rendered. [Sec. 7, Rule 85] Necessary expenses of adm inistration Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto. [Hermanos v. Abada, G.R. No. 13910 (1919)] Not considered as necessary expenses (1) Expenses on death anniversary of deceased because no connection with care, management and settlement of estate; (2) Expenses for stenographic notes and unexplained representation expenses; (3) Expenses incurred by heir as occupant of family home without paying rent (ex. Salary of house helper, light, water bills, gas etc. [De Guzman v. De Guzman-Carillo, G.R. No. L-29276 (1978)] (4) Expenses incurred by an executor or administrator to produce a bond. [Sison v. Teodoro, G.R. No. L-9271 (1957)]. Attorney’s fees When an attorney assists the administrator or executor personally in the execution of his trust, the liability for the payment of attorney’s fees rests on the executor or administrator. However, if the fees paid are beneficial to the estate and reasonable, he is entitled to reimbursement from the estate [Uy Tioco v. Imperial, G.R. No. L-29414 (1928)] EXECUTOR OR ADMINISTRATOR TO MAKE INVENTORY AND RENDER ACCOUNT

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Inventory Rendered within 3 months of appointment and includes an appraisal of all real and personal estate of the deceased which has come into his possession or knowledge [Sec. 1, Rule 83]

relating to an administration account. [Sec. 9, Rule 85]

Not included: (1) Wearing apparel of surviving husband or wife and minor children (2) The marriage bed and bedding (3) Such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased [Sec. 2, Rule 83]

W hen appointed (1) When there is delay in granting letters testamentary or administration, or (2) By any cause, including an appeal from allowance or disallowance of a will [Sec. 1, Rule 80] (3) When the executor or regular administrator has a claim against the estate, with respect to the settlement or adjustment of that claim [Sec. 8, Rule 86]

Allowance to surviving spouse and children The widow and minor or incapacitated children shall, during the settlement of the estate, receive such allowance under the direction of the court [Sec. 3, Rule 83] ACCOUNTING MANDATORY Within 1 year from the time of receiving letters testamentary or of administration unless the court otherwise directs [Sec. 8, Rule 85] He shall render such further accounts as the court may require until the estate is wholly settled [Sec. 8, Rule 85] The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator. [Joson v. Joson, G.R. No. L-9686 (1961)] EXAMINATION ON OATH BY COURT As to the correctness of his account before the same is allowed Except: (1) when no objection is made to the allowance of the account and (2) its correctness is satisfactorily established by competent proof The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter

E. APPOINTMENT ADMINISTRATOR

OF

SPECIAL

Procedure for Appointment There must first be notice and publication. Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator. [De Guzman v. Angeles, G.R. No. 78590 (1988)] Appointment of special administrator lies entirely in the sound discretion of the court. [De Gala v. Gonzales, G.R. No. L-30289 (1929)] The preference laid down under Sec 6, Rule 78 refers to the appointment of a regular administrator, not to that of a special administrator [Pijuan v. De Gurrea, G.R. No. L21917 (1966)]. Regular Administrator Appointed by the court in the following instances: 1. Testator did not appoint an executor 2. The appointment was refused 3. The will was disallowed 4. No will (intestate succession)

Special Administrator Appointed by the court when: 1. there is delay in granting letters testamentary or administration 2. the executor is a claimant of the estate 3. by any cause, including an appeal from allowance or disallowance of a will

Cannot pay debts of the Should pay the debts of estate unless ordered the estate by the court Order of Appointment is Order of Appointment is interlocutory and is not final and appealable appealable

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POWERS AND DUTIES OF SPECIAL ADMINISTRATOR (1) Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased, and (2) Preserve the same for the executor/administrator afterwards appointed, and (3) For the purpose of (1) and (2), may commence and maintain suits as administrator (4) May sell only such perishable and other property as the court orders sold (5) Not liable - to pay any debts of the deceased unless so ordered by the court. [Sec. 2, Rule 80] WHEN SPECIAL ADMINISTRATOR CEASES DUTIES When letters testamentary/administration are granted on the estate of the deceased: (1) He shall deliver to the executor/administrator the goods, chattels, money, and estate of the deceased in his hands. (2) The executor/administrator may prosecute to final judgment suits commenced by such SA [Sec. 3, Rule 80] Appointment of Special Administrator is interlocutory and is not appealable. [Garcia v. Flores, G.R. No. L-10392 (1957)]

F. REVOCATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Revocation of adm inistrator When the decedent’s will is allowed and proved after a letters of administration has been issued as if he had died intestate, the administration is deemed revoked. [Sec. 1, Rule 82] Duty of adm inistrator upon revocation of Letters (1) Surrender the letters to court; (2) Render his account within such time as the court may direct [Sec. 1, Rule 82]

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Removal of executor or administrator Grounds (1) Neglects to: (a) Render his account (b) Settle the estate according to law (c) Perform an order or judgment of the court, or a duty expressly provided by these rules (2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable to discharge the trust. [Sec. 2, Rule 82] List enumerated is not exclusive. Court is vested with ample discretion in removal of administrator for as long as there is evidence of act or omission on the part of the administrator not conformable to or in disregard of rules or orders of the court which it deems as sufficient or substantial to warrant removal of administrator. [Festin] Examples of valid rem oval of an adm inistrator by probate court (1) Administrator who disbursed funds of estate without judicial approval. [Cotia v. Jimenez, G.R. No. L-12132 (1958)] (2) False representation by administrator in securing his appointment. [Cobarrubias v. Dizon, G.R. No. L-225 (1946)] (3) Administrator who holds interest adverse to that of the estate or his conduct shows unfitness to discharge the trust [Garcia v. Vasquez, G.R. No. L-26615 (1970)] (4) Administrator who has physical and mental inability and consequent unsuitability to manage the estate. [De Borja v. Tan, G.R. No. L-6476 (1955)] Temporary absence in the state does not disqualify one to be an administrator of the estate [Gonzales v. Aguinaldo, G.R. No. 74769 (1990)] Removal of Special Adm inistrators The probate court may appoint or remove special administrators based on grounds other than those enum erated in the Rules at its discretion, such that the need to first pass upon and resolve the issues of fitness or unfitness and the application of the order of preference under Section 6 of Rule 78, as would be proper in the case of a regular administrator, do not obtain. As long

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as the discretion is exercised without grave abuse, and is based on reason, equity, justice, and legal principles, interference by higher courts is unwarranted. [Ocampo v Ocampo, G.R. No. 187879 (2010)] EFFECT OF REMOVAL, DEATH, OR RESIGNATION (1) The remaining executor/administrator may administer the trust alone, unless the court grants letters to someone to act with him. (2) If there is no remaining executor/administrator, administration may be to any suitable person. [Sec. 2, Rule 82] Validity of acts Acts of the executor/administrator before removal/resignation are valid. [Sec. 3, Rule 82] Powers of new executor or adm inistrator (1) Collect and settle the estate not administered; (2) Prosecute and defend actions commenced by or against the former executor or administrator; and (3) Have execution on judgments recovered in the name of the former executor or administrator. (4) Authority to sell granted by court to former executor or administrator may be renewed without further notice or hearing. [Sec. 4, Rule 82]

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VII. Claims against the Estate ESTATE BURDENED WITH LIEN OF CREDITORS Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors. And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. [Suiliong & Co. v. Chio-Taysan, G.R. No. L-4777 (1908)] PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE (1) To protect the estate of the deceased (2) Executor/administrator will be able to examine each claim, determine whether it is a proper one which should be allowed (3) To appraise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration. [Estate of Olave v. Reyes, G.R. No. L29407 (1983)]

A. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS General Rule: Claims must be filed within the time specified by the court in its notice which shall not be less than 6 m onths nor m ore than 12 m onths from the date of the first publication of the notice. [Sec. 2, Rule 86 Sec 2] Exception Belated claim s The Court has the discretion, for cause and upon such terms as are equitable, to allow contingent claims presented beyond the period previously fixed provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution. [Danan v.

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Buencaminao, G.R. No. L-57205 (1981); Sec. 2, Rule 86] Notice to creditors to be published; Affidavit of publication Executor/administrator shall cause publication of notice for 3 weeks successively in a newspaper of general circulation in the province, and its posting in 4 public places in the province, and in 2 public places in the municipality, where the decedent last resided. [Sec. 3, Rule 86] Printed copy of the published notice shall be filed in court within 10 days after its publication accompanied with affidavit setting forth the dates of first and last publication and name of newspaper where it was printed. [Sec. 4, Rule 86] Significance of Notice Publication of notice is constructive notice to creditors and, thus, a creditor would not be permitted to file a claim beyond the period fixed in the notice on the bare ground that he had no knowledge of the administration proceedings. [Villanueva v. PNB, G.R. No. L18403 (1963)] Statute of non-claim s General Rule: Claim must be filed within the time fixed by the notice otherwise they are barred forever. [Sec. 5, Rule 86] Purpose: to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims. [Rio y Compania v. Maslog, G.R. No. L-12302 (1959), citing Tan Se Guan v. Ga Siu San, 47 Phil. 96] Claims Covered (Exclusive) (1) Claims for money against the decedent arising from contract - Express or implied - Due or not - Contingent or not (2) Claims for funeral expenses (3) Expenses for the last sickness (4) Judgment for money against the decedent. [Sec. 5, Rule 86]

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The period, once fixed by the courts, is mandatory. [In Re the Administration of the Estate of Pascual de Villanueva, G.R. No. L18403 (1961)] Statute of non-claims supersedes statute of limitations when it comes to debts of deceased persons. [Sikat v. Vda. De Villanueva, G.R. No. L-35925 (1932)] Exceptions: (1) When set forth as counterclaims in any action that the executor/administrator may bring against the claimants [Sec. 5, Rule 86] (2) Belated claims [Sec. 2, Rule 86] Quasi-contracts and contingent claims are included in claims that should be filed under Rule 86 Sec. 5. [Metropolitan Bank & Trust Co., v. Absolute Management Corp., G.R. No. 170498 (2013)] Contingent Claim One which by its nature, is necessarily dependent upon an uncertain event for existence or validity, which may or may not develop into an enforceable claim. [Buan v. Laya, G.R. No. L-7593 (1957)]. W hen Allowed (1) When it becomes absolute; (2) Presented to the court or executor/administrator within 2 years from the time limited for other creditors to present their claims; and (3) Not disputed by executor/administrator If disputed: It may be proved and allowed or disallowed by the court as the facts may warrant [Sec. 5, Rule 88] Mutual claims may be set off against each other in such action. [Sec. 5, Rule 88] Effect if a debtor obtains a favorable judgm ent against the estate: the amount shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings [Sec. 5, Rule 88]

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The presentation of a money claim may be waived. [Ignacio v. Pampanga Bus Co., Inc., G.R. No. L-18936 (1967)] If obligation solidary - file claim against decedent as if he is the only debtor If obligation joint - claim confined to the portion belonging to the decedent [Sec. 6, Rule 86] ALTERNATIVE REMEDIES OF A MORTGAGE CREDITOR UPON DEATH OF DEBTOR (1) Waive the security and claim the entire debt from the estate as an ordinary claim – creditor is deemed to have abandoned the mortgage and he cannot thereafter file a foreclosure suit if he fails to recover his money claim against the estate (2) Foreclose mortgage judicially and prove any deficiency as an ordinary claim – suit should be against the executor or administrator as party defendant; creditor may obtain deficiency judgment if he fails to fully recover his claim (3) Rely solely on the mortgage and foreclose it before it is barred by prescription without right to claim for deficiency – includes extrajudicial foreclosure of sale and its exercise precludes one from recovery of any balance of debt against the estate and frees the estate from further liability [Sec. 7, Rule 86] Case law provides that these remedies are distinct, independent, and m utually exclusive remedies that can be alternatively pursued by the mortgage creditor for satisfaction of his credit in case the mortgagor dies. [Festin at 79] How to file for a claim : (1) Deliver the claim with the necessary vouchers to the clerk of court; and (2) Serve a copy thereof on the executor or administrator. [Sec. 9, Rule 86] Additional requirements: (1) If the claim be founded on a bond, bill, note, or any other instrum ent the original need not be filed, but a copy thereof with all indorsements shall be attached to the claim. On demand, however, of the executor or administrator, or by order of the court or

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judge, the original shall be exhibited, unless it be lost or destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. (2) When the claim is due - it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. (3) If the claim is not due, or is contingent, when filed – it must also be supported by affidavits stating the particulars thereof. (4) When the affidavit is m ade by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant. Answer by executor/administrator Shall be filed within 15 days after copy of claim has been served upon him. Executor or administrator may interpose any counterclaim . Said counterclaim is regarded as com pulsory, as the failure to file the same shall bar the claim forever. [Sec. 10, Rule 86] Judgment of court approving or disapproving a claim shall be appealable as in ordinary cases. [Sec. 13, Rule 86; Rule 109]

B. CLAIM OF EXECUTOR ADMINISTRATOR AGAINST ESTATE

OR AN

Procedure to follow if the executor or adm inistrator has a claim against the estate he represents (1) Executor/Administrator shall give notice thereof, in writing, to the court; (2) The court shall appoint a special administrator who shall have the same powers and liabilities as the general executor/administrator in the adjustment of such claim. (3) The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim. [Sec. 8, Rule 86]

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C. PAYMENT OF DEBTS Debts Paid in Full if Estate Sufficient (1) After all money claims heard and ascertained; and (2) It appears that there are sufficient assets to pay the debts Executor/administrator shall pay the same within the time limited for that purpose. [Sec. 1, Rule 88] The probate court may hold in abeyance intestate proceedings pending determination of a separate civil action against the administrator. [Dinglasan v. Chia, G.R. No. L3342 (1951)] The heirs of the estate may not demand the closing of an intestate proceeding at any time where there is a pending case against the administrator of the estate. The court can rightfully hold in abeyance until the civil case is settled. [Dinglasan v. Chia, G.R. No. L-3342 (1951)] Part of Estate from W hich Debt Paid (in order of preference) (1) Portion of property designated in the will - If testator designates in his will a portion of his estate for the payment of debt, expenses of administration, or family expenses, they shall be paid according to such provisions. - If not sufficient – part of the estate not disposed of by will shall be appropriated [Sec. 2, Rule 88] (2) Personal property (3) Real property General Rule: Personal estate not disposed of by will shall be first chargeable Exceptions: (1) Not sufficient for the purpose; or (2) The sale will redound to the detriment of the participants for the estate In which case— (1) The whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or

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otherwise encumbered for that purpose by the executor/administrator, (2) Court approval must first be obtained, and (3) Any deficiency shall be met by contributions in accordance with the provisions of Sec. 6 of Rule 88 (contributive shares of devisees, legatees and heirs in possession). [Sec. 3, Rule 88] Estate to Be Retained to M eet Contingent Claims If court is satisfied that a contingent claim is valid: (1) It may order the executor/administrator to retain in his hands sufficient estate for the purpose of paying the contingent claim when such becomes absolute. (2) If estate insolvent - Retain a portion equal to the dividend of the other creditors. [Sec. 4, Rule 88] PAYMENT OF CONTINGENT CLAIM (1) If claim becomes absolute within 2 years limited for creditors and allowed by the court - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient. (2) Claim not presented after becoming absolute within 2 year period and allowed by the court – The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled; but: - The assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received. [Sec. 5, Rule 88] Court to Fix Contributive Shares W here Devisees, Legates, or Heirs Have Been in Possession POSSESSION BY HEIRS, DEVISEES OR LEGATEES BEFORE DEBTS AND EXPENSES ARE PAID

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Court shall: (1) Hear and settle the amount of their several liabilities (2) Order how much and in what manner each shall contribute (3) May issue execution as circumstances require. [Sec. 6, Rule 88] LIABILITY OF HEIRS AND DISTRIBUTEES Heirs are not required to respond with their own property for the debts of their deceased ancestors. But after partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate. [Gov’t of P.I. v. Pamintuan G.R. No. L-33139 (1930)] Order of Payment if Estate Is Insolvent Executor/administrator pays the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. (Preference of credits) [Sec. 7, Rule 88] Dividends to Be Paid in Proportion to Claims If no assets sufficient to pay credits of any one class of creditors after paying preferred credits, each creditor within such class shall be paid dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid. [Sec. 8, Rule 88] Insolvent Non-Resident His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits. [Sec. 9, Rule 88] Insolvent Resident with Foreign Creditors and Foreign claims proven in another country If: (1) Executor/administrator in the Philippines had knowledge of the presentation of such claims in such country; and (2) Executor/administrator had opportunity to contest such allowance

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(1) Receive a certified list of such claims, when perfected in such country, (2) Add the same to the list of claims proved against the deceased person in the Philippines (3) Make a just distribution of the whole estate equally among all its creditors according to their respective claims. [Sec. 10, Rule 88] Principle of Reciprocity The benefit of this and preceding sections shall not be extended to creditors in another country if the property of the deceased there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims. [Sec. 10, Rule 88] Order for Payment of Debts Before the expiration of the time limited for the payment of the debts the court shall order: (1) payment, and (2) distribution of the assets received by the executor/administrator for that purpose among the creditors As the circumstances of the estate require and in accordance with the provisions of this rule [Sec. 11, Rule 88]

If Appeal Taken From a Decision of the Court Concerning the Claim The court may: (1) Suspend the order for payment or order the distribution among creditors whose claims are definitely allowed (2) Leave in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled, the court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. [Sec. 12, Rule 88]

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Instances when court may make further orders for distribution of assets (1) If whole of the debts not paid on first distribution; and (2) If the whole assets not distributed, or (3) Other assets afterwards come to the hands of executor/administrator. [Sec. 13, Rule 88] Creditors to be Paid in Accordance W ith Terms of Order When an order is made for the distribution of assets among creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order. [Sec. 14, Rule 88] Time for paying debts and legacies General Rule: Not exceeding 1 year in the first instance Exception: Court may extend the period, after hearing and notice, on the following conditions: (1) Extension must not exceed 6 months for a single extension; and (2) The whole period allowed shall not exceed 2 years. [Sec. 15, Rule 88] Grounds for Extension (1) Original executor/administrator dies (2) New administrator appointed REQUISITES (1) Executor/administrator must apply. (2) Notice of the time and place of hearing. (3) Court must hear the application. (4) Extension not to exceed 6 months beyond the time which the court might have allowed to such original executor or administrator

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persons and is not inconsistent with the provisions of the will [Sec. 4, Rule 89]

Real property may, upon order, be sold, mortgaged, encumbered to pay debts when: (1) Personal estate is insufficient to pay the debts (2) Sale of personal estate may injure the business of persons interested in the estate (3) Property appropriated by testator in his will is insufficient to pay debts [Sec. 2, Rule 89] W rit of Execution General Rule: The probate court does not have the power to issue writs of execution. A writ of execution is not the proper procedure for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale of mortgaged of real property of the deceased and all debts or expenses of administration should be paid out of the proceeds of the sale or mortgage. [Aldamiz v. Judge of CFI-Mindoro, G.R. No. L-2360 (1949)] Exceptions: (1) To satisfy the distributive shares of devisees, legatees, and heirs in possession of the decedent’s assets. (2) To enforce payment of expenses of the partition. (3) To satisfy the costs when a person is cited for examination in probate proceedings [Festin] Proper procedure for payment of debts (1) Motion of administrator for sale; (2) Written notice to all heirs, legatees, devisees residing in the Philippines; (3) Court orders sale of personal property or sale or mortgage of real property; (4) Proceeds of such sale shall be used to pay debts and expenses.

Personal property may, upon order, be sold: (1) To pay debts, expenses, legacies [Sec. 1, Rule 89] (2) If it appears necessary for the preservation of the property [Sec. 1, Rule 89] (3) If sale will be beneficial to the heirs, devisees, legatees and other interested PAGE 230 OF 425

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VIII. Actions by and against Executors and Administrators A. ACTIONS BY AND AGAINST EXECUTORS Actions that may be commenced directly against executor or adm inistrator (1) Recovery of real or personal property, or interest therein, from the estate (2) Action to enforce a lien thereon and (3) Actions to recover damages for an injury to a person or property [Aguas v. Llenos, G.R. No. L-18107 (1962); Sec. 1, Rule 87] The aforementioned instances are deemed actions that survive the death of the decedent: [Aguas v. Llenos, G.R. No. L-18107 (1962); Festin] Actions which may NOT brought against Adm inistrators Claim for the recovery of money or debt or interest cannot be brought against executors or administrators. [Aguas v. Llenos, G.R. No. L-18107 (1962); Sec. 1, Rule 87] Executor or Adm inistrator M ay Bring or Defend Actions W hich Survive Death For the recovery or protection of the property or rights of the deceased [Sec. 2, Rule 87] Covers injury to property i.e. not only lim ited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished. [Aguas v. Llenos, G.R. No. L-18107 (1962)] A mortgage belonging to the estate may be foreclosed by the executor or administrator. [Sec. 5, Rule 87] General Rule: Heirs may not sue for the recovery of property of the estate against the executor or administrator during the pendency of the administration proceedings. [Sec. 3, Rule 87]

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Exceptions: (1) If executor or administrator is unwilling to bring a suit; (2) When the executor or administrator is made a party defendant where he is alleged to have participated in the act complained of; (3) Where there is no appointed administrator [Festin]

B. RECOVERY OF PROPERTY CONCELEAD, EMBEZZLED OR FRADULENTLY CONVEYED Proceedings when property concealed, embezzled or fraudulently conveyed The court may cite any person suspected of: (1) having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, (2) having in his possession or having knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right, title, interest, or claim of the deceased (3) having in his possession or having knowledge of the last will and testament of the deceased to: (1) appear before it, and (2) be examined on oath upon com plaint by executor or administrator, heir, legatee, creditor or other individual interested in the estate of the deceased to the court having jurisdiction of the estate.

If the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. [Sec. 6, Rule 87] Purpose To elicit information, secure evidence investigate and take testimony for use independent action. The court in proceedings lacks power to adjudicate or determine controverted rights.

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Double Value Rule A person who, before the granting of the letters testam entary or adm inistration of the estate, embezzles or alienates any money, goods, chattels or effects of the deceased, shall be liable to an action in favor of executor or administrator for double the value of the property sold, em bezzled or alienated. [Sec. 8, Rule 87] When executor or administrator may bring action for recovery of property fraudulently conveyed by deceased (1) There is deficiency of assets for payment of debts and expenses of administration and the deceased, in his lifetime, had conveyed real or personal property, right or interest therein, or debt or credit with intent to defraud his creditors or avoid any right, debt or duty; or (2) Deceased had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against the creditors and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime. [Sec. 9, Rule 87]

Process of recovery by the executor or adm inistrator of property fraudulently conveyed (1) Creditor makes an application for the commencement of the action (2) Creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable (3) Executor or administrator commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt or credit for benefit of the creditors [Sec. 9, Rule 87 Sec 9]

WHEN RECOVERY BY CREDITOR OF PROPERTY FRAUDULENTLY CONVEYED MAY BE DONE Any creditor may commence and prosecute to final judgment a like action for the recovery of the subject of the conveyance or attempted conveyance if the following requisites are satisfied:

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(1) If executor/administrator failed to commence such action, action must be: (a) With court permission (b) In the name of the executor/administrator (c) Creditor files a bond, conditioned to indemnify the executor/administrator against the cost and expenses incurred by such action (2) If conveyance or attempt is made in favor of executor/administrator (a) No need for court permission (b) No need for bond (c) Action shall be brought in the name of all the creditors Effect Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. [Sec. 10, Rule 87]

C. SALES, MORTGAGES, OTHER ENCUMBRANCES

AND

Order of Sale of Personalty The court upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying: (1) debts, expenses of administration, or legacies, or (2) expenses for the preservation of the property. [Sec. 1, Rule 89] W hen court may authorize sale, mortgage or encumbrance of realty Situation Restriction - Personalty not exhausted; sale of real property may be done When personal in lieu of personal estate is not property of estate if it sufficient to pay clearly appears that debts, expenses of such sale etc., would be administration beneficial to persons and legacies [Sec. interested 2, Rule 89] - No authority to sell, mortgage, or otherwise encumber real or personal estate shall be

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If sale of personal estate may injure the business or such other interests of those interested in the estate and where testator has not otherwise made sufficient provision for payment of debts, expenses and legacies [Sec. 2, Rule 89] If sale is beneficial to interested persons, although not necessary to pay debts, expenses, or legacies [Sec. 4, Rule 89] To pay for debts, expenses or legacies of estate of deceased in foreign country [Sec. 5, Rule 89] If deceased was in his lifetime under contract, binding in law, to deed real property or interest therein [Sec. 8, Rule 89]

SPECIAL PROCEEDINGS Restriction granted if any person interested in the estate gives a bond, in a sum to be fixed by the court [Sec. 3, Rule 89] - Personalty not exhausted; sale of real property may be done in lieu of personal property of estate if it clearly appears that such sale etc., would be beneficial to persons interested - No authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond, in a sum to be fixed by the court [Sec. 3, Rule 89] Authorized if not inconsistent with provisions of the will and proceeds of the sale shall be assigned to persons entitled to the estate in the proper proportions

Conveyance would not be authorized if assets in the hands of the executor or administrator will be reduced as to prevent creditor from receiving debt or diminish his dividend

Where deceased held real property in trust for another person [Sec. 9, Rule 89]

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W ho may claim on the bond: Such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either. [Sec. 3, Rule 89] Regulations for granting authority to sell, mortgage or otherwise encumber estate (1) The executor/administrator shall file a written petition setting forth the following: (a) Debts due from the deceased, the expenses for administration, the legacies; (b) Value of the personal estate; (c) Situation of the estate to be sold, mortgaged, encumbered; and (d) Such other facts showing sale etc., is necessary or beneficial; (2) The court will fix a time and place for hearing such petition and cause notice to be given personally or by mail to persons interested, and publication if deem proper; (3) The court may require executor/administrator to give additional bond conditioned on accounting for proceeds of sale etc.; (4) The court may authorize sale to be public or private; (5) If estate is to be sold at auction, the mode of giving notice shall be governed by provisions concerning notice of execution sale; (6) Certified copy of the order of the court, plus deed of the executor or administrator for real estate sold, mortgaged, or encumbered shall be registered in registry of deeds where property is located [Sec. 7, Rule 89] Deed for sale, m ortgaged or encumbrance The deed executed by the executor or administrator shall be valid as of executed by deceased in his lifetime [Sec. 7-8, Rule 89]

Conditions of the bond : to pay the debts, expenses of administration, and legacies within such time as the court directs [Sec. 3, Rule 89] PAGE 233 OF 425

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FLOWCHART: SETTLEMENT OF ESTATE OF DECEASED PERSONS

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BEFORE THERE COULD BE A DISTRIBUTION OF ESTATE, THE FOLLOWING STAGES MUST BE FOLLOWED: (1) Liquidation of the estate i.e. payment of obligations of the deceased. (2) Collation and Declaration of heirs to determine to whom the residue of the estate should be distributed. - Determination the right of a natural child - Determination of proportionate shares of distributees Afterwards, the residue may be distributed and delivered to the heirs. [Herrera] Powers of the court in distribution and partition of estate: (1) Collate; (2) Determine the heirs; and (3) Determine the share of each heirs. Court may determine questions as to advancem ent m ade by decedent Advancements made or alleged to have been made to heirs by decedent may be determined by court having jurisdiction of estate; and the final order of the court shall be binding on the person raising the questions and on the heir. [Sec. 2, Rule 90]

A. LIQUIDATION General Rule: Before an order of distribution or assignment, it must be shown that the “debts, funeral expenses and expenses of administration, allowances, taxes, etc., chargeable to the estate” have been paid. Exception: If the distributees give a bond conditioned on the payment of above obligations [Sec. 1, Rule 90] The part distributed must not be subject to any controversy or appeal. [Sec. 2, Rule 109]

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B. PROJECT OF PARTITION A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. [Reyes v. Barretto-Datu G.R. No. L-17818 (1967)] The executor/administrator has no duty to prepare and present the same under the Rules. The court may, however, require him to present such project to better inform itself of the condition of the estate. [3 Moran 541, 1980 Ed.] It is the court that makes that distribution of the estate and determines the persons entitled thereto: (1) On application of executor/administrator or person interested in the estate (2) Notice (3) Hearing Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled. Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession. If there is a controversy as to who are heirs or shares such shall be heard and decided as in ordinary cases. [Sec. 1, Rule 90] Effect of Final Decree of Distribution (1) In rem; binding against the whole world. (2) Settlement of a decedent’s estate is a proceeding in rem which is binding on the whole world. All persons having interest in the subject matter involved, whether they are notified or not, are equally bound. Consequently, a liquidation of similar import or other equivalent general liquidation must also necessarily be a proceeding in rem so that all interested persons whether known to the parties or not may be bound by such proceeding. [Philippine Savings Bank v. Lantin G.R. L33929 (1983)] (3) The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and

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any order that may be entered therein is binding against all of them. [Ramon v. Ortuzar G.R. No. L-3299 (1951)] The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. [Vda. De Alberto v. CA G.R. No. L-29759 (1989)]

C. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE The better practice for the heir who has not received his share is to: (1) Demand his share through a proper motion in the same probate or adm inistrative proceedings, or (2) Motion for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action. [Guilas v. Judge of the CFI of Pampanga, G.R. No. L-26695 (1972)]

D. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION General Rule: Writ of Execution is not allowed in probate proceedings [Vda de Valera v. Ofilada, G.R. No. L-27526 (1974)]

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X. Escheat Escheat is a proceeding where the real and personal property of a person deceased in the Philippines, who dies without leaving any will and without any legal heirs, becomes the property of the State. [Municipal Council of San Pedro v. Colegio de San Jose, G.R. No. L45460 (1938)] It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction.

A. WHEN TO FILE Three instances of Escheats: (1) When a person dies intestate leaving property in the Philippines but leaving no heir [Sec. 1, Rule 91] (2) Reversion proceedings in alienations in violation of Constitution or other statute [Sec. 5, Rule 91] (3) Unclaimed Balances Act (Act No. 3936, as amended by PD 679) – dormant accounts for 10 years shall be escheated. W here to file: (1) If Resident – RTC of the province where the deceased last resided; (2) If Non-resident – RTC of the place where his estate is located. [Sec. 1, Rule 91]

Exceptions: (1) To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent’s assets [Sec. 6, Rule 88] (2) To enforce payment of expenses of partition; [Sec. 3, Rule 90] (3) To satisfy the costs when a person is cited for examination in probate proceedings [Sec. 13, Rule 142]

B. REQUISITES FOR FILING OF PETITION

W hen does a probate court lose jurisdiction of an estate under adm inistration? The probate court loses jurisdiction of an estate under administration only after payment of all debts, and the remaining estate delivered to the heirs entitled to receive the same. [Guilas v. Judge of the CFI of Pampanga, G.R. No. L-26695 (1972)]

Escheat proceedings must be initiated by the Government through the Solicitor General. [Sec. 1, Rule 91]

(1) A person died intestate (2) He left no heirs or persons by law entitled to the same (3) Deceased left properties [City of Manila v. Archbishop of Manila, G.R. No. L-10033 (1917); Sec. 1, Rule 91]

The Court must fix a date and place for hearing, which shall not be more than 6 months after the entry of the order Procedure

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Solicitor General or his representative in behalf of the Republic of the Philippines will file the petition: § If deceased is a resident—in the RTC of the province where he last resided § If non-resident—in the RTC of the province in which he had an estate § Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute—in the province where the land lies in whole or in part ↓ If the petition is sufficient in form and substance, the court shall make an order fixing the date and place for the hearing (which shall not be more than 6 months after entry of order) ↓ The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best ↓ The court shall hear the case and judge whether or not the estate shall be escheated ↓ To whom property escheated will be assigned: § If personal property – to the municipality or city where the deceased last resided, § If real property – to the municipalities or cities, respectively, in which the same is situated. § If the deceased never resided in the Philippines – the whole estate may be assigned to the respective municipalities or cities where the same is located.

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C. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM. Period to file a claim to the estate A claim must be made within 5 years from date of judgment; otherwise, barred forever [Sec. 4, Rule 91] By whom : Devisee, legatee, heir, surviving spouse, or other person entitled to such estate. [Sec. 4, Rule 91] Effect of claim Possession and title to the estate shall be given. If estate has already been sold, then the city/municipality shall be accountable for the proceeds, less reasonable charges for care of the estate. [Sec. 4, Rule 91]

Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. Court may order, upon motion or motu propio, that a permanent trust be established so that only the income from the property shall be used. The right of escheat may be waived, either expressly or impliedly. [Roman Catholic Archbishop of Manila v. Monte de Piedad, et al. G.R. No. L-45496 (1939)] PAGE 238 OF 425

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XI. Trustees

Trustee

NOTE: This rule only applies to express trusts and not implied trusts which arise by operation of law. [Regalado]

A. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR Trustee

Accounts must be under oath and annually filed

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Executor/Administrator Accounts are not under oath and shall be filed only at such times as may be required by court, except for initial and final subm ission of accounts

Court which has jurisdiction: (1) RTC or MTC if appointed to carry into effect the provisions of a will Court which has (2) If trustee jurisdiction may be the dies, resigns, or RTC or MTC removed in a contractual trust, RTC has jurisdiction to appoint new trustee May sell, encumber, or mortgage property if it is necessary for the purpose of: (1) paying debts, expenses of May sell or encumber administration or property of the legacies, or estate held in trust if (2) for the necessary or preservation of expedient upon order property or of the court (3) if sale will be beneficial to heirs, legatees, or devisees upon application to court with written notice to heirs

Order of sale has no time limit

Executor/Administrator Order of sale has no time limit

Appointed to carry Appointed by court to into effect the settle estate of a provisions of a will or decedent written instrument May be exempted from filing of bond if (1) provided in the will, or (2) beneficiaries requested exemption

Not exempted from filing of bond even if such exemption is provided in the will; However bond is only conditioned upon payment of debts.

Trusteeship is terminated upon turning over the property to the beneficiary after expiration of trust.

Services of executor/administrator is terminated upon payment of debts of the estate and the distribution of property to the heirs

No obligation to pay Must pay the debts of debts of the the estate. beneficiary or trustor A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. [Trusteeship of the Minors Benigno, Angela and Antonio Perez y Tuazon, G.R. Nos. L16185-86 (1962)] The duties of executor/administrator are however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract. Besides, the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons. [Araneta v. Perez, G.R. No. L-16962, (1962)]

B. CONDITIONS OF THE BOND General Rule: Before entering the duties of his trust a trustee shall file with the clerk of court having jurisdiction of the trust a bond in the amount fixed by court

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Exception: The trustee may be exempted from giving a bond when requested by: (1) Testator; (2) All persons beneficially interested in the trust. [Sec. 5, Rule 98] Effect of neglect to file bond A trustee who neglects to file a bond shall be considered to have declined or resigned the trust. [Sec. 5, Rule 98] Conditions (1) Inventory That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge. (2) Faithful management That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed (3) Accounting That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order (4) Settlem ent of account and delivery of estate. That at the expiration of his trust he will settle his account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto. [Sec. 6, Rule 98]

C. PROCEDURAL REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE

REMEDIAL LAW

W ho may file a petition: Parties beneficially interested [Sec. 8, Rule 98]

D. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE Grounds for removal (1) Removal appears essential in the interest of petitioner; (2) Trustee is insane; (3) Otherwise incapable of discharging his trust; or (4) Evidently unsuitable. [Sec. 8, Rule 98] Resignation He may resign but the court will determine if resignation is proper. [Sec. 8, Rule 98]

E. EXTENT OF AUTHORITY OF TRUSTEE Nature of Possession The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same. A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust. In that case, prescription will commence to run from and after said repudiation and the knowledge thereof by the cestui. [Salinas v. Tuazon G.R. No. L-33626 (1931)] Territoriality of authority of trustee The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic. This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed. [Herrera]

(1) Petition by parties beneficially interested; (2) Due notice to the trustee; (3) Hearing. PAGE 240 OF 425

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XII. Guardianship NOTE: Rules 92-97 are now only applicable to guardianship over incom petent persons who are not minors. Guardianship over minors is governed by A.M. No. 03-02-05 SC or Rule on Guardianship of Minors. W ho are incompetent persons (1) Those suffering from the penalty of civil interdiction (2) Hospitalized lepers (3) Prodigals (4) Deaf and dumb people who are unable to read and write (5) Those of unsound mind even though they have lucid intervals (6) Persons by reason of age, disease, weak mind and other similar causes cannot without outside aid take care of themselves and manage their property, thereby becoming an easy prey for deceit and exploitation [Sec. 2, Rule 92] Guardianship The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself. [Herrera] Guardian A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs. [Herrera] Basis: Parens Patriae It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties. Unable as they are to take due care of what concerns them, they have the political community to look after their welfare. [Nery v. Lorenzo G.R. No. L23096 (1972)]

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Kinds of Guardians (1) Legal Guardian – deemed as guardian by provision of law, without need of court appointment [Art. 225, FC] (2) Guardian ad Litem – appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action (3) Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons. a. Guardian over the person b. Guardian of the property c. General guardian (both person and property) [Regalado]

A. GUARDIANSHIP INCOMPETENT PERSONS MINORS

OF NOT

Procedure Filing of Petition ↓ Court issues order setting time for hearing ↓ Notice to the incompetent and persons mentioned in the petition Publication only if incompetent is a nonresident ↓ Hearing (alleged incompetent must be present if able to attend) ↓ If granted, service of judgment to the Local Civil Registrar and payment of bond of the guardian. GENERAL POWERS AND DUTIES OF GUARDIANS (1) Care and custody of the person of his ward and management of his property; or (2) Management of his property only; (3) Management of property within the Philippines (in case of non-resident ward). [Sec. 1, Rule 96] Specific duties (1) To pay the just debts of the ward out of:

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(a) Personal property and the income of the real property of the ward (b) If (a) is not sufficient, real property of the ward upon obtaining an order for its sale or encumbrance. [Sec. 2, Rule 96] (2) To settle all accounts of his ward [Sec. 3, Rule 96] (3) To demand, sue for, receive all debts due him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects [Sec. 3, Rule 96] (4) To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose [Sec. 3, Rule 96] (5) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so [Sec. 4, Rule 96] (6) To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon authority granted by the court, (a) After hearing (b) Notice to relatives of the ward, and (c) A careful investigation as to the necessity and propriety of the proposed action. [Sec. 5, Rule 96] (7) To submit to the court a verified inventory of the property of the ward: (a) Within three months: (i) after his appointment (ii) after the discovery, succession or acquisition of property of the ward not included in the inventory (b) Annually, and (c) Whenever required upon the application of an interested person. [Sec. 7, Rule 96] (8) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition [Sec. 7, Rule 96]

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(9) To render to the court for its approval an accounting of the property: (a) One year from his appointment (b) Every year thereafter, and (c) As often as may be required. [Secs. 7-8, Rule 96] Reimbursement of Reasonable Expenses The court may authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust, and compensation for services. [Sec. 8, Rule 96] Payment of Compensation Court may order payment of reasonable compensation not exceeding 15% of the net income of the ward. [Sec. 8, Rule 96] Embezzlem ent, Concealm ent, Conveyance of W ard’s Properties

or

Upon complaint by the: (1) The guardian or ward, or (2) Any person having actual or prospective interest in the property of the ward; The court may cite the suspected person to appear for exam ination and make such orders for the security of the estate. [Sec. 6, Rule 96] General Rule: Purpose of the proceeding is to secure evidence from persons suspected of embezzling, concealing or conveying any property of the ward so as to enable the guardian to institute the appropriate action to obtain the possession of and secure title to said property. The court can neither determine ownership of the property claimed to belong to the ward nor order its delivery. [Cui v. Piccio, G.R. L-5131 (1952)] Exception: Court may direct delivery of property to the guardian only in extreme cases, where the right or title of the ward is clear and indisputable or where his title thereto has already been judicially decided. [Cui v. Piccio, G.R. L-5131 (1952)] Selling and Encum bering the Property of the W ard Court may order that personal or real property or any part thereof be sold,

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mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property. Grounds (1) When the income of a property under guardianship is insufficient to maintain the ward and his family; or (2) When it is for the benefit of the ward [Sec. 1, Rule 95] Sale must first be confirmed by the court and until such confirmation, not even equitable title passes. [Herrera] Order for Sale or Encumbrance Contents: (1) Causes why sale or encumbrance is necessary or beneficial; (2) Manner of sale (public or private); (3) Time and manner of payment; (4) Security, if payment deferred; (5) Additional bond from guardian, if required. [Sec. 4, Rule 95] Duration of Order of Sale or Encum brance No order of sale granted in pursuance of this section shall continue in force for more than 1 year after granting of the same, without a sale being had. [Sec. 4, Rule 95] Investment of Proceeds and Management of Property The court may authorize and require the guardian to invest the proceeds of sales or encum brances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward. The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant. [Sec. 5, Rule 95] CONDITIONS OF THE BOND OF THE GUARDIAN NOTE: Applicable for both Guardianship of Minors and incompetents (1) To make and return to the court, within three months after the issuance of his

REMEDIAL LAW

letters of guardianship, a true and com plete inventory of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; (2) To faithfully execute the duties of his trust, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; (3) To render a true and just account of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; (4) To perform all orders of the court and such other duties as may be required by law. [Rule 94 Sec 1; Sec. 14 AM 03-0205]

B. RULE IN GUARDIANSHIP OVER MINOR [A.M. NO. 03-02-05-SC] General Rule: The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. [Sec. 1; also Art. 225, FC] In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. [Art. 225, FC] However, if the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond.

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Procedure Filing of petition. ↓ Court shall fix a time and place for hearing. ↓ Court shall cause reasonable notice to be given to: § The persons mentioned in the petition § The minor, if he is 14 years of age or over - If non-resident minor, notice shall be given to the minor by publication or any other means as the court may deem proper. The court may also direct other general or special notice to be given. ↓ Court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. ↓ Hearing § Compliance with notice requirement must be shown. § The prospective ward shall be presented to the court. - If the minor is non-resident, the court may dispense with his presence. § At the discretion of the court, the hearing on guardianship may be closed to the public. § The records of the case shall not be released without court approval. ↓ Issuance or denial of letters of guardianship. ↓ Service of final and executory judgment or order upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to the court their compliance within fifteen days from receipt of the order.

PETITION FOR GUARDIAN

REMEDIAL LAW APPOINTMENT

OF

W ho may file (1) Resident minor: (a) Any relative; or (b) Other person on behalf of a minor; or (c) Minor himself, if 14 years of age or over; or (d) The Secretary of DSWD or the Secretary of DOH, in the case of an insane minor who needs to be hospitalized. [Sec. 2] (2) Non-resident m inor who has property in the Philippines: (a) Any relative or friend of such minor; or (b) Anyone interested in his property, in expectancy or otherwise. [Sec. 12] W here to file [Sec. 3] Resident minor

Non-Resident minor

Family Court of the province or city where the minor actually resides. Family Court of the province or city where his property or any part thereof is situated

Grounds for filing (1) Death, continued absence, or incapacity of parents; (2) Suspension, deprivation or termination of parental authority; (3) Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority; (4) When the best interests of the minor so require. [Sec. 4] Grounds are not exhaustive. [Herrera] Qualifications of Guardians The court shall consider the guardian’s: (1) Moral character; (2) Physical, mental and psychological condition; (3) Financial status; (4) Relationship of trust with the minor; (5) Availability to exercise the powers and duties of a guardian for the full period of the guardianship; (6) Lack of conflict of interest with the minor;

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(7) Ability to manage the property of the minor. [Sec. 5] Order of Preference in Appointment (in default of parents or a courtapproved guardian) (1) The surviving grandparent. In case several grandparents survive, the court shall select any of them taking into account all relevant considerations. (2) The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified. (3) The actual custodian of the minor over 21 years of age, unless unfit or disqualified. (4) Any other person, who in the sound discretion of the court, would serve the best interests of the minor. [Sec. 6] Contents of petition (1) Jurisdictional facts; (2) Name, age and residence of prospective ward; (3) Ground rendering the appointment necessary or convenient; (4) Death of the parents of the minor, or the termination, deprivation or suspension of their parental authority, or remarriage of the minor’s surviving parent; (5) Names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody; (6) Probable value, character and location of the property of the minor; (7) Name, age and residence of person for whom letters of guardianship are prayed. [Sec. 7] The petition shall be verified and accom panied by a certification against forum shopping. No defect in the petition or verification shall render void the issuance of letters of guardianship. [Sec. 7] W ho may file Opposition (1) Any interested person by written opposition [Sec. 10] (2) The social worker ordered to make the case study report, may intervene on behalf of the minor if he finds that the petition for guardianship should be denied [Sec. 9]

REMEDIAL LAW

Grounds for Opposition (1) Majority of the minor; (2) Unsuitability of the person for whom letters are prayed. [Sec. 10] POWERS AND DUTIES In General Guardian of: (1) Resident minor: Care and custody of the person of his ward and management of his property, or only management of his property. (2) Non-resident minor: Management of all his property within the Philippines [Sec. 17] Bonds of Guardians Before a guardian enters upon the execution of his trust, or letters of guardianship issue, he must file a bond as determined by the Court. [Sec. 14] NOTE: Conditions of the bond are similar to those for guardians of incompetent persons. Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond. [Sec. 15] Liability: In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. [Sec. 15] REMOVAL, RESIGNATION TERMINATION OF GUARDIANSHIP Removal How: Upon guardian.

reasonable

notice

AND

to

the

Grounds: The guardian: (1) Becomes insane or otherwise incapable of discharging his trust; or (2) Is found to be unsuitable; (3) Wasted or mismanaged the property of the ward; or (4) Failed to render an account or make a return for thirty days after it is due. [Sec. 24]

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Resignation Ground: Any justifiable cause.

(1) Court motu proprio; or (2) Upon verified motion of any person allowed to file a petition for guardianship.

Upon the removal or resignation of the guardian, the court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. [Sec. 24] Termination Grounds (1) The ward has come of age; or (2) The ward has died. How Term inated

REMEDIAL LAW

Duty to notify: Guardian shall notify the court of the fact of coming of age or death of the ward within 10 days of its occurrence. [Sec. 25] The final and executory judgment or order removing a guardian or terminating the guardianship shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices. [Sec. 26]

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XIII. Adoption A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION Domestic Adoption (RA 8552)

Inter-country Adoption (RA 8043) Kind of proceedings

Judicial Adoption

Extra-judicial Adoption W hat it governs

RA 8552 amended Art. 183 – 193 of the Family Code and is the governing law for Filipino citizens RA 8043 governs adoption of Filipinos by adopting other Filipinos (whether relatives foreigners and non-resident citizen and is or strangers) with some exceptions. implemented by the Inter-Country Adoption Board Rescission of adoption is no longer allowed. Definition of “child” A person below fifteen (15) years of age unless sooner emancipated by law [Sec 3 (b)]

A person below 18 years of age [Sec. 3(a)]

W ho m ay adopt (1)Any Filipino citizen; (2)Any alien possessing the same qualifications for An alien or Filipino citizen permanently residing

Filipino nationals;

abroad [Sec. 9]

(3)The guardian with respect to the ward [Sec. 7]

Qualifications Filipino Citizen (a) At least twenty-seven (27) years of age and at (a) Legal age, in possession of full civil capacity least sixteen (16) years older than the child to and legal rights; be adopted, at the time of application, unless (b) Of good moral character, has not been the adopter is the parent by nature of the child convicted of any crime involving moral to be adopted or the spouse of such parent; turpitude; (b) If married, his/her spouse must jointly file for (c) Emotionally and psychologically capable of the adoption; caring for children; (c) Has the capacity to act and assume all rights (d) At least sixteen (16) years older than the and responsibilities of parental authority under adoptee (waived when adopter is the biological his national laws, and has undergone the parent of the adoptee, or is the spouse of the appropriate counseling from an accredited adoptee’s parent) [Sec. 7(a)] counselor in his/her country; (d) Has not been convicted of a crime involving Alien moral turpitude; (a) Same as qualifications of Filipino citizens; and (e) Eligible to adopt under his/her national law; (b) His/her country has diplomatic relations with (f) In a position to provide the proper care and the Republic of the Philippines; support and to give the necessary moral values (c) Has been living in the Philippines for at least 3 and example to all his children, including the continuous years prior to filing of application child to be adopted; and maintains such residence until adoption (g) Agrees to uphold the basic rights of the child as decree is entered; embodied under Philippine laws, the U.N. (d) Has been certified by his/her Convention on the Rights of the Child, and to diplomatic/consular office or any appropriate abide by the rules and regulations issued to government agency that he/she has legal implement the provisions of this Act; capacity to adopt in his/her country; (h) Comes from a country with whom the PAGE 247 OF 425

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(e) His/her government allows the adoptee to enter the country as his/her adopted child.

Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is NOTE: Residency and certification of allowed under his/her national laws; and qualification m ay be waived if: (i) Possesses all the qualifications and none of the (i) Former Filipino citizen who seeks to adopt disqualifications provided herein and in other th a relative within the 4 degree of applicable Philippine laws. [Sec. 9] consanguinity or affinity; or (ii) One who seeks to adopt legitimate child of his/her Filipino spouse; or (iii) One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse. [Sec. 7(b)] W ho m ay be adopted

(a) Any person below 18 years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died: provided that no proceedings shall be initiated within 6 months from time of death of said parents. [Sec. 8]

Only a legally free child may be the subject of intercountry adoption. [Sec 8] Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code.[Sec. 3(f)]

W here to file application

Family Court of the place where adopter resides

(a) Philippine Regional Trial Court having jurisdiction over the child, or (b) Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, [Sec. 10]

W hat the petition for adoption m ay include May include prayer for change of name, rectification of simulated birth or declaration that the child is Only petition for adoption foundling, abandoned, dependent or neglected child Annexes PAGE 248 OF 425

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Domestic Adoption (RA 8552)

Inter-country Adoption (RA 8043)

RA 8552 does not provide for any annexes but Sec 11 AM 02-6-02-SC Rule on Domestic and Intercountry Adoption, requires the following to be annexed to the petition: (a) Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; (b) Affidavit of consent of the following: (1) The adoptee, if ten (10) years of age or over; (2) The biological parents of the child, if known, or the legal guardian or the child-placement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; (3) The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; (4) The illegitimate children of the adopter living with him who are ten (10) years of age or over; (5) The spouse, if any, of the adopter or adoptee. (c) Child study report on the adoptee and his biological parents; (d) If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his country and that his government allows to adoptee to enter his country as his own adopted child unless exempted under Section 4 (2); (e) Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and (f) Decree of annulment, nullity or legal separation of the adopter as well as that of his biological parents of the adoptee, if any.

Application must be supported by the following documents (written and officially translated in English): (a) Birth certificate of applicant(s); (b) Marriage contract, if married, and divorce decree, if applicable; (c) Written consent of their biological or adoptive children above ten (10) years of age, in the form of sworn statement; (d) Physical, medical and psychological evaluation by a duly licensed physician and psychologist; (e) Income tax returns or any document showing the financial capability of the applicant(s); (f) Police clearance of applicant(s); (g) Character reference from the local church/minister, the applicant's employer and a member of the immediate community who have known the applicant(s) for at least five (5) years; and (h) Recent postcard-size pictures of the applicant(s) and his immediate family [Sec. 10]

Publication Petition must be published at least once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where the court is No publication requirement. situated; Rescission of adoption is no longer allowed. Supervised Trial Custody For at least six (6) months within which the parties Trial period for 6 months in country of adopter for at are expected to adjust psychologically and least 6 months; Only after lapse of period shall emotionally to each other and establish a bonding a decree of adoption be issued. [Sec. 14] relationship. During said period, temporary parental PAGE 249 OF 425

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authority shall be vested in the adopter(s). Period may be reduced by court if in the best interest of adoptee. [Sec 12] Penalties Any gov’t official, employee or functionary who shall be found guilty of violating any of the provisions Same [Sec. 17] shall automatically suffer suspension until resolution of the case. Pertinent statutes and rules: • RA 8552 (Domestic Adoption Act) • RA 8043 (Inter-Country Adoption Act) • A.M. 02-6-02-SC (Rule on Domestic and Inter-Country Adoption) • A.M. 02-1-19-SC (Re Proposed Rule on Commitment of Children) • A.M. 03-04-04-SC (Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors) Adoption A juridical act which creates between two persons a relation similar to that which results from legitimate paternity and filiation. [Prasnik v. Republic, G.R. No. L-8639 (1956)] It is a proceeding in rem. Objective: Best interest of the child

“A child legally available for adoption:” It refers to a child who has been voluntarily or involuntarily com m itted to the DSWD or to a duly licensed and accredited child-placing or child caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian or adopter(s). [Sec. 3] General Rule: Husband and wife shall adopt jointly Exceptions: (1) If one spouse seeks to adopt the legitimate child of other (2) If one spouse seeks to adopt his own illegitimate child, provided the other spouse has signified his/her consent (3) If spouses are legally separated [Sec 7(c)] PROCEDURE

Only an adoption made in pursuance with the procedures laid down under the Rules on Domestic and Inter-Country Adoption is valid in this jurisdiction.

Order of hearing

Publication at least once a week for three consecutive weeks in newspaper of general circulation in province or city where the court is situated. Court shall notify the Solicitor General if the petition prays for a change of name.

Adoption is strictly personal between the adopter and the adopted. [Teotico v. Del Val, G.R. No. L-18753 (1965)] Construction of adoption statutes: All sections are designed to protect the best interests of the adoptee.

B. DOMESTIC ADOPTION ACT

Child and Home Study Report

Hearing within six months from issuance of Order

RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the dom estic adoption of Filipino children.

Supervised Trial Custody for at least six (6)

Decree of Adoption

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Venue: The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. [Sec. 6, AM 02-6-02 Rule on Domestic and Inter-Country Adoption] EFFECTS OF ADOPTION (1) Adopters shall exercise parental authority. (2) All legal ties between biological parent(s) and adoptee shall be severed (except in cases where the biological parent is the spouse of the adopter), and the same shall be vested on the adopter(s); [Sec. 16, RA 8552] (3) Adoptee shall be considered the legitimate child of the adopter(s) for all intents and purposes; [Sec. 17, RA 8552] (4) Adopters shall have reciprocal rights of succession without distinction from legitimate filiation; [Sec. 18, RA 8552] INSTANCES WHEN ADOPTION MAY BE RESCINDED; EFFECTS OF RESCISSION OF ADOPTION Rescission may only be at the petition of the adoptee. (1) Adoptee who is over 18 years of age (2) If the adoptee is a minor, with the assistance of the DSWD (3) If the adoptee is over 18 years of age but incapacitated, by his guardian or counsel. [Sec. 19] Grounds NOTE: These are committed by the adopter (1) Repeated physical and verbal maltreatment despite having undergone counseling; (2) Attempt on the life of the adoptee; (3) Sexual assault or violence; (4) Abandonment or failure to comply with parental obligations. Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. [Sec. 19] W here to file petition for rescission: Family Court of the city or province where the adoptee resides. [Sec. 20, AM 02-6-02-SC,

Rule on Adoption]

REMEDIAL LAW Domestic

and

Inter-Country

W hen to file: (1) Within 5 years after reaching age of majority (2) If he was incompetent at the time of the adoption, within 5 years after recovery from such incompetency. [Sec. 21, AM 026-02-SC, Rule on Domestic and InterCountry Adoption] EFFECTS OF RESCISSION OF ADOPTION (1) Adoptee is still a minor - Restoration of parental authority to biological parent if known, or legal custody to the DSWD; (2) Reciprocal rights and obligations of adopter and adoptee are extinguished; (3) Cancellation of amended birth certificate and restoration of original; (4) Successional rights shall revert to its status prior to adoption, as of the date of final judgment of rescission. (5) Vested rights prior to judicial rescission shall be respected [Sec. 20, RA 8552]

C. INTER-COUNTRY ADOPTION RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by: (1) Foreign nationals, and (2) Filipino citizens permanently residing abroad. [Sec. 3 (a)] WHEN ALLOWED Inter-country Adoption as the Last Resort; “Best Interest of the child” as objective The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for adoption of the child under the Family Code (domestic adoption) have been exhausted and that inter-country adoption is in the best interest of the child [Sec. 7, RA 8043] FUNCTIONS OF THE RTC (1) Filing of petition may be made with the Family Court having jurisdiction over the place where the child resides or may be found. [Sec. 28, AM 02-6-02 SC] (2) Court shall determine whether or not petition is sufficient in form and

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substance and a proper case for intercountry adoption. (3) Transmit the petition to the ICAB for appropriate action.

XIV. Writ of Habeas Corpus

“BEST INTEREST OF THE MINOR” STANDARD The best interests of the minor refer to: (1) Totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development; and (2) The least detrimental available alternative for safeguarding the growth and development of the minor. [Sec. 14 AM No. 03-04-04-SC, Re: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors]

W RIT OF HABEAS CORPUS Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restraint is illegal. [Velasco v. CA, G.R. No. 118644 (1995)]

The rule that there should be no contact between the adoptee and his/her biological parents shall not apply in exceptional cases where the child’s best interests are at stake [Sec. 37, IRR of RA 8043]

VITAL PURPOSES

In case physical transfer fails to occur, the ICAB shall take appropriate steps for the protection of the best interests of the child. [Sec. 44, IRR of RA 8043] Placement may be terminated if it is not in the best interests of the child. [Sec. 45, IRR of RA 8043] Any doubt or vagueness in the provisions of these rules shall be interpreted in consideration of the best interests of the child. [Sec. 61, IRR of RA 8043]

Extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. [Sec. 1, Rule 102] Can only be suspended in cases of rebellion or invasion and when public interest requires it [Sec. 15, Art. III]

In general The purpose of the writ is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal. (1) To relieve persons from unlawful restraint (2) To liberate those who may be imprisoned without sufficient cause (3) To deliver them from unlawful custody [Villavicencio v. Lukban, G.R. No. L-14639 (1919)] Concept of restraint Actual and effective and not merely nominal or moral restraint is required. [Zagala v. Illustre, G.R. No. L-23999 (1926)]

However, actual physical restraint is not always required; any restraint which will prejudice freedom of action is sufficient. [Moncupa v. Enrile, G.R. No. L-63345 (1986)] In the case of minors (1) Prosecuted for the purpose of determining the right of custody over a child. (2) Question of identity is relevant and material and must be convincingly established. [Tijing v. CA, G.R. No. 125901 (2001)]

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The underlying rationale is not the illegality of the restraint but the right of custody. [Tijing v. CA, G.R. No. 125901 (2001)] W ho may issue the writ (1) The SC, CA, and RTC have concurrent jurisdiction to issue WHC [Sec. 2, Rule 102] (2) Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the writ in relation to custody of minors [Sec. 20, AM 03-04-04-SC, Re: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors] Temporary release may constitute restraint (a) Where a person continued to be unlawfully denied one or more of his constitutional rights (b) Where there is present denial of due process (c) Where the restraint is not merely involuntary but appear to be unnecessary (d) Where a deprivation of freedom originally valid has in light of subsequent developments become arbitrary. [Moncupa v. Enrile, G.R. No. L-63345 (1986)] General Rule: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot. Exceptions: (1) Doctrine of Constructive Restraint – Restraints attached to release which precludes freedom of action, in which case the Court can still inquire into the nature of the involuntary restraint The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint. Any restraint which will preclude freedom of action is sufficient. [Villavicencio v Lukban (1919)] (2) Violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts:

REMEDIAL LAW

a. Threat of killing their families if they tried to escape b. Failure of the military to protect them from abduction c. Failure of the military to conduct effective investigation [Secretary of Justice v. Manalo] NATURE Not a suit between private parties, but an inquisition by the government, at the suggestion and instance of an individual, but still in the name and capacity of the sovereign. There can be no judgment entered against anybody since there is no real plaintiff and defendant. [Alimpos v. CA, 106 SCRA 159 (1981)] Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. The question whether one shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts [Herrera, citing 4 Cranch, 75, 101] The writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose relieving from illegal restraint. [People v. Valte, G.R. No. L-18760 (1922)] Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings. [People v. Valte, G.R. No. L-18760 (1922)] It is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court. [Mangila v. Judge Pangilinan, G.R. No. 160739 (2013)]

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W HC may be used with writ of certiorari for purposes of review The two writs may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts. [Galvez v. CA, G.R. No. 114046 (1994)] WHC reaches the body and the jurisdictional matters, but not the record. Writ of certiorari reaches the record, but not the body [Galvez v. CA, G.R. No. 114046 (1994)] While generally, the WHC will not be granted when there is an adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases [Herrera, citing 39 C.J.S. Habeas corpus §13, 486-488] PROCEDURE (1) Application for the writ by petition [Sec. 3, Rule 102] (2) Grant or disallowance of writ and issuance by court or judge [Secs. 4-5, Rule 102] (3) Clerk of Court issues the writ under the seal of court (in case of emergency, by the judge himself) [Sec. 5, Rule 102] (4) Service: - By whom : sheriff or other proper officer - How: leaving the original with the person to whom it is directed and preserving a copy on which to make return - To whom: officer in custody or any officer (when in custody of person other than an officer) [Sec. 7, Rule 102] (5) Hearing by the court (upon return) [Sec. 12, Rule 102] (6) Execution of the writ - Officer brings the person before the judge, and - Officer makes due return [Sec. 8, Rule 102]

A. CONTENTS OF THE PETITION Verified petition m ust set forth: (1) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (2) The officer or name of the person by whom he is so imprisoned or restrained - If unknown or uncertain, such officer or person may be described by an

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assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) Copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy - If imprisonment or restraint is without any legal authority, such fact shall appear. [Sec. 3, Rule 102] W ho may apply (1) The party for whose relief it is intended; or (2) By some person on his behalf [Sec. 3, Rule 102] - Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application [Velasco v. CA, G.R. No. 118644 (1995)]

B. THE RETURN Form - Signed by the person who makes it - Sworn by the person who makes it if: o The prisoner is not produced; and o In all other cases, unless the return is made and signed by a sworn public officer in his official capacity [Sec. 11, Rule 102] By whom m ade: The person or officer who has the person under restraint, or in whose custody the prisoner is found. [Sec. 10, Rule 102] Contents (1) Whether he has or has not the party in his custody or power, or under restraint (2) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held (3) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without

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danger, be bought before the court or judge (4) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. W hen the return considered evidence, and when only a plea [Sec. 13, Rule 102] Custody is pursuant Restraint is by private to law authority The return shall be considered only as a The return shall be plea of the facts considered prim a therein set forth, facie evidence of and the party the cause of claiming the custody restraint must prove such facts

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W HC is proper: Remedy for reviewing proceedings for deportation of aliens [De Bisschop v. Galang, G.R. No. L-18365 (1963)] Where the court has no jurisdiction to impose the sentence [Banayo v. President of San Pablo, G.R. No. 1430 (1903)]

E. WHEN WRIT DISALLOWED OR DISCHARGED

(1) The person alleged to be restrained of his liberty is: (a) In custody of an officer or under process issued by the court or judge or by virtue of a judgment or order of a court of record, and (b) Said court had jurisdiction to issue the process, render the judgment or make the order; or C. DISTINGUISH PEREMPTORY (2) Jurisdiction appears after the writ is WRIT FROM PRELIMINARY allowed despite any informality or defect in the process, judgment, or order; or CITATION (3) Person is charged with or convicted of an Preliminary citation Peremptory writ offense in the Philippines; or Unconditionally (4) Suffering from imprisonment under lawful Requires the commands the judgment. [Sec. 4, Rule 102] respondent to appear respondent to have (5) If it appears that the prisoner was lawfully and show cause why the body of the committed, and is plainly and specifically the peremptory writ detained person charged in the warrant of commitment should not be before the court at a with an offense punishable by death [Sec. granted time and place 14, Rule 102] therein specified (6) Even if the arrest of a person is illegal, the [Lee Yick Hon v. Collector of Customs, G.R. No. following supervening events may bar L-16779 (1921)] release: (a) Issuance of a judicial process [Sayo v. D. WHEN NOT PROPER OR Chief of Police of Manila, G.R. No. L2128 (1948)] APPLICABLE Judicial process is defined as a writ, warrant, subpoena, or other formal (1) For asserting or vindicating the denial of writing issued by authority of law. right to bail. [Galvez v. CA, G.R. No. 114046 [Malaloan v. CA, G.R. No. 104879 (1994)] (1994)] (2) Where the petitioner has the remedy of (b) The filing of a complaint before a trial appeal or certiorari. [Galvez v. CA, G.R. No. court which issued a hold departure 114046 (1994)] order and denied motion to dismiss (3) For correcting errors in the appreciation of and to grant bail [Velasco v. CA, G.R. facts or law [Sotto v. Director of Prisons, No. 118644 (1995)] G.R. No. L-18871 (1962)] (c) Filing of an information for the offense Exception: If error affects court’s for which the accused is detained bars jurisdiction making the judgment void the availability of WHC [Velasco v. CA, [Herrera] G.R. No. 118644 (1995)] PAGE 255 OF 425

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PETITION FOR CUSTODY OF MINORS

F. DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA Writ of Habeas Corpus Extends to all cases of illegal confinemen t or detention (deprivation of liberty), or where rightful custody is withheld from person entitled thereto

Writ of Amparo

Writ of Habeas Data

Covers extralegal killings and enforced disappeara nces or threats thereof

Designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]

The writ of amparo, in its present form, is confined only to these two instances of “extralegal killings” and enforced disappearances. [Rev. Fr. Reyes v. CA, G.R. No. 182161 (2009)] The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances. [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)] SEE Annex A for detailed distinction

G. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) Applicability (1) Petitions for custody of minors and (2) Writs of habeas corpus in relation thereto. [Sec. 1] Rules of Court shall apply suppletorily. [Sec. 1]

W ho may file: Any person claiming right of custody. [Sec. 2] Party against whom it may be filed shall be designated as the respondent. W here to file: Family Court of the province or city: (1) where the petitioner resides or (2) where the minor may be found. [Sec. 3] Contents of petition: The verified petition shall allege the following: (a) The personal circumstances of the petitioner and of the respondent; (b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; (c) The material operative facts constituting deprivation of custody; and (d) Such other matters which are relevant to the custody of the minor. [Sec. 4] Answer to the Petition must be verified and filed within 5 days after service of summons and copy of petition. [Sec. 7] Motion to Dismiss is not allowed except on ground of lack of jurisdiction over: (1) Subject matter or (2) Parties [Sec. 6] Case study – upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pretrial. [Sec. 8] Pre-trial is m andatory. [Sec. 9] (1) Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pretrial. [Sec.10] (2) If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed. Unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. [Sec. 11] (3) If the respondent has filed his answer but fails to appear at the pre-

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trial, the petitioner shall be allowed to present his evidence ex parte. The Court shall then render judgment on the basis of the pleadings and the evidence thus presented. [Sec. 9] Provisional Order awarding custody After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody: (1) Both parents jointly; (2) Either parent taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; (3) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment, unless grandparent chosen is unfit or disqualified; (4) The eldest brother or sister over 21 years of age, unless unfit or disqualified; (5) The actual custodian of the minor over 21 years of age, unless unfit or disqualified; (6) Any other person or institution the court may deem suitable. [Sec. 13] In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. [Sec. 14] Interim Reliefs (1) Temporary visitation rights - court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents. - Unless the court finds said parent or parents unfit or disqualified. - The temporary custodian shall give the court and non-custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days. [Sec. 15]

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(2) Hold Departure Order – the minor child shall not be brought out of the country without prior order from the court while the petition is pending. - The Court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from the Philippines without court permission. - The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance. - The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing. [Sec. 16] (3) Protection Order (PO) - court may issue a PO requiring any person: (a) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place; (b) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded; (c) To refrain from acts or omission that create an unreasonable risk to minor; (d) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods; (e) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; (f) To comply with such other orders as are necessary for the protection of the minor. [Sec. 17] Judgment Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor.

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If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home.

Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. [Sec. 18] Appeal Appeal from the decision shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties. [Sec. 19] WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS A verified petition for a writ of habeas corpus involving custody of minors is filed with the Family Court of the province or city where the petitioner resides, or where the minor may be found, or with the CA or the SC.

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found, the writ is enforceable within the judicial region where the Family Court belongs. If filed with the CA or the SC, or with any of its members, the writ shall be enforceable anywhere in the Philippines. If the presiding judge of the Family Court is absent, then the petition may be filed with a regular court, provided that the regular court shall refer the case to the regular court as soon as the presiding judge returns to duty. If there are no Family Courts in the area, then the petition may be filed with the regular courts. The writ is returnable to the Family Court, or to any regular court within the judicial region where the petitioner resides or where the minor may be found, for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. [Sec. 20] The best interest of the child prevails over any agreement on custody. Any such agreement is void for being contrary to Article 213 of the Family Code. In this case, the child was below seven years when such agreement was executed. But since the child had in the meantime turned 15, it is now the best interest of the child which becomes the standard for custody. [Dacasin v. Dacasin, G.R. No. 168785 (2010)]

If filed with the Family Court where the petitioner resides, or where the minor may be Comparative Table on Habeas Corpus and Rule on Custody of Minors Rule on Custody and Habeas Corpus for Habeas Corpus [Rule 102] Minors [A.M. 03-04-04] Right to liberty Petition for the rightful custody of a Rights Involved Rightful custody of the aggrieved minor party Unlawful deprivation of rightful Actual violation of the aggrieved custody, or party’s right to liberty, or rightful A minor is being kept from a parent by Situations Applicable custody [Sec. 1] the other parent (e.g. which parent shall have the care and custody of a PAGE 258 OF 425

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Party Authorized to File Respondents

Party for whose relief it is intended or by some person in his behalf [Sec. 1]

instances authorized by law (3) SC or any member thereof [Sec. 2] (4) First level courts in the absence of

Contents of the petition

Rule on Custody and Habeas Corpus for Minors [A.M. 03-04-04] minor, when such parent is in the midst of nullity or legal separation proceedings). [Herrera; Secs. 2 & 20] Any person claiming rightful custody – this covers: (1) Unlawful deprivation of the custody of a minor (2) Which parent shall have the care and custody of a minor [Herrera]

May or may not be an officer (1) RTC or any judge thereof (2) CA or any member thereof in

Before which court or judicial authority filed

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RTC judges in a province or city [Sec. 35, BP 129] (5) Sandiganbayan, in aid of appellate jurisdiction of the Sandiganbayan [RA 8249 further expanding its jurisdiction] Signed, verified either by the party for whose relief it is intended, or by some person in his behalf and shall set forth: (1) That the person in whose behalf the application is made is imprisoned or restrained on his liberty; (2) The officer or name of the person by whom he is so imprisoned or restrained or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy or, if the imprisonment or restraint is without any legal authority, such fact shall appear. [Sec. 3]

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(1) Family Court, writ enforceable within its judicial region (2) Regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. (3) Appropriate regular courts in places where there are no Family Courts. [Sec. 20]

The verified petition shall allege the following: (1) The personal circumstances of the petitioner and of the respondent (2) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent (3) The material operative facts constituting deprivation of custody and (4) Such other matters which are relevant to the custody of the minor. The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally. [Sec. 4]

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XV. Writ of Amparo (A.M. 07-9-12-SC) W RIT OF AMPARO Literally means “to protect” Came originally from Mexico and evolved into many forms (1) Amparo libertad – for protection of personal freedom (2) Amparo contra leyes – for judicial review of the constitutionality of statutes (3) Amaparo casacion – judicial review of constitutionality and legality of judicial decisions (4) Amparo agrario – for protection of peasants’ rights AM No. 7-9-12-SC (Rules on the Writ of Amparo) was promulgated by the Supreme Court by virtue of the 1987 Constitution stating that the SC has the power to “[p]romulgate rules concerning the protection and enforcement of constitutional rights…” [Sec. 5, Art. VIII ]

A. COVERAGE Available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover: (1) Extralegal killings (killings committed without due process of law) and (2) Enforced disappearances [Sec. 1] Elements of enforced disappearance: (1) An arrest, detention or abduction of a

person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government (2) The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law [Sec. of National Defense v. Manalo, G.R. No. 180906 (2008)]

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The writ applies only to the right to life, liberty and security of persons and not property. “Right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person.

B. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA See previous discussion in writ of habeas corpus (page ___). Likewise, see Annex A.

C. AMPARO VS SEARCH WARRANT Sec. of National Defense v. Manalo, G.R. No. 180906 (2008) “The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.” The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e. “Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control...”

D. PETITION

WHO MAY FILE (1) Aggrieved party; or (2) Qualified person or entity in the following order: PAGE 260 OF 425

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(a) Any member of the immediate family namely: the spouse, children and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. [Sec. 2] Ratio for preference (1) Necessary for the prevention of indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party (2) Untimely resort to the writ by a nonmember of the family may endanger the life of the aggrieved party WHERE TO FILE (1) RTC where the threat, act or omission was committed or any of its element occurred; or (2) Sandiganbayan—unlike the writ of habeas corpus, because public officials and employees will be respondents in amparo petitions; or (3) Court of Appeals; or (4) Supreme Court; or (5) Any justice of such courts [Sec. 3] May be filed on any day, including Saturdays, Sundays, and holidays; from morning until evening. The writ shall be enforceable anywhere in the Philippines. [Sec. 3] No docket fees. Petitioner shall be exempted from payment of docket fees and other lawful fees when filing the petition. [Sec. 4]

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CONTENTS OF PETITION (1) The personal circumstances of the petitioner; (2) The name and personal circumstances of the respondent responsible for the threat, act or omission - If the name is unknown or uncertain, may be described by an assumed appellation; (3) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent - How such threat or violation is committed - With the attendant circumstances detailed in supporting affidavits; (4) The investigation conducted, if any, specifying: - Names, the personal circumstances and addresses of the investigating authority or individuals - Manner and conduct of the investigation - Together with any report; (5) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (6) The relief prayed for. May include a general prayer for other just and equitable reliefs. Signed and verified [Sec. 5] Issuance of W rit Upon filing of petition, writ shall immediately issue if on its face it ought to issue. Date and time for summary hearing of the petition shall be set not later than 7 days from date of issuance. [Sec. 6]

E. THE RETURN W hen to file return Respondent must file a verified written return within 72 hours after service of writ, together with supporting affidavits.

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CONTENTS OF RETURN (1) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; (2) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission; (3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and (4) If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken: (a) to verify the identity of the aggrieved party; (b) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (c) to identify witnesses and obtain statements from them concerning the death or disappearance; (d) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (e) to identify and apprehend the person or persons involved in the death or disappearance; and (f) to bring the suspected offenders before a competent court.; and (5) The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case. No general denial allowed. [Sec. 9] Prohibited Pleadings and Motions: The following pleadings and motions are prohibited: (1) Motion to dismiss; (2) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (3) Dilatory motion for postponement; (4) Motion for a bill of particulars;

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(5) Counterclaim or cross-claim; (6) Third-party complaint; (7) Reply; (8) Motion to declare respondent in default; (9) Intervention; (10) Memorandum; (11)Motion for reconsideration of interlocutory orders or interim relief orders; and (12) Petition for certiorari, mandamus or prohibition against any interlocutory order. [Sec. 11] To whom returnable (1) If filed with RTC, returnable to RTC or any judge (2) If filed with Sandiganbayan, CA or any justice, returnable to such court or any justice or the RTC where the threat, act or omission was committed or any of its elements occurred. (3) If filed with the SC, returnable to the SC or any justice, or to the CA, SB or any of its justices, or the RTC where the threat, act or omission was committed or any of its elements occurred. [Sec. 3]

EFFECT OF RETURN

FAILURE

TO

FILE

In case the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte. [Sec. 12]

OMNIBUS WAIVER RULE All defenses shall be raised in the return, otherwise, they shall be deemed waived. [Sec. 10]

F. HEARING Sum m ary Hearing Hearing on the petition shall be summary. BUT: The court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. Hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. [Sec. 13]

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Judgment The court shall render judgment within ten (10) days from the time of petition is submitted for decision. Archiving and revival of cases If the case cannot proceed for valid cause, the court shall not dismiss the petition but shall archive it. If after the lapse of two (2) years from the notice of archiving, the petition shall be dismissed for failure to prosecute. [Sec. 20]

G. OTHER ACTIONS INSTITUTION ACTION

OF

SEPARATE

The Rule shall neither preclude the filing of separate criminal, civil or administrative actions [Sec. 21] But a claim for damages should instead be filed in a proper civil action. If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution, because the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent

EFFECT OF FILING A CRIMINAL ACTION Reliefs under the writ shall be available by motion in a criminal case. - Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. When a criminal action has been commenced, no separate petition for the writ shall be filed. [Sec. 22]

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

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petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition. [Sec. 23]

H. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT W hen: Upon filing of the petition or at any time before final judgment Interim Reliefs available to the Petitioner (1) Temporary Protection Order. - Issued upon motion or motu proprio - That the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers concerned. [Sec. 14(a)] - Different from the inspection and production order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte. (2) Inspection Order. - Issued only upon verified motion and after due hearing - Directed to any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. - The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons. [Sec. 14(b)] - Requires hearing, may be availed of both the petitioner and the respondent - If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, the aggrieved

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party is not precluded from filing a petition for certiorari with the Supreme Court (3) Production Order. - Issued only upon verified motion and after due hearing - Directed to any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. - In case of opposition, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. [Sec. 14(c)]. Opposition may be had on the following grounds: (a) National security (b) Privileged nature of the information Not the same as search warrant for law enforcement under Art. III, Sec. 2 of the Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure [Sec. of National Defense v. Manalo, G.R. No. 180906 (2008)] (4) W itness Protection Order. - Issued upon motion or motu proprio - Order may refer the witnesses to (a) The Department of Justice for admission to the Witness Protection, Security and Benefit Program. (b) Other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. [Sec. 14(d)] Interim Reliefs available Respondent (1) Inspection Order (2) Production Order [Sec. 15]

to

the

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Requisites: (1) Verified motion of the respondent (2) Due hearing (3) Affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

I. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO The parties shall establish their claims by substantial evidence. If respondent is a public official or employee Must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was observed in the performance of duty. Cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability If respondent is a private individual or entity Must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. [Sec. 17] With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves. Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained. [Sec. of National Defense v. Manalo, G.R. No. 180906 (2008)] The writ can only be issued upon reasonable certainty. Substantial evidence is sufficient to grant the writ because the respondent is the State which has more resources than the petitioner. However, the SC held that mere inclusion in an Order of Battle List is insufficient to grant the writ absent a finding

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of a direct relation between prior deaths and the subject list. No evidence was shown that the deaths occurred due to inclusion in the list. [Ladaga v. Magapu, G.R. No. 189689 (2012)] That a public official failed to observe extraordinary diligence in the performance of his duties does not result in the automatic grant of the writ. Such failure does not relieve the petitioner from establishing his claim by substantial evidence. [Yano v. Sanchez, G.R. No. 186640 (2010)]

REMEDIAL LAW

XVI. Writ of Habeas Data [A.M. No. 08-1-16SC] A. SCOPE OF THE WRIT The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. [Sec. 1] It is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. There must be a nexus between the right to privacy, as well as the violation or threatened violation of the rights to life, liberty, and security, for the writ to issue. [Gamboa v. Chan, G.R. No. 193636 (2012)] Writ of Habeas Data was not enacted solely for the purpose of complementing the Writ of Amparo in cases of extralegal killings and enforced disappearances. It may be availed of in cases outside of extralegal killings and enforced disappearances. Habeas data, to stress, was designed “to safeguard individual freedom from abuse in the information age.” It can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy. [Vivares v. St Theresa’s College G.R. No. 202666 (2014)]

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B. AVAILABILITY OF WRIT Who may file: Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph [Sec. 2] W here to file: (1) RTC, at the option of the petitioner (a) Where petitioner resides; or (b) Where respondent resides; or (c) Which has jurisdiction over the place where the data or information is gathered, collected or stored (2) SC, CA, SB (when action concerns public data files of government offices). [Sec. 3] Writ is enforceable Philippines. [Sec. 4]

anywhere

in

the

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(2) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (3) The actions and recourses taken by the petitioner to secure the data or information; (4) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (5) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. - In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (6) Such other relevant reliefs as are just and equitable. [Sec. 6] Issuance of W rit Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. [Sec. 7]

E. THE RETURN

Indigent petitioner no need to pay docket fees The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. [Sec. 5]

W hen to file return Respondent must file a verified written return within five (5) work days from service of the writ, together with supporting affidavits. The 5-day period may be reasonably extended by the Court for justifiable reasons.

C. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO

CONTENTS (1) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (2) In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; b. the steps or actions taken by the respondent to ensure the security and

See previous discussion in habeas corpus and Annex A.

D. THE PETITION CONTENTS A verified written petition for a writ of habeas data should contain: (1) The personal circumstances of the petitioner and the respondent;

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confidentiality of the data or information; and c. the currency and accuracy of the data or information held; and (3) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. [Sec. 10] Prohibited Pleadings and Motions: The following pleadings and motions are prohibited: (1) Motion to dismiss; (2) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (3) Dilatory motion for postponement; (4) Motion for a bill of particulars; (5) Counterclaim or cross-claim; (6) Third-party complaint; (7) Reply; (8) Motion to declare respondent in default; (9) Intervention; (10) Memorandum; (11) Motion for reconsideration of interlocutory orders or interim relief orders; and (12) Petition for certiorari, mandamus or prohibition against any interlocutory order. [Sec. 13]

F. INSTANCES WHEN DEFENSES MAY BE HEARD IN CHAMBERS (1) Where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or (2) When the data or information cannot be divulged to the public due to its nature or privileged character. [Sec. 12]

G. OTHER ACTIONS CONSOLIDATION When a crim inal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

REMEDIAL LAW

When a crim inal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. [Sec. 21]

EFFECT ACTION

OF

FILING

CRIMINAL

Reliefs under the writ shall be available to an aggrieved party by motion in a criminal case. - Procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. When a criminal action has been commenced, no separate petition for the writ shall be filed. [Sec. 22]

INSTITUTION ACTION

OF

SEPARATE

The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. [Sec. 20] XVII. Change of Name DISTINCTIONS BETWEEN THE RULES [103, 108, R.A. 9048] See Annex B. Procedure: (1) Petition for Change of Name (2) Court order fixing the date and place of hearing (3) Publication of the court order fixing the date and place of hearing, at least once a week for 3 consecutive weeks in a newspaper of general circulation. (4) Hearing on the petition (5) Judgment granting/denying the change of name. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same. W hat is changed is the name register of the petitioner that appears in the civil register. - The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that which the person is known in the community. [No Yao Siong v. Republic, G.R. No. L-20306 (1966)]

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A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children. [Secan Kok v. Republic, G.R. No. L-27621 (1973)]

JURISDICTIONAL REQUIREMENTS An alien may petition for change of name but he must be domiciled in the Philippines. [Ong Huan Tin v. Republic, G.R. No. L-20997 (1967)] Verification is a formal, not a jurisdictional, requirement. The lack of verification is not a ground for dismissing the petition. However, before setting the petition for hearing, the court should have required the petitioner to have the petition verified. [Oshito v. Republic, G.R. No. L-21180 (1967)] All aliases of the applicant must be set forth in the petition’s title. Such defect is fatal, even if said aliases are contained in the body of the petition. [Go Chiu Beng v. Republic, G.R. No. L-29574 (1972)] Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 of the Rules of Court. [People v. Cagandahan, G.R. No. 166676 (2008)] GROUNDS FOR CHANGE OF NAME [Republic v. Hernandez (1996)] Valid Grounds for Change of Nam e (1) The name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) Change results as a legal consequence of legitimation (3) The change will avoid confusion. (4) A sincere desire to adopt a Filipino name to erase signs of former alienage [Uy v. Republic, G.R. No. L-22712 (1965)] (5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage

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[Ang Chay v. Republic, G.R. No. L-28507 (1970)] (6) Intersexuality is a valid ground for change of name and change of entry of sex in the civil registry. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason, thinks of his sex. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed. [People v. Cagandahan, G.R. No. 166676 (2008)] WHEN NOT PROPER When what is sought to be changed relates to status. Rule 103 cannot be resorted to for expediency if the petition substantially seeks to change one’s status from legitimacy to illegitimacy. [Republic v. Coseteng-Magpayo, G.R. No. 189476 (2011)] Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103. [Laperal v. Republic, G.R. No. L-18008 (1962)] A person’s first name cannot be changed on the ground of sex reassignment. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Silverio failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Rather than avoiding confusion, changing petitioner’s first name may only create grave complications in the civil registry and the public interest. [Silverio v. Republic, G.R. No. 184689 (2007)] No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. RA 9048 only allows

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correction of clerical or typographical errors. A correction in the civil registry involving the change of sex is not a mere clerical or typographical error. The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

REMEDIAL LAW

XVIII. Cancellation or Correction of Entries in the Civil Registry Proceedings for cancellation or correction of entries in the Civil Registry may be: (1) Sum m ary – when the correction sought to be made is a mere clerical error (now governed by RA 9048) (2) Adversarial – where the rectification affects civil status, citizenship or nationality of a party or any other substantial change. Substantial Change – change that affects the civil status, citizenship, or nationality of a party.

A. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION IN RELATION TO R.A. 9048 RULE 108 Substantial changes in entries in the civil registry Entries: (1) Births (2) Marriage (3) Deaths (4) Legal separations (5) Judgments of annulments of marriage (6) Judgments declaring marriages void from the beginning (7) Legitimations (8) Adoptions (9) Acknowledgments of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of a minor (15) Changes of name [Sec. 2, Rule 108] Such changes have public interest implications and must only be made upon approval of the Court.

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Cancellation or correction of substantial errors is allowed provided proceeding is adversary. [Chiao Ben Lim v. Zosa, G.R. No. L40252 (1986)] Unfortunately, even under R.A. No. 9048, a correction in the civil registry involving a change of sex is not a mere clerical or typographical error. Such involves a substantial change to which Rule 108 should apply. [Silverio v. Republic, G.R. No. 174689 (2007)] Appropriate adversary proceeding One where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered. [Eleosida v. Local Civil Registrar of Quezon City, G.R. No. 130277 (2002)] Parties (1) Civil registrar and (2) All persons who have or claim any interest which would be affected are made parties [Sec. 3, Rule 108] Notice and publication Reasonable notice be given to persons named in the petition, and publication once a week for 3 consecutive weeks [Sec. 4, Rule 108] Opposition Period to file:15 days from notice of petition, or from last date of publication of notice [Sec. 5, Rule 108]

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Exception: (1) Clerical or typographical errors and (2) Change of: (a) First name or nickname (b) The day and month in the date of birth or (c) Sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. [Sec. 1, RA 9048, as amended] Clerical or typographical error: A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that: (1) Is harmless and innocuous. (2) Is visible to the eyes or obvious to the understanding (patent) (3) Can be corrected or changed only by reference to other existing record or records (4) Does not involve the change of nationality, age, status or sex of the petitioner. [Sec. 2(3), RA 9048, as amended] The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in civil registry are separate and distinct. They may not be substituted one for the other. If both reliefs are to be sought in the same proceedings all the requirements of Rule 103 and 108 must be complied with. [Republic v. Valencia, G.R. No. L-32181 (1986)]

May be filed by: (1) Civil registrar or (2) Any person having or claiming any interest under the entry whose cancellation or correction is sought. [Sec. 5, Rule 108]

RA 9048, AS AMENDED BY RA 10172 Clerical or Typographical Errors General Rule: Entry in a civil register shall be changed or corrected with a judicial order. PAGE 270 OF 425

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XIX. Absentees

-

A. PURPOSE OF THE RULE The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. Since Roberto left no properties, there was no need to judicially declare him absent. [In Re: Petition for Declaration of Absence of Roberto L. Reyes, G.R. No. L-32036 (1986)] General Rule: No independent action for declaration of presumption of death [In Re: Petition for the Presumption of Death of Nicolai V. Szatraw, G.R. No. L-1780 (1948)] Exception: For purpose of contracting a second marriage [Art. 41, FC]

B. WHO MAY FILE; WHEN TO FILE PETITION FOR APPOINTMENT REPRESENTATIVE [PAR]

OF

W hen filed: To provisionally represent absentee when a person: (1) Disappears from his domicile, his whereabouts being unknown; and (2) Has not left an agent to administer his property or the power conferred upon the agent has expired. [Sec. 1, Rule 107] W ho may file (1) Any interested party (2) Relative (3) Friend [Sec. 1, Rule 107] PETITION FOR DECLARATION OF ABSENCE AND APPOINTMENT OF TRUSTEE OR ADMINISTRATOR [PDA] W hen filed: (1) After 2 years: (a) From the disappearance of and without any news from the absentee or (b) Since the receipt of the last news about him. (2) After 5 years:

REMEDIAL LAW If the absentee left an administrator of his property. [Sec. 2, Rule 107]

W ho may file: (1) The spouse present (2) The heirs instituted in a will, who may present an authentic copy of the same (3) The relatives who would succeed by the law of intestacy (4) Those who have over the property of the absentee some right subordinated to the condition of his death. [Sec. 2, Rule 107] C. WHO MAY BE APPOINTED (1) Spouse present shall be preferred when

there is no legal separation; (2) Any competent person – if absentee left

no spouse, or spouse is incompetent. [Sec. 7, Rule 107] D. TERMINATION OF ADMINISTRATION Termination of administration: Trusteeship or administration of the property of the absentee shall cease upon order of the court if: (1) Absentee appears personally or through an agent; (2) Absentee’s death is proved and heirs appear; (3) Third person appears, showing that he acquired title over the property of the absentee. Effects of Reappearance If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. [Art. 392, NCC] The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. [Art. 42, FC]

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XX. Appeals in Special Proceedings

B. WHEN TO APPEAL

A. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN

Exceptions: (1) Habeas corpus: 48 hours from notice of judgment in final order appealed from. [Sec. 39, BP 129, Sec. 3, Rule 41] (2) Am paro: 5 working days from the date of notice of the adverse judgment. [Sec. 19, AM No. 07-9-12-SC] (3) Habeas data: 5 working days from the date of notice of the adverse judgment [Sec. 19, AM No. 08-1-16-SC]

(1) If it allows or disallows a will; (2) If it wholly determines who are the lawful heirs or the distributive shares; (3) If it wholly or partially allows or disallows a claim against a decedent’s estate, or any claim presented on the decedent’s estate, or any claim presented on the estate’s behalf in offset to claim against it; (4) If it settles the account of an executor/administrator/trustee/guardian; (5) If it constitutes a final determination in the lower court of the rights of the party appealing in proceedings relating to estate settlement or administration of a trustee/guardian - Exception: Appointment of a special administrator is not appealable Remedy: Petition for certiorari under Rule 65, if there is grave abuse of discretion. (6) If it is the final order/judgment rendered in the case, and affects the substantial rights of the person appealing - Exception: Orders granting/denying a MFR/MNT [Sec. 1, Rule 109] While some of the items in Sec. 1, Rule 109 may be considered as interlocutory under ordinary special actions, the nature of special proceedings declares them as appealable as exceptions to Sec. 1, Rule 41. Rationale: To enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final. [Marinduque Mining and Industrial Corporation v. CA, G.R. No. 161219 (2008)]

General Rule: In a special proceeding, the period of appeal is 30 days. [Sec. 3, Rule 41]

See also Annex A. The appeal period may be interrupted by the filing of an MFR/MNT. Once the appeal period expires without an appeal/MF/MNT, the order becomes final. [Sec. 3, Rule 41]

C. MODES OF APPEAL Notice and record on appeal required. [Sec. 3, Rule 41] Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal – in addition to the notice of appeal – is thus required to be filed as the original records of the case should remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final. However, a record on appeal is not necessary where no other matter remained to be heard and determined by the trial court after it issued the appealed order granting the petition for cancellation of birth record and change of surname in the civil registry. [Republic v. Nishina, G.R. No. 186053 (2010)]

D. RULE DISTRIBUTION

ON

ADVANCE

Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate’s parts which are not affected by the PAGE 272 OF 425

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controversy/appeal be distributed, upon compliance with Rule 90. [Sec. 2, Rule 109] Comparative Table of Writs Legend: WHC – Writ of Habeas Corpus WD – Writ of Habeas Data RWD – Rules on Habeas Data CA - Court of Appeals RTC – Regional Trial Court

Nature, scope, function

WA – Writ of Amparo RWA - Rules on the Writ of Amparo SC – Supreme Court SB – Sandiganbayan CoC – Clerk of Court

Habeas Corpus (1) All cases of illegal confinement and detention which any person is deprived of his liberty (2) Deprivation of rightful custody of any person from the person entitled [Sec. 1] Actual violation before writ issues.

Limitations

NOTE: Villavicencio v. Lukban (G.R. No. L-14639, 1919) on applicability of the writ in case of constructive restraint. May not be suspended except in cases of invasion or rebellion when public safety requires it [Sec. 15, Art. III, 1987 Const.]

Amparo

Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity Covers extralegal killings and enforced disappearances or threats thereof. [Sec. 1]

Shall not diminish, increase or modify substantive rights [Sec. 23] Petition filed by the aggrieved party or by any qualified person or entity in the following order: (1) Any member of the

immediate family Who may file

By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf [Sec. 3]

(2) Any ascendant,

descendant or collateral relative of the aggrieved within the 4th civil degree of affinity or consanguinity (3) Any concerned citizen,

organization, association or PAGE 273 OF 425

Habeas Data Involves the right to privacy in life, liberty or security violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or inform ation regarding the person, family, home and correspondence of the aggrieved party. [Sec. 1] Shall not diminish, increase or modify substantive rights [Sec. 23] Any aggrieved party may file a petition. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): (1)

Any member of the immediate family of the aggrieved

(2) Any ascendant,

descendant or collateral relative of the aggrieved party within the fourth civil

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Amparo institution Filing by the aggrieved suspends the right of all others [Sec. 2]

REMEDIAL LAW Habeas Data degree of consanguinity or affinity [Sec. 2] (1) At the option of

Where filed

(1) SC or any member thereof, on any day and at any time (2) CA or any member thereof in instances authorized by law (3) RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district [Sec. 2] (4) MTC or first level courts in the absence of RTC judges in a judicial region [Sec. 35, BP 129]

(1) SB, CA, SC, or any justice of such courts (2) RTC of place where the threat, act, or omission was committed or any element occurred [Sec. 3]

petitioner, RTC where: (a) Petitioner resides or (b) Respondent resides or (c) That which has jurisdiction over the place where the data or information is gathered, collected or stored (2) SC, CA, or SB – If public data files of government offices [Sec. 3]

If SC/CA issued, anywhere in the Philippines.

Where enforceable

Where returnable

If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region [Sec. 21, BP 129 which modified the term judicial district in Sec. 2, Rule 102 into judicial region] where the judge sits

If issued by: (1) SC/CA, or a member thereof, returnable before such court or any member thereof or an RTC (2) RTC, or a judge thereof, returnable before himself [Sec. 2]

Anywhere in the Philippines [Sec. 4]

Anywhere in the Philippines [Sec. 3]

If issued by: (1) SC or any of its justices, returnable before such court or any justice thereof, or before the CA/SB or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred (2) CA/SB or any of their justices, returnable before such court or any justice thereof, or to any RTC of the place where the threat, act,

If issued by: (1) SC or any of its justices, before such Court or any justice thereof, or CA/SB or any of its justices, or the RTC of the place where the petitioner or respondent resides/has jurisdiction over the place where the data or information is gathered, stored or collected (2) CA/SB or any of its justices, before such court or any justice

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Docket Fees

Amparo or omission was committed or any of its elements occurred (3) RTC or any judge thereof, returnable before such court or judge [Sec. 3]

Upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires [Sec. 19]

Petitioner shall be exempted from the payment of the docket and other lawful fees Court, justice or judge shall docket the petition and act upon it immediately [Sec 4]

Signed and verified and shall allege: Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth:

Essential allegations/ Contents of petition

(1) The person in whose behalf the application is made is imprisoned or restrained of his liberty (2) Name of the person detaining another or assumed appellation (3) Place where he is imprisoned or restrained of his liberty (4) Cause of detention [Sec. 3]

(1) The personal circumstances of the petitioner (2) Name or appellation and circumstances of the respondent (3) The right to life, liberty, and security violated or threatened with violation, (4) The investigation conducted, if any, plus circumstances of each (5) The actions and recourses taken by the petitioner (6) Relief prayed for May include a general prayer for other just and equitable reliefs [Sec. 5]

When proper

Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then: -

the clerk of court (CoC) shall issue the writ under

REMEDIAL LAW Habeas Data thereof, or RTC (same with scenario: SC issued and then returned in RTC) (3) RTC, returnable before such court or judge [Sec. 4] None for indigent petitioner Petition shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from filing [Sec. 5] Verified and written petition shall contain: (1) Personal circumstances of petitioner and respondent (2) Manner the right to privacy is violated or threatened and its effects (3) Actions and recourses taken by the petitioner to secure the data or information (4) The location of the files, registers, or databases, the government office, and the person in charge or control (5) The reliefs prayed for

Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue

Such other relevant reliefs as are just and equitable [Sec. 6] Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue.

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-

CoC shall issue the writ

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CoC shall issue the

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Habeas Corpus the seal of the court or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it

Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned [Sec. 5] Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) person deputed by the court or judge.

Service

Respondent

Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody [Sec. 7] May or may not be an officer [Sec. 6]

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Amparo under the seal of the court or In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. [Sec. 6]

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-

Habeas Data writ under the seal of the court and cause it to be served within 3 days from issuance or In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it [Sec. 7]

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service.

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service.

In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 8]

In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 9]

Respondent is a public official or employee or private individual or entity [Sec. 1]

A public official or employee or a private individual or entity engaged in gathering, collecting or storing data [Sec. 1]

Respondent files the return [Sec. 9]

Respondent files the return [Sec. 10]

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: How executed and returned

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the judge allowing the writ, or in his absence or disability, before some other judge of the same court

on the day specified in the writ, unless person directed to be produced is sick or infirm, and cannot, without PAGE 276 OF 425

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SPECIAL PROCEEDINGS Habeas Corpus danger, be brought therein. Officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof [Sec. 8]

When to file return

On the day specified on the writ [Sec. 8]

When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state, and in other cases the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable:

Contents of return

(1) Truth of custody/power over the aggrieved party (2) If he has custody or power, or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held (3) If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity (4) If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. [Sec. 10]

Amparo

REMEDIAL LAW Habeas Data

Within 5 working days after service of the writ Same as WA [Sec. 10] [Sec. 9] Within 5 working days after service of the writ, the respondent shall file a (1) Lawful defenses such verified written return as national security, together with supporting state secrets, affidavits which shall, privileged contain: communications, confidentiality of the (1) Lawful defenses source of information (2) The steps or actions of media etc. taken to determine the (2) In case of respondent fate or whereabouts of in charge, in the aggrieved party possession or in (3) All relevant control of the data or information in the information subject of possession of the the petition: respondent pertaining (a) A disclosure of the to the threat, act or data or omission against the information about aggrieved party the petitioner, the (4) If the respondent is a nature of such public official or data or employee, the return information, and shall further state acts: the purpose for its (a) To verify identity of collection aggrieved party (b) The steps or (b) To recover and actions taken by preserve evidence the respondent to (c) To identify and ensure the collect witness security and statements confidentiality of (d) To determine the data or cause, manner, information location, and time (c) The currency and of death or accuracy of the disappearance data or (e) To identify and information held apprehend persons (3) Other allegations involved relevant to the (f) Bring suspected resolution of the offenders before a proceeding [Sec. 10] competent court [Sec. 9]

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Formalities of return

Penalties For refusing to issue or serve For faulty return

Is period of return extendable? Is a general denial allowed? Defenses not pleaded

Effect of failure to file return

Nature of Hearing

SPECIAL PROCEEDINGS Habeas Corpus Amparo Return or statement shall be signed and sworn to by the person who makes it if the Respondent shall file a prisoner is not produced, verified written return unless the return is made together with supporting and signed by a sworn public affidavits [Sec. 9] officer in his official capacity [Sec. 11] (1) CoC who refuses to issue (1) Contempt without the writ after allowance prejudice to other and demand, or disciplinary actions (2) A person to whom a writ is (a) CoC who refuses to directed, who: issue the writ after (a) neglects/refuses to its allowance, or obey or make return of (b) A deputized person the same according to who refuses to serve the command thereof, the writ [Sec. 7] (b) or makes false return, (2) Contempt punishable (c) or upon demand made by imprisonment or a by or on behalf of the fine prisoner, refuses to (a) A respondent who deliver to the person refuses to make a demanding, within 6 return, or hours a true copy of (b) A respondent who the warrant or order of makes a false commitment, return, or shall forfeit to the party (c) Any person who aggrieved the sum of P1000, otherwise disobeys recoverable in a proper or resist a lawful action, and may also be process or order of punished for contempt [Sec. the court [Sec. 16] 16]

REMEDIAL LAW Habeas Data Respondent shall file a verified written return together with supporting affidavits [Sec. 10] (1) Contempt without prejudice to other disciplinary actions (a) CoC who refuses to issue the writ after its allowance, or (b) A deputized person who refuses to serve the writ [Sec. 8] (2) Contempt punishable by imprisonment or a fine (a) A respondent who refuses to make a return, or (b) A respondent who makes a false return, or (c) Any person who otherwise disobeys or resist a lawful process or order of the court [Sec. 11]

No, not even on highly meritorious grounds.

Yes, for justifiable reasons [Sec. 10]

Not allowed [Sec. 9]

Not allowed [Sec. 10]

Deemed waived if not raised in return [Sec. 10]

Court or justice shall proceed to hear the petition ex parte [Sec. 12]

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant

Summary.

Unless the court in its discretion requires the petitioner to submit evidence [Sec. 14] Summary.

However, the court, justice, or judge may call for a

With possibility of preliminary conference

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Amparo preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties.

Date and time of hearing

As specified in the writ [Sec. 8]

Prohibited pleadings

In custody of m inors: a motion to dismiss, except on the ground of lack of jurisdiction [Sec. 6, Rule on Custody of Minors and WHC]

Burden of Proof/Standard of Diligence

Clear and convincing evidence [Dizon v. Eduardo, G.R. No. L-59118 (1988)]

Presumption of Official Duty

Yes. Consonant with Sec. 13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

Hearing shall be from day to day until completed same priority as petitions for WHC [Sec. 13] As specified in the writ, not later than 7 days from the issuance of the writ [Sec. 6] (1) Motion to dismiss (2) Motion for extension of time to file opposition, affidavit, position paper and other pleadings (3) Dilatory motion for postponement (4) Motion for bill of particulars (5) Counterclaims or crossclaims (6) Third-party complaint (7) Reply (8) Motion to declare respondent in default (9) Intervention (10) Memorandum (11) Motion for reconsideration of interlocutory orders or interim relief orders (12) Petition for certiorari, mandamus, or prohibition [Sec. 11] Substantial evidence • if respondent is a private individual or entity, ordinary diligence • if public official or employee, extraordinary diligence [Sec. 17] Public official or employee cannot invoke the presumption that official duty has been regularly performed [Sec. 17]

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REMEDIAL LAW Habeas Data similar to the WA [Sec. 14] Hearing in chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of privileged character [Sec. 12] As specified in the writ, not later than 10 working days from the date of issuance writ [Sec. 7]

Same as WA [Sec. 13, RWD]

Substantial evidence required to prove the allegations in the petition [Sec. 16]

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Interim reliefs

Judgment

Appeal

Consolidation of actions Effect of filing criminal action

Within 48 hours from notice of the judgment of final order appealed [Sec. 39, BP 129]

Amparo Upon filing of the petition or at any time before final judgment, the court, justice or judge may grant any of the following reliefs: - temporary protection order - inspection order - production order - witness protection order [Sec. 14] Within 10 days from the time the petition is submitted for decision [Sec. 18] 5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19] Consolidated with a criminal action filed subsequent to the petition [Sec. 23] No more separate petition shall be filed. Reliefs available by motion in the criminal case [Sec. 22]

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REMEDIAL LAW Habeas Data

Within 10 days from the time the petition is submitted for decision [Sec. 16] 5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19] Consolidated with a criminal action filed subsequent to the petition [Sec. 21] Same as WA [Sec. 21]

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I. General Matters

which it must be tried. [Buaya v. Polo, G.R. No. L-75079 (1989)]

CRIMINAL JURISDICTION The authority to hear and try a particular offense and impose the punishment for it [People v. Mariano, G.R. No. L-40527 (1976)]

It cannot be fixed by the will of the parties, the court or the accused, or by mere administrative policy of any trial court [Riano (2011)].

A. JURISDICTION OVER SUBJECT MATTER AND JURISDICTION OVER PERSON OF THE ACCUSED DISTINGUISHED

STATUTE APPLICABLE Jurisdiction of a court to try a criminal action is determined by the law in force at the time of the institution of the action, and not the law in force at the time of the commission of the crime [People v. Lagon, G.R. No. 45815 (1990)].

Jurisdiction over subject matter

Jurisdiction over person of the accused

Definition

Refers to the authority of the court to hear and determine a particular criminal case

Refers to the authority of the court over the person charged

How acquired

Conferred by law; can never be acquired solely by consent of the accused

May be acquired by the apprehension of the accused, or by consent of the accused, or by waiver of objections as when the accused enters his plea

Waiver of objection

Right to object is never waived; the absence of jurisdiction over the subject matter may be raised at any stage of the proceeding

Right to object may be waived; failure of the accused to object in time would constitute waiver

A.1 JURISDICTION OVER SUBJECT MATTER This refers to the right to act or the power and authority to hear and determine a cause. [Gomez v. Montalban, G.R. No. 174414 (2008)] It is determined by the allegations in the complaint or information. The averments in the complaint or information characterize the crime to be prosecuted and the court before

IMPOSABLE PENALTY In determining whether or not the court has jurisdiction over an offense, we consider the penalty which may be imposed upon the accused for the charge in the complaint and not the actual penalty imposed after the trial [People v. Purisima, G. R. No. L-40902 (1976)]. PRINCIPLE OF ADHERENCE OF JURISDICTION General rule: Under the principle of adherence of jurisdiction or continuing jurisdiction, once a court acquires jurisdiction over a controversy, it shall continue to exercise such jurisdiction until the final determination of the case. It is not affected by: (1) A subsequent valid amendment of the information [People v. Chupeco, G.R. No. L-19568 (1964)]; or (2) A new law vesting jurisdiction over such proceedings in another tribunal [Palana v. People, G. R. No. 149995 (2007)]. Exception: The succeeding statute: (a) expressly provides, or (b) is construed to the effect that it is intended to operate to actions pending before its enactment [Palana v. People, G. R. No. 149995 (2007)]. A.2. JURISDICTION OVER THE PERSON OF THE ACCUSED This is acquired either by: (a) Arrest of the accused; or (b) Voluntary appearance or submission of the accused to the jurisdiction of the court [Antiporda v. Garchitorena, G.R. No.

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133289 (1999), citing Arula v. Espino, G.R. No. L-28949 (1969)].

REMEDIAL LAW

very issue in the motion to quash a warrant of arrest [Miranda v. Tuliao, G.R. No. 158763 (2006)]; (2) Giving bail.

Voluntary appearance of the accused is accomplished by: (1) Filing pleadings seeking affirmative relief, Except: In case of special appearance to challenge the jurisdiction of the court over the person [Garcia v. Sandiganbayan, G.R. Nos. 170122 & 171381 (2009)], e.g. (a) a motion to quash a complaint on the ground of lack of jurisdiction over the person of the accused because failure to file would be a waiver of the defense of lack of jurisdiction over the person, or (b) a motion to quash the warrant of arrest because it is the very legality of the court process forcing the submission of the person of the accused that is the

B. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION (1) Subject matter jurisdiction, that is, whether or not the court has jurisdiction over the offense by virtue of the imposable penalty and its nature; (2) Jurisdiction over the person of the accused; (3) Territorial jurisdiction, which refers to venue or the place where the case is to be tried.

C. JURISDICTION OF CRIMINAL COURTS C.1. REGULAR (CIVIL) COURTS MTC/MeTC/MCTC (1) Exclusive original jurisdiction over all violations of city or m unicipal ordinances committed within their respective territorial jurisdiction [Sec. 32(1), BP 129] (2) Exclusive original jurisdiction over all offenses punishable with im prisonm ent not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof [Sec. 32(2), BP 129]; (3) Exclusive original jurisdiction over offenses involving damage to property through crim inal negligence [Sec. 32(2), BP 129; RA 7691] (this rule

RTC

Sandiganbayan

(1) Exclusive original jurisdiction in all crim inal cases not within the exclusive jurisdiction of any court, tribunal or body [Sec. 20, BP 129];

(1) Exclusive original jurisdiction in those cases expressly enumerated in PD 1606, as amended by RA 8249, violations of RA 3019, RA 1379, and Chapter II, Section 2, Title VII, Book II, RPC;

(2) Exclusive appellate jurisdiction over all cases decided by the MTC within its territorial jurisdiction [Sec. 22, BP 129]; (3) Criminal cases where one or m ore of the accused is below 18 years of age but not less than 15 years, or where one or m ore of the victim s is a m inor at the tim e of the com m ission of the offense [RA 9344]; (4) Cases against minors cognizable under the Dangerous Drugs Act, as amended [RA 8369 (Family Courts Act of 1997)]; PAGE 283 OF 425

The officials enumerated are: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 [RA 6758]; NOTE: The shift from, “PNP chief superintendent and PNP officers of higher rank” to “Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent and higher” in this

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MTC/MeTC/MCTC disregarding the amount of fine and other accessory penalties in determining jurisdiction does not apply when the offense is punishable by fine only); For Nos. 1-3, cases falling within the exclusive jurisdiction of the RTC and Sandiganbayan are not included. (4) Cases classified under the Revised Rules on Summary Procedure [SC Resolution, October 15, 1991]; (a) Violations of traffic laws, rules, or regulations; (b) Violations of rental law; (c) Cases where the penalty prescribed by law for the offense charged is im prisonm ent not exceeding 6 months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; (d) Offenses involving damage to property through crim inal negligence (imposable fine does not exceed P10,000);

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Sandiganbayan

(5) Violations of RA 7610 (Child Abuse Act); (6) Cases of domestic violence against wom en and children. If an act committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties [RA 8369 (Family Courts Act of 1997)];

(b)

(c)

(d)

(7) Violations of intellectual property rights [AM 0303-03-SC (2003); RA 8293]; (8) Money Laundering Cases (RA 9160), except those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.

(5) Violations of BP 22 [AM 00-11-01-SC (2003)]; (6) Special jurisdiction to decide on applications for bail in crim inal cases in the absence of all RTC judges in a province or city [Sec. 35, BP 129].

(e)

enumeration, as provided by the amendment in RA 10660. Members of Congress and officials thereof classified as “Grade 27” and up under the Compensation and Position Classification Act of 1989; Members of the judiciary without prejudice to the provisions of the Constitution; Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; All other national and local officials classified as “Grade 27”

(2) Other offenses or felonies whether sim ple or com plexed with other crim es com m itted by public officials and employees in relation to their office. The following must concur: (a) Accused is any one of the public officials enumerated in subsection (a) of Sec. 4 of RA 8249, Grade 27 or higher (b) Accused commits any other offense or felony, than those specified in subsec. (a), whether simple or complexed with other crimes (c) The offender commits such other offense or felony in relation to his office (3) Cases filed pursuant to and in connection with EO 1, 2, 14, 14-A (1986).

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C.2. MILITARY COURTS General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, regardless of who the coaccused or victims are. Exception: When the offense is serviceoriented, it will be tried by the court martial; Provided, that the President may, in the interest of justice, order or direct, at any time before arraignment, that any such crimes or offenses be tried by the proper civil courts.

D. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society [Domingo v. Sandiganbayan, G.R. No. 109376 (2000)]. Exceptions [Brocka v. Enrile, G.R. No. 69863-65 (1990)]: (1) When necessary in the protection of the constitutional rights of the accused; (2) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; (3) Where there is a prejudicial question which is sub judice; (4) Where acts of the officer are without or in excess of authority; (5) When the prosecution is under an invalid law or statute; (6) When double jeopardy is apparent; (7) When court has no jurisdiction over the offense; (8) When it is a case of persecution rather than prosecution; (9) Where the charges are manifestly false and motivated by vengeance; (10) Where there is no prima facie case and a motion to quash on that ground has been denied; (11) Where preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioner.

II. Prosecution Offenses A. CRIMINAL INSTITUTED

ACTIONS;

of HOW

A.1. IN GENERAL The institution of a criminal action generally depends upon whether the offense is one which requires a preliminary investigation or not. A criminal action is commenced by the filing of a complaint or information. The complaint may be filed either with the MTC, when allowed, or with a public prosecutor for purposes of conducting a preliminary investigation. [Sec. 1, (Rule 110] A.2. OFFENSES REQUIRING PRELIMINARY INVESTIGATION Offenses which require preliminary investigation are those where the penalty prescribed by law is at least 4 years, 2 months and 1 day [Sec. 1, Rule 112]. The criminal action is instituted by filing the complaint with the appropriate officer for preliminary investigation [Sec. 1(a), Rule 110]. A.3. OTHER OFFENSES For all other offenses, or in offenses cognizable by inferior courts (MTCs or MCTCs), the complaint or information is filed directly with said courts or the complaint is filed with the fiscal [Sec. 1(b), Rule 110]. A.4. IN METROPOLITAN MANILA AND OTHER CITIES In Metropolitan Manila and other chartered cities, the complaint shall be filed with the office of the public prosecutor unless otherwise provided in their charters [Sec. 1(b), Rule 110]. A.5. EFFECT OF INSTITUTION ON PRESCRIPTIVE PERIOD The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws [Sec. 1, Rule 110].

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There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription. [People v. Pangilinan, G.R. No. 152662 (2012)] SUSPENSION OF PRESCRIPTIVE PERIODS IN CASES FALLING UNDER THE AUTHORITY OF THE LUPON While the dispute is under mediation, conciliation or arbitration, the prescriptive periods for offenses and causes of action under existing laws shall be interrupted upon filing of the com plaint with the Punong Barangay. The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the Lupon or Pangkat Secretary. Such interruption however shall not exceed sixty (60) days from the filing of the complaint with the punong barangay [Sec. 410[c], RA 7160 (The Local Government Code of 1991)].

B. WHO MAY FILE; CRIMES THAT CANNOT BE PROSECUTED DE OFICIO General rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor [Sec. 5, Rule 110]. B.1. WHO MAY FILE COMPLAINT OR INFORMATION For Non-Private Crimes Persons authorized to file a com plaint [Sec. 3, Rule 110]: (1) The offended party (2) Any peace officer (3) Other public officer charged with the enforcement of the law violated Persons authorized to file an inform ation [Sec. 4, Rule 110]: (1) City or provincial prosecutor and their assistants; and (2) Duly appointed special prosecutors

For Private Crimes [Sec. 5, Rule 110] Private crimes which may only be prosecuted by a complaint filed by the private offended party [Sec. 5, Rule 110] Crime Who May File Conditions Adultery and Offended (1) Must concubinage spouse include both guilty parties (2)Must not have consented to the offense (3) Must not have pardoned the offenders Seduction, (1) Offended The abduction, party – offender acts of includes must not lasciviousnes minors, have been s except if pardoned incompetent by any of (1) or incapable to (4) in the (2) Parents preceding (3) Grandparent column (4) Guardian (5) State Defamation, Offended party which consists of imputation of any of the foregoing offenses B.2. EVENTS SUBSEQUENT TO FILING B.2.A. DEATH OF OFFENDED PARTY Death after filing the complaint would not deprive the court of jurisdiction. The State shall initiate the action on behalf of the offended party in case of his/her death/incapacity and he/she has no known parents/grandparents/guardians. In adultery/concubinage, death does not extinguish the criminal liability of accused.

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B.2.B. DESISTANCE BY OFFENDED PARTY Desistance does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. B.2.C. PARDON BY OFFENDED PARTY In adultery and concubinage, the crime shall not be prosecuted if the offended party has consented to the offense or pardoned the offenders. [Sec. 5, Rule 110] In seduction, abduction and acts of lasciviousness of a minor, the pardon will be effective if given expressly by his/her parents, grandparents, guardian or the offended party [Sec. 5, Rule 110]: (a) The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor [US v. Luna, G.R. No. 892 (1902)]; (b) If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender. General rule: Pardon must be made before the filing of the criminal complaint in court. Exception: In rape, marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence. If there is more than one accused, the pardon must be extended to all offenders. Pardon or desistance extinguishes civil liability. Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations. Pardon

Consent

Refers to past acts

Refers to future acts

In order to absolve the accused from liability, it must be extended to both offenders

In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse

Pardon Given after the commission of the crime

Consent Given before the commission of the crime

SUBSEQUENT MARRIAGE The marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him, together with the co-principals, accomplices and accessories after the fact of the above-mentioned crimes. [Art. 344, RPC] Except: (1) In adultery and concubinage (2) Marriage was invalid or contracted in bad faith to escape criminal liability [People v. Santiago, G.R. No. L-27972 (1927)] (3) In “private libel”, or the libelous imputation to the complainant of the commission of the crimes of concubinage, adultery, seduction, abduction, or acts of lasciviousness, and in slander by deed [People v. Orzame (39 O.G. 1168)] (4) In multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned [People v. Bernardo (38 O.G. 3479)]

C. CONTROL OF PROSECUTION C.1. IN GENERAL General rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor [Sec. 5, Rule 110]. Exceptions: The private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. (1) In case of heavy work schedule of the public prosecutor or (2) In the event of lack of public prosecutors. However, the criminal action is still prosecuted under the direction and control of the public prosecutor, which requires that the prosecutor must be present during the proceedings. [People v. Beriales, G. R. No. L39962 (1976)].

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C.2. BEFORE THE COURT OF APPEALS AND THE SUPREME COURT General rule: Only the Solicitor General may bring or defend actions in behalf of the Republic of the Philippines, or represent the People of the Philippines or State in criminal proceedings before the Supreme Court and the Court of Appeals. Exceptions: (1) When there is denial of due process of law to the prosecution and the State or its agents refuse to act on the case to the prejudice of the State and the private offended party, and (2) When the private offended party questions the civil aspect of a decision of a lower court. C.3. EXTENT OF THE PROSECUTOR’S CONTROL C.3.A. PRIOR TO FILING OF THE CASE These matters are within the control and supervision of the prosecutor: (1) What case to file; (2) Whom to prosecute; (3) Manner of prosecution; (4) Right to withdraw information before arraignment even without notice and hearing. C.3.B. AFTER FILING OF THE CASE It is the prosecutor’s duty to proceed with the presentation of his evidence. Once a complaint or information is filed in Court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the Court. A motion to dismiss should be filed with the Court, which has the option to grant or deny it. [Crespo v. Mogul, GR No L-53373 (1987)]

dismissing motion to dismiss; otherwise, the judgment is void. C.3.D. EFFECT OF LACK OF INTERVENTION OF FISCAL Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it cannot be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People v. Beriales, G.R. No. L-39962 (1976)].

D. SUFFICIENCY OF COMPLAINT OR INFORMATION A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated [Sec 3, Rule 110]. An inform ation is an accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court [Sec. 4, Rule 110].

Complaint

Information

Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated.

Subscribed by the fiscal. (Indispensable requirement. Lack of authority of the officer signing it cannot be cured by silence, acquiescence or even express consent.)

May be filed either in court or in the prosecutor’s office.

Filed with the court.

C.3.C. LIMITATIONS OF CONTROL BY THE Must be “sworn” COURT hence, under oath. (1) The prosecution is entitled to notice of hearing; (2) The court must await for a petition for review (maximum of 60 days); Usually refers to (3) Prosec’s stand to maintain prosecution felonies which should be respected by the court cannot be (4) The court must make its own independent prosecuted de officio. assessment of evidence in granting or PAGE 288 OF 425

Requires no oath. The fiscal filing the information is acting under the oath of his office. Usually refers to public crimes.

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TEST OF SUFFICIENCY A complaint or information is sufficient if it states: (1) The name of the accused; (2) The designation of the offense given by the statute; (3) The acts or omissions complained of as constituting the offense; (4) The name of the offended party; (5) The approximate date of the commission of the offense; and (6) The place where the offense was committed [Sec. 6, Rule 110]. The test for sufficiency of the complaint or information is whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty of the offense charged [Lazarte v. Sandiganbayan, G.R. No. 180122 (2009)]. An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial [Frias v. People, G.R. No. 171437 (2007)]. Consequently, objections as to form cannot be made for the first time on appeal. The accused should have moved for a bill of particulars or for quashal of information before arraignment, otherwise he is deemed to have waived his objections to such a defect [People v. Teodoro (2009)]. D.1 NAME OF THE ACCUSED The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such name shall be inserted in the complaint or information and record [Sec. 7, Rule 110].

(2) Aver the acts and omissions constituting the offense; and (3) Specify the qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it [Sec. 8, Rule 110]. This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. Specific acts of accused do not have to be described in detail in the information, as it is enough that the offense be described with sufficient particularity to make sure the accused fully understands what he is being charged with [Guy v. People, G.R. No. 16679496 (2009)]. D.3 CAUSE OF THE ACCUSATION The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated: (1) In ordinary and concise language; and (2) Not necessarily in the language used in the statute; but (3) In terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment [Sec. 9, Rule 110]. Qualifying and aggravating circumstances must be alleged. Otherwise, they are not to be considered even if proven during the trial. The failure to allege such cannot be cured by an amendment of the information after the accused entered his plea. [People v. Antonio (2002)] Although aggravating circumstances cannot be appreciated for the purpose of fixing a heavier penalty, they should, however, be considered as bases for the award of exemplary damages [People v. Evina, G.R. Nos. 124830-31 (2003)].

D.2 DESIGNATION OF OFFENSE The complaint or information shall: (1) State the designation of the offense given by the statute; PAGE 289 OF 425

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WHERE THE LAW PRESCRIBES EXCEPTIONS: RULE ON NEGATIVE AVERMENTS General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions. Sim ply put, if the exception is needed for defining the offense, then the information should negate the exception [US v. Chan Toco, G.R. No. L-3851 (1908)] WHERE COMPLEX CRIME IS CHARGED Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven. D.4 PLACE OF COMMISSION OF THE OFFENSE General rule: It is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court. Exception: The particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification [Sec 10, Rule 110]

D.5 DATE OF COMMISSION OF THE OFFENSE General Rule: It is not necessary to state in the complaint or information the precise date the offense was committed. The offense may be alleged to have been committed on a date as near as possible to the actual date of the commission. Exception: When it is a material ingredient of the offense [Sec. 11, Rule 110] D.6 NAME OF THE OFFENDED PARTY The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. OFFENSES AGAINST PROPERTY If the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. [Sec. 12(a), Rule 110] If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. [Sec. 12(b), Rule 110] OFFENDED PARTY IS A JURIDICAL PERSON Sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law [Sec. 12(c), Rule 110]

E. DUPLICITY OF THE OFFENSE; EXCEPTION Duplicity of the offense in an information or complaint means the joinder of two or more separate and distinct offenses in one and the same information or complaint.

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General rule: The information must charge only one offense [Sec. 13, Rule 110].

Examples of Formal Am endm ent: (a) New allegations which relate only to the range of penalty that the court might impose in the event of conviction; (b) One which does not charge another offense distinct from that already charged; (c) Additional allegation which do not alter the prosecution’s theory of the case so as to surprise the accused or affect the form of defense he has or will assume; (d) One which does not adversely affect any substantial right of the accused, such as his right to invoke prescription.

Exception: Multiple offenses may be charged when the law prescribes a single punishment for various offenses. REMEDY The filing of a motion to quash is the remedy in case of duplicity of offense in an information. Objection to a complaint or information which charges more than one offense must be timely interposed before trial [Sec. 3, Rule 120]. Failure to do so constitutes a waiver [People v. Tabio, G.R. No. 179477 (2008)] and the court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each offense [Sec. 3, Rule 120]. MODES OF COMMITTING OFFENSE NOT DUPLICITOUS General rule: In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective. Exceptions: (1) Complex crimes; (2) Special complex crimes; (3) Continuous crimes; (4) Crimes susceptible of being committed in various modes; (5) Crimes which another offense is an ingredient [People v. Camerino, G.R. No. L13484 (1960)].

F. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION KINDS OF AMENDMENT: (1) Formal Amendment merely states with additional precision something which is already contained in the original information, and which, therefore adds nothing essential for conviction for the crime charged [Gabionza v. CA, G.R. No. 140311 (2001)]

(2) Substantial am endm ent consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form [Teehankee v. Madayag, G.R. No. 103102 (1992)] TEST AS TO WHETHER FORMAL OR SUBSTANTIAL The test as to whether the amendment is merely formal is whether or not a defense under the original information would be equally available after the amendment and whether or not any evidence the accused might have would be equally applicable in one form as in the other [People v. Degamo, G.R. No. 121211 (2003), citing Teehankee v. Madayag, G.R. No. 103102 (1992)]. F.1. AMENDMENT BEFORE PLEA IN FORM AND SUBSTANCE General rule: Amendment, formal or substantial, made before the accused enters his plea may be done without leave of court. [Sec. 14, Rule 110] Exception: If the amendment downgrades the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only: (1) Upon motion of the prosecutor (2) With notice to the offended party and (3) With leave of court. [Sec. 14, Rule 110] The court is mandated to state its reasons in resolving the motion of the prosecutor and to

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furnish all parties, especially the offended party, of copies of its order [Sec. 14, Rule 110]. F.2. AMENDMENT AFTER DURING TRIAL

PLEA AND

F.2.A. AS TO FORM Amendment as to form can only be made under two conditions: (1) With leave of court; (2) It does not cause prejudice to the rights of the accused [Sec 14, Rule 110]. F.2.B. AS TO SUBSTANCE Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. [Almeda v. Villaluz, G.R. No. L31665 (1975)]. General rule: Amendment as to substance at this state of the case is proscribed [People v. Zulueta, G.R. No. L-4017 (1951)].

(2) The accused cannot be convicted of the offense charged or of any other offense necessarily included therein; (3) The accused would not be placed in double jeopardy. F.4. AMENDMENT AND SUBSTITUTION DISTINGUISHED Amendment Substitution Scope

Formal or substantial changes

Substantial changes

Necessity of leave of court

Can be effected without leave of court

Must be with leave of court

Necessity of new PI and plea

Only as to form, no need for another PI and retaking of plea

Another PI is entailed and accused has to plead anew

Offense involved

The amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy

Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy [Teehankee v. Madayag, G.R. No. 103102 (1992)]

Exception: Amendment may be allowed if it is beneficial to the accused [People v. Janairo, G.R. No. 129254 (2007)]. F.3. SUBSTITUTION A complaint or information may be substituted if it appears at any time before judgm ent that a mistake has been made in charging the proper offense. The court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused would not be placed in double jeopardy [Sec. 14, Rule 110]. Subject to Sec. 19, Rule 119, when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information. Lim itations: (1) No judgment has yet been rendered;

G. VENUE OF CRIMINAL ACTIONS General rule: In all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where: (1) The offense was committed; or (2) Any of its essential ingredients occurred [Sec. 15(a), Rule 110] This is the principle of territoriality. Venue in criminal cases is jurisdictional. The court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, or changed by agreement of the parties, or by the consent of the defendant. Thus, where an offense is wholly committed outside the territorial limits wherein the court

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operates, said court is powerless to try the case. For the rule is that one cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed [Hernandez v. Albano, G.R. No. L19272 (1967)]. Exceptions: Crime Felonies under Art. 2, RPC Those committed on a railroad train, aircraft, or any other public or private vehicle in the court of its trip

Those committed on board a vessel in the course of its voyage

Piracy, which has no territorial limits

Libel

Cases filed under BP 22

Violations of RA 10175 (Cybercrime

Venue Proper court where criminal action was first filed May be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during such trip, including place of departure and arrival May be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which vessel passed, subject to the generally accepted principles of international law May be instituted anywhere [People v. Lol-lo and Saraw, G.R. No. 17958 (1922)] May be instituted at the election of the offended party or suing party in the province or city, subject to Art. 360, RPC May be filed in the place where the check was dishonored or issued, or in case of a crosscheck, in the place of the depositary or collecting bank RTCs have jurisdiction over any

Prevention Act of 2012)

In exceptional circumstances to ensure a fair trial and impartial inquiry

violation of the provisions of the Act, including any violation committed by a Filipino national regardless of the place of com m ission [Sec. 21] SC has the power to order a change of venue or place of trial to avoid miscarriage of justice [Sec. 5(4), Art. VII, Constitution]

For transitory/continuing offenses, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People v. Grospe, G.R. No. L-74053-54 (1988)].

H. INTERVENTION OF OFFENDED PARTY General rule: An offended party has the right to intervene in the prosecution of a crime, where the civil action for recovery of civil liability is instituted in the criminal action [Sec. 16, Rule 110]. NOTE: This is still subject to the control of the prosecutor [Phil. Rabbit Bus Lines v. People, G.R. No. 147703 (2004)] Exceptions: (1) Where, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party (e.g. treason, rebellion, espionage and contempt); (2) Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action.

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III. Prosecution of Civil Action A. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION General rule: The civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action. Exception: The civil action is not deemed so instituted if the offended party: (1) Waives the civil action; (2) Institutes the civil action prior to the criminal action; or (3) Reserves the right to institute it separately [Sec. 1, Rule 111].

B.3. SEPARATE ACTION FILED BY THE ACCUSED No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action [Sec. 1, Rule 111].

C. WHEN SEPARATE CIVIL ACTION IS SUSPENDED After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action [Sec. 2, Rule 111].

D. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION

MAY

Upon the death of the accused or convict, criminal liability is extinguished [Art. 89, RPC].

B.1. INDEPENDENT CIVIL ACTIONS Under the Rules, only civil liability arising from the crime charged is deemed instituted. Hence, the civil actions under the Civil Code, specifically Art. 32, 33, 34, and 2176, remain separate, distinct, and independent of any criminal prosecution although based on the same act [Phil. Rabbit Bus Lines v. People, G.R. No. 147703 (2004)].

As regards civil liability: (1) When death occurs before the arraignm ent, the case shall be dismissed without prejudice to any civil action against the estate of the deceased [Sec. 4, Rule 111]; (2) When death occurs after arraignm ent and during pendency of criminal action, it extinguishes civil liability arising from the delict; (3) When death occurs during pendency of appeal, it extinguishes criminal liability and the civil liability based thereon [People v. Ayochok, G.R. No. 175784 (2010)].

B. WHEN CIVIL ACTION PROCEED INDEPENDENTLY

B.2. RESERVATION OF RIGHT TO FILE CIVIL ACTION The civil action may also proceed independently of the criminal action when reservation to institute the civil action separately is made. The reservation shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation [Sec. 1, Rule 111]. Instances where reservation to file the civil action separately shall not be allowed: (1) B.P. 22 cases [Sec. 1(b), Rule 111] (2) Cases cognizable by the Sandiganbayan [PD 1606, as amended by Sec. 4, R.A. 8249] (3) Tax cases [Sec. 7(b)(1), RA 9282]

Independent civil actions instituted under Arts. 32, 33, 34 and 2176, Civil Code, or those instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against his estate. As regards the parties in the civil action, the heirs of the accused may be substituted without requiring the appointment of an executor/administrator. The court may appoint guardian ad litem for the minors.

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The court shall order the legal representatives to appear and be substituted within 30 days from notice.

E. PREJUDICIAL QUESTION E.1. ELEMENTS A prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. [People v. Consing, G.R. No. 148193 (2003)] Elements of a prejudicial question: (1) The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (2) The resolution of such issue determines whether or not the criminal action may proceed [Sec. 7, Rule 111]. A civil action may be considered prejudicial when the following concur: (1) The civil case involves facts intimately related to those on which the criminal prosecution would be based; (2) In the resolution of the issue/s raised in the civil action, the guilt/innocence of the accused would necessarily be determined; (3) Jurisdiction to try the action is lodged in another tribunal [Prado v. People, G.R. No. L-37652 (1984)]; (4) The action is instituted prior to the institution of the criminal action [Pimentel v. Pimentel, G.R. No. 172060 (2010)]. Ratio: The rule seeks to avoid two conflicting decisions in the civil case and in the criminal case [Sy Thiong Shiou vs Sy Chim, G.R. No. 174168 (2009)]. E.2. EFFECT General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence [Sec. 2, Rule 111].

E.3. WHERE TO FILE PETITION FOR SUSPENSION (1) Office of the prosecutor (in the PI stage); (2) Court conducting the PI; or (3) Court where criminal action has been filed for trial, at any time before the prosecution rests [Sec. 6, Rule 111]. NOTE: The Rules preclude a motu proprio suspension by the judge of the civil action, it must be by petition of the defendant. [Yap v. Paras, G.R. No. 101236 (1992)].

F. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION Filing fees apply when damages are being claimed by the offended party, to be paid upon filing of the criminal action. General rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees [Sec. 1, Rule 111]. When the amount of damages, other than actual, is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. In any other case (i.e., when the amount of damages is not so alleged in the complaint or information filed in court), the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages [General v. Claravall, G.R. No. 96724 (1991)]. Exceptions: In criminal actions for violation of BP 22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed. In estafa cases, the filing fees shall be paid based on the amount involved (AM 04-2-04).

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IV. Preliminary Investigation A. NATURE OF RIGHT A.1. DEFINITION It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Sec. 1, Rule 112]. Preliminary Investigation is “merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits” and does not place the persons against whom it is taken in jeopardy. [Paderanga v. Drilon, G.R. No. 96080 (1991)] It is an executive, not a judicial function [Metropolitan Bank and Trust Company v. Tonda, G.R. No. 134436 (2000)]. A.2. RIGHT TO PRELIMINARY INVESTIGATION The right to preliminary investigation is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process [People v. Oandasa, G.R. No. L-29532 (1968)]. It is not a mere formal or technical right but a substantial right. A.3. WAIVER OF RIGHT The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication. When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court [People v. Perez, G.R. No. L-15231 (1960)].

against him provided that he raises the challenge before entering his plea [Sec. 26, Rule 114]. A.4. WHEN RIGHT DEEMED WAIVED (1) Express waiver or by silence [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]; (2) Failure to invoke it during arraignment [People v. De Asis, G.R. No. 105581 (1993)]; and (3) Consenting to be arraigned and entering a plea of not guilty without invoking the right to PI [People v. Bulosan, G.R. No. L58404 (1988)]. The waiver, whether express or implied, must be in a clear and unequivocal manner [Herrera (2007)]. The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]. A.5. WHEN RIGHT NOT DEEMED WAIVED (1) Failure to appear before the prosecutor during the clarificatory hearing or when summoned, when the right was invoked at the start of the proceeding [Larranaga v. CA, G.R. No. 130644 (1998)]; or (2) When the accused filed an application for bail and was arraigned over his objection and the accused demand that preliminary investigation be conducted [Go v. CA, G.R. No. 101837 (1992)].

B. PURPOSES OF PRELIMINARY INVESTIGATION (1) To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty [Raro v. Sandiganbayan, G.R. No. 108431 (2000)]; (2) To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials [Tandoc v. Resultan, G.R. No. 59241-44 (1989)].

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C. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE Probable cause means the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. In general, the following may conduct the determination of existence of probable cause: (1) Provincial/city prosecutors and their assistants; (2) National and regional state prosecutors; (3) Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by AM 05-826-SC]. C.1. PROSECUTOR The executive determination of probable cause is one made during the PI. It is a function that properly pertains to the public prosecutor who is given a broad range of discretion to determine whether probable cause exists for purposes of indictm ent. Such finding will not be disturbed by the court unless there is finding of grave abuse of discretion. [Mendoza v. People, G.R. No. 197293 (2014)] C.2. COURT The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. NOTE: RTC judges have no power to conduct PI; and MTC judges cannot conduct PI anymore after AM 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3, 2005.

on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof [Sec. 12, Art. XI, Constitution]. The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well. [Uy v. Sandiganbayan, G.R. No. 105965-70 (2001)] C.5. PROCEDURE FOR PRELIMINARY INVESTIGATION Filing of the com plaint (1) Stating the respondent’s name and address (2) Include the affidavits of complainant and the witnesses, and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public (3) In such number of copies as there are respondents, plus 2 copies for the official file [Sec. 3(a), Rule 112].

1

2

Action of the investigating officer (1) Within 10 days after the filing of the complaint, the investigating officer will either: (a) Dismiss, if he finds no ground to continue; or (b) Issue a subpoena to the respondent, attaching the complaint and other documents. If subpoena is not possible, the investigating officer shall decide based on what complainant presented; (2) Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense [Sec. 3(b), Rule 112].

3

Defendant’s counter-affidavit It must be made within 10 days from receipt of complaint, and must comply with the same requirements as a

C.3. COMELEC The COMELEC may conduct investigation as regards election offenses [Sec. 2(6), Art. IX-C, Constitution; Sec. 265, Omnibus Election Code]. C.4. OMBUDSMAN The Ombudsman and his deputies, as protectors of the people, shall act promptly

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E. REVIEW

complaint [Sec. 3(c), Rule 112]. If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112].

4

Clarificatory hearing Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness. The investigator must conduct a hearing within 10 days from receipt of the counter-affidavit. The hearing must be finished in 5 days. Parties may be present evidence, but they have no right to examine or crossexamine. Questions of parties shall be submitted to the investigating officer. Within 10 day after the investigation, the officer shall determine whether or not there is sufficient ground to hold respondent for trial [Sec. 3(e), Rule 112].

1

Within 5 days from resolution, the investigating officer will forward the case to the prosecutor or to the Ombudsman in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

2

Within 10 days from receipt of the resolution, the Prosecutor/Ombudsman will act on the case.

3

No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or ombudsman. In case the investigating officer recommends the dismissal of the complaint but the prosecutor or Ombudsman disagrees, the latter may file the information himself or any deputy or order any prosecutor to do so, without conducting a new PI.

4

The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor. The DOJ Secretary may review resolutions, via petition for review to the Secretary of Justice, of his subordinates in criminal cases despite the information being filed in court [Sec. 4, Rule 112; Community Rural Bank of Guimba v. Talavera, RTJ-05-1909 (2005)]; see also DOJ Circ. No. 70].

D. RESOLUTION OF THE INVESTIGATING PROSECUTOR If he finds probable cause to hold respondent for trial, he shall prepare a resolution and certify under oath in the information that: (1) He or an authorized officer has personally examined the complainant and his witnesses; (2) That there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; (3) That the accused was informed of the complaint and evidences against him; (4) That he was given opportunity to submit controverting evidence If he finds no probable cause, he shall recommend the dismissal of the complaint [Sec. 4, Rule 112].

The resolution of the Secretary of Justice may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction [Ching v. Sec. of Justice, G.R. No. 164317 (2006)]. The DOJ resolution is appealable administratively before the Office of the President and the decision of the latter may be appealed before the CA pursuant to Rule 43 [De Ocampo v. Sec. of Justice, G.R. No. 147932 (2006)].

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F. WHEN WARRANT OF ARREST MAY ISSUE If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested, and hold him for trial.

1

A complaint, which complies with Sec. 3(a), Rule 112, is filed.

The PI conducted by the prosecutor is executive in nature. It is for the purpose of determining whether or not there exists sufficient ground for the filing of information.

2

Within 10 days after the filing of the complaint/information, if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same.

3

The judge may require submission of additional evidence within 10 days from notice, to determine the existence of PC.

4

If the judge still finds no PC despite the additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period.

The PI conducted by the judge which is properly called prelim inary examination is for the determination of probable cause for the issuance of warrant of arrest [P/Supt. Cruz v. Judge Areola, AM No. RTJ-01-1642 (2002)].

G. CASES NOT REQUIRING PRELIMINARY INVESTIGATION NOR COVERED BY THE RULE ON SUMMARY PROCEDURE These are cases punishable by imprisonment of less than 4 years, 2 months and 1 day, and filed with the prosecutor or MTC/MCTC. If filed directly with the prosecutor, Sec. 3(a), Rule 112 applies. Thus, the complaint must be filed: (1) Stating the respondent’s name and address; (2) Include the affidavits of complainant and the witnesses, and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public; and (3) In such number of copies as there are respondents, plus 2 copies for the official file. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing.

5

If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if already arrested) and hold him for trial.

If the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead.

H. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION H.1. EFFECT OF DENIAL OF RIGHT The absence of PI [Villaflor v. Vivar, G.R. No. 134744 (2001)]: (1) Does not impair the validity of the information or otherwise render it defective; (2) Does not affect the jurisdiction of the court; (3) Does not constitute a ground for quashing the information.

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REMEDIES OF THE ACCUSED IF THERE WAS NO PI: (1) Refuse to enter a plea upon arraignment and object to further proceedings upon such ground; (2) Insist on a preliminary investigation; (3) File a certiorari, if refused; (4) Raise lack of PI as error on appeal [United States v. Banzuela, G.R. No. L-10172 (1915)] The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a PI [Villaflor v. Vivar, G.R. No. 134744 (2001)]. After the filing of the complaint/information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112 [Sec. 6, Rule 112]. H.2. RESTRAINING PRELIMINARY INVESTIGATION General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained. Exceptions: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary: (1) For the orderly administration of justice; (2) To prevent the use of the strong arm of the law in an oppressive and vindictive manner; (3) To avoid multiplicity of actions; (4) To afford adequate protection to constitutional rights; and (5) In proper cases, because the statute relied upon is unconstitutional, or was “held invalid” [Ladlad v. Velasco, G.R. No. 172070-72 (2007)].

I. INQUEST

General rule: PI is required to be conducted before a complaint/information is filed for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine [Sec. 1, Rule 112] Exception: When a person is lawfully arrested without a warrant involving an offense that requires a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted. However, before the complaint or information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Art. 125, RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception [Sec. 6, Rule 112]. PROCEDURE An inquest is considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include: (1) Affidavit of arrest, investigation report, statement of the complainant and witnesses, all of which must be subscribed and sworn to before him; (2) Other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person. It must be terminated within the period prescribed under the provisions of Art. 125, RPC. Thus, if after the inquest proceedings: (1) There is no probable cause, the case is dismissed; (2) The accused wants a PI and is willing to waive Art. 125, a preliminary investigation conducted; (3) The arrest was without warrant, but there possibly is PC, the accused is released for regular PI; (4) There is PC and the arrest was valid, an information is filed.

An inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court [DOJ-NPS Manual]. PAGE 300 OF 425

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V. Arrest Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense [Sec. 1, Rule 113].

A. IMMUNITY A.1. PARLIAMENTARY IMMUNITY Senators and Members of the House of Representatives, while Congress is in session and for offenses punishable by not more than 6 years imprisonment are immune to arrest [Sec. 11, Art. VI, Constitution]. A.2. DIPLOMATIC IMMUNITY Ambassadors and ministers of foreign countries and their duly registered domestics subject to the principle of reciprocity are immune to arrest [RA 75]. NOTE: Diplomatic immunity is not limited to immunity from arrest only.

B. HOW MADE (1) By actual restraint of a person to be arrested;

(2) By his submission to the custody of the person making the arrest [Sec. 2, 1st par., Rule 113]. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary [Sanchez v. Demetriou, G.R. No. 111771-77 (1993)]. No violence or unnecessary force shall be used in making an arrest [Sec. 2, 2nd par., Rule 113]. Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. An arrest may be made on any day and at any time of the day or night [Sec. 6, Rule 113].

C. ARREST WITHOUT WARRANT, WHEN LAWFUL General rule: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law [Umil v. Ramos, G.R. No. 81567 (1991)]. Exceptions: (1) In flagrante delicto [Sec. 5(a), Rule 113]; (2) Hot pursuit arrest [Sec. 5(b), Rule 113]; (3) Arrest of escaped prisoner [Sec. 5(c), Rule 113]; (4) Other lawful warrantless arrests: (a) Where a person who has been lawfully arrested escapes or is rescued [Sec. 13, Rule 113]; any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines; (b) By the bondsman, for the purpose of surrendering the accused [Sec. 23, Rule 114]; (c) Where the accused who is released on bail attempts to leave the country without permission of the court where the case is pending [Sec. 23, Rule 114]. C.1. IN FLAGRANTE DELICTO A peace officer or a private person may, without warrant, arrest a person when the person to be arrested: (1) Has committed; (2) Is actually committing; or (3) Is attempting to commit an offense in the presence of the peace officer or private person who arrested him [Sec. 5(a), Rule 113]. Requisites: (1) The person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) Such overt act is done in the presence or within the view of the arresting officer [Zalameda v. People, G.R. No. 183656 (2009); People v. Laguio, G.R. No. 128587 (2007)].

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“In his presence” means: (1) He sees the offense, even though at a distance; (2) He hears the disturbances created by the offense and proceeds at once to the scene; or (3) Offense is continuing or has been consummated at the time arrest is made [People v. Evaristo, G.R. No. 93828 (1992)]. The following are instances of this type of arrest without warrant: (1) An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Sec. 5(a), Rule 113 [Teodosio v. CA, G.R. No. 124346 (2004)]. This is different from instigation, which means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him, and leads to acquittal [People v. Dansico, G.R. No. 178060 (2011)]. (2) When a person is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest [People v. de Lara, G.R. No. 94953 (1994)]. C.2. HOT PURSUIT ARREST A peace officer or a private person may, without warrant, arrest a person when an offense has just been committed and the officer or private person has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it [Sec. 5(b), Rule 113].

Probable cause must be based on personal knowledge which means an actual belief or reasonable grounds of suspicion [Abelita III v. Doria, G.R. No. 170672 (2009)] NOTE: Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall forthwith arrested delivered to the nearest police station or jail [Sec. 5, 2nd par., Rule 113]. C.3. ARREST OF ESCAPED PRISONER A peace officer or a private person may, without warrant, arrest a person when the person to be arrested is a prisoner who has escaped [Sec. 5(c), Rule 113]: (1) From a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending; or (2) While being transferred from one confinement to another. Escapee may be immediately pursued or rearrested without a warrant at any time and in any place within the Philippines [Sec. 13, Rule 113]. Ratio: At the time of arrest, the escapee is in continuous commission of a crime (i.e., evasion of service of sentence). C.4. RULES ON ILLEGALITY OF ARREST C.4.A. EFFECT The legality of the arrest affects only the jurisdiction of the court over the person of the accused [People v. Nuevas, G.R. No. 170233 (2007)].

Requisites: (1) An offense has just been committed. There must be a large measure of C.4.B. WAIVER immediacy between the time the offense Any objection involving the arrest or the was committed and the time of the arrest. procedure in the court’s acquisition of If there was an appreciable lapse of time jurisdiction over the person of an accused between the arrest and the commission of must be made before he enters his plea; the crime, a warrant of arrest must be otherwise the objection is deemed waived secured [People v. del Rosario, G.R. No. [Zalameda v. People, G.R. No. 183656 (2009)]. 127755 (1999); People v. Agojo , G.R. No. 181318 (2009)]; and An application for or adm ission to bail (2) The person making the arrest has shall not bar the accused from challenging probable cause to believe, based on the validity of his arrest or the legality of the personal knowledge of facts, that the warrant issued, provided that he raises the person to be arrested has committed it. PAGE 302 OF 425

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objection before he enters his plea [Sec. 26, Rule 114]. A waiver of the right to question an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest [People v. Nuevas, G.R. No. 170233 (2007)]. C.4.C. WHEN CURED (1) When the accused voluntarily submits to the jurisdiction of the trial court [Dolera v. People, G.R. No. 180693 (2009); People v. Alunday, G.R. No. 181546 (2008)]; (2) By the filing of an information in court and the subsequent issuance by the judge of a warrant of arrest [Sanchez v. Demetriou, G.R. No. 111771-77 (1993)].

D. METHOD OF ARREST D.1. BY OFFICER WITH WARRANT D.1.A. DUTIES OF ARRESTING OFFICER (1) Execution of warrant [Sec. 4, Rule 113]: (a) The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt; (b) The officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. (c) In case of the officer’s failure to execute, he shall state the reasons therefor.

This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment [Mallari v. CA, G.R. No. 11069 (1996)]. (3) The officer executing the warrant shall arrest the accused and deliver him to the nearest police station or jail without unnecessary delay [Sec. 3, Rule 113]; (4) No violence or unnecessary force shall be used in making an arrest [Sec. 2, 2nd par., Rule 113]. D.1.B. RIGHTS OF THE ARRESTING OFFICER (1) To summon assistance [Sec. 10, Rule 113]. He may orally summon as many persons as he deems necessary to assist him in effecting the arrest. (2) To break into building or enclosure [Sec. 11, Rule 113], when the following concur: (a) The person to be arrested is or is reasonably believed to be in said building; (b) He has announced his authority and purpose of entering therein; and (c) He has requested and been denied admittance. (3) To break out from the building/enclosure when necessary to liberate himself [Sec. 12, Rule 113];

(2) The officer shall inform the person to be (4) To search the person arrested for arrested of the cause of the arrest and the dangerous weapons or anything which fact that a warrant has been issued for his may have been used or constitute proof in arrest [Sec. 7, Rule 113]. the commission of an offense without a (a) This duty does not apply: warrant [Sec. 13, Rule 126]. (i) When the person to be arrested flees; NOTE: Nos. 2 and 3 are also applicable (ii) When he forcibly resists before the where there is a valid warrantless arrest. officer has opportunity to so inform him; D.2. BY OFFICER WITHOUT WARRANT (iii) When the giving of such information General rule: The officer shall inform the will imperil the arrest. person to be arrested of: (b) The officer need not have the warrant (1) His authority; and in his possession at the time of the (2) The cause of the arrest (Sec. 8, Rule 113). arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable [Sec. 7, Rule 113]. PAGE 303 OF 425

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Exceptions: (1) When the person to be arrested is engaged in the commission of the offense; (2) When he is pursued immediately after its commission; (3) When he has escaped, flees or forcibly resists before the officer has the opportunity to so inform him; or (4) When the giving of such information will imperil the arrest. D.3. BY PRIVATE PERSON (CITIZEN’S ARREST) (1) The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest [Sec. 9, Rule 113], except in the same cases as those for arrest by an officer without a warrant. (2) The private person must deliver the arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Sec. 7, Rule 112. Otherwise, the private person may be held liable for illegal detention.

E. REQUISITES OF WARRANT OF ARREST

A

fiscal regarding the existence of probable cause: (1) If he finds probable cause, he shall issue a warrant of arrest; or (2) If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses [People v. Gray, G.R. No. 180109 (2010); AAA v. Carbonell, G.R. No. 171465 (2007)].

F. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST Probable cause, in connection with the issuance of a warrant of arrest, assumes the existence of facts and circumstances that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely com m itted by the person sought to be arrested [People v. Tan, G.R. No. 182310 (2009)].

G. PROBABLE CAUSE OF FISCAL AND JUDGE DISTINGUISHED

VALID

E.1. ESSENTIAL REQUISITES The warrant must: (1) Be issued upon probable cause determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce; and (2) Particularly describe the person to be arrested [Sec. 2, Art. III, Constitution]

Fiscal

Judge

Nature

Executive determination of PC

Judicial determination of PC

Purpose

Determination of PC to hold a person for trial

Determination of PC to issue a warrant of arrest

Standard

Whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial

Whether or not a there is reasonable ground to believe that a crime has been committed and that it was likely committed by the person sought to be arrested

E.2. WHEN ISSUED A judge issues a warrant of arrest upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence [Sec. 5(a), Rule 112]. The judge does not have to personally examine the complainant and his witnesses. Established doctrine provides, he shall personally evaluate the report and the supporting documents submitted by the PAGE 304 OF 425

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VI. Bail

General rule: Bail is a matter of right.

A. NATURE

Exception: When the offense involved is a capital offense, admission to bail is discretionary, and may only be denied when evidence of guilt is strong.

A.1. DEFINITION Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions hereinafter specified [Sec. 1, Rule 114]. A.2. PURPOSE (1) To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial [People v. Hon. Donato, G.R. No. 79269 (2011)]; (2) To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Sec. 14, Art. III, Constitution]; and (3) To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral, AM No. RTJ-97-1387 (1997)]. A.3. REQUIREMENT OF CUSTODY General rule: Custody of the law is required before the court can act on an application for bail [Miranda v. Tuliao, G.R. No. 158763 (2006)]. Exceptions: Custody is not required in cases of witnesses posting bail: (1) When bail is required to guarantee the appearance of a material witness [Sec. 14, Rule 119]; (2) When bail is required to guarantee the appearance of a prosecution witness in cases where there is substitution of the information [Sec. 14, Rule 110].

B. WHEN A MATTER OF RIGHT; EXCEPTIONS Bail is a matter of right: (1) Before or after conviction, but pending appeal, by the MTC; (2) Before conviction by RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment. [Sec. 4, Rule 114].

Exception to the exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong. B.1. CAPITAL OFFENSE A capital offense is an offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death [Sec. 6, Rule 114]. The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed. Note: RA 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines) enacted on June 24, 2006 (which repealed RA 8177 and RA 7659) prohibited the imposition of the death penalty. Under Sec. 7, RA 9346, it stated that “[c]apital offense or an offense punishable by reclusion perpetua or life imprisonment.” B.2. EXTRADITION PROCEEDINGS General rule: Right to bail is available only in criminal proceedings and does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal [Gov. of USA v. Purganan and Jimenez, G.R. No. 148571 (2002)]. Exception: Only upon clear and convincing evidence: (1) That once granted, the applicant will not be flight risk or will not pose danger to the community; and (2) That there exists special humanitarian and compelling circumstances. Note: Bail is a matter of discretion in extradition proceedings [Govt. of HK Special Administrative Region v. Olalia, G.R. No. 153675 (2007)].

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B.3. WHEN NOT AVAILABLE Right to bail is also not available: (1) After a judgment of conviction has become final; NOTE: If he applied for probation before finality, he may be allowed temporary liberty under his bail; (2) After the accused has commenced to serve his sentence [Sec. 24, Rule 114]. (3) To military personnel accused under general courts martial [Comendador v. de Villa, G.R. No. 93177 (1991)].

C. WHEN DISCRETION

A

MATTER

OF

(1) Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment and evidence of guilt is not strong; (2) Upon conviction by the RTC, which has not become final as the accused still has the right to appeal, of an offense not punishable by death, reclusion perpetua or life imprisonment. It may be filed in and acted upon by the RTC despite the filing of notice of appeal, provided that it has not transmitted the original record to the appellate court. If the RTC decision changed nature of the offense from non-bailable to bailable, the application for bail can be resolved only by the appellate court [Sec. 5, Rule 114]. If the conviction by the trial court is for a capital offense, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court [Sec. 13, Article III, Constitution]. If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail or his bail shall be cancelled upon showing by the prosecution, with notice to the accused, of any of the following [Sec. 5, Rule 114]: (1) Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration of the accused; (2) The accused previously escaped from legal confinement, evaded sentence or

violated bail conditions without valid justification; (3) Commission of offense while under probation, parole or conditional pardon by the accused; (4) Probability of flight; (5) Undue risk that the accused may commit another crime during pendency of appeal. Upon conviction of the RTC, the bail posted earlier as a matter of right loses its force and the accused must file a new and separate petition for bail. In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation [Harvey v. Defensor-Santiago, G.R. No. 82544 (1990)]. NOTE: In Enrile v. People, G.R. No. 213847 (2015), the Court ruled that an accused should be granted bail if it is shown that: (1) the detainee will not be a flight risk or a danger to the community; and (2) there exist special, humanitarian, and compelling circumstances.

D. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES D.1. IN GENERAL At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong [Sec. 8, Rule 114]. Evidence of guilt in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances. D.2. MINORS CHARGED WITH CAPITAL OFFENSE If the person charged with a capital offense is admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong.

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Reason: One who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death.

the province or city/municipality where he is held [Sec. 17, Rule 114]. NOTE: Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, on trial, or appeal.

D.3. DUTIES OF JUDGE HEARING THE PETITION FOR BAIL (1) Notify the prosecutor of the hearing and require him to submit his recommendation; (2) Conduct a hearing of the application regardless of whether or not prosecution refuses to present evidence to show that the guilt of the accused is strong; (3) Decide whether the evidence of guilt of the accused is strong based on the summary of the evidence of the prosecution; (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied [Riano (2011), citing Narciso v. Santa Romana-Cruz (2000)].

E. GUIDELINES IN FIXING AMOUNT OF BAIL

Note: Evidence presented during the bail hearing are automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination. [Sec. 8, Rule 114]. D.4. WHERE APPLICATION FOR BAIL IS FILED General rule: The application may be filed with the court where the case is pending.

The considerations are primarily, but not limited, to the following [Sec. 9, Rule 114] (1) Financial ability of the accused; (2) Nature and circumstances of the offense; (3) Penalty for the offense charged; (4) Character and reputation of the accused; (5) Age and health of the accused; (6) Weight of the evidence against the accused; (7) Probability of the accused appearing at the trial; (8) Forfeiture of other bail; (9) Fact that accused was a fugitive from justice when arrested; (10) Pendency of other cases where the accused is on bail.

F. WHEN BAIL NOT REQUIRED Bail is not required: (1) When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced; (2) If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment [Sec. 16, Rule 114]; (3) In cases filed with the MTC/MCTC for an offense punishable by an imprisonment of less than 4 yrs, 2 mos. and 1 day, and the judge is satisfied that there is no necessity for placing the accused under custody [Sec. 8, Rule 112]; (4) In cases where a person is charged with violation of a municipal/city ordinance, a light felony and/or criminal offense, the penalty of which is not higher than 6 months imprisonment and/or a fine of 2000, or both, where it is established that he is unable to post the required cash or bail bond [Sec. 1, RA 6036].

Exceptions: (1) If the judge of the court where the case is pending is absent or unavailable, the application may be filed with any RTC/MTC/MeTC/MCTC judge in the province, city or municipality; (2) Where the accused is arrested in a province, city/municipality other than where the case is pending, the application may be filed with any RTC of the said place. If no judge is available, then with any MeTC/MTC/MCTC judge in the said place. Judge who accepted the application shall forward it, together with the order of release and other supporting papers where the case is pending; (3) When a person is in custody but not yet charged, he may apply with any court in PAGE 307 OF 425

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Bail is nonetheless required: [Sec. 1, RA 6036] (1) When accused was caught committing the offense in flagrante; (2) When accused confesses to the commission of the offense unless he later repudiates the same in a sworn statement or in open court as having been extracted through force or intimidation; (3) When accused is found to have previously escaped legal confinement, evaded sentence, or jumped bail; (4) When accused is found to have violated Section 2, RA 6036, which provides that the violation of the accused of the sworn statement (required instead of bail) shall justify the court to order his immediate arrest, if the failure of the accused to report is not justified; (5) Accused is a recidivist or habitual delinquent or has been previously convicted for an offense to which the law/ordinance attaches an equal/greater penalty or for two/more offenses to which it attaches a lighter penalty (6) Accused committed the offense while on parole or under conditional pardon; (7) Accused has previously been pardoned for violation of municipal/city ordinance for at least two times.

G. INCREASE OR REDUCTION OF BAIL After the accused is admitted to bail and for good cause, the court may increase or decrease the amount [Sec. 20, Rule 114] G.1. INCREASED BAIL The accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time [Sec. 20, Rule 114]. G.2. REDUCED BAIL A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond [Sec. 16, Rule 114].

H. FORFEITURE CANCELLATION OF BAIL

AND

H.1. FORFEITURE OF BAIL When the appearance of the accused out on bail is required by court and he failed to appear, the court shall issue an order of forfeiture wherein: (1) The provisional liberty of the accused due to the bail bond shall be revoked and; (2) It shall require the bondsman to produce the principal If the accused failed to appear in person as required, the bondsmen are given 30 days within which to: (1) Produce the body of the principal or give reason for the non-production. The bondsmen may: (a) Arrest the accused; (b) Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking. (2) Explain why the accused failed to appear: (a) If the bondsmen fail to do these, judgment is rendered against them, jointly and severally, for the amount of the bail. (b) Bondsmen’s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted [Sec. 21, Rule 114]. Bondsmen can prevent the accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority [Sec. 23, Rule 114]. Judgment against the bondsmen cannot be entered unless such judgment is preceded by an order of forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so. An order of forfeiture is interlocutory and is different form the judgment on the bond which is issued if the accused was not produced within the 30-day period [Mendoza v. Alarma, G.R. No. 151970 (2008)].

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H.2. CANCELLATION OF BAIL

(4) Absence of preliminary investigation.

H.2.A. APPLICATION BY BONDSMEN Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon: (1) Surrender of the accused; or (2) Proof of his death. [Sec. 22(1), Rule 114]

The court shall resolve the objections as early as practicable but not later than the start of the trial of the case.

H.2.B. AUTOMATIC CANCELLATION (1) Upon acquittal of the accused (2) Upon dismissal of the case (3) Upon execution of judgment of conviction [Sec. 22(2), Rule 114].

I. APPLICATION NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION Bail is no longer a waiver of these objections [Sec. 26, Rule 114; Leviste v. Alameda, G.R. No. 182677 (2011)]. Thus, provided that the proper objections are tim ely raised (i.e., before accused enters a plea), an application or an admission to bail shall not bar the accused from challenging or questioning the: (1) Validity of his arrest; (2) Legality of the arrest warrant; (3) Regularity of preliminary investigation;

J. HOLD/ALLOW DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST The accused may be prohibited from leaving the country during the pendency of his case [People v. Uy Tuising, G.R. No. 42118-20 (1935); Manotoc v. CA, G.R. No. L-62100 (1986)]. If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending, he may be re-arrested without warrant [Sec. 23, Rule 114]. A hold-departure order may be issued only in criminal cases within the exclusive jurisdiction of the RTCs [SC Circ. No. 39-97]. SC Circular 39-97 deals only with criminal cases pending in the RTC. As to those cases pending in the MTC as well as those under preliminary investigation, the DOJ promulgated DOJ Circular No. 41 governing the issuance of HDO, Watchlist Orders, and Allow Departure Orders.

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Hold Departure Order When it may issue

(1) Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of first-level courts (MeTC, MTC, MCTC); (2) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government; (3) Against any person, either motu proprio, or upon the request by the Head of a Department of the Government, the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.

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Watchlist Order (1) Against the accused, irrespective of nationality, in criminal cases pending before the RTC; (2) Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, PFR, or MR before the DOJ or any of its prosecution offices; (3) Against any person pursuant to the Anti-Trafficking in Persons Act of 2003 (RA 9208) or in the interest of national security, public safety or public health.

Validity

An HDO is valid for 5 years reckoned from the date of its issuance, unless sooner terminated.

A watchlist order is valid 60 days reckoned from the date of its issuance, unless sooner terminated or extended for a non-extendible period of not more than 60 days.

Grounds for lifting or cancellation

(1) When the validity period has already expired; (2) When the accused has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled.

(1) When the validity period has already expired; (2) When the accused has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; (3) When the PI is terminated, or when the PFR or MR has been denied and/or dismissed.

ADOs may issue for exceptional reasons to allow the person to leave upon submission of the following: (1) An affidavit of purpose, including an undertaking to report to the DOJ immediately upon return; (2) Authority to travel or travel clearance from the court or appropriate government office or from the investigating prosecutor.

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VII. Rights Accused

CRIMINAL PROCEDURE

of

the

A. RIGHT TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED BEYOND REASONABLE DOUBT The presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt [People v. Sanchez, G.R. No. 175832 (2008)]. The Rules or the law may, however, provide for a presumption of guilt. However, the statutory presumption is merely prima facie. At no instance can the accused be denied the right to rebut the presumption. [Hizon v. CA, G.R. No. 119619 (2009)]. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind [Rule 133, Sec.2]. The legislature may enact that when certain facts have been proven they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be rational connection between that facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience [People v. Mingoa, G.R. No. L-5371 (1953)]. EQUIPOSE RULE Where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. Where the evidence in a criminal case is evenly balanced, the constitutional

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presumption of innocence tilts the scales in favor of the accused [People v. Erguioza, G.R. No. 171348 (2008)].

B. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM General rule: An accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information [People v. Ortega, G.R. No. 116736 (1997)]. Exception: An information which lacks certain essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein [People v. Palarca, G.R. No. 146020 (2002)] The charge must be set forth with sufficient particularity as will reasonably indicate the exact offense to enable the accused to intelligently prepare his defense [Balitaan v. CFI of Batangas, G.R. No. L-38544 (1982)]. The purpose is served by arraignment [Borja v. Mendoza, G.R. No. L-45667 (1977)]. The title of the complaint, or the designation of the offense charged or the particular law violated is not controlling, but the description of the crime charged and the particular facts therein recited. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged [People v. Dimaano, G.R. No. 168168 (2005)].

C. RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STATE OF THE PROCEEDINGS C.1. RIGHT TO BE PRESENT General rule: Presence of the accused during the criminal action is not required and shall be based on his sole discretion. Exceptions: Presence of the accused is mandatory: (1) For purposes of identification; (2) At arraignment; [Sec. 1(b), Rule 116];

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(3) At the promulgation of judgment except when the conviction is for a light offense. [Sec. 6, Rule 120] The right to be present at trial is deemed waived when: (1) The accused is absent without just cause at the trial of which he had notice; or (2) The accused under custody escapes, until custody over him is regained. REQUIREMENTS OF WAIVER: (1) Existence of the right; (2) Knowledge of the existence thereof; (3) Intention to relinquish which much be shown clearly and convincingly; and (4) Where the Constitution or law provides, it must be with the assistance of counsel to be valid. Effects of waiver of right to appear by the accused: (1) Waiver of the right to present evidence and cross-examine witnesses; (2) Prosecution can present evidence if accused fails to appear; and (3) The court can decide without accused’s evidence. C.2. TRIAL IN ABSENTIA Requisites: (1) Prior arraignment; (2) Proper notice of the trial; (3) Failure to appear is unjustifiable [Parada v. Veneracion, AM No. RTJ-96-1353 (1997), citing Sec. 14(2), Art. 3, Constitution]. An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and crossexamine witnesses who testified against him [Gimenez v. Nazareno, G.R. No. L-37933 (1988)].

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presentation of the evidence for the defense was due, he appears by himself alone because of the inexcusable absence of his counsel [Sayson v. People, G.R. No. L-51745 (1988)]; (4) Violation of this right entitles the accused to new trial [People v. Serzo, G.R. No. 118435 (1997)]. The right to counsel may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused [People v. Del Castillo, G.R. No. 153254 (2004)]. It must also not be contrary to law, public order, public policy, morals or good customs; (5) Even a person under investigation for an offense shall the right to have a “competent and independent counsel preferably of his own choice.” Included in this right is the right to be informed of his right to counsel [Sec. 12(1), Art. III, Constitution; Sec. 2(b) RA 7438]. During arraignment, the court has the affirmative duty to inform the accused of his right to counsel and to provide him with one in case he cannot afford it. The court must act on its own volition, unless the right is waived by the accused. During trial, it is the accused who must assert his right to counsel. C.4. RIGHT TO DEFEND IN PERSON The accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel [Sec. 1(c), Rule 115].

D. RIGHT TO TESTIFY AS WITNESS IN HIS BEHALF This is subject to cross-examination on any matter covered by his direct examination [Sec. 1(d), Rule 115].

C.3. RIGHT TO COUNSEL (1) It means reasonably effective legal General rule: Silence will not, in any assistance [Gideon v. Wainright (1963)]; manner, prejudice him. (2) It is absolute and may be invoked at all times, even on appeal [Telan v. CA, G.R. Exception: Unfavorable inference is drawn No. 95026 (1991)]; when: (3) Duty to appoint counsel de oficio is (1) The prosecution has already established a mandatory only at the time of prima facie case, the accused must arraignment, especially when the present proof to overturn the evidence accused has proceeded with the arraignment and the trial with a counsel of his choice but, when the time for the PAGE 312 OF 425

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(2) The defense of the accused is an alibi and he does not testify, the inference is that the alibi is not believable.

E. RIGHT AGAINST INCRIMINATION

SELF-

The right against self-incrimination has no application to juridical persons [BASECO v. PCGG, G.R. No. 75885 (1987)]. The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible [Villafor vs. Summers, G.R. No. 16444 (1920)]. The right is applicable to one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself [Beltran v. Samson, G.R. No. 32035 (1929)]. An accused “occupies a different tier of protection from an ordinary witness.” He is entitled: (1) To be exempt from being a witness against himself; and (2) To testify as witness in his own behalf. But if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him [People v. Judge Ayson, G.R. No. 85215 (1989)]. Thus, the right may be waived by the failure to timely assert the right, that is, by answering an incrim inating question [Beltran v. Samson, G.R. No. 32025 (1929)] when the accused testifies in his own behalf and is cross-examined on matters covered by the direct examination [Sec. 1(f), Rule 115]. The questions on cross examination should be on matters related to his direct examination [People v. Judge Ayson, G.R. No. 85215 (1989)].

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F. RIGHT TO CONFRONTATION This applies to any witness against the accused at the trial. Where the adverse party is deprived of the right to cross-examine the persons who executed the affidavits, said affidavits are generally rejected for being hearsay [Estrella v. Robles, G.R. No. 171029 (2007)]. However, either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, provided they involve the same parties and subject matter and the adverse party had the opportunity to cross-examine him [Sec. 1(f), Rule 115]. This right is waived by non-appearance. [Carredo v. People, G.R. No. 77542 (1990)]. The right does not apply in a preliminary investigation. The parties may, however, submit to the investigating officers questions which may be asked to the party or witness concerned [Sec. 3(e), Rule 112]. Identification by a witness of the accused is inadmissible if the accused had no opportunity to confront witness [People v. Lavarias, G.R. No. L-24339 (1968)].

G. RIGHT PROCESS

TO

COMPULSORY

This right may be invoked by the accused to secure the attendance of witnesses and the production of evidence in his behalf. If a subpoena is issued and the witness failed to appear, the court should order the arrest of the witness if necessary [People v. Montejo, G.R. No. L-24154 (1967)].

H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL

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guidelines [Tan v. People, G.R. No. 173637 (2009); Olbes v. Buemio, G.R. No. 173319 (2009)]: (1) Length of the delay; (2) Reasons for such delay; (3) Assertion or failure to assert such right by the accused; and (4) Prejudice caused by the delay. When the accused is denied of this right, he may pursue the following remedies: (1) Motion to dismiss [Corpuz v. Sandiganbayan, G.R. No. 162214 (2004)]; (2) Mandamus [Lumanlaw v. Peralta, G.R. No. 164953 (2006)]. The accused is not entitled to a dismissal where delay was caused by proceedings or motions instituted by him. A dismissal based on a violation of the right to speedy trial is equivalent to an acquittal and double jeopardy may attach even if the dismissal is with the consent of the accused [Condrada v. People (2003)].

I. RIGHT TO APPEAL In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law [Hilario v. People, G.R. No. 161070 (2008)]. An appeal in criminal case opens the entire case for review and the appellate court may correct even unassigned errors [People v. Tambis, G.R. No. 175589 (2008)]. The right to appeal is a statutory right and the requirements must be complied with; otherwise, the right is lost [People v. Sabellano, G.R. No. 93932-33 (1991)]. If the accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal [People v. Omar, G.R. No. 92415 (1991)]. The right to appeal is lost by the unjustified failure to appear at the promulgation of judgment of conviction [Villena v. People, G.R. No. 184091 (2011)].

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J. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATIONS Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way [Aquino v. Paiste, G.R. No. 147782 (2008)]. It shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law. A persons under custodial investigation has the following rights [Sec. 2, RA 7438] (1) To be assisted by counsel at all times; (2) To remain silent; (3) To be informed, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation; (4) To be furnished a custodial investigation report in writing, and if the person arrested does not know how to read and write, it shall be read to him by counsel before it is signed or thumb marked, otherwise, such report is void; (5) To have counsel present for any extrajudicial confession made, otherwise such confession shall be void; (6) To be allowed visits by and conferences with specified persons. Silence is not an admission of guilt when under custodial investigation. [People v. Guillen, 191756 (2013)] General rule: Extrajudicial confessions are binding only on the confessant, and cannot bind a co-accused on account of the principle of res inter alios acta alteri nocere non debet (“rights of a party cannot be prejudiced by an act, declaration or omission of another”) [Salapuddin v. CA, G.R. No. 184681 (2013)]

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Exception: Sec. 30, Rule 130 allows the admission of a conspirator but there must be a prior establishment of a conspiracy by evidence other than the confession. [Salapuddin v. CA, G.R. No. 184681 (2013)]

the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. [Lumanog v. People, G.R. No. 182555 (2010)].

J.1. RIGHT TO BE ASSISTED BY COUNSEL AT ALL TIMES Waiver of the right to counsel must be made with the assistance of counsel [Sec. 1(1), Art. III, Constitution].

The assisting counsel may be any lawyer, except those: (1) Directly affected by the case; (2) Charged with conducting preliminary investigation; (3) Charged with the prosecution of crimes. [Sec. 3, RA 7438].

This applies specifically in the following instances: (1) Signing of the written custodial report; (2) Signing of the written extra-judicial confession. (3) Signing of the waiver to the provisions of Art. 125, RPC. For a valid extrajudicial confession made by a person arrested, detained or under custodial investigation, the following must concur: (1) It shall be in writing and signed by such person; and (2) It must be signed in the presence of his counsel or, in the latter’s absence, upon a valid waiver. In the event of a valid waiver, it must be signed in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him. If he cannot afford to have his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

J.2. RIGHT TO BE ALLOWED VISITS A person under custodial investigation has a right to be allowed visits by and conferences with: (1) Any member of his immediate family, which includes his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward; (2) Any medical doctor; or (3) Priest or religious minister, chosen by him or by any member of his immediate family or by his counsel, or by any national NGO duly accredited by the Commission on Human Rights or by any international NGO duly accredited by the Office of the President. J.3. CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS J.3.A. FAILURE TO INFORM The arresting public officer or employee, or any investigating officer, shall suffer a fine of P6,000 or a penalty of imprisonment of not less than 8 years but not more than 10 years, or both.

The modifier com petent and independent in the 1987 Constitution is not The investigating officer who has been empty rhetoric. It stresses the need to accord previously convicted of a similar offense shall the accused, under the uniquely stressful suffer the penalty of perpetual absolute conditions of a custodial investigation, an disqualification [Sec. 4, 1st par., RA 7438]. informed judgment on the choices explained to him by a diligent and capable lawyer. This J.3.B. OBSTRUCTION, PREVENTION OR requires that the lawyer be present and able PROHIBITION OF RIGHT TO VISITS AND to advise and assist his client from the time CONFERENCES the confessant answers the first question Any person guilty thereof shall suffer the asked by the investigating officer until the penalty of imprisonment of not less than 4 signing of the extrajudicial confession. years nor more than 6 years and a fine of Moreover, the lawyer should ascertain that P4,000.00 [Sec. 4, 2nd par., RA 7438]. the confession is made voluntarily and that PAGE 315 OF 425

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VIII. Arraignment and Plea A. ARRAIGNMENT AND PLEA; HOW MADE This is the stage where the accused is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty [Sec. 1(a), Rule 116]. It is the stage where the issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void. [People v. Albert, G.R. No. 114001 (1995)]. Rationale: The importance of arraignment is based on the constitutional right of the accused to be informed. It is at this stage that the accused, for the first time, is given the opportunity to know the precise charge that confronts him. [Kummer v. People, G.R. No. 174461 (2013)]

60 days from filing of petition with the reviewing office; (3) Motion to quash the complaint or information on any of the grounds under Sec. 3, Rule 117 in relation to Sec. 1, Rule 117; (4) Challenge the validity of the arrest or legality of the warrant or assail the regularity or question the absence of preliminary investigation of the charge. If the accused does not question the legality of the arrest or search, this objection is deemed waived. A.2. PROCEDURE OF ARRAIGNMENT The Court shall issue an order directing the public prosecutor to submit the record of the PI to the branch COC for the latter to attach the same to the record of the case.

1

2

The court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him.

3

(1) If the accused pleads not guilty, either: (a) He raises an affirmative defense, that is, he admits the charge but raises exempting or justifying circumstances, in which case the order of trial is reversed; (b) He raises a negative defense, that is, he denies the charge, in which case regular trial proceeds; (2) If the accused pleads guilty: (a) For a non-capital offense, the court will promulgate a judgment of conviction; (b) For a capital offense, the prosecution is still required to prove guilt beyond reasonable doubt; (3) If the accused does not enter any plea, a plea of not guilty is entered by the court.

PLEA Pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him. A.1. DUTY OF THE COURT BEFORE ARRAIGNMENT The court shall: (1) Inform the accused of his right to counsel; (2) Ask him if he desires to have one; and (3) Must assign a counsel de oficio to defend him, unless the accused: (a) Is allowed to defend himself in person; or (b) Has employed a counsel of his choice [Sec. 6, Rule 116].

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Before arraignment and plea, the accused may avail of any of the following: (1) Bill of particulars to enable him to properly plead and prepare for trial; (2) Suspension of arraignment; upon motion, he may ask for suspension of arraignment to pursue a petition for review before the DOJ Secretary under Sec. 11, Rule 116, for a period of suspension shall not exceed PAGE 316 OF 425

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The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period [Sec. 1(g), Rule 116]. A.2.A. HOW MADE (1) In open court where the complaint or information has been filed or assigned for trial; (2) By the judge or clerk of court; (3) By furnishing the accused with a copy of the complaint or information; (4) Reading it in a language or dialect known to the accused; (5) Asking the accused whether he pleads guilty or not guilty. (6) The accused must be present and must personally enter his plea. (7) Both arraignment and plea shall be made on record but failure to enter of record shall not affect the validity of the proceedings [Sec. 1, Rule 116]. A.2.B. WHEN HELD General rule: The accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person. Exceptions: When the law provides for another period, arraignment should be held within said period, as in the following cases: (1) When an accused is under preventive detention, his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case [RA 8493 (Speedy Trial Act)]; (2) Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay [RA 4908]. Presence of the offended party: The private offended party shall be required to appear in the arraignment for the purpose of: (1) Plea bargaining; (2) Determination of civil liability; and (3) Other matters requiring his presence

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in the offense charged with the conformity of the trial prosecutor alone [Sec. 1(f), Rule 116; AM No. 03-1-09-SC Part B(2)]. In case of failure of accused to appear despite due notice, there is no arraignment in absentia [Nolasco v. Enrile (1985)]. The presence of the accused is not only a personal right but also a public duty, irrespective of the gravity of the offense and the rank of the court. There can be no trial in absentia without first arraigning the accused; otherwise, the judgment is null and void. A.2.C. SPECIFIC RULES (1) Trial in absentia may be conducted only after valid arraignment. (2) Accused must personally appear during arraignment and enter his plea; counsel cannot enter plea for the accused. (3) Accused is presumed to have been validly arraigned in the absence of proof to the contrary. (4) Generally, judgment is void if accused has not been validly arraigned. (5) If accused went into trial without being arraigned, subsequent arraignment will cure the error provided that the accused was able to present evidence and cross examine the witnesses of the prosecution during trial. If an information is amended in substance which changes the nature of the offense (not merely as to form), arraignment on the amended information is mandatory [Teehankee v. Madayag, G.R. No. 103102 (1992)]. The need for arraignment is imperative in an amended information or complaint. This, however, pertains only to substantial and not to formal amendments. [Kummer v. People, G.R. No. 174461 (2013)]

B. WHEN A PLEA OF NOT GUILTY SHOULD BE ENTERED

(1) When the accused so pleaded; In case of failure of the offended party to (2) When he refuses to plead; appear despite due notice, the court may (3) When he makes a conditional or qualified allow the accused to enter a plea of guilty to plea of guilt [Sec. 1(c), Rule 116]; a lesser offense which is necessarily included PAGE 317 OF 425

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(4) When the plea is indefinite or ambiguous; (5) When he pleads guilty but presents exculpatory evidence [Sec. 1(d), Rule 116]. Plea of guilty is mitigating if it is made before prosecution starts to present evidence. Plea of not guilty should be entered: (1) Where the plea of guilty was compelled by violence or intimidation (2) When the accused did not fully understand the meaning and consequences of his plea (3) Where the information is insufficient to sustain conviction of the offense charged (4) Where the information does not charge an offense, any conviction thereunder being void (5) Where the court has no jurisdiction

C. WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO A LESSER OFFENSE Requisites: (1) The lesser offense is necessarily included in the offense charged; (2) The plea must be with the consent of both the offended party and the prosecutor, except when the offended party fails to appear despite due notice; (3) The penalty for the lesser offense is not more than two degrees lower than the imposable penalty for the crime charged. C.1. DURING ARRAIGNMENT At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. [Sec. 2, Rule 116] C.2. AFTER ARRAIGNMENT BUT BEFORE TRIAL After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary [Sec. 2, Rule 116].

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C.3. AFTER TRIAL HAS BEGUN After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party if the prosecution does not have sufficient evidence to establish the guilt of the accused for the crime charged. The judge cannot on its own grant the change of plea.

D. ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE; DUTY OF THE COURT Conditions that the trial court must observe to obviate an improvident plea of guilty by the accused: (1) Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the pleas; (2) Require prosecution to present evidence to prove the guilt and precise degree of culpability of the accused; (3) Ask the accused if he desires to present evidence in behalf and allow him to do so if he desires [Sec. 3, Rule 116]. NOTE: A plea of guilty to a capital offense does not result to an immediate rendering of judgment.

E. SEARCHING INQUIRY The procedure in Sec. 3, Rule 116, when the accused pleads guilty to a capital offense, is mandatory. The plea must be clear, definite and unconditional. It must be based on a free and informed judgment. The judge must ask whether the accused was assisted by counsel during custodial investigation and PI; ask questions on age, educational attainment and socio-economic status; and ask the defense counsel whether or not he conferred with the accused [People v. Nadera, G.R. Nos. 181384-87 (2000)]. Rationale: This is to enjoin courts to proceed with more care where the possible punishment is in its severest form and to avoid improvident pleas of guilt [People v. Samontanez, G.R. No. 134530 (2000)].

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Guidelines for conducting a search inquiry: (1) Ascertain from the accused himself: (a) How he was brought into the custody of the law; (b) Whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) Under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge’s intimidating robes. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. (5) Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation

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against him and a denial of his right to due process. (6) All questions posed to the accused should be in a language known and understood by the latter. (7) The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details [People v. Pastor, G.R. No. 140208 (2002)].

F. IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE An improvident plea is one without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information/advice [Black’s Law Dictionary]. General rule: An improvident plea should not be accepted. If accepted, it should not be held to be sufficient to sustain a conviction [People v. De Ocampo Gonzaga, G.R. No. L-48373 (1984)]. The case should be remanded to the lower court for further proceedings. Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense. F.1. WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN At any time before judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. [Sec. 5, Rule 116] The withdrawal of a plea of guilty is not a matter of right of the accused but of sound discretion of the trial court [People v. Lambino, G.R. No. L-10875 (1958)]. The reason for this is that trial has already begun and the withdrawal of the plea will change the theory of the case and put all past proceedings to waste. Moreover, at this point, there is a presumption that the plea was made voluntarily

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G. GROUNDS FOR SUSPENSION OF ARRAIGNMENT G.1. UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE TIME OF THE ARRAIGNMENT When the accused can neither comprehend the full import of the charge nor can he give an intelligent plea, the court shall order his mental examination and, if necessary, his confinement. The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and defense counsel had called attention to [People v. Alcalde, G.R. Nos. 139225-28 (2002)]. In People v. Dungo, G.R. No. 89420 (1991), there are three major criteria to determine insanity: (1) Delusion test, where insanity is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances; (2) Irresistible impulse test, where the accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed. (3) Right and wrong test, where a perverted condition of mental and mortal faculties afflicts the accused as to render him incapable of distinguishing between right and wrong. In People v. Pascual, G.R. No. 95029 (1993), there are two tests to determine insanity: (1) Test of cognition, which requires complete deprivation of intelligence in

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committing the criminal act. It is the test adopted in this jurisdiction. (2) Test of volition, which requires a total deprivation of free will. G.2. EXISTENCE OF PREJUDICIAL QUESTION Rationale: A prejudicial question would be determinative of guilt or innocence. It may be raised during PI. If the information is filed in court, it may be raised as ground to suspend the arraignment. G.3. PENDENCY OF PETITION FOR REVIEW When the accused filed a petition for review of the resolution of the prosecutor with the DOJ or the Office of the President, the accused may file a motion to suspend the arraignment and secure a ruling on his petition for review within 60 days from the filing of the petition (DOJ Circ. No. 70). Rationale: This is to observe judicial courtesy and avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense. If petition for review is not resolved within 60 days, court may insist on the arraignment. With the arraignment of the accused, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same. [Gandarosa v. Flores, G.R. No. 167910 (2007)]. G.4 OTHER PENDING INCIDENTS Such as: (1) Motion to quash (2) Motion for inhibition; and (3) Motion for Bill of particulars

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IX. Motion To Quash

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otherwise terminated without his express consent (Sec. 3, Rule 117).

Form and content (1) In writing; (2) Signed by the accused or his counsel; and (3) Distinctly specify the factual and legal grounds [Sec. 2, Rule 117].

A. WHEN FILED General Rule: At any time before entering his plea, the accused may move to quash the complaint or information [Sec. 1, Rule 117]. Exception: When the grounds relied upon the motion are: (1) Failure to charge an offense (2) Lack of jurisdiction over the offense charged (3) Extinction of the offense or penalty (4) Double jeopardy In cases covered by the Rules on Summary Procedure, MTQ is allowed only if made on the grounds of lack of jurisdiction or failure to comply with barangay conciliation proceedings [Sec. 19, Rules on Summary Procedure].

B. GROUNDS In general The following grounds for MTQ are exclusive: (1) Facts charged do not constitute an offense; (2) Court trying the case has no jurisdiction over the offense charged; (3) Court trying the case has no jurisdiction over the person of the accused; (4) Officer who filed the information had no authority to do so; (5) The information does not conform substantially to the prescribed form; (6) More than one offense is charged, except when a single punishment for various offenses is prescribed by law; (7) Criminal action or liability has been extinguished; (8) Averments which, if true, would constitute a legal excuse or justification; (9) Accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or

NOTE: Although the rule is that grounds not asserted in the motion to quash are waived, the following objections are not subject to waiver: (1) Facts charged do not constitute an offense (2) Court trying the case has no jurisdiction over the offense charged (3) Criminal action or liability has been extinguished (4) Double jeopardy B.1. FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE An information which does not charge an offense or does not allege essential elements of a crime is void. The test is whether or not the facts alleged, if hypothetically admitted, would establish the essential elements of the offense, as defined by law without considering matters aliunde [People v. Romualdez, G.R. No. 166510 (2008)]. That the missing element may be proved during the trial or that the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People v. Asuncion, G.R. No. 80066 (1988)]. The defect is not cured by a failure to move to quash or by a plea of guilty [Suy Sui v. People, G.R. No. L-5278 (1953)]. Instead of dismissing, however, the court should give the prosecution an opportunity to amend the information. Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment, the MTQ shall be granted [Sec. 4, Rule 117].

B.2. COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED In a criminal prosecution, the place where the offense was committed not only determines venue, but is an essential element of jurisdiction [Sec. 15, Rule 110; Lopez v. City Judge, G.R. No. L-25795 (1966)]. PAGE 321 OF 425

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In private crimes, the complaint of the offended party is necessary to confer authority to the court. B.3. COURT HAS NO JURISDICTION OVER THE PERSON OF THE ACCUSED When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person to the jurisdiction of the court [Sanchez v. Demetriou, G.R. No. L-1117177 (1993)]. When the objection is raised, the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead v. Argel, G.R. No. L-41958 (1982)]. B.4. OFFICER WHO FILED THE INFORMATION HAD NO AUTHORITY TO DO SO Authority to file and prosecute criminal cases is vested in: (1) Provincial fiscals and their assistants. (2) City fiscals and their assistants. (3) Chief State Prosecutor and his deputies (4) Other officers authorized by law (e.g., Ombudsman, COMELEC). The prosecutor who signed the information must have territorial jurisdiction to conduct preliminary investigation of the offense [Cudia v. CA, G.R. No. 110315 (1998)]. An information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman. For election offenses, it must be signed by the duly deputized prosecutors and legal officers of the COMELEC. Lack of authority of the officer is not cured by silence, acquiescence, express consent or even by amendment.

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General rule: Lack of substantial compliance renders the accusatory pleading nugatory. Exception: Mere defects in matter of form may be cured by amendment. Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. Garcia, G.R. No. 120093 (1997)]. Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Sec. 9, Rule 116]. B.6. MORE THAN ONE OFFENSE IS CHARGED General rule: The complaint or information must charge only one offense [Sec. 13, Rule 110]. Exceptions: (1) Those cases in which existing laws prescribe a single punishment for various offenses; (2) Complex and compound crimes, except where one offense was committed to conceal another; (3) An offense incidental to the gravamen of the offense charged; (4) A specific crime set forth in various counts, each of which may constitute a distinct offense. However, this ground is waivable. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of two or more separate offenses in the same information [People v. Villamor, G.R. No. 124441 (1998)].

B.7. CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED When criminal liability is extinguished: (1) Death of the accused, but liability for pecuniary penalties is extinguished only if B.5. COMPLAINT OR INFORMATION DOES death occurs before final judgment; NOT CONFORM SUBSTANTIALLY TO THE (2) Service of sentence, which must be by PRESCRIBED FORM virtue of a final judgment and in the form The formal and substantial requirements are prescribed by law; provided for in Secs. 6-12, Rule 110. (3) Amnesty; (4) Absolute pardon; (5) Prescription of the crime; PAGE 322 OF 425

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(6) Prescription of the penalty; (7) Pardon in private offenses. Protection from prosecution under a statute of limitation is a substantive right. Where the statute fixes a period of limitation as to a prosecution for a particular offense, the limitation so fixed is jurisdictional, and the time within which the offense is committed is a jurisdictional fact, it being necessary that the indictment or information be actually filed within the time prescribed. [People v. Sandiganbayan, G.R. No. 101724 (1992)] B.8. CONTAINS AVERMENTS THAT IF TRUE WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION Examples: (1) Justifying circumstances (2) Exempting circumstsnces (3) Absolutory causes B.9. ACCUSED HAS BEEN PREVIOUSLY CONVICTED OR ACQUITTED OF THE OFFENSE CHARGED, OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS CONSENT

DOUBLE JEOPARDY The right against double jeopardy prohibits the prosecution for a crime of which he has been previously convicted or acquitted [Caes v. IAC, G.R. No. 74989-90 (1989)]. Rule of double jeopardy When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused, the latter cannot again be charged with the same or identical offense [Sec. 3(i), Rule 117].

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(b) Exceptions: (i) The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (ii) The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; (iii)The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except when offended party failed to appear during such arraignment. (c) W hat: The offenses are penalized either by different sections of the same law or by different statutes. The essential elements of each must be examined. (d) Test: Whether or not evidence that proves one likewise proves the other [People v. Ramos (1961)]. (b) When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the same act [Sec. 21, Art. III, Constitution]. (a) The second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts [People v. Relova, G.R. No. L-45129 (1987)]. (b) But: An offense penalized by ordinance is, by definition, different from an offense penalized under a statute. Hence, they would never constitute double jeopardy. [People v. Relova, G.R. No. L-45129 (1987)]

Kinds of double jeopardy (a) No person shall be put twice in jeopardy for the same offense [Sec. 21, Art. III, Constitution]; (a) General rule: There is identity Requisites to successfully invoke between the two offenses not only double jeopardy when the second offense is exactly the (1) A first jeopardy must have attached; same as the first, but also when the (2) The first jeopardy must have been validly second offense is an attempt to or terminated; and frustration of or is necessarily included (3) The second jeopardy must be for the in the offense charged in the first same offense or the second offense information. PAGE 323 OF 425

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necessarily includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof [People v. Espinosa, G.R. Nos. 153714-20 (2003)]. Requisites for first jeopardy to attach (1) Valid indictment; (2) Before a competent court; (3) Arraignment; (4) A valid plea entered; and (5) The accused has been convicted or acquitted, or the case dismissed or otherwise validly terminated without his express consent [People v. Honrales, G.R. No. 182651 (2010)]. However, a dictated, coerced and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone [Galman v. Sandiganbayan, G.R. No. 72670 (1986)]. W ithout express consent This refers only to dism issal or term ination of the case. It does not refer to the conviction or acquittal [People v. Labatete, G.R. No. L-12917 (1960)]. If consent is not express, dismissal will be regarded as final (i.e., with prejudice to refilling) [Caes v. IAC, G.R. Nos. 74989-90 (1989)]. Even with the consent of the accused, however, dismissal has the effect of acquittal when predicated on: (1) Insufficiency of the prosecution’s evidence or (2) Denial of the right to a speedy trial [Almario v. CA, G.R. No. 127772 (2001)]. W hen dismissal constitutes acquittal Dismissal constitutes acquittal when it is granted: (1) Upon demurrer to evidence; (2) Due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent).

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Dismissal

Acquittal

Does not decide the case on the merits. Does not determine innocence or guilt

Always based on the merits. Defendant’s guilt was not proven beyond reasonable doubt

Double jeopardy will not always attach

Double jeopardy always attaches

Provisional dismissal Provisional dismissal is dismissal without prejudice to its being refiled or revived. Cases are provisionally dismissed where there has already been arraignment and the accused consented to a provisional dismissal. Grounds Sec. 8 does not state the grounds for provisional dismissal. However, according to the case of Los Baños v. Pedro, G.R. No. 173588 (2007), the delimitation of the grounds available in MTQ suggests that where the grounds cited are those listed under Sec. 3, then the appropriate remedy is to file a motion to quash, and not any other remedy. Conversely, where a ground does not appear under Sec. 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Sec. 8 obtain. W hen dismissal becomes permanent (tim e bar rule) One year after issuance of the order without the case having been revived for offenses punishable: (1) By imprisonment not exceeding 6 years; (2) By fine of any amount; (3) By both [Sec. 8, Rule 117]; (4) Two years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 years. The State may revive beyond the periods provided there is a justifiable necessity for the delay.

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the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only [People v. Lacson, G.R. No. 149453 (2003)].

C. MOTION TO QUASH DEMURRER DISTINGUISHED

The following are conditions sine qua non for the application of the time-bar rule: (1) The prosecution, with the express conformity of the accused, or the accused moves for the provisional (sin perjucio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case [Sec. 8, Rule 117]; (2) The offended party is notified of the motion for the provisional dismissal of the case (3) The court issues an order granting the motion and dismissing the case provisionally; (4) The public prosecutor is served with a copy of the order of provisional dismissal of the case [People v. Lacson, G.R. No. 149453 (2003)]. A case may be revived by: (1) Refiling of the information; (2) Filing of a new information for the same offense or one necessarily included in the original offense charged.

AND

Motion to quash

Demurrer to evidence

When filed

Filed before entering plea

Filed after the prosecution has rested its case

Basis for grant or denial

Does not go into the merits of the case

Based upon the inadequacy of the evidence adduced by the prosecution

Grounds

Grounds are stated in Rule 117

Ground is “insufficiency of evidence” to convict

Necessity of leave

Does not require a prior leave of court

May be filed either with leave or without leave of court

Effect of grant

Grant does not necessarily follow a dismissal (Court may order the filing of a new complaint or information)

Grant is deemed an acquittal and would preclude the filing of another information or appeal by the prosecution

Remedy

If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies.

The order denying the motion for leave to file a demurrer “shall not be reviewable by appeal or by certiorari before judgment” If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense.

General rule: Upon revival of the case, there is no need for a new PI. Exceptions: (1) If the original witnesses have recanted their testimonials or have died; (2) If the accused is charged under a new criminal complaint for the same offense; (3) If the original charge is upgraded; (4) If the criminal liability is upgraded from accessory to principal.

When the demurrer is filed without leave, the accused waives the right to present evidence and submits the case for judgment [Section 23, Rule 119]

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D. EFFECTS OF SUSTAINING THE MOTION TO QUASH D.1. FILING ANOTHER COMPLAINT OR INFORMATION General rule: Court may order that another complaint or information be filed [Sec. 5, Rule 117) Exception: If MTQ was based on the following: (1) Criminal action or liability has been extinguished; (2) Double jeopardy. D.2. DISCHARGE OF THE ACCUSED General rule: If in custody, the accused shall not be discharged unless admitted to bail [Sec. 5, Rule 117]. The order granting the MTQ must state either release of the accused or cancellation of his bond. Exception: When there is no order to file another complaint/information or, if there is one, when no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused shall be discharged. Exception to the exception: The accused will not be discharged if he is in custody for another charge. D.3. REMEDIES OF THE PROSECUTION General rule: The prosecution may amend the information to correct the defects if the TC makes the order, and thereafter prosecute on the basis of the amended information [Sec. 4, Rule 117]. Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense. The prosecution may appeal from the order of quashal to the appellate court.

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to arraignment and on MTQ [People v. Purisima (1978)]. Order denying MTQ

Order granting MTQ

Interlocutory

Final Order

Not appealable absent a showing of GAD. If there is GAD, then file petition for certiorari

Immediately appealable but subject to rules on double jeopardy

Does not dispose of the case upon its merits

Disposes of the case upon its merits

Proper remedy: appeal after the trial

Proper remedy: appeal the order

Consequence: Arraignment

Consequence: Amend information if possible

Note: The remedy for an order denying a MTQ is to go to trial, without prejudice to reiterating the special defenses invoked in their MTQ [Serana v. Sandiganbayan (2008)]. However, if the court in denying the motion to quash acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies [Lazarte v. Sandiganbayan (2009); Javier v. Sandiganbayan (2009)]. Exception to the rule that sustaining the m otion is not a bar to another prosecution General rule: Grant of the MTQ will not be a bar to another prosecution for the same offense [Sec. 6, Rule 117]. Exception: It will bar another prosecution when the ground for the quashal is either: (1) The criminal action or liability has been extinguished; or (2) The accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged.

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X. Pre-Trial Application of Judicial Affidavit Rule Under Sec. 9, AM 12-8-8-SC: (1) This Judicial Affidavit Rule shall apply to all criminal actions: (a) Where the maximum of the imposable penalty does not exceed six years; (b) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (c) With respect to the civil aspect of the actions, whatever the penalties involved are. (2) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies if the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. (3) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify.

A. NATURE AND OBJECTIVE OF PRE-TRIAL Pre-trial is mandatory in all criminal cases. Its main objective is to achieve an expeditious resolution of the case. Coverage The court shall order pre-trial in all criminal cases cognizable by the Sandiganbayan, RTC and MTC or MTCC or MCTC or MeTC.

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Period General rule: The court shall order a pretrial conference after arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused. Exception: A shorter period may be provided by special laws or SC circulars. Things considered (1) Plea bargaining; (2) Stipulation of facts; (3) Marking for identification of evidence; (4) Waiver of objections to admissibility of evidence; (5) Modification of the order of trial if accused admits the charge but interposes a lawful defense (reverse trial); (6) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case [Sec. 1, Rule 118]. Role of the judge During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between the parties [AM 031-09-SC]. Stipulation of facts This is no longer prohibited in criminal cases [People v. Hernandez, G.R. No. 108028 (1996)]. However, in a case of rape with the allegation that the victim is below 12 years of age which qualifies said crime and increases its penalty to death, nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. Circumstances that qualify a crime and increases its penalty to death cannot be the subject of stipulation [People v. Sitao, G.R. No. 146790 (2002)]. Marking for identification of evidence Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence.

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WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED

inadmissible in evidence). The constitutional right to present evidence is waived expressly.

Plea bargaining It is the process in criminal procedure whereby the accused, offended party, and the prosecution work out a mutually satisfactory disposition of the case subject to court approval (See DOJ Circ. No. 35, as amended by Circ. No. 55 for the guidelines on plea bargaining as well as note on Rule 116).

Exception: Agreements not covering matters referred to in Sec. 1, Rule 118, need not be so approved [AM 03-1-09-SC].

It usually involves the defendant pleading guilty to a lesser offense or to one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge [People v. Mamarion, G.R. No. 137554 (2003)].

Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally; he must assume the consequences of the disadvantage [Bayas v. Sandiganbayan, G.R. No. 143689-91 (2002)].

The conviction of the accused of the lesser offense precludes the filing and prosecution of the offense originally charged in the information, except when the plea of guilty to a lesser offense is without the consent of the offended party and the prosecutor [People v. De Luna, G.R. No. L-77969 (1989); Sec. 7(c), Rule 117, see Sec. 2, Rule 116]. Effect when the prosecution and the offended party agree to the plea offered by the accused The Court shall: (1) Issue an order which contains the plea bargaining arrived at; (2) Proceed to receive evidence on the civil aspect of the case; and (3) Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence [AM 03-1-09-SC].

B. PRE-TRIAL AGREEMENT Requirements [Sec. 2, Rule 118] (1) Must be in writing; (2) Signed by the accused and his counsel; (3) With approval of court if agreements cover matters in Sec. 1, Rule 118. If this is not followed, the admissions cannot be used against the accused (i.e.,

General rule: Court approval is required.

Effect The stipulations become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated.

NON-APPEARANCE DURING PRE-TRIAL The court may impose proper sanctions or penalties (reprimand, fine or imprisonment), if counsel for the accused or the prosecutor to enforce the mandatory character of the pretrial in criminal cases: (1) Does not appear at the pre-trial conference; and (2) Does not offer an acceptable excuse [Sec. 3, Rule 118]. NOTE: The accused is not included because his constitutional right to remain silent may be violated. The accused is not required to attend (unless ordered by the court) and is merely required to sign the written agreement arrived at in the pre-trial conference, if he agrees to the contents of such. The complainant is also not required to appear during pre-trial. It is the prosecutor who is required to appear at the pre-trial.

C. PRE-TRIAL ORDER Issuance The pre-trial order is: (1) Issued by the court; (2) Within 10 days after the pre-trial [AM 031-09-SC]. Judgment of acquittal based on pre-trial despite disputed documents and issues of fact amounts to grave error and renders the judgment void [People v. Santiago, G.R. No. L-80778 (1989)].

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Content (1) Actions taken; (2) Facts stipulated; (3) Evidence marked; (4) Admissions made; (5) The number of witnesses to be presented; and (6) The schedule of trial [Sec. 4, Rule 118]. NOTE: Nos. 4 to 6 are added by AM 03-1-09SC to the requirements under Sec. 4, Rule 118. Effect (1) Binds the parties. The procedure is substantially the same in civil cases, except that any modification of the pretrial order in civil cases must be made before the trial. No such limitation is provided for in criminal cases; (2) Limits the trial to those matters not disposed of; (3) Controls the course of the action during trial, except if modified by the court to prevent manifest injustice. REFERRAL OF SOME CASES FOR COURTANNEXED MEDIATION AND JUDICIAL DISPUTE RESOLUTION Under AM No. 03-1-09 (Proposed Rule on Guidelines to be Observed by Trial Court

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Judges and Clerks of Court in the Conduct or Pre-Trial and use of Deposition-Discovery Measures), after the arraignment, the court shall forthwith set the pre-trial conference within 30 days from the date of arraignment, and issue an order: (1) Requiring the private offended party to appear thereat for purposes of pleabargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence; (2) Referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pretrial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and (3) Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available.

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XI. Trial A. PRESENCE OF PERSONS AS REQUIRED BY LAW A.1. OF ACCUSED General rule: The presence of the accused during the trial may be waived. Exception: For purposes of identification. Exception to the exception: The presence of the accused is no longer required when he unqualifiedly admits in open court after arraignment that he is the person named as defendant in the case on trial [Lavides v. CA, G.R. No. 129670 (2000)]. Note: The presence of the accused is also required in the following cases: (1) At arraignment; [Sec. 1(b), Rule 116] (2) At the promulgation of judgment, unless the conviction is for a light offense [Sec. 6, Rule 120]. A.2. OF WITNESSES Requisites before trial can be suspended on account of absence of witness (1) The witness must be either absent or unavailable; (2) The absent or unavailable witness must be essential [Riano (2011)]. “Absent” means that his whereabouts are unknown or cannot be determined by due diligence. [Sec. 3(b), Rule 119] “Unavailable” means that his whereabouts are known but presence for trial cannot be obtained by due diligence. [Sec. 3(b), Rule 19] “Essential” means indispensable, necessary, or important in the highest degree [Black’s Law Dictionary]. Effect of absence of witness The period of delay resulting from the absence or unavailability of an essential witness shall be excluded in computing the time within which trial must commence [Sec. 3, Rule 119].

REMEDIAL LAW

Counsel for the accused, the public prosecution or public attorney may be punished if he knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial. Conditional exam ination When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused [Sec. 15, Rule 119].

B. RESPONSIBILITY OF COUNSEL The court may, without prejudice to any appropriate criminal and administrative charges to be instituted by the proper party against the erring counsel if and when warranted, punish the counsel for the accused, the public prosecution or public attorney who; (1) Knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; or (2) Otherwise willfully fails to proceed to trial without justification consistent with the provisions of the Speedy Trial Act.

C. TRIAL IN ABSENTIA Requisites: (1) Accused has been arraigned; (2) He was duly notified of trial; (3) His failure to appear is unjustified. Rationale: This is to speed up disposition of cases.

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D. DELAY IN CONDUCT OF TRIAL

would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. Sandiganbayan, G.R. No. L-63677 (1983)]; (b) There is no other direct evidence available for the proper prosecution of the offense, except the testimony of the said accused; (c) The testimony can be substantially corroborated in its material points; (d) The accused does not appear to be the most guilty; (e) The accused has not, at any time, been convicted of any offense involving moral turpitude [Sec. 17, Rule 119].

Rem edy when accused is not brought to trial within the prescribed period On motion of the accused, the information may be dismissed on the ground of denial of his right to speedy trial [Sec 9, Rule 119]. Factors to consider: (1) Duration of the delay; (2) Reason therefor; (3) Assertion of the right or failure to assert it; and (4) Prejudice caused by such delay [Corpuz v. Sandiganbayan, G.R. No. 162214 (2004)]. Must be raised prior to trial; otherwise, the right to dismiss is considered waived under Sec. 9, Rule 119. Burden of proof The accused has the burden of proving the ground of denial of right to speedy trial for the motion. The prosecution has the burden of going forward with the evidence to establish the exclusion of time. This is subject to the rules on double jeopardy. Hence, if with prejudice, the case cannot be revived anymore.

E. DISCHARGE OF ACCUSED TO BE STATE WITNESS Requisites (1) Two or more persons are jointly charged with the commission of any offense. (2) Upon motion of the prosecution before resting its case (3) Petition for discharge is filed before the defense has offered its evidence. [People v. Anion (1988)] (4) Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. (5) The court is satisfied of the following: (a) Absolute necessity for the testimony of the accused whose discharge is requested; (i) He alone has the knowledge of the crime, and not when his testimony

REMEDIAL LAW

Discharge of a co-accused It is the duty of the prosecutor to include all the accused in the complaint/information. He may ask the court to discharge one of them after complying with the conditions prescribed by law [Sec. 17, Rule 119]. This applies only when the information has already been filed in court. Thus, even the state witness is included as accused prior to discharge. While all the accused may be given the same penalty by reason of conspiracy, one may be considered the least guilty if we take into account his degree of participation in the perpetration of the offense. [People v. Ocimar, G.R. No. 94555 (1992)] Effects of discharge of accused as state witness General rule: The order of discharge shall: (1) Amount to an acquittal of the discharged accused; (2) Bar future prosecutions for the same offense [Sec. 18, Rule 119]. Exception: If the accused fails/refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge, these effects do not set in. Any error in asking for and in granting the discharge cannot deprive the one discharged of the acquittal and the constitutional guaranty against double jeopardy [People v. Verceles, G.R. No. 130650 (2002)].

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Conviction of the accused against whom discharged state witness testified is not required. Subsequent amendment of the information does not affect discharge [People v. Taruc, G.R. No. L-14010 (1962)]. NOTES (1) The evidence adduced in support of the discharge shall automatically form part of the trial. (2) If the discharge is not granted, the affidavit of the accused cannot be used by the prosecution.

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(b) Without leave of court [Sec. 23, Rule 119]. Motion for leave to file demurrer (1) It must specifically state its grounds. (2) It must be filed within a non-extendible period of 5 days after the prosecution rests (i.e. after the court shall have ruled on the prosecution’s formal offer). Prosecution may then oppose within a non-extendible period of 5 days from receipt. (3) If leave of court is granted, the demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose within a similar period [Sec. 23, Rule 119].

F. DEMURRER TO EVIDENCE A dem urrer to evidence is defined as “an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue” [Pasag v. Parocha, G.R. No. 155483 (2007), citing Black’s Law Dictionary]. General rule: An order granting the accused’s demurrer to evidence amounts to an acquittal. Exception: When there is a finding that there was grave abuse of discretion on the part of the trial court in dismissing a criminal case by granting the accused’s demurrer to evidence [Hon. Mupas v. People, G.R. No. 189365 (2011)]. The order granting the demurrer is not appealable but may be reviewed via certiorari under Rule 65 [People v. Sandiganbayan, Marcos (2012)]. Ratio: This is to prevent the filing of demurrer based on frivolous and flimsy grounds.

Effect granting dem urrer The court dismisses the action on the ground of insufficiency of evidence [Sec. 23, Rule 119]. This amounts to acquittal of the accused. Sufficient evidence for frustrating a demurrer is evidence that proves: a. Commission; and b. Precise degree of participation [Gutib v. CA, G.R. No. 131209 (1999)]. Effect of denial of motion for leave to file dem urrer (1) Accused may choose between: (a) Filing the demurrer even without leave; or (b) Adducing evidence for his defense; (2) Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment [Sec. 23, Rule 119]; (3) It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People, G.R. No. 121422 (1999)].

How initiated (1) By the court motu proprio, after giving the prosecution the opportunity to be heard; or (2) Upon demurrer to evidence filed by the accused: (a) With leave of court; PAGE 332 OF 425

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Right of the accused to present evidence after demurrer is denied Filed with leave Filed without leave of court of court May adduce evidence in his defense

Waives the right to present evidence [Sec. 23, Rule 119]

Purpose is to determine whether or not the demurrer was filed merely to stall the proceedings

Submits the case for judgment on the basis of the evidence for the prosecution

Implied leave of court is no longer sufficient and prevents accused from presenting evidence (e.g. accused files motion with reservation to present evidence in case motion is denied)

If there are 2 or more accused and only one presents a demurrer without leave of court: The court may defer resolution until decision is rendered on the other accused If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution’s evidence but also on the evidence adduced by his co-accused, then the demurrer is deemed resolved

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XII. Judgment A. REQUISITES A judgm ent is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any [Sec. 1, Rule 120] A.1. FORM (1) Written in official language. If given verbally, it is incomplete [People v. Catolico, G.R. No. L-31260 (1972)]; (2) Personally and directly prepared by the judge; (3) Signed by the judge. The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies. But the judge who only took over can render a valid decision by relying on the transcript. It does not violate due process [People v. Badon, G.R. No. 126143 (1999)]; (4) Contains clearly and distinctly a statement of facts proved and the law upon which judgment is based [Sec. 1, Rule 120]. There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed. A.2. JUDGE WHO RENDERS DECISION The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular, especially when the evidence on record is sufficient to support its conclusion [People v. Alfredo, G.R. No. 188560 (2010)].

A.3. CONTENTS OF JUDGMENT CONVICTION The judgment of conviction shall state: (1) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission; (2) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact; PAGE 333 OF 425

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(3) The penalty imposed upon the accused; (4) The penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it; (5) The civil liability or damages caused by his wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived [Sec. 2, Rule 120]. Proof beyond reasonable doubt It is that degree of proof which produces conviction in an unprejudiced mind [People v. Bacalzo, G.R. No. 89811 (1991)]. FOR TWO OR MORE OFFENSES Where accused fails to object to two or more offenses charged in a single information or complaint before trial, the court may: (1) Convict him of as many offenses as are charged and proved, except when one of the offenses has been a necessary means for committing the other offense and where both have been the result of a single act; and (2) Impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense [Sec. 3, Rule 120], subject to the three-fold rule on the service of penalty. VARIANCE BETWEEN ALLEGATION AND PROOF General rule: The defendant can be convicted only of the crime with which he is charged. However, minor variance between the information and the evidence cannot be ground for acquittal, such as when the variance: (1) Does not alter the nature of the offense; (2) Does not determine or qualify the crime or penalty. [Sayson v. People, G.R. No. L51745 (1988)] Exception: He can be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that which is proved [Sec. 4, Rule 120].

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(1) The accused can be convicted of an offense only when it is both charged and proven. (2) The mere fact that the evidence presented would indicate that a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information. Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense. W hen an offense includes or is included in another (1) The offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter. (2) An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter [Sec. 5, Rule 120]. (3) The effect is that the accused may be convicted of: (4) The offense proved which is included in the offense charged; or (5) The offense charged which is included in the offense proved [Sec. 4, Rule 120]. The right to be informed of the charges has not been violated because where an accused is charged with a specific crime, he is duly informed also of lesser crimes/offenses included therein [People v. Villamar (1998)]. Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the one which is proven. ACQUITTAL The judgment of conviction shall state whether: (1) The evidence of the prosecution absolutely failed to prove the guilt of the accused; or (2) Merely failed to prove his guilt beyond reasonable doubt.

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In either case, the judgment shall determine if the act or omission complained from which the civil liability might arise did not exist [Sec. 2, Rule 120]. Acquittal

Dismissal

Terminates the case Decision on the merits based on a finding that the accused is not guilty

Not on the merits but no finding that accused is not guilty

Reasonable doubt is doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt. Acquittal based on failure to prove guilt beyond reasonable doubt does not extinguish the civil liability arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts, which can be proven by a lower quantum of evidence. Thus, it does not bar a separate civil action based on quasi-delict [Lontoc v. MD Transit, G.R. No. L-48949 (1988)]. The court may hold the accused civilly liable even when it acquits him. Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist. Thus: (1) The court may nonetheless hold the accused civilly liable in favor of the offended party, or it may deny the award of civil damages expressly or impliedly by being silent on the matter. (2) The losing party may appeal the ruling on the civil liability, as in any other ordinary appeal, in his name and not in the name of the People. The judge acquitting an accused cannot punish him at the same time. General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal.

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B. STATE LIABILITY FOR UNJUST CONVICTION The DOJ Board of Claims is authorized to receive/evaluate/process/investigate claims of victims of unjust imprisonment/detention and victims of violent crimes [RA 7309]. The following m ay file claims for com pensation before the Board: (1) Any person who was unjustly accused, convicted and imprisoned but subsequently released by virtue of a judgment of acquittal; (2) Any person who was unjustly detained and released without being charged; (3) Any victim of arbitrary or illegal detention by the authorities as defined in the RPC under a final judgment of the court; and (4) Any person who is a victim of violent crimes, including rape and shall likewise refer to offenses committed with malice which resulted in death or serious physical and/or psychological injuries, permanent incapacity or disability, insanity, abortion, serious trauma, or committed with torture, cruelly or barbarity [Sec. 3, RA 7309]. For victims of unjust imprisonment or detention, the compensation shall be based on the number of months of imprisonment or detention and every fraction thereof shall be considered one month; Provided, however, That in no case shall such compensation exceed P1,000 per month. In all other cases, the maximum amount for which the Board may approve a claim shall not exceed P10,000 or the amount necessary to reimburse the claimant the expenses incurred for hospitalization, medical treatment, loss of wage, loss of support or other expenses directly related to injury, whichever is lower. This is without prejudice to the right of the claimant to seek other remedies under existing laws [Sec. 4, RA 7309].

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C. PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA Promulgation is the official proclamation or announcement of a judgment or order. Promulgation is made by reading it in the presence of the accused and any judge of any court in which it was rendered [Sec. 6, Rule 120] C.1. IN GENERAL REQUISITES (1) There must be a judge or judges legally appointed or elected and actually acting either de jure or de facto; (2) The said judgment must be duly signed and promulgated during the incumbency of the judge who signed it [Miguel v Municipal Trial Court (1986)]. (3) The judgment or sentence does not become a judgment or sentence in law until it is: (a) Read and announced to the defendant; or (b) Has become a part of the record of the court [US v. CFI of Manila (1913)]. FAILURE TO PROMULGATE Where there is no promulgation of judgment, no right to appeal accrues. Merely reading the dispositive portion of the decision is not sufficient. NOTICE FOR PROMULGATION The Clerk of Court gives notice to the accused personally or through the bondsman or warden and counsel. If the accused jumps bail or escapes from prison and was tried in absentia, notice will be served in last known address [Sec. 6, Rule 120]. SIN PERJUICIO JUDGMENT It is a judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment [Dizon v. Lopez, AM RTJ-96-1338 (1997)].

C.2. PROMULGATION CIRCUMSTANCES

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IN

CERTAIN

PROMULGATION WHERE THE JUDGE IS ABSENT The judgment may be promulgated by the clerk of court when the judge is absent or outside the province or city [Sec. 6, Rule 120]. WHERE PRESENCE OF ACCUSED IS REQUIRED; EXCEPTIONS General rule: Presence of the accused is mandatory in the promulgation of judgment. Exception: Convictions for light offenses [Sec. 6, Rule 120]. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in the Rules against the judgment and the court shall order his arrest. However, within 15 days from promulgation of judgment, he may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence. If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies within 15 days from notice [Sec. 6, Rule 120; People v. De Grano, G.R. No. 167710 (2009)]. Failure of the accused to appear at the scheduled date of prom ulgation Promulgation is made by recording the judgment in the criminal docket and serving a copy at the accused’s last known address or through counsel [Sec. 6, Rule 120]. PROMULGATION WHEN ACCUSED IS CONFINED OR DETAINED IN ANOTHER CITY Promulgation will be done in the RTC which has jurisdiction over the place of confinement. In this case, the court promulgating the judgment shall have authority to accept notice of appeal and to approve the bail bond pending appeal [Sec. 6, Rule 120]

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PROMULGATION WHEN A JUDGE IS NO LONGER A JUDGE A judgment promulgated after the judge who signed the decision has ceased to hold office is not valid and binding. In like manner, it cannot be promulgated after the retirement of the judge. [Nazareno v. CA, G.R. No. 111610 (2002)]

D. FINALITY W hen does judgment become final (1) After the lapse of the period for perfecting an appeal; (2) When the sentence has been partially/totally satisfied or served; (3) The accused has expressly waived in writing his right to appeal; (4) When the accused applies for probation, and thereby waives right to appeal. [Sec. 7, Rule 120] Judgment also becomes final when judgment is an acquittal [People v. Sandiganbayan, G.R. No. 164577 (2010)]. NOTE: Before the judgment becomes final, the TC has plenary power to make, either on motion or motu proprio, such amendment or alterations as it may deem best, within the frame of law, to promote the ends of justice [Sec. 7, Rule 120]. After finality, the TC is divested of authority to amend/alter the judgment, except to correct clerical errors.

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XIII. New Trial Reconsideration

or

A. GROUNDS FOR NEW TRIAL A.1. ERRORS OF LAW OR IRREGULARITIES The court shall grant a new trial when errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial. General rule: Errors of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity. Exception: They become an error of law or irregularity when acquittal would, in all probability, have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel of the accused. Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused. A.2. NEW AND MATERIAL EVIDENCE The court shall grant a new trial when new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment [Estino v. People, G.R. No. 16395758 (2007)]. The determinative test is the presence of due or reasonable diligence to locate the thing to be used as evidence in the trial [Briones v. People, G.R. No. 156009 (2009)]. Requisites: The evidence: (1) Was discovered after the trial; (2) Could not have been discovered and produced at the trial even with the exercise of reasonable diligence [US v. Pico (1982)]; (3) Burden of proving this is on the accused. [US v. Torrente (1922)]; (4) Is material, not merely cumulative/ corroborative/impeaching; and

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(5) Is of such weight that it would probably change the judgment if admitted [Jose v. CA (1997)].

variance with the health officer’s report at trial, that its contents raised doubts to the guilt of the accused.

It must be of weighty influence and will affect the result of the trial [People v. Alfaro (2003)].

B. GROUNDS RECONSIDERATION

Interest of justice as gauge for introduction of new evidence In People v. Almendras [G.R. No. 145915 (2003)], the court ruled that a motion for a new trial may be granted on a ground not specifically provided in the rules, provided that it is sought in the interest of justice. In that case, the relief of a new trial was granted to a client who has suffered by reason of his/her counsel’s gross mistake and negligence.

The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings [Sec. 3, Rule 121].

C. EFFECTS OF GRANTING NEW TRIAL OR RECONSIDERATION IN ALL CASES (1) The original judgment set aside or vacated; (2) A new judgment is rendered accordingly;

W hen there is variance between two reports In People v. del Mundo (1996), the court allowed the presentation in a new trial of a police report, not new, and which could have been discovered with due diligence, because the evidence contained in such was at such Ground Errors of law or irregularities committed during the trial

FOR

OTHER EFFECTS Other specific effects (see table) also result when granted upon different grounds [Sec. 6, Rule 121]. Effect

Action of the court

All proceedings and evidence affected shall be set aside and taken anew. If error or irregularity goes into the jurisdiction, the entire proceeding is void and must be set aside.

The court will allow introduction of additional evidence in the interest of justice.

Newly-discovered evidence

Evidence already adduced shall stand and the The court will allow newly-discovered and such other evidence shall introduction of other such be taken and considered together with the evidence in the interest of evidence already in the record. justice. In case of grave abuse of discretion the order dismissing a MNT or MR. Neypes v. The remedy of the prosecution in case of CA [G.R. No. 141534 (2005)] declared that: grave abuse of discretion in the grant of the “Henceforth, this ‘fresh period rule’ shall also MNT/MR is certiorari or prohibition. apply to Rule 40 governing appeals from the Otherwise, it may no longer have opportunity Municipal Trial Courts to the Regional Trial to question the order if accused is acquitted Courts; Rule 42 on petitions for review from after a new trial is conducted, because of the the Regional Trial rule on double jeopardy [Luciano v. Estrella, G.R. No. L-31622 (1970)]. Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing D. APPLICATION OF THE NEYPES appeals by certiorari to the Supreme Court.

DOCTRINE IN CRIMINAL CASES

The Neypes doctrine allows a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of

The “fresh period rule” enunciated in Neypes also applies to criminal actions, particularly to Sec. 6 of Rule 122. [Yu v. Tatad, G.R. No. 170979 (2011)]

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XIV. Appeal

provisions of the law [Estarija v. People, G.R. No. 173990 (2009)].

A. EFFECT OF AN APPEAL

D. WHO MAY APPEAL

An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment WON it is made the subject of assignment of errors [People v. Calayca, G.R. No. 121212 (1999)].

General rule: Any party may appeal from a judgment or final order [Sec. 1, Rule 122].

B. WHERE TO APPEAL For cases decided by

Appeal to

MTC/MeTC/MCTC

RTC

RTC or MTC/MeTC/ MCTC (if it is government duty-related, i.e., filed under EO 1, 2, 4 and 14-A)

Sandigan -bayan

RTC (if it involves questions of fact and of law)

CA

(a) RTC (b) Involves only questions of law (c) Involves constitutionality or validity of any treaty, law, ordinance, EO, regulation or jurisdiction of the inferior court (d) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment (e) Other offenses, which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense

SC

CA or Sandiganbayan

SC

C. HOW APPEAL TAKEN

Exceptions: (1) A party may not appeal if the accused will be placed in double jeopardy by such action [Sec. 1, Rule 122]; (2) If the judgment is for conviction and the accused fails to appear without justifiable cause, he would lose the remedy to appeal [Sec. 6, Rule 120].

E. PROCEDURE IN THE LOWER COURTS

1

When appeal to be taken. Within 15 days from promulgation of the judgment or from notice of the final order appealed from. The period to appeal shall be suspended from the time a MNT or MR is filed until notice of the order overruling the motion has been served upon the accused or his counsel.

2

Transmission of record to RTC. Within 5 days from perfection of the appeal, the COC shall transmit the original record to the appropriate RTC.

3

Notification of parties. Upon receipt of the complete record, TSN and evidence of the case, the RTC COC shall notify the parties of such fact.

4

Submission of memoranda/briefs. Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by the RTC to do so.

5

Decision. After submission of such memoranda/briefs or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed.

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General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC. Exceptions: (1) Where a particular provision applies only to either of said courts; (2) Criminal cases governed by the Revised Rules on Summary Procedure [Sec. 1, Rule 123]. OFFENSES FALLING UNDER THE JURISDICTION OF THE MTC/MCTC Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor’s Office [Salcedo v. NoblesBans, G.R. No. L-67540 (1985)]. OFFENSES FALLING UNDER THE JURISDICTION OF METC In Metro Manila and other chartered cities, criminal cases shall be commenced only by information; thus, the complaint may be filed only with the Office of the City Prosecutor. If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information [Salcedo v. Nobles-Bans, G.R. No. L-67540 (1985)].

F. PROCEDURE IN THE COURT OF APPEALS F.1. PARTIES AND TITLE In all criminal cases appealed to the CA, the party appealing shall be called the “appellant” and the adverse party the “appellee.” The title of the case shall remain as it was in the court of origin (i.e., People v. John Doe) [Sec. 1, Rule 124]. F.2. BRIEFS BRIEF FOR THE APPELLANT The appellant shall file seven copies of his brief with the clerk of court, accompanied by proof of service of two copies on the appellee.

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court’s notice that the evidence is already attached to the record [Sec. 3, Rule 124]. BRIEF FOR THE APPELLEE Appellee shall file seven copies of his brief with the clerk of court, accompanied by proof of service of two copies on the appellant. It shall be filed within 30 days from receipt of the appellant’s brief [Sec. 4, Rule 124]. REPLY TO APPELLEE’S BRIEF Filing a reply is optional. Thus, the appellant may file a reply brief covering matters raised in the appellee’s brief but not in the brief of the appellant. It must be filed within 20 days from receipt of the appellee’s brief [Sec. 4, Rule 124]. F.3. EXTENSION OF TIME FOR FILING BRIEFS General rule: Extension of time for the filing of briefs is not allowed. Exception: Extension may be granted for good and sufficient cause. It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended [Sec. 5, Rule 124]. The court may grant as many extensions as may be asked [Gregorio v. CA, G.R. No. L43511 (1976)]. F.4. FORM OF BRIEFS Briefs shall be printed/encoded/ typewritten, in double space, on legal size good quality unglazed paper, 330mm in length by 216mm in width. Mimeographed copies are not allowed [Sec. 6, Rule 124]. F.5. CONTENT OF BRIEFS The briefs in criminal cases shall have the same contents as provided in Secs. 13 to 14, Rule 44 [Sec. 7, Rule 124].

It shall be filed within 30 days from receipt by the appellant or his counsel of the CA clerk of PAGE 340 OF 425

UP LAW BOC F.6. DISMISSAL OF ABANDONMENT OR PROSECUTE; GROUNDS

CRIMINAL PROCEDURE APPEAL FAILURE

FOR TO

APPELLANT FAILS TO FILE HIS BRIEF WITHIN THE PRESCRIBED TIME The CA may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief with the time prescribed, except where the appellant is represented by a counsel de oficio. If failure to file brief on time is the ground, appellant must be given notice to give him opportunity to reason out why his appeal should not be dismissed. However, dismissal is proper despite lack of notice: (1) If appellant has filed a MFR or motion to set aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason [Baradi v. People, G.R. No. L-2658 (1948)]; (2) If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment [Salvador v. Reyes, G.R. No. L-2606 (1949)].

REMEDIAL LAW

recaptured two hours after, the SC said circumstances were not sufficient to justify dismissal of the appeal [People v. Valencia (1949)]; (2) If there was absolutely no evidence against the accused as found by the appellate court, he should be acquitted in order to prevent an injustice by technicalities [People v. Buenaventura (1994)]; (3) In case of automatic review [People v. Cornelio, G.R. No. L-1289 (1971)]. F.7. PROMPT DISPOSITION OF APPEAL Appeals of accused who are under detention are given precedence in their disposition over other appeals. The accused need not be present in court during the hearing of the appeal [Sec. 9, Rule 124]. REVERSAL OR MODIFICATION OF JUDGMENT ON APPEAL General rule: No judgment shall be reversed or modified. Exception: When the CA, after an examination of the record and of the parties’ evidence, is of the opinion that error was committed and such error injuriously affected the appellant’s substantial rights [Sec. 10, Rule 124].

APPELLANT ESCAPES, JUMPS BAIL, OR FLEES The CA may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal [Sec. 8, Rule 124].

When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings.

Likewise, when accused flees after the case has been submitted for decision, he is deemed to have waived his right to appeal [People v. Ang Gioc, G.R. No. L-48547 (1941)].

G. THE COURT OF APPEALS

However, the appeal will not be dismissed despite escape: (1) In one exceptional case, the appellant took advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was

Ratio: The TC is in a better position to decide the question, having seen and heard the witnesses themselves. [People v. Cabiling, G.R. No. L-38091 (1976)]

G.1. SCOPE OF THE CA’S JUDGMENT The CA may: (1) Reverse/affirm/modify the judgment; (2) Increase/reduce the penalty imposed by the TC; (3) Remand the case to the RTC for new trial or retrial; (4) Dismiss the case [Sec. 11, Rule 124].

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When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors [Ko Bu Lin v. CA, G.R. No. L-57170 (1982)]. G.2. CA’S POWER TO RECEIVE EVIDENCE The CA has power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases: (1) Falling within its original jurisdiction; (2) Involving claims for damages arising from provisional remedies; (3) Where the court grants a new trial based only on the ground of newly-discovered evidence. CA’s trials and hearings must be continuous and completed within three months, unless extended by the Chief Justice [Sec. 12, Rule 124]. G.3. QUORUM IN THE CA (1) Three CA Justices constitute a quorum for the sessions of a division; (2) The unanimous vote of the three Justices of a division is necessary for the pronouncement of a judgment or final resolution; (3) Decision is reached through a consultation before the writing of the opinion by a member of the division; (4) If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to designate two additional Justices to sit temporarily with them. They shall then form a special division of five members; (5) The concurrence of a majority of that special division is necessary for the pronouncement of a judgment or final resolution; (6) Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices [Sec. 11, BP 129].

REMEDIAL LAW

G.4. POST-CA JUDGMENT CERTIFICATION OR APPEAL OF CASES TO THE SC (1) If the CA finds that death penalty should be imposed, it shall render judgment but refrain from making an entry of judgment. It shall then certify the case and elevate its entire record to the SC for review. The accused does not have to do anything. (2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed, and the accused appeals, the appeal shall be automatically included in the case certified for review in the SC (3) If the CA imposes reclusion perpetua, life imprisonment or a lesser penalty: (4) It shall render and enter judgment imposing such penalty. (5) Appeal here is not automatic. The accused has to file a notice of appeal with the CA [Sec. 113, Rule 124]. JUDGMENT TRANSMITTED AND FILED IN THE TC When the CA’s entry of judgment is issued, a certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken [Sec. 17, Rule 124]. This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file. MOTION FOR NEW TRIAL DURING THE PENDENCY OF APPEAL (1) Appellant may file MNT on the ground of newly discovered evidence material to his defense any time: (a) After the appeal from the lower court has been perfected; but (b) Before the CA judgment convicting him becomes final; (2) The motion shall conform to Sec. 4, Rule 121 [Sec. 14, Rule 124];

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(3) If the CA grants a MNT, it may either: (a) Conduct the hearing and receive evidence; (b) Refer the trial to the court of origin [Sec. 15, Rule 124]. RECONSIDERATION OF CA JUDGMENT MFR may be filed within 15 days from notice of the CA judgment or final order, with copies served on the adverse party. The mittimus shall be stayed during the MFR’s pendency. General rule: No party shall be allowed a second MFR of a judgment or final order [Sec. 16, Rule 124; Sec. 11, BP 129]. Exception: Where the first MFR resulted in a reversal or substantial modification of the original decision or final resolution. In this case, the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature. G.5. APPLICABLE CIVIL PROCEDURE RULES Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule [Sec. 18, Rule 124].

H. PROCEDURE IN THE SUPREME COURT Composition of the SC (1) SC is composed of one Chief Justice and 14 Associate Justices. (2) SC may sit en banc or (in its discretion) in divisions of 3, 5 or 7 members. (3) No doctrine or principle of law laid down by the SC in a decision rendered en banc or in division may be modified/reversed except by the court sitting en banc [Sec. 4, Art. VIII, Constitution].

REMEDIAL LAW

H.1. UNIFORM PROCEDURE General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA [Sec. 1, Rule 125]. Exception: The procedure changes when the Constitution or law so provides. H.2. WHAT THE SC MAY DO ON REVIEW In a criminal case, an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from, whether or not they were assigned as errors [People v. Olfindo, G.R. No. L-22679 (1924)]. It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed [Macali v. Revilla, G.R. No. L-25308 (1926)]. It may also assess and award civil indemnity [Quemuel v. CA, G.R. No. L-22794 (1946)]. H.3. MODES BY WHICH A CASE MAY REACH THE SC AUTOMATIC REVIEW Automatic review is not a matter of right on the part of the accused, but a matter of law. It is available when: (a) The RTC judgment upon the accused imposes death penalty [Sec. 10, Rule 122]; (b) The RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review [Sec. 13, Rule 124]. ORDINARY APPEAL It is available when: (a) The penalty imposed by the RTC is life imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC [Sec. 3, Rule 122]; (b) An accused was charged with two or more offenses committed on the same occasion or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or

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death penalty, the appeal with respect to the others, though punished with a lesser penalty, is to the SC [Sec. 3, Rule 122]; (c) The penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other codefendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC [People v. Carino (2002)]. In these cases, the SC reviews not only errors of law but also the findings of fact by the TC. PETITION FOR REVIEW ON CERTIORARI It is available when: (a) The constitutionality or validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question; (b) When validity of law is questioned by an accused convicted under it by the TC, the SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law [Trinidad v. Sweeney, G.R. No. 2487 (1904)]; (c) When the jurisdiction of any inferior court is in issue; (d) When only an error or question of law is involved. On decisions of the CA and the Sandiganbayan, as a rule, review here is limited to errors of law. General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available. Exceptions: In the following cases, certiorari is granted despite existence of the remedy of appeal: (1) Where public welfare and advancement of public policy so dictate; (2) Where the broader interests of justice so require; (3) Where the orders complained of were found to be completely null and void;

REMEDIAL LAW

(4) Where appeal was not considered as the appropriate remedy. H.4. REVIEW OF CA DECISIONS The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases [Sec. 2, Rule 125]. General rule: The appellate jurisdiction of the SC in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. The CA’s findings of fact are final. If an appeal in the SC involves questions of facts, the SC has no jurisdiction and should dismiss appeal [Guico v. Mayuga, G.R. Nos. L-45274-5 (1936)]. Exceptions: (1) When the conclusion is a finding founded entirely on speculations/surmises/conjectures; (2) When the inference made is manifestly mistaken/absurd/impossible; (3) When there is GAD; (4) When the judgment is based on a misapprehension of facts; (5) When the findings of facts are conflicting; (6) When the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee [Napolis v. CA, G.R. L-28865 (1972)]. FAILURE TO SPECIFY APPELLATE COURT Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal [RA 296]. ERRONEOUS MODE OF APPEAL In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary appeal filed by appellant be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected. The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal.

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DECISION IF OPINION IS EQUALLY DIVIDED When the SC en banc is equally divided in opinion or the necessary majority cannot be had on whether or not to acquit the appellant, the case shall again be deliberated upon. If no decision is reached after re-deliberation, the lower court’s judgment of conviction shall be reversed and the accused is acquitted. If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc [Sec. 3, Rule 125]. EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it [Salvatierra v. CA, G.R. No. 107797 (1996)]. Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal [People v. Gandia, G.R. No. 175332 (2008)]. The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from [Sec. 11, Rule 122].

H.5. GROUNDS APPEAL

REMEDIAL LAW FOR

DISMISSAL

OF

WHEN APPEAL BY THE PEOPLE WILL NOT LIE The People/State cannot appeal when it will put the accused in double jeopardy. The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached [Republic v. CA, G.R. No. L- 41115 (1982)]. The prosecution cannot appeal from a judgment of acquittal. Ratio: A verdict of that nature is immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy [Central Bank v. CA, G.R. No. 41859 (1989)]. Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy [People v. Sandiganbayan, G.R. No. 174504 (2011), citing People v. Nieto, 103 Phil. 1133] Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground of lack of it, the order of dismissal is unappealable [People v. Duran, G.R. No. L13334 (1960)]. An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted [People v. Paet, G.R. No. L-9551 (1956)]. The preclusion against appeal by the State from judgments or final orders having the effect of acquittal applies even though accused did not raise question of jeopardy [People v. Ferrer, G.R. No. L-9072 (1956)].

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XV. Search and Seizure A. NATURE OF SEARCH WARRANT A.1. IN GENERAL DEFINITION It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court [Sec. 1, Rule 126]. NATURE A search warrant is in the nature of a criminal process akin to a writ of discovery, employed by the state to procure relevant evidence of a crime [Malaloan v. CA, G.R. No. 104879 (1994)]. It is not available to individuals in the course of civil proceedings. It is interlocutory in character – it leaves something more to be done, which is the determination of the guilt of the accused. CONSTITUTIONAL SAFEGUARD No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the things/persons to be seized [Sec. 2, Art. III, Constitution]. Under the exclusionary rule, any evidence obtained in violation of this is inadmissible for any purpose in any proceeding [Sec. 3, 2nd par., Art. III, Constitution]. The constitutional guarantee is not a blanket prohibition against all searches and seizures. It operates only against “unreasonable” searches and seizures.

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absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured [Rodriguez v. Villamiel, L-44328 (1937)]. DOCTRINE OF ATTENUATION Under the doctrine of attenuation, despite the illegality in obtaining evidence, such evidence may be admissible if the connection between the evidence and the illegal m ethod is sufficiently rem ote or attenuated so as to dissipitate the taint [Wong Sun v. US (1963)]. Directed upon acts of the governm ent, not private persons The constitutional protection is directed against the acts of the government and its agents, not private persons [People v. Marti, G.R. No. 81561 (1991)] However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures. General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. Exceptions: (1) Search incidental to a lawful arrest; (2) Consented search; (3) Search of moving vehicle; (4) Checkpoints; (5) Plain view; (6) Stop and frisk; (7) Customs search; (8) Other exceptions, such as exigent circumstances, buy-bust operations, and private searches.

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ARREST AND DISTINGUISHED

SEARCH

Search warrant Nature and purpose

Probable cause

WARRANTS Warrant of arrest

Order in writing in the name of the People of the Philippines, signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court

Order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense

The judge must personally examine the complainant and witnesses in the form of searching questions and answers

The judge does not have to personally examine the complainant and his witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor [AAA v. Carbonell (2007)]

Examination

The examination must be under oath or affirmation of the complainant and his witnesses.

Examination must be under oath.

Form

It must particularly describe the place to be searched and the things to be seized.

It must particularly describe the person to be arrested.

REMEDIAL LAW Warrant of arrest

Search warrant When executed

Generally served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night [Section 9, Rule 126]

May be made at any time of the day or night

Validity

Valid for 10 days

Does not expire

B. APPLICATION WARRANT

FOR

SEARCH

B.1. WHERE FILED It may be filed in any court within whose territorial jurisdiction the crime was committed. For compelling reasons, which must be stated in the application, it may also be filed: (1) If the place of the commission of the crime is known, any court within the judicial region where the crime was committed; (2) Any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending [Sec. 2, Rule 126]. Under AM 03-8-02-SC, Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the Vice-Executive Judges of Manila and Quezon City RTCs shall have authority to act on applications for search warrants involving: (1) Heinous crimes; (2) Illegal gambling; (3) Illegal possession of firearms and ammunitions (4) Violations of the Comprehensive Dangerous Drugs Act of 2000; (5) Violations of the Intellectual Property Code;

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(6) Violations of the Anti-Money Laundering Act of 2001; (7) Violations of the Tariff and Customs Code; and (8) Other relevant laws that may hereafter be enacted by Congress and included herein by the Supreme Court. B.2. SUBSTANCE OF APPLICATION A search warrant shall not issue except: (1) Upon probable cause (2) In connection with one specific offense; (3) To be determined personally by the judge; (4) After examination under oath or affirmation of the complainant and the witness he may produce; (5) Particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines [Sec. 4, Rule 126].

C. ISSUANCE AND SEARCH WARRANT

FORM

OF

If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed the Rules [Sec. 6, Rule 126]. Thus, the search warrant must be in writing and contain: (1) Name of person against whom it is directed; (2) Offense for which it was issued; (3) The place to be searched and (4) The description of the specific things to be seized; (5) A directive to law enforcement officers to search and seize; (6) And for them to bring in court the things seized; (7) Signature of the judge issuing it. VALIDITY OF THE SEARCH WARRANT The search warrant is valid for 10 days from its date. Thereafter, it shall be void [Sec. 10, Rule 126]. The lifetime of the search warrant also ends when a return has already been made [Mustang Lumber v. CA, G.R. No. 104988 (1996)].

D. SERVICE WARRANT

REMEDIAL LAW

OF

THE

SEARCH

RIGHT TO BREAK DOOR OR WINDOW TO EFFECT SEARCH The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein [Sec. 7, Rule 126]. KNOCK AND ANNOUNCE PRINCIPLE Generally, officers executing a search must do the following acts: (1) Announce their presence; (2) Identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched; (3) Show to them the search warrant; and (4) Explain the warrant in a language or dialect known and understood by them. WHEN UNANNOUNCED INTRUSION PERMISSIBLE (1) Person in the premises refuses to open it upon demand; (2) Person in the premises already knew of the identity and authority of the officers; (3) When the officers have an honest belief that there is an imminent danger to life and limb; (4) When those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officers to believe that an escape or the destruction of evidence is imminent. SEARCH IN PRESENCE OF TWO WITNESSES No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality [Sec. 8, Rule 126]. TIME OF MAKING SEARCH The search shall be made at day time, unless the affidavit asserts that the property is on

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the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night [Sec. 9, Rule 126]. A search warrant violates Sec. 9, Rule 126 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search, causing untold conveniences to the person searched. Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the search warrant [Asian Surety v. Herrera, G.R. No. L-25232 (1973)].

E. POST-SERVICE E.1. RECEIPT OF PROPERTY SEIZED If the lawful occupant is present: the officer seizing the property under the search warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made. If the lawful occupant is not present: the officer seizing the property under the search warrant must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property [Sec. 11, Rule 126]. E.2. DELIVERY AND INVENTORY OF PROPERTY The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. Ten days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether Sec. 11, Rule 126, on giving or receipts, has been complied with and shall

REMEDIAL LAW

require that the property seized be delivered to him. The judge shall see to it that delivery has been complied with. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge [Sec. 12, Rule 126]. The court which issued the search warrant acquires jurisdiction over the items seized under the said warrant. Goods seized lawfully on the basis of the said warrant or its accepted exceptions are in custodia legis. Only that court which issued the warrant may order the release or disposition thereof. The jurisdiction, custody and control of the court over the items seized cannot be interfered with. Custody lasts until the institution of the appropriate criminal action with the proper court [Tenorio v. CA, G.R. No. 110604 (2003)].

F. PROBABLE CAUSE F.1. PROBABLE CAUSE IN SEARCH WARRANTS Probable cause means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched [Santos v. Pryce Gases Inc., G.R. No. 165122 (2007)]. This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The probable cause must refer only to one specific offense [Roan v. Gonzales, G.R. No. 71410 (1986)]. Note: Probable cause to arrest does not necessarily involve a probable cause to search and vice-versa. F.2. PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESSES Aside from the requirements mandated by Sec. 4, Rule 126, the Rules require the judge to comply with a specific procedure in the conduct of the examination of the

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complainant and the witnesses he may produce [Sec. 5, Rule 126]: (1) The examination must be personally conducted by the judge; (2) The examination must be in the form of searching questions and answers; (3) The complainant and the witnesses shall be examined on those facts personally known to them; (4) The statements must be in writing and under oath; and (5) The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record. SEARCHING QUESTIONS AND ANSWERS Searching questions are such questions which have the tendency to show the commission of a crime and the perpetrator thereof [Luna v. Plaza, G.R. No. 27511 (1968)]. In search cases, the application must be supported by substantial evidence: (1) That the items sought are in fact seizable by virtue of being connected with criminal activity; and (2) That the items will be found in the place to be searched [People v. Tuan, G.R. No. 176066 (2010)]. A search warrant issued by a judge who did not ask searching questions but only leading ones and in a general manner is invalid [Uy v. BIR, G.R. No. 129651 (2000)]. Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. [Yao v. People, G.R. No. 168306 (2007)] A warrant not based on personal knowledge is void. EXAMINATION UNDER OATH The judge must examine under oath or affirmation the complainant and the witness he may produce. Oath includes any form of attestation by which a party signifies that he

REMEDIAL LAW

is bound in conscience to perform an act faithfully and truthfully. The oath required must refer to the truth of facts within the personal knowledge of the petitioner or his witnesses [Alvarez v. CFI, G.R. No. L-45358 (1937)]. Mere affidavits of the complainant or his witnesses are not sufficient. The examining judge has to take depositions in writing of the complaint or his witnesses, and attach the same to the record [Prudente v. Judge Dayrit, G.R. No. 82870 (1989)]. F.3. PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED Warrant issued must particularly describe the place to be searched and the things to be seized. PARTICULARITY OF PLACE TO BE SEARCHED Description of place to be searched is sufficient if the officer with the search warrant can, with reasonable efforts, ascertain and identify the place intended [People v. Veloso, G.R. No. L-23051 (1925)]. An apparent typographical error will not necessarily invalidate the search warrant, as long as the application contains the correct address [Burgos v. Chief of Staff, G.R. No. L64261 (1984)]. PARTICULARITY OF THINGS TO BE SEIZED The scope of the search warrant is limited to personal property only. It does not issue for seizure of immovable properties. General rule: Things to be seized must be described particularly. General search warrants are not allowed. Otherwise, the search and seizure of the items in the implementation of such search warrant is illegal and the items seized are inadmissible in evidence [Sec. 2, Art. III, Constitution]. Search warrants authorizing the seizure of books of accounts and records “showing all the business transactions” of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law. [Stonehill v. Diokno, G.R. No. L-19550 (1967)].

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Likewise, a description of things to be seized as “subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials” hardly provided a definite guideline to the executing officers [Dizon v. Castro (1985)].

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G. EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT

Where the language used is too allembracing as to include all the paraphernalia of petitioner in the operation of its business, the SW is constitutionally objectionable [Columbia Pictures v. Flores, G.R. No. 78631 (1993)].

G.1. SEARCH INCIDENTAL TO LAWFUL ARREST In a search incidental to an arrest, even without a warrant, the person arrested may be searched for: (a) Dangerous weapons; (b) Anything which may have been used in the commission of an offense; or (c) Anything which may constitute proof in the commission of the offense [Sec. 13, Rule 126].

Exceptions: Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no search warrant could issue [People v. Rubio, G.R. No. L-35500 (1932)].

The arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest as if the police have probable cause to make the arrest at the outset of the search [Riano (2011)].

The general description of the documents listed in the search warrant does not render the it void if it is severable, and those items not particularly described may be cut off without destroying the whole [Uy v. BIR, G.R. No. 129651 (2000)].

The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a result, the things seized are inadmissible as evidence [People v. Aruta, G.R. No. 120195 (1998)].

PERSONAL PROPERTY TO BE SEIZED W hat may be seized (1) Personal property subject of the offense; (2) Personal property stolen/embezzled and other proceeds/fruits of the offense; (3) Personal property used or intended to be used as the means of committing an offense [Sec. 3, Rule 126]. The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control of possession of the property sought to be seized [Burgos v. Chief of Staff, G.R. No. L64261 (1984)].

The search is confined to his person, but as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. The extent and reasonableness of the search must be decided on its own facts and circumstances [Nolasco v. Paño, G.R. No. L69803 (1985)]. When an individual is lawfully arrested, he/she may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control, may be seized. [OCA v. Barron, AM No. RTJ-98-1420 (1998)] Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and arrest are illegal [Lui v. Matillano, G.R. No. 141176 (2004)].

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G.2. CONSENTED SEARCH Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first appear that: (a) The right exists; (b) The person involved had knowledge, either actual or constructive, of the existence of such right; and (c) The said person had an actual intention to relinquish the right [People v. Nuevas, G.R. No. 170233 (2007)]. Consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given [Valdez v. People, G.R. No. 170180 (2007)]. A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law [People v. Nuevas, G.R. No. 170233 (2007)]. Consented search is reasonable only if kept within the bounds of the actual consent. A person’s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto. Relevant to the determination of consent are the following characteristics of the person giving consent and the environment in which consent is given: (1) The age of the defendant; (2) Whether he was in a public or secluded location; (3) Whether he objected to the search or passively looked on; (4) The education and intelligence of the defendant; (5) The presence of coercive police procedures; (6) The defendant's belief that no incriminating evidence will be found; (7) The nature of the police questioning; (8) The environment in which the questioning took place; and

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(9) The possibly vulnerable subjective state of the person consenting [Caballes v CA, G.R. No. 136292 (2002)]. G.3. SEARCH OF A MOVING VEHICLE Rationale: Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be sought [People v. Tuazon, G.R. No. 175783 (2007)]. However, these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to physical or body searches, except where there is probable cause to believe that the occupant is a law offender or the contents of the vehicles are instruments or proceeds of some criminal offense. The search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of search warrant [Roldan v. Arca, G.R. No. L-25434 (1975)]. Nonetheless, in all cases falling under this category, there must be a showing of a probable cause of a violation of the law [Caroll v. US (1924)]. G.4. CHECKPOINTS; BODY CHECKS IN AIRPORT Searches conducted in checkpoints are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists [People v. Vinecario, G.R. No. 141137 (2004)]. Routine inspections are not regarded as violative of an individual’s right against unreasonable search: (a) Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (b) Officer simply looks into a vehicle; (c) Officer flashes a light therein without opening car’s doors; (d) Occupants not subjected to a physical search;

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(e) Inspection is limited to usual search or inspection; or (f) Routine check is conducted in a fixed area [People v. CA (2002)]. G.5. PLAIN VIEW SITUATION Requisites: (a) A prior valid intrusion i.e., based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) Evidence was inadvertently discovered by the police who have a right to be where they are; (c) Evidence must be immediately and apparently illegal (i.e., drug paraphernalia); (d) Plain view justified mere seizure of evidence without further search [People v. Valdez (1999)]. Lim itations: (a) It may not be used to launch unbridled searches and indiscriminate seizures. (b) It does not extend to a general exploratory search made solely to find evidence of defendant’s guilt [People v. Musa, G.R. No. 96177 (1993)]. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Even if an object is in plain view, before it can be seized without a search warrant, its incriminating nature must first be apparent. Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering. G.6. STOP AND FRISK SITUATION Stop and frisk is a limited protective search of outer clothing for weapon [Malacat v. CA, G.R. No. 123595 (1997)]. Where a police officer observes unusual conduct, which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot, and that a person with whom he is dealing may be

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armed and presently dangerous, he is entitled to conduct a stop and frisk search. Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him [Terry v. Ohio (1968)]. Under this theory, probable cause is not required to conduct a “stop and frisk” but mere suspicion or hunch will not validate a “stop and frisk.” The test is whether or not there is a reasonable belief based on genuine reason and in the light of the officer’s experience and the surrounding circumstances, that a crime has either taken place or is about to take place and the person to be stopped is armed and dangerous. G.7. ENFORCEMENT OF CUSTOMS LAW For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure [General Travel Services v. David, G.R. No. L19259 (1966)]. The Tariff Code authorizes customs officers to: (a) Enter, pass through or search any land, enclosure, warehouse; (b) Inspect/search/examine any vessel or aircraft and any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law. General rule: The Tariff and Customs Code does not require a warrant for such searches. Exception: In the search of a dwelling house, a search warrant is required.

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G.8. OTHER EXCEPTIONS EXIGENT AND EMERGENCY CIRCUMSTANCES In one case, there was a prevailing general chaos and disorder because of an ongoing coup, and the raid of the office/building was precipitated by an intelligence report that said office was being used as HQ by the RAM. Also, the surveillance team before the raid was fired upon by the people inside. The raiding team had no opportunity to apply for warrant as the court then was closed [People v. de Gracia, G.R. Nos. 102009-10 (1994)]. BUY-BUST OPERATION This is a form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in committing an offense. There is no need for a search warrant (or warrant of arrest) because the accused is caught in flagrante delicto. PRIVATE SEARCHES In one case, the evidence was obtained by a private person acting in a private capacity, while performing company standard operating procedures and without state participation and intervention. It was held that the constitutional rights cannot be invoked when there is no government interference [People v. Marti, G.R. No. 81561 (1991)].

H. REMEDIES FROM SEARCH AND SEIZURE

UNLAWFUL

H.1. WHO MAY AVAIL Only the party whose rights have been impaired thereby; the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties [Stonehill v. Diokno, G.R. No. L-19550 (1967); Santos v. Pryce Gases Inc., G.R. No. 165122 (2007)]. H.2. MEANS EMPLOY ANY MEANS TO PREVENT THE SEARCH Without a search warrant, the officer cannot insist on entering a citizen’s premises. If he does so, he becomes an ordinary intruder.

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prevent it, without incurring any criminal liability [People v. Chan Fook, G.R. No. L16968 (1921)]. FILE CRIMINAL ACTION AGAINST OFFICER A public officer/employee who procures a search warrant without just cause is criminally liable under Art. 129, RPC, on search warrants maliciously obtained and abuse in the service of those legally obtained. FILE A MOTION TO QUASH THE ILLEGAL WARRANT This remedy is employed if search is not yet conducted. W ho may file (1) Person injured; (2) Person searched; (3) Owner of the property. W here to file General rule: Motions to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, motion may be filed in and resolved by the court that issued the warrant. If such court failed to resolve the motion, and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court. [Sec. 14, Rule 126] Grounds The following may be raised in the MTQ: (1) Absence of probable cause at the time of the issuance of the search warrant; (2) Non-compliance with substantive and procedural requisites, such as: (a) No personal examination by the judge; (b) More than one specific offense; (c) No particular description [Bache & Co. v. Ruiz, G.R. No. L-32409 (1971)]. These may also be raised in the criminal action as matters of defense [DOH v. Sy Chi Siong (1989)].

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Failure to file motion to quash Where no MTQ the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression of the personal property seized if the same is offered therein as evidence [Malaloan v. CA, G.R. No. 104879 (1994)] The MTQ and Motion to Suppress Evidence are alternative, not cumulative remedies. FILE A MOTION TO RETURN THINGS SEIZED This is the remedy used if the search was already conducted and goods were seized as a consequence thereof. Where the motion will be filed follows the same rules as in a motion to quash. An accused may file a motion to suppress evidence if he is not among the persons who can file a motion to quash. General rule: Goods seized by virtue of an illegal warrant must be returned. Exception: If possession of the things seized is prohibited by law, they should not be returned [Castro v. Pabalan, G.R. No. L28642 (1976)]. Where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from the purchaser with the use of a search warrant although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case [Yu v. Honrado, G.R. No. 50025 (1980)]. MOTION TO SUPPRESS EVIDENCE This refers to a motion to suppress as evidence the objects illegally taken pursuant to the exclusionary rule, which states that any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.

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H.3. CIVIL AND CRIMINAL LIABILITY The following offenses may result from unreasonable search and seizure: (1) Violation of domicile [Art. 128, RPC]; (2) Search warrant maliciously obtained [Art. 129, RPC]; (3) Searching domicile without witnesses [Art. 130, RPC]; (4) Unjust interlocutory order [Art. 206, RPC]. The public officer or employee may be held liable for: (1) Entering without authority; against the will; refuses to leave; (2) A search warrant procured without just cause or if with just cause, exceeds his authority or uses unnecessary severity of force; (3) Conducting the search without the required witnesses. The judge may be held liable for: (1) Knowingly rendering an unjust interlocutory order; (2) Inexcusable negligence or ignorance. It may also result in civil liability for: (1) Violation of rights and liberties [Art. 32(9), Civil Code]; (2) Malicious prosecution and acts referred to Art. 32 [Art. 2218, Civil Code]. Malice or bad faith is not required. Not only official actions, but all persons who are responsible for the violation are liable for damages [MHP Garments v. CA, G.R. No. 86720 (1994)]. H.4. WAIVER OF IMMUNITY AGAINST UNREASONABLE SEARCH AND SEIZURE The constitutional immunity against unreasonable searches and seizure is a personal right that may be waived expressly/impliedly only by the person whose right is being invaded or one who is expressly authorized to do so in his behalf [Pasion v. Locsin, G.R. No. L-45950 (1938)]. Requisites: (1) It must appear that the right exists; (2) That the person involved had knowledge, (actual or constructive) of the existence of such right; (3) That the person had an actual intention to relinquish the right.

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FLOWCHART: SEARCH WARRANT PROCESS

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XIV. Remedies

Provisional

A. NATURE Provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action [Sec. 1, Rule 127]. Where the civil action has actually been instituted, or proceeded independently of the criminal action, these provisional remedies cannot be availed of in the criminal action but may be applied for in the separate civil action. [Regalado (2010)] If the civil action is suspended on account of filing of the criminal action, the court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not go into the merits of the case [Ramcar, Inc v. de Leon, G.R. No. L-1329 (1947)]. Provisional remedies are not available when: (1) Offended party has waived the civil claim; (2) Offended party has reserved the civil claim; (3) Offended party has already instituted a separate civil action; (4) Criminal action carries with it no civil liability.

B. KINDS REMEDIES

OF

PROVISIONAL

B.1. IN GENERAL Reference to provisional remedies in Sec. 1, Rule 127 is made in general terms, hence preliminary injunction, preliminary attachment, receivership, replevin or support pendent lite may be availed of [Riano, Criminal Procedure (2011)]. However, only preliminary attachment is provided for under the same rule.

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The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case [Sec. 11(b), Rule 119]. B.2. PRELIMINARY ATTACHMENT W hen proper When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (a) When the accused is about to abscond from the Philippines (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty (c) When the accused has concealed, removed or disposed of his property, or is about to do so (d) When the accused resides outside the Philippines [Sec. 2, Rule 127]. Issuance and implementation The writ may be issued ex parte before acquisition of jurisdiction over the accused. However, it may be enforced only after acquisition of jurisdiction over the person of the accused [Gonzalez v. State Properties, G.R. No. 140765 (2001)]. No notice to the adverse party, or hearing on the application is required before a writ of preliminary attachment may issue as a hearing would defeat the purpose of the provisional remedy. The time which such hearing would take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment may issue [Mindanao Savings and Loan Assoc. v. CA, G.R. No. 84481 (1989)].

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I. General Principles A. Concept of Evidence B. Scope of the Rules of Evidence C. Evidence in Civil Cases vs. Evidence in Criminal Cases D. Proof Versus Evidence E. Factum Probans Versus Factum Probandum F. Admissibility of Evidence G. Burden of Proof and Burden of Evidence H. Presumptions I. Liberal Construction of the Rules of Evidence J. Quantum of Evidence (Weight And Sufficiency of Evidence)

A. CONCEPT OF EVIDENCE The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [Sec. 1, Rule 128] B. SCOPE OF THE RULES OF EVIDENCE [Sec. 2, Rule 128] GENERAL RULE: Principle of uniformity The rules of evidence shall be the same in all courts and in all trials and hearings. EXCEPTIONS: If otherwise provided by: (1) Law [e.g. 1987 Constitution, statutes] (2) Rules of Court (3) SC issuances [e.g., Judicial Affidavit Rule, Rules on Procedure for Environmental Cases, Child Witness Rule, Rules on Electronic Evidence, Rules on DNA Evidence] (4) Jurisprudence [e.g., Star Two v. Ko, G.R. No. 185454 (2011), where evidence was presented to support a MR of the denial of an MTD but the adverse party failed to attend the hearing for their reception. The evidence not formally offered was considered when it had been identified by testimony, duly recorded and it had been incorporation in the records of the case.]

REMEDIAL LAW APPLICABILITY Under the Rules of Court, the rules of evidence are specifically applicable only to judicial proceedings. [Sec. 1, Rule 128] In quasi-judicial proceedings, the same apply by analogy or suppletorily AND whenever practicable and convenient [Sec. 4, Rule 1], except in cases where the governing law or rules specify otherwise, e.g., the Rules on Electronic Evidence covers quasi-judicial and administrative bodies [Sec. 2, Rule 1, Rules on Electronic Evidence]; special rules are laid down in EO 292, series of 1987 [Revised Administrative Code], etc. Administrative investigations shall be conducted without necessarily adhering strictly to the technical rules of procedure and evidence applicable to judicial proceedings [Dela Cruz v. Malunao, AM No P-11-3019 (2012)) JUDICIAL PROCEEDING [Sec. 3, Rule 1] (1) Civil – includes special civil actions (2) Criminal (3) Special Proceeding NOTE: Disbarment is not included as it is an exercise of the judiciary’s quasi-executive powers. SOURCE The Rules of Court are not the only source of rules that apply to judicial proceedings (e.g. court issuances, constitutional provisions with exclusionary rule implications, etc).

C. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES In Civil Cases

In Criminal Cases

Preponderance Proof beyond reasonable doubt of evidence [Sec. 2, Rule 133] [Sec. 1, Rule 133] Offer of compromise NOT an admission of any liability [Sec. 27, Rule 130]

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EXCEPT for quasi-offenses or those allowed by law to be compromised, offer of compromise by the accused may be received in evidence as an implied admission of guilt. Exceptions:

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E. FACTUM PROBANS FACTUM PROBANDUM

In Criminal Cases (1) Sec 204, RA 8424 Tax

Reform Act of 1997, which provides that payment of any internal revenue tax and all criminal violations may be compromised, except those already filed in Court and those involving fraud. (2) In rape cases, an offer of marriage is tantamount to an offer of compromise because, by virtue of the amendment of Art. 266-C (Effect of Pardon) of the RPC by RA 8353, the subsequent valid marriage of the accused & the offended party extinguishes criminal liability. Hence where the marriage does not take place or is subsequently declared to be void ab initio, the offer of marriage becomes admissible as an implied admission of guilt. A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer [Sec. 27, Rule 130] Presumption of innocence does NOT apply

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Presumption of innocence a constitutional guarantee on the accused [Sec. 14, Art. III]

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is NOT admissible as proof of criminal or civil liability for the injury. [Sec. 27, Rule 130]

D. PROOF VERSUS EVIDENCE

Factum Probans Facts or evidencing proposition

VERSUS

Factum Probandum

material The proposition to the be established

The evidentiary fact The ultimate tending to prove the sought to fact in issue established

fact be

CLASSES OF EVIDENCE ACCORDING TO FORM (1) Object - those addressed to the senses of the court. [Sec. 1, Rule 130] (2) Docum entary - consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Sec. 2, Rule 130] (3) Testimonial - evidence elicited from the mouth of a witness [Riano, citing Black’s Law Dictionary]. It involves two levels of perception: that of the witness perceiving the event, and that of the judge evaluating the witness. There is no hierarchy with respect to the physical forms of evidence. A fact may be proved by any kind; the court may admit. There is no rule (in general) that prefers one form rule as against another. [Adzuara v. Court of Appeals, G.R. No. 125134 (1999)] CUMULATIVE EVIDENCE Cumulative Evidence Evidence of the same kind and to the same state of facts

AND

CORROBORATIVE Corroborative Evidence

Additional evidence of a different character to prove the same factum probandum

PRIMA FACIE AND CONCLUSIVE EVIDENCE Proof

Evidence

Prima Facie

Result or effect Mode and manner of proving of evidence competent facts in judicial [Regalado] proceedings [Bustos v. Lucero, G.R. No. L-2068, (1948)]

Standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed e.g. Police blotter

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Conclusive Class of evidence which the law does not allow to be contradicted e.g. Torrens title

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PRIMARY AND SECONDARY EVIDENCE Primary

REMEDIAL LAW offer of evidence is an important part before courts can rule on their admissibility.

Secondary

Best evidence

Substitutionary evidence

That which the law regards as affording the greatest certainty of the fact in question

Inferior to primary; permitted only when the best evidence is not available

NOTE: The Best Evidence Rule is a rule of exclusion and it is not the same as the classification that refers to the best evidence to prove a fact in issue. For ex EXAMPLE: The failure to present a single official receipt to prove payment is contrary to the rule that a receipt, which is a written and signed acknowledgment that money and goods have been delivered, is the best evidence of the fact of payment although not exclusive. [Vitarich v. Losin, G.R. 181560 (2010)]

Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility have become apparent, otherwise the objection shall be considered waived. [Abrenica v. Gonda, G.R. No. L-10100 (1916)] [Secs. 35-37, Rule 132] Form When objection made Testimonial Objection to the evidence qualification of the witness must be made at the time he is called to the stand, which is when the offer of testimonial evidence is made (orally)

POSITIVE AND NEGATIVE EVIDENCE Positive Evidence Witness affirms that a fact did or did not occur

Negative Evidence Witness states he/she did not see or know of the occurrence of a fact

Object or real evidence

F. ADMISSIBILITY OF EVIDENCE Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue. [PNOC Shipping and Transport Corporation v. CA, G.R. No. 107518 (1998)] REQUISITES FOR ADMISSIBILITY (1) Relevant to the issue; and (2) Competent i.e. not excluded by law or the ROC. [Sec. 3, Rule 128]

Documentary evidence

Objections to parts of testim ony should be raised when the objectionable question is asked or after the answer was given if the objectionable feature became apparent by reason of such answer (also orally) Either: (1) At the time it is presented in ocular inspection or demonstration, or (2) When it is formally offered At the time it is formally offered

RELEVANCE OF EVIDENCE COLLATERAL MATTERS

AND

Relevancy Evidence is relevant when it has “such a relation to the fact in issue as to induce belief in its existence or non-existence”. [Sec. 4, Rule 128] e.g., Evidence as to the age of a person who has been raped is relevant in a situation where the age would qualify the offence to statutory rape

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Collateral matters Matters other than the fact in issue which are offered as a basis for inference as to the existence or non-existence of the facts in issue [Regalado] GENERAL RULE: Evidence on collateral matters is NOT allowed. [Sec. 4, Rule 128] EXCEPTION: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue. [Sec. 4, Rule 128] NOTE: What is prohibited by the Rules is not evidence of all collateral matters, but evidence of irrelevant collateral facts. [Regalado] EXAMPLE In an administrative case for sexual harassment, the respondent did not offer evidence that has a bearing on the complainant’s chastity. What he presented are different charges for unrelated filed against her. These pieces of evidence do not establish the probability or improbability of the offense charged. Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a person’s integrity, and to the fact that he is worthy of belief. [Civil Service Commission v. Belagan, G.R. No. 132164 (2004)] NOTE: The court in this case had discussed Sec. 51(a), Rule 130 in relation to relevance and stated that the question of a witness’ credibility should be referred to Sec. 11, Rule 132. Circumstantial evidence is the evidence of collateral facts or circumstances from which an inference may be drawn as to the probability or improbability of the fact in dispute. They are evidence of relevant collateral facts. [Regalado]

Direct Evidence Proves the fact in dispute without the aid of any inference or presumption

Circumstantial Proof of a fact/s from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence

COMPETENCE Evidence is competent when it is not be excluded by (i) law or (ii) the ROC [Sec. 3, Rule 128] Determined by the prevailing exclusionary rules of evidence [Regalado] NOTE: Exclusionary rules may affect due process. To the extent that they might prejudice substantive rights, therefore, they cannot be made to apply retroactively. EXCLUSIONARY RULES OF EVIDENCE (1) Constitutional exclusionary rules Unreasonable searches and seizures [Sec. 2, Art. III]; privacy of communication and correspondence [Sec. 3, Art. III]; right to counsel, prohibition on torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition on secret detention places, solitary, incommunicado [Sec. 12, Art. III]; right against self-incrimination [Sec. 17, Art. III] (2) Statutory exclusionary rules Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled [Sec. 201, NIRC]; any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any judicial/quasijudicial/legislative/administrative hearing

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or investigation. [Secs. 1 and 4, RA 4200 (Wire-Tapping Act)] (3) Under the ROC, Rule 130 is the applicable rule in determining the admissibility of evidence. (4) Court issuances (examples) (a) Rule on Electronic Evidence, e.g. compliance with authentication requirements for electronic evidence (b) Child Witness Rule, e.g. sexual abuse shield rule (c) Judicial Affidavit Rule

Eligibility of evidence to be received as such

DOCTRINES OF ADMISSIBILITY

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his/her claim or defense by the amount of evidence required by law. [Sec. 1, Rule 131] In civil cases, the quantum of evidence required to sustain the proponent of an issue is preponderance of evidence. The burden of proof is on the party who would be defeated if no evidence were given in either side, the plaintiff with respect to his complaint, the defendant with respect to his counterclaim, and the cross-claimant, with respect to his cross-claim.

Multiple admissibility Where the evidence is relevant and competent for two or more purposes, such evidence shall be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefor. [Regalado] Conditional admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received, on condition that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out. [Regalado] Curative admissibility Where the court has admitted incompetent evidence adduced by the adverse party, a party has a right to introduce the same kind of evidence in his/her behalf. [Regalado] W hat determines the rule of curative adm issibility: (1) Whether the incompetent evidence was seasonably objected to - Lack of objection to incompetent evidence constitutes waiver on the part of the party against whom it was introduced but the opposing party is not deprived of his right to similar rebutting evidence; and (2) Whether the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted [Regalado]

Worthiness of belief; “believability”

NOTE: Credibility does not, per se, exclude. It only does in so far as it makes the piece of evidence irrelavant to the fact in issue. (e.g. the cross-examination of a witness is primarily about his credibility)

G. BURDEN OF PROOF BURDEN OF EVIDENCE

AND

In crim inal cases: • For the issuance of warrant of arrest evidence of probable cause that there exist a reasonable ground that the accused has committed an offense [Algas v. Garrido, AM No. 289-MJ, (1974)) • To warrant the filing of an inform ation – if there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Sec. 1, Rule 112] • To sustain a conviction - evidence of guilt beyond reasonable doubt. • To deny bail when discretionary – when the evidence of guilt is strong • To accept a plea of guilty to a capital offense – that the accused voluntarily and fully comprehended the consequences of his plea [Sec. 3, Rule 116] • To grant demurrer to evidence – the evidence is insufficient to sustain a conviction [Sec. 23, Rule 119] The burden of proof rests on the prosecution.

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A party will have the burden of evidence only (i.e., will have to be a proponent) if there is any factum probandum (whether evidentiary or otherwise) that the adverse party has already established (whether by law, rule, or by virtue of evidence that he has presented) that he (the potential proponent) has to overcome. That factum probandum may, but does not have to be, nor is limited to a "prima facie presumption." Likewise, a party will not have any burden of evidence at all if the adverse party has not established any factum probandum in the first place [Prof. Avena]. In both civil and criminal cases, the burden of evidence lies with the party who asserts an affirmative allegation. [Regalado] EXAMPLE: In a case for collection of a sum of money, if the defendant asserts that she has paid, then she has the burden of proving that she had, not on the creditor that she had not. While the creditor had needed to prove the existence of a debt, the burden shifts to the debtor because she alleged an affirmative defense, which admits the creditor’s allegation. [Vitarich v. Losin, G.R. No. 181560 (2010)] BURDEN OF PROOF AND BURDEN OF EVIDENCE Burden of Burden of Evidence Proof Does not shift Shifts from party to party throughout depending upon the the trial exigencies of the case in the course of the trial” Generally determined by the pleadings filed by the party

Generally determined by the developments at the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the fact alleged (presumptions, judicial notice and admissions)

EQUIPOISE RULE OR EQUIPOISE DOCTRINE The doctrine refers to the situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In this case, the decision

REMEDIAL LAW should be against the party with the burden of proof. [Rivera v. CA, GR No. 115625 (1998); Marubeni v. Lirag, GR No. 130998, (2001)] In criminal cases, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. [Malana v. People, G.R. No. 173612, (2008)]

H. PRESUMPTIONS Conclusive

Disputable

Inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong [Datalift Movers v. Belgravia Realty, G.R. No. 144268 (2006)]

Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence. [Sec. 3, Rule 131]

CONCLUSIVE PRESUMPTIONS UNDER THE RULES [Sec. 2, Rule 131]: (1) A party is not permitted falsify a thing if: (a) By his own declaration, act or omission; (b) He intentionally and deliberately led another to believe a particular thing is true; (c) To act upon such belief; and (d) The litigation arises out of such declaration act or omission. (2) A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. These conclusive presumptions are based upon the doctrine of estoppel in pais under the Civil Code. [Regalado] Once a contract of lease is shown to exist between the parties, the lessee cannot by any proof, however strong, overturn the conclusive presumption that the lessor has a valid title to or a better right of possession to the subject premises than the lessee. [Santos v. National Statistics Office., G.R. No. 171129, (2011)]

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What a tenant is estopped from denying is the title of his landlord at the time of the commencement of the landlord-tenant relation. If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply. Hence, the tenant may show that the landlord's title has expired or been conveyed to another or himself; and he is not estopped to deny a claim for rent, if he has been ousted or evicted by title paramount. [Ermitaño v Paglas, G.R. No. 174436 (2013)] DISPUTABLE PRESUMPTIONS UNDER THE RULES [Sec. 3, Rule 131] (1) Person is innocent of a crime or wrong; (2) Unlawful act is done with an unlawful intent; (3) Person intends the ordinary consequences of his voluntary act; (4) Person takes ordinary care of his concerns; (5) Evidence willfully suppressed would be adverse if produced; (6) Money paid by one to another was due to the latter; (7) Thing delivered by one to another belonged to the latter; (8) Obligation delivered up to the debtor has been paid; (9) Prior rents or installments had been paid when a receipt for the later ones is produced; (10) A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over are owned by him; (11)Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly; (12) Person acting in public office was regularly appointed or elected to it; (13) Official duty has been regularly performed; (14) A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (15) All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an

REMEDIAL LAW issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them; (16) Private transactions have been fair and regular; (17) Ordinary course of business has been followed; (18) There was a sufficient consideration for a contract; (19) Negotiable instrument was given or indorsed for a sufficient consideration; (20) An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (21) A writing is truly dated; (22) Letter duly directed and mailed was received in the regular course of the mail; (23) Presumptions concerning absence: (a) Ordinary but continued absence of: (i) 7 years, it being unknown WON the absentee still lives, he is considered dead for all purposes, except for those of succession (ii) 10 years—the absentee shall be considered dead for the purpose of opening his succession; but if he disappeared after the age of 75 years, an absence of 5 years shall be sufficient to open his succession (iii) 4 consecutive years—the spouse present may contract a subsequent marriage if s/he has a well-founded belief that the absent spouse is already dead; but where there is danger of death, an absence of only 2 years shall be sufficient for remarriage (b) Qualified absence (i) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft (ii) A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years (iii) A person who has been in danger of death under other circumstances and whose

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existence has not been known for 4 years (24) Acquiescence resulted from a belief that the thing Persons acting as copartners have entered into a contract of co-partnership; (25) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (26) Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry; (27) In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal; (28) Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary): acquiesced in was conformable to the law/fact; (29) Things have happened according to the ordinary course of nature and ordinary nature habits of life; When Child was Born

Presumption

Before 180 days after the solemnization of the subsequent marriage

Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage

After 180 days following the celebration of the subsequent marriage

Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.

REMEDIAL LAW (30) A thing once proved to exist continues as long as is usual with things of the nature; (31) The law has been obeyed; (32) A printed/published book, purporting to be printed/published by public authority, was so printed/published; (33) A printed/published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (34) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (35) Presumptions regarding survivorship: (Applicable for all purposes except succession) (a) When 2 persons perish in the same calamity, (b) and it is not shown who died first, (c) and there are no particular circumstances from which it can be inferred, (d) the survivorship is determined from the probabilities resulting from the strength and the age of the sexes: Person presumed Situation to have survived Both < 15 y/o

The older

Both < 60 y/o

The younger

One < 15 y/o, the other > 60 y/o

The one < 15

Both > 15 and < 60 y/o, of The male different sexes Both > 15 and 60 y/o, and The one between the other between those those ages ages (36) As between 2 or more persons called to succeed each other: If there is a doubt as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, they shall be considered to have died at the same time.

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No presumption of legitimacy or illegitim acy There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of marriage or the separation of spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. [Sec. 4, Rule 131] MCMP contends that the Contract presented by Monark is not the contract that they entered into. Yet, it has failed to present a copy of the Contract even despite the request of the trial court for it to produce its copy of the Contract. Normal business practice dictates that MCMP should have asked for and retained a copy of their agreement. Thus, MCMP's failure to present the same and even explain its failure gives rise to the disputable presumption adverse to MCMP that "evidence willfully suppressed would be adverse if produced." [MCMP Construction v. Monark Equipment, G.R. No. 201001 (2014)] The adverse presumption of suppression of evidence is not applicable when: (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. [Tarapen v. People, G.R. No. 173824 (2008)] The presumption of regularity in the performance of official duty obtains only when there is no deviation from the regular performance of duty. Where the official act in question is irregular on its face, no presumption of regularity can arise. [People v. Casabuena, G.R. No. 186455 (2014)] When there is gross disregard of the procedural safeguards set forth in Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), serious uncertainty is generated as to the identity of the seized items that the prosecution presented in evidence. Such doubt cannot be remedied by merely invoking the presumption of regularity

REMEDIAL LAW in the performance of official duties. [People v. Lagahit, G.R. No. 200877 (2014)] There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence. [PoeLlamanzares v. COMELEC, G.R. No. 221697 (2016)] NOTE: case is outside BAR coverage

I. LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE Like all other provisions under the ROC, rules of evidence must be liberally construed. [Sec. 6, Rule 1] Rules on Electronic Evidence shall likewise be construed liberally. [Sec. 2, Rule 2, Rules on Electronic Evidence]

J. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) J.1. PROOF BEYOND REASONABLE DOUBT Applicable quantum of evidence in criminal cases. The accused is entitled to an acquittal if his guilt is not shown beyond reasonable doubt. [Sec. 2, Rule 133] It does not mean such a degree of proof excluding possibility of error and producing absolute certainty. Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind. [Sec. 2, Rule 133] The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on the

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accused to prove his/her innocence. [Boac v People, G.R. No. 180597, (2008)] The prosecution must not rely on the weakness of the evidence of the defense. [Ubales v People, G.R. No. 175692, (2008); People v. Hu, G.R. No. 182232, (2008)] J.2. PREPONDERANCE OF EVIDENCE Applicable quantum of evidence in civil cases [Sec. 1, Rule 133] Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. [Habagat Grill v. DMC-Urban Property Developer, Inc., G.R. No. 155110, (2005); Bank of the Philippine Islands v. Reyes, G.R. No. 157177, (2008)] In determining preponderance of evidence, the court may consider: (1) All the facts and circumstances of the case; (2) The witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial; (3) Number of witnesses (although preponderance is not necessarily with the number of witnesses). [Sec. 1, Rule 133] J.3. SUBSTANTIAL EVIDENCE Degree of evidence required in cases filed before adm inistrative or quasi-judicial bodies. [Sec. 5, Rule 133] Also applies to petitions under the Rule on the Writ of Amparo. [Sec. 17, Rule on the Writ of Amparo] SUBSTANTIAL EVIDENCE That amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. [Sec. 5, Rule 133] SUBSTANTIAL EVIDENCE RULE Factual findings, especially when affirmed by the Court of Appeals, are accorded not only great respect but also finality, and are deemed binding upon this Court so long as

REMEDIAL LAW they are supported by substantial evidence. [Tan Brothers Corp. v. Escudero, G.R. No. 188711 (2013)] J.4. CLEAR AND CONVINCING EVIDENCE The standard of proof required in granting or denying bail in extradition cases is “clear and convincing evidence” that the potential extradee is not a flight risk and will abide with all the orders and process of the extradition court. [Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, (2007)] It must be added that the defenses of denial and improper motive can only prosper when substantiated by clear and convincing evidence. [People v. Colentava, G.R. No. 190348 (2015)] It is used for overturning disputable presumptions, such as the presumption of regularity in the performance of official duties [Portuguez v. People, G.R. No. 194499, (2015)] or the existence of a valuable consideration. [Tolentino v. Sps. Jerera, G.R. No. 179874 (2015)] NOTE, however: The addressee's “direct denial” of receipt of mail alleged to have been mailed to it defeats the presumption in Sec. 3(v), Rule 131 and shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee. [Commissioner of Internal Revenue v. Metro Star, G.R. No. 185371 (2010)] It is also the standard of proof for invoking the justifying circumstance of self-defense for the defense and proving the aggravating circumstance of treachery for the prosecution [People v. Casas, G.R. No. 212565 (2015)] The former is because having admitted the killing requires the accused to rely on the strength of his own evidence, not on the weakness of the Prosecution’s, which, even if it were weak, could not be disbelieved in view of his admission. [People v. Mediado, G.R. No. 169871 (2011)] Intermediate in character – lower than proof beyond reasonable doubt, but higher than preponderance of evidence

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II. Judicial Notice and Judicial Admissions A. What Need Not be Proved B. Matters of Judicial Notice C. Judicial Admissions D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance

A. WHAT NEED NOT BE PROVED (1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions NOTE: Evidence is also not required when the issue is purely a question of law.

B. MATTERS OF JUDICIAL NOTICE JUDICIAL NOTICE Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them. Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed. [Republic v. Sandiganbayan, G.R. No. 166859, (2011)) B.1. W HEN MANDATORY (1) Existence and territorial extent of states; (2) Their political history, forms of government, and symbols of nationality; (3) Law of nations; (4) Admiralty and maritime courts of the world and their seals; (5) Political constitution and history of the Philippines; (6) Official acts of the legislative, executive and judicial departments of the Philippines; (7) Laws of nature; (8) Measure of time; and (9) Geographical divisions. [Sec. 1, Rule 129] NOTE: It would be error for the court not to take judicial notice of an amendment to the

REMEDIAL LAW Rules of Court [Riano citing Siena Realty v. Gal-lang, G.R. No. 145169] The Management Contract entered into by petitioner and the PPA is clearly not among the matters which the courts can take judicial notice of. It cannot be considered an official act of the executive department. The PPA was only performing a proprietary function when it entered into a Management Contract with petitioner. As such, judicial notice cannot be applied. [Asian Terminals v. Malayan Insurance, G.R. No. 171406 (2011)] The RTC declared that the discrepancy arose from the fact that Barrio Catmon was previously part of Barrio Tinajeros. The RTC has authority to declare so because this is a matter subject of mandatory judicial notice. Geographical divisions are among matters that courts should take judicial notice of. [B.E. San Diego, Inc. v. CA, G.R. No. 159230 (2010)] B.2. WHEN DISCRETIONARY (1) Matters of public knowledge; (2) Matters capable of unquestionable demonstration; and (3) Matters ought to be known to judges because of their judicial functions. [Sec. 2, Rule 129] REQUISITES For the court to take judicial notice, three material requisites should be present: (a) The matter must be one of common and general knowledge; (b) It must be well and authoritatively settled and not doubtful or uncertain; (c) It must be known to be within the limits of the jurisdiction of the court. [State Prosecutors v, Muro, A.M. No. RTJ-92-876 (1994)] Judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known. [State Prosecutors v, Muro, A.M. No. RTJ-92-876 (1994)]

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WITH RESPECT TO ORDINANCES Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit. Regional Trial Courts must take judicial notice of such ordinances only: (a) When required to do so by statute e.g. in Manila as required by the city charter [City of Manila v. Garcia, et al., G.R. No. L-26053 (1967)]; and (b) In a case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in said case. [U.S. v. Blanco, G.R. No. 12435 (1917); U.S. v. Hernandez, 31 Phil. 342] Note: The guides in determining what facts may be assumed to be judicially known are either: (1) Generally known within the territorial jurisdiction of the trial court; or (2) Capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. [Riano] B.3. WHEN HEARING NECESSARY DURING THE TRIAL The court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. AFTER THE TRIAL Before judgment or on appeal: The proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. [Sec. 3, Rule 129] WITH RESPECT TO THE COURT’S OWN ACTS AND RECORDS A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court.

REMEDIAL LAW [Republic v Court of Appeals, G.R. No. 119288, (1997)] WITH RESPECT TO RECORDS OF OTHER CASES GENERAL RULE: Courts are not authorized to take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge. [Prieto v. Arroyo, G.R. No. L-17885 (1965)) EXCEPTIONS: In the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when: (1) With the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or (2) The original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending. [US v Claveria, G.R. No. G.R. No. 9282 (1915)] Courts may also take judicial notice of proceedings in other causes because of their: (1) Close connection with the matter in controversy. Ex: In a separate civil action against the administrator of an estate arising from an appeal against the report of the committee on claims appointed in the administration proceedings of the said estate, the court took judicial notice of the record of the administration proceedings to determine whether or not the appeal was taken on time, (2) To determine whether or not the case pending is a moot one or whether or not a previous ruling is applicable in the case under consideration. (3) The other case had been decided by the same court, involving the same subject matter, with the same cause of action, and was between the same parties (which was not denied), and constituted res judicata

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on the current cause before the court. [Tiburcio v. PHHC, G.R. No. L-13479, (1959)]

stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

Courts cannot take judicial notice that vehicular accidents cause whiplash injuries. [Dela Llana v Biong, G.R. No. 182356 (2013)]

Unwritten foreign law may be proved through Sec. 46, Rule 130— Published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if: (1) The court takes judicial notice, or (2) A witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

The classification of the land is obviously essential to the valuation of the property. The parties should thus have been given the opportunity to present evidence on the nature of the property before the lower court took judicial notice of the commercial nature of a portion of the subject landholdings. [LBP v. Honeycomb Farms, G.R. No. 166259 (2012)] B.4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE FOREIGN LAWS GENERAL RULE: Courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact. [YaoKee v. Sy-Gonzales, G.R. No. L-55960 (1988)] W ritten foreign law may be proved by: (1) An official publication; or (2) A duly attested and authenticated copy. [Rule 132, Sec. 24] Attested copy (1) Attestation must be made by the officer having legal custody of the record or by his deputy. [Sec. 24, Rule 132] (a) It must state, in substance, that the copy is a correct copy of the original, or a specific part thereof [Sec. 25, Rule 132] (b) It must be under the official seal of the attesting officer, if there be any, or if he be a clerk of court having a seal, under the seal of such court. [Sec. 25, Rule 132] (2) It must be accompanied by a certificate that attesting officer has custody [Sec. 24, Rule 132] (a) The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines

DOCTRINE OF PROCESSUAL PRESUMPTION In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. [Northwest Orient Airlines v Court of Appeals, G.R. No. 112573 (1995)] The court may take judicial notice of the foreign law (1) Where the foreign law is within the actual knowledge of the court such as when the law is well and generally known such as when they are well and generally known or they had been ruled upon in other cases before it and none of the parties claim otherwise [PCIB v Escolin G.R. L-27860 and L-27896 (1974], citing Moran] (2) When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [Sec. 46, Rule 130] LAW OF NATIONS The Philippines adopts the generally accepted principles of international law as part of the law of the land. [Sec. 2, Art. II, 1987 Constitution] Being part of the law of the land, they are therefore in the nature of local laws, and hence, subject to mandatory judicial notice under Sec. 1 of Rule 129.

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C. JUDICIAL ADMISSIONS To be a judicial admission, the same: (1) Must be made by a party to the case; (2) Must be made in the course of the proceedings in the same case; and NOTE: As regards judicial admissions made in the trial of another case, the same would be considered an extrajudicial admission for the purpose of the other proceeding where such admission is offered. [Riano] (3) May be verbal or written. [Sec. 4, Rule 129] Judicial admissions may be— (1) Made in: (a) Pleadings filed by the parties • This does not include pleadings superseded by an amendment. Sec. 8, Rule 10 provides that “[a]n amended pleading supersedes the pleading that it amends. However, adm issions in superseded pleadings may be received in evidence against the pleader.” Admissions in superseded pleadings have to be “received in evidence” precisely because they become extra-judicial in nature the moment the pleading containing them are superseded by virtue of amendment. (b) Stipulations of facts by the parties in a pre-trial conference [People v. Hernandez, G.R. No. 108028, (1996)] (c) The course of the trial either by verbal or written manifestations or stipulations (d) Other stages of judicial proceedings (e) Motions [Republic v. de Guzman, G.R. No. 175021 (2011), where allegations made in a motion to dismiss were considered to be, among others requiring denial by the adverse party and absence of such led to the application of Sec. 4, Rule 129] (2) Obtained through: (a) Depositions (b) Written interrogatories (c) Request for admissions NOTE: Admissions made by a party pursuant to a request for admission is for the purpose of the pending action only. [Sec. 3, Rule 26] [Regalado; See also Civil Procedure Rules]

REMEDIAL LAW

There are averments made in pleadings which are not deemed admissions even if the adverse party fails to make a specific denial of the same like immaterial allegations [Sec. 11, Rule 8], conclusions, non-ultimate facts in the pleading [Sec. 1, Rule 8] as well as the amount of liquidated damages [Sec. 11, Rule 8]. [Riano] Although an admission made during the pretrial is deemed to have been made in the course of the judicial proceeding and is necessarily a judicial admission, an adm ission m ade by the accused in the pre-trial of a crim inal case is not necessarily admissible against him. To be admissible, it must comply with the conditions set forth under Sec. 2, Rule 118: (1) Reduced in writing, and (2) Signed by the accused and counsel. [Riano] However, in the civil case instituted with the criminal case, such admission will be admissible against any other party. NOTE: The theory of adoptive adm ission has been adopted by the court in this jurisdiction. An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. The basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made. In the Angara Diary, Estrada’s options started to dwindle when the armed forces withdrew its support. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of dignified exit or resignation. Estrada did not object to the suggested option but simply said he could never leave the country. His silence on this and other related suggestions can be taken as an admission by him. [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)] JUDICIAL PROCEEDING [Sec. 3, Rule 1] (1) Civil – includes special civil actions (2) Criminal

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(3) Special Proceeding Examples of statem ents m ade that are not judicial adm issions (1) Statements made during preliminary investigation (2) Statements in a memorandum filed with the Labor Arbiter (3) Statements during Court-Annexed Mediation NOTE: Execution of judgment is part of a judicial proceeding. The Court retains control over the case until the full satisfaction of the final judgment. [People v. Gallo, G.R. No. 124736 (1999)]

REMEDIAL LAW

III. Object Evidence

A. Nature of Object Evidence B. Requisites for Admissibility C. Categories of Object Evidence D. Demonstrative Evidence E. View of an Object or Scene F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 G. Rule on DNA Evidence (A.M. No. 0611-5-SC)

A. NATURE EVIDENCE

EFFECT OF JUDICIAL ADMISSIONS It does NOT require proof. [Sec. 4, Rule 129]

(Real)

OF

OBJECT

GENERAL RULE: Judicial admissions CANNOT be contradicted. [Sec. 4, Rule 129]

OBJECT EVIDENCE Those addressed to the senses of the court [Sec. 1, Rule 130]

An original complaint, after being amended, loses its character as a judicial admission, which would have required no proof. It becomes merely an extra-judicial admission requiring a formal offer to be admissible. [Torres v CA, G.R. No. L-37420, (1984)].

A person’s appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. [People v. Rullepa y Guinto, G.R. No. 131516 (2003)]

A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. [Alfelor v Halasan, G.R. No. 165987 (2006)] HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED As an exception to the general rule, judicial admissions may be contradicted only by showing that: (1) It was made through palpable mistake; or (2) No such admission was made. [Sec. 4, Rule 129] This may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party. [Phil. Health Care Providers v. Estrada, G.R. No. 171052, (2008), citing Atillo, III v. CA (1997)]

An ocular inspection of the body of the accused is permissible. [Villaflor v. Summers, G.R., No. 16444 (1920)] The right against self-incrimination CANNOT be invoked against object evidence. [People v. Malimit, G.R. No. 109775 (1996)]

B. REQUISITES ADMISSIBILITY

FOR

Basic requisites for adm issibility [Riano] (1) Evidence must be relevant; (2) Evidence must be authenticated; (3) Authentication must be made by a competent witness; and (4) Object must be formally offered [Sec. 34, Rule 132] Requisites for the admissibility of tape recording: (1) A showing that the recording was capable of taking testimony

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REMEDIAL LAW

(2) A showing that the operator of the recording device is competent (3) Establishment of the authenticity and correctness of recording (4) A showing that no changes, deletions, or additions have been made on the recordings (5) A showing of the manner of preservation of the recording (6) Identification of speakers (7) A showing that the testimony elicited was voluntarily made without any kind of inducement. [Torralba v. People, G.R. No. 153699 (2005))

A witness can testify to those facts which he/she knows of his/her personal knowledge [Sec. 36, Rule 130]

RELEVANT

Objects made unique

Objects with no unique characteristic but are made readily identifiable

Nonunique objects

Objects with no identifying marks and cannot be marked

GENERAL RULE: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. [Sec. 1, Rule 130] EXCEPTIONS: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if— (1) Exhibition is contrary to public policy, morals or decency; (2) It would result in delays, inconvenience, unnecessary expenses, out of proportion to the evidentiary value of such object; [People v. Tavera, G.R. No. L-23172 (1925)] (3) Evidence would be confusing or misleading. (4) The testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary COMPETENT Evidence Must be Authenticated To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Authentication Must be Made by Competent W itness To authenticate the object, the witness must have the capacity to identify the object as the very thing involved in the litigation.

C. CATEGORIES EVIDENCE

OF

C.1. THE “THING ITSELF” Unique Objects that have objects readily identifiable marks

OBJECT

E.g., a caliber 45 pistol by virtue of its serial number E.g., a typical kitchen knife with identifying marks placed on it by the witness E.g., narcotic substances

C.2. DEMONSTRATIVE EVIDENCE Not the actual thing, rather it represents or “demonstrates” the real thing, e.g., photographs, motion pictures and recordings [Riano] Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be: (1) shown, presented or displayed to the court, and (2) identified, explained or authenticated (a) by the person who made the recording, or (b) by some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11, Rules on Electronic Evidence] C.3. EPHEMERAL ELECTRONIC COMMUNICATIONS Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of

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which is not recorded or retained. [Sec. 1(k), Rule 2, Rules on Electronic Evidence] How proven (1) By the testimony of a person who was a party to the same; (2) By the testimony of a person who has personal knowledge thereof; or (3) In the absence or unavailability of such witnesses, by other competent evidence [Sec. 2, Rule 11, Rules on Electronic Evidence] When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence [Sec. 2, Rule 11, Rules on Electronic Evidence].

D. VIEW OF AN OBJECT OR SCENE When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. [Sec. 1, Rule 130] Court has an inherent power to order view when there is a need to do so. [Riano, citing Sec. 1, Rule 130] Inspection may be made inside or outside the courtroom. An inspection outside should be made in the presence of the parties or at least with the previous notice to them. [In Re Climaco, AC No. 134-J (1974); Riano, citing Moran]

E. CHAIN OF CUSTODY IN RELATION TO SEC. 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 MEANING OF CHAIN OF CUSTODY A method of authenticating evidence which requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence [Lopez v People, G.R. No. 172953 (2008)]

REMEDIAL LAW PURPOSE OF ESTABLISHING CHAIN OF CUSTODY To guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic. [Riano] NOTE: A unique characteristic of narcotic substances is that they are not readily identifiable. Hence, in authenticating the same, a more stringent standard than that applied to readily identifiable objects is necessary. This exacting standard entails a chain of custody of the item with sufficient completeness to render it improbable for the original item to be exchanged with another, contaminated or tampered with [Lopez v. People, G.R. No. 172953 (2008)) ESTABLISHING CHAIN OF CUSTODY IN DRUG CASES The apprehending team having initial custody and control of the drugs shall: (1) immediately after seizure and confiscation, (2) physically inventory, and (3) photograph the same, (4) in the presence of (a) accused or the person/s from whom the drugs were seized, or his/her representative or counsel (b) representative from the media (c) a representative from the Department of Justice (d) any elected public official (5) who shall be required to sign the copies of the inventory and be given a copy thereof. [Sec. 21, Art. II, RA 9165 or the Comprehensive Dangerous Drugs Act of 2002] EFFECT OF NON-COMPLIANCE Non-compliance with Sec. 21 of RA 9165, particularly the making of the inventory and their photographing of the drugs confiscated will not render the drugs inadmissible in evidence. The issue if there is non-compliance with the law is not admissibility, but of weight – evidentiary merit or probative value. [People v Del Monte, G.R. No. 179940 (2008)]

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F. RULE ON DNA EVIDENCE [AM NO. 06-11-5-SC] DNA EVIDENCE The totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. [Sec. 3(c)] F.1. APPLICATION FOR DNA TESTING ORDER WITH PRIOR COURT ORDER (1) The appropriate court may, at any time, either (i) motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation, order a DNA testing. (2) Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. [Sec. 4] WITHOUT PRIOR COURT ORDER (1) This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party. [Sec. 4] (2) Post-conviction DNA testing [Sec. 6] F.2. POST-CONVICTION DNA TESTING HOW OBTAINED (1) Without need of prior court order (2) Available to the prosecution or any person convicted by final and executory judgment REQUISITES

REMEDIAL LAW (1) A biological sample exists (2) Such sample is relevant to the case (3) The testing would probably result in the reversal or modification of the judgment of conviction. [Sec. 6] REMEDY IF RESULTS FAVORABLE TO THE CONVICT Convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin, CA or SC or any member of said courts. [Sec. 10] GENERAL RULE: If the court, after due hearing, finds the petition meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. [Sec. 10] EXCEPTION: Continued detention justified for a lawful cause. [Sec. 10]

is

F.3. ASSESSING DNA EVIDENCE FACTORS IN ASSESSING THE PROBATIVE VALUE OF DNA EVIDENCE (1) Chain of custody (a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination (2) DNA testing m ethodology (a) Procedure followed in analyzing the samples (b) Advantages and disadvantages of the procedure (c) Compliance with scientifically valid standards in conducting the tests (3) Forensic DNA laboratory (a) Accreditation by any reputable standards-setting institution (b) Qualification of the analyst who conducted the tests (c) If not accredited, relevant experience of the laboratory in forensic work and its credibility (4) Reliability of the testing result [Sec. 7] Vallejo standards In assessing the probative value of DNA evidence, courts should consider the following: (a) How the samples were collected (b) How they were handled

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(c) The possibility of contamination of the samples (d) The procedure followed in analyzing the samples, whether the proper standards and procedures were followed (e) Qualification of the analyst who conducted the tests [People v. Vallejo, G.R. No. 144656 (2002)] Factors that Determine the Reliability of the DNA Testing M ethodology (1) Falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested (2) Subject to peer review and publication of the principles or methods (3) General acceptance of the principles or methods by the scientific community (4) Existence and maintenance of standards and controls to ensure the correctness of data generated (5) Existence of an appropriate reference population database (6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles; and (7) Significance and limitation of statistical calculations used in comparing DNA profiles [Sec. 5]

REMEDIAL LAW

IV. Documentary Evidence A. Meaning of Documentary Evidence B. Requisites for Admissibility C. Best Evidence Rule D. Rules on Electronic Evidence [AM No. 01-7-01- SC] E. Parol Evidence Rule F. Authentication and Proof of Documents

A. MEANING OF DOCUMENTARY EVIDENCE Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Sec. 2, Rule 130] To be deemed documentary evidence, such writings or materials must be offered as proof of their contents. If offered for some other purpose, they constitute object evidence.

B. REQUISITES FOR ADMISSIBILITY (1) Relevant (2) Competent (a) Document be Authenticated (b) Authenticated by Competent Witness (3) Formally Offered in Evidence [Riano]

C. BEST EVIDENCE RULE When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. [Sec. 3, Rule 130] C.1. APPLICABILITY W hen applicable (General Rule) Only when the subject of inquiry is the contents of a document [Sec. 3, Rule 130] W hen not applicable When the issue is only as to whether or not such document was actually executed or in PAGE 378 OF 425

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the circumstances relevant to its execution. [People v Tandoy, G.R. No. 80505, (1990)) The Best Evidence Rule applies only when the terms of a writing are in issue. When the evidence sought to be introduced concerns external facts, such as the existence, execution or delivery of the writing, without reference to its terms, the Best Evidence Rule cannot be invoked. In such a case, secondary evidence may be admitted even without accounting for the original. The Best Evidence Rule was not applicable because the terms of the deed of sale with right to repurchase were not the issue. [Heirs of Prodon v., Heirs of Alvarez, G.R. No. 170604 (2013)] Affidavits and depositions are considered as not being the best evidence, hence not admissible if the affiants or deponents are available as witnesses. [Regalado citing 4 Martin, op cit., p. 82] C.2. ORIGINAL DOCUMENT (1) A document, the contents of which is the subject of inquiry (2) All such copies executed at or about the same time, and with identical contents NOTE: Carbon copies are deemed duplicate originals. [People v Tan, G.R. No. (1959); Skunac v. Sylianteng, G.R. No. 205879 (2014)) The picture images of the ballots, as scanned and recorded by the PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by the voter, as defined by Sec. 2(3) of RA 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest. [VinzonsChato v. House of Representatives Electoral Tribunal, G.R. No. 199149, (2013]] (3) All such entries made and repeated in the regular course of business, at/near the time of the transaction [Sec. 4, Rule 130]

REMEDIAL LAW C.3. EXCEPTIONS [SEC. 3, RULE 130] WHEN THE ORIGINAL HAS BEEN LOST OR DESTROYED, OR CANNOT BE PRODUCED IN COURT, WITHOUT BAD FAITH ON THE OFFEROR’S PART Proponent must prove due execution or existence, and the cause of the loss, destruction or unavailability of the original [Sec. 5, Rule 130] and reasonable diligence and good faith in the search for/attempt to produce the original [Tan v. CA, G.R. No. L56866 (1985)) ALL duplicates or counterparts must be accounted for before using copies [De Vera v. Aguilar, GR. No. 83377 (1993)] Due execution of the document should be proved through the testimony of either: (a) the person or persons who executed it; (b) the person before whom its execution was acknowledged; or (c) any person who was present and saw it executed and delivered, or who, after its execution and delivery, saw it and recognized the signatures, or by a person to whom the parties to the instruments had previously confessed the execution thereof. [Director of Lands v. CA, G.R. No. L-29575 (1971)) W hat to present instead (in order) (a) By a copy (b) By a recital of its contents in some authentic document (c) By the testimony of witnesses [Rule 130, Sec. 5] WHEN THE ORIGINAL IS IN THE CUSTODY OR UNDER THE CONTROL OF THE PARTY AGAINST WHOM IT IS OFFERED, AND THE LATTER FAILS TO PRODUCE IT AFTER REASONABLE NOTICE W hat to present instead Same as when lost, destroyed, or cannot be produced in court [Sec. 6, Rule 130] WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS OR OTHER DOCUMENTS WHICH CANNOT BE EXAMINED IN COURT WITHOUT GREAT LOSS OF TIME, AND THE FACT SOUNDS TO

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BE ESTABLISHED FROM THEM IS ONLY THE GENERAL RESULT OF THE WHOLE WHEN THE ORIGINAL IS A PUBLIC RECORD IN THE CUSTORY OF A PUBLIC OFFICER OR IS RECORDED IN A PUBLIC OFFICE W hat to present instead Certified copy issued by the public officer in custody thereof OTHER INSTANCES When the original is outside the jurisdiction of the court, secondary evidence is admissible [PNB v. Olila, 98 Phil 1002, unreported (1956)]

D. RULES ON ELECTRONIC EVIDENCE [AM NO. 01-7-01-SC] D.1. APPLICABILITY These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. [Sec. 2, Rule 1, REE] APPLICATION TO CRIMINAL ACTIONS While the case of Ang v. CA [G.R. No. 182835 (2010]) held that the Rules on Electronic Evidence applies only to civil actions, quasijudicial proceedings and administrative proceeding, not to criminal action, in People vs. Enojas [G.R. No. 204894 (2014)], the SC upheld the RTC’s admission of text messages as evidence in a murder case as conforming with the Court’s earlier Resolution [AM No. 01-7-01, dated September 24, 2002] applying the Rules on Electronic Evidence to criminal actions effective October 14, 2002. FUNCTIONAL EQUIVALENCE Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. [Sec. 1, Rule 3]

REMEDIAL LAW D.2. ADMISSIBILITY OF ELECTRONIC DOCUMENTS An electronic document is admissible in evidence if it: (a) complies with the rules on admissibility prescribed by the Rules of Court and related laws and (b) is authenticated in the manner prescribed by these Rules. [Sec. 2, Rule 3] ELECTRONIC EVIDENCE AND THE BEST EVIDENCE RULE An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if: (1) it is a printout or output readable by sight or other means, (2) shown to reflect the data accurately [Sec. 1, Rule 4] COPIES AS EQUIVALENT OF ORIGINAL When a document is in two or more copies: (1) executed at or about the same time with identical contents, or (2) is a counterpart produced by: (a) the same impression as the original, or (b) from the same matrix, or (c) by mechanical or electronic rerecording, or (d) by chemical reproduction, (e) or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. [Sec. 2, Rule 4] EXCEPTION: Copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit a copy in lieu of the original. ELECTRONIC DOCUMENT (1) Information or the representation of information, data, figures, symbols or other modes of written expression, (2) Described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed,

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(3) Which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. (4) It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”. [Sec. 1(h), REE] ELECTRONIC DATA MESSAGE Information generated, sent, received or stored by electronic, optical or similar means. [Sec. 1(g), REE] D.3. EVIDENTIARY WEIGHT OF ELECTRONIC EVIDENCE [SEC. 1, RULE 7] In assessing the evidentiary weight of an electronic document, the following factors may be considered: (1) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to (a) input and output procedures, (b) controls, tests and checks for accuracy and reliability of the electronic data message or document, (c) in the light of all the circumstances as well as any relevant agreement; (2) The reliability of the manner in which its originator was identified; (3) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or

REMEDIAL LAW (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it [Sec. 2, Rule 7] (4) The familiarity of the witness or the person who made the entry with the communication and information system; (5) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (6) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. Text messages have been classified as “ephemeral electronic communication” under Sec 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.” [Vidallon-Magtolis v. Salud, AM No. CA-0520-P (2005)] D.4. METHOD OF PROOF (1) Affidavit of Evidence [Sec. 1, Rule 9] (a) Must state facts (i) of direct personal knowledge, or (ii) based on authentic records (b) Must affirmatively show the competence of the affiant to testify on the matters contained in the affidavit (2) Cross-Examination of Deponent [Sec. 2, Rule 9] (a) Affiant shall affirm the contents of the affidavit in open court. (b) Affiant may be cross-examined as a matter of right by the adverse party. AUTHENTICATION OF ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES [Secs. 1-3, Rule 5; Secs. 1-2, Rule 11, REE] Of electronic documents Burden of Proving Authenticity: The person seeking to introduce the electronic document in any legal proceeding has the

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burden of proving its authenticity. [Sec. 1, Rule 5] Before any private electronic document can be offered as authentic is received in evidence, its authenticity must be proved by any of the following manner: (1) By evidence that it had been digitally signed by the person purported to have signed the same; (2) By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (3) By other evidence showing its integrity and reliability to the satisfaction of the judge. [Sec. 2, Rule 5] Of electronic signatures [Sec. 2, Rule 6] (1) By evidence that a method or process was utilized to establish a digital signature and verify the same; (2) By any other means provided by law; or (3) By any other means satisfactory to the judge BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE What Constitute Business Records: Records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes [Sec. 1(b), Rule 2] Requisites to an exception to the rule on hearsay evidence A memorandum, report, record, or data compilation of acts, events, conditions, opinions or diagnosis: (1) Made by electronic, optical or other similar means (2) Made at or near the time of or from transmission or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a business activity, (5) Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means

REMEDIAL LAW (6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses [Sec. 1, Rule 8] The presumption provided above m ay be overcom e by evidence of— (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the preparation, transmission or storage thereof (3) Untrustworthiness of the circumstances of the preparation, transmission or storage thereof [Sec. 2, Rule 8] AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. [Sec. 1(k), Rule 2] Admissibility of Ephemeral Evidence Audio, video and similar evidence, to be admissible shall be— (1) shown, presented or displayed to the court and (2) identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11] Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. [Sec. 2, Rule 11] If ephemeral electronic communication and recording of telephone conversation under Sec. 2, Rule 11 of the REE are recorded or embodied in an electronic document, then the provisions of Rule 5 (“Authentication of Electronic Documents”) shall apply.

E. PAROL EVIDENCE RULE Parol evidence Any evidence aliunde, whether oral or written, which is intended or tends to vary or

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contradict a complete and enforceable agreement embodied in a document. [Regalado]

REMEDIAL LAW Imperfection includes inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions [Regalado]

E.1. APPLICABILITY APPLICATION OF THE PAROL EVIDENCE RULE (GENERAL RULE) When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. [Sec. 9, Rule 130] W here not applicable It does not apply when third parties are involved or those not privy to the written instrument in question and does not base a claim or assent a right originating in the instrument. [Lechugas v. CA, G.R. No. L39972 & L-40300 (1986)) E.2. INTRODUCTION AND PRESENTATION OF PAROL EVIDENCE HOW PAROL EVIDENCE CAN BE INTRODUCED (1) A party presents parol evidence to modify, explain or add to the terms of a written agreement AND (2) Ground/s for presenting parol evidence is put in issue in the pleading GROUNDS EVIDENCE

FOR

PRESENTING

PAROL

Intrinsic am biguity, m istake or im perfection in the written agreement Intrinsic ambiguity – writing admits of two constructions both of which are in harmony with the language used

Failure of the written agreement to express the true intent and agreement of the parties thereto Purpose: To enable court to ascertain the true intention of the parties [Tolentino v. Gonzales Sy Chiam, G.R. No. 26085 (1927)] Validity of the written agreem ent Parol Evidence may be admitted to show: (1) True consideration of a contract (2) Want/Illegality of consideration (3) Incapacity of parties (4) Fictitious/simulated contract (5) Fraud in inducement [Regalado] Existence of other term s agreed to by the parties or their successors in interest after the execution of the written agreement. E.3. COLLATERAL AGREEMENTS GENERAL RULE: Parol Evidence Rules applies EXCEPTIONS: (1) Collateral agreement is not inconsistent with the terms of the written contract (2) Collateral agreement has not been integrated in and is independent of the written contract (3) Collateral agreement is subsequent to and novatory of the written contract (4) Collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective (does not apply to conditions subsequent not stated in the agreement) [Regalado]

NOTE: If ambiguity is intermediate (both latent and patent), parol evidence is admissible [Regalado, citing 20 Am. Jur 1011] Mistake refers to mistake of fact which is mutual to the parties [BPI v. Fidelity and Surety, Co., G.R. No. L-26743 (1927)]

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E.4. DISTINCTIONS BETWEEN THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE [Regalado] Best Evidence Rule

Parol Evidence Rule

Contemplates the situation wherein the original writing is not Presupposes that the available and/or there original document is is a dispute as to available in court whether said writing is the original

Prohibits the varying of the terms of a written agreement

Applies to all kinds of documents

Applies only to documents contractual in nature (Exception: wills)

Can be invoked only when the controversy Can be invoked by any is between the party to an action parties to the written regardless of WON agreement, their such party participated privies or any party in the writing involved directly affected thereby

F. AUTHENTICATION AND PROOF OF DOCUMENTS MEANING OF AUTHENTICATION The preliminary step in showing admissibility of evidence

the

Proving that the objects and documents presented in evidence are not counterfeit F.1. PUBLIC AND PRIVATE DOCUMENTS When offered as authentic, due execution and authenticity must be proved

PUBLIC DOCUMENTS (3) Written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country (4) Public records, kept in the Philippines, of private documents required by law to be entered therein (5) Notarial documents (except last wills and testaments) [Sec. 19, Rule 132] All other writings are private.

Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of WON it varies the contents of the original

Private Documents

REMEDIAL LAW

Public Documents Admissible without further proof of its due execution and authenticity

A public document enjoys the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution. To overcome this presumption, there must be clear and convincing evidence. [Chua v. Westmont Bank, G.R. No. 182650 (2012)] A public document is self-authenticating and requires no further authentication in order to be presented as evidence in court. [Patula v. People, G.R. No. 164457 (2012)] Proof of public documents (1) Records of Official Acts [Sec. 24, Rule 132] (2) By an official publication thereof; or (3) By an attested copy of the document NOTE: Documents without documentary stamp affixed thereto, unless specifically exempted by law, may not be admitted or used in evidence in any court until the requisite stamp shall have been affixed. [Sec. 201, NIRC] Also, there is a presumption that the requisite stamps have been affixed in the original copy when only the carbon copies of the same is available. [Mahilum v CA, G.R. No. L-17666 (1966)) PRIVATE DOCUMENTS A private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. [Patula v. People, G.R. No. 164457 (2012)]

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W hen offered as authentic GENERAL RULE: Authentication necessary How to Prove Due Execution and Authenticity (1) By anyone who saw the document executed or written; OR (2) By evidence of the genuineness of the signature or handwriting of the maker [Sec. 20, Rule 132] Before a private document is admitted in evidence, it must be authenticated either by: (1) the person who executed it, (2) the person before whom its execution was acknowledged, (3) any person who was present and saw it executed, or (4) who after its execution, saw it and recognized the signatures, or (5) the person to whom the parties to the instruments had previously confessed execution thereof. [Malayan Insurance v. Phil. Nails and Wires Corp., G.R. No. 138084 (2002)] Private documents in the custody of PCGG are not public documents. What became public are not the private documents (themselves) but the recording of it in the PCGG. If a private writing itself is inserted officially into a public record, its record, its recordation, or its incorporation into the public record becomes a public document, but that does not make the private writing itself a public document so as to make it admissible without authentication. [Republic v Sandiganbayan, G.R. No. 188881, (2014)] Additional Modes of Authentication under American Jurisprudence [Regalado] (1) Doctrine of Self-Authentication – Where the facts in writing could only have been known by the writer (2) Rule of Authentication by adverse party – Where the reply of the adverse party refers to and affirms the transmittal to him and his receipt of the letter in question, a copy of which the proponent is offering as evidence

REMEDIAL LAW W hen evidence of authenticity of a private writing is not required The requirement of authentication of a private document is excused only in four instances, specifically: (1) when the document is an ancient one which is: (a) More than 30 years old; (b) Produced from a custody in which it would naturally be found if genuine; and (c) Unblemished by any alterations or circumstances of suspicion. [Sec. 21, Rule 132] (2) when the genuineness and authenticity of the actionable document have not been specifically denied under oath by the adverse party; (3) when the genuineness and authenticity of the document have been admitted; or (4) when the document is not being offered as genuine. F.3. OTHER INSTANCES WHEN AUTHENTICATION IS NOT REQUIRED (1) Writing is a public document/record [Sec. 19, Rule 132] (2) Notarial document acknowledged, proved/certified [Sec. 30, Rule 132] (3) When authenticity and due execution has been admitted as in the case of actionable documents under Sec. 8, Rule 8 (4) That which it is claimed to be: Authentication not necessary [Sec. 20, Rule 132] F.4. HOW TO PROVE GENUINENESS OF HANDW RITING (1) By any witness who believes it to be the handwriting of such person because: (a) he has seen the person write; (b) he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Sec. 22, Rule 132] (2) A comparison by the witness or the court of the questioned handwriting, and admitted genuine specimens thereof or proved to be genuine to the satisfaction of the judge [Sec. 22, Rule 132] (3) Expert evidence [Sec. 49, Rule 130]

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F.5. ATTESTATION OF A COPY OF A DOCUMENT OR RECORD [Sec. 25, Rule 132] (1) Must be made by the officer having the legal custody of the record, or by his deputy (2) Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be (3) Must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court If the record is not kept in the Philippines, attested copy must be accompanied with a certificate, which: (1) May be made by a secretary of the embassy/legation, consul-general, consul, vice-consul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept; (2) Must state that such officer has the custody; and (3) Must be authenticated by the seal of his office. [Sec. 24, Rule 132] F.6. PUBLIC RECORDS OF PRIVATE DOCUMENTS [Sec. 27, Rule 132] (1) By the original record; or (2) By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. [Sec. 27, Rule 132] NOTE: Please refer to “Attestation of Copy” under Rule 132, Sec. 25. F.7. ATTACKING RECORDS PROOF OF LACK OF RECORD [Sec. 28, Rule 132] (1) Written statement (a) Signed by an officer having the custody of an official record or by his deputy (b) Must state that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office (2) Certificate (a) Accompanying the written statement (b) Must state that that such officer has the custody

REMEDIAL LAW

WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD [Sec. 29, Rule 132] (4) Want of jurisdiction in the court or judicial officer; (5) Collusion between the parties; OR (6) Fraud in the party offering the record, with respect to the proceedings F.8. PROOF OF NOTARIAL DOCUMENTS NOTARIAL DOCUMENTS (except last wills and testaments) Every instrument duly acknowledged or proved and certified as provided by law which may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. [Sec. 30, Rule 132] Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Sec. 23, Rule 132] F.9. HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT [SEC. 31, RULE 132] WHEN APPLICABLE (1) Document is being presented as genuine; (2) Document has been altered and appears to have been altered; (3) Alteration was made after execution of the document; and (4) Alteration is in a part material to the question in dispute WHAT TO SHOW ABOUT ALTERATION (1) Was made by another, without his concurrence; (2) Was made with the consent of the parties affected by it; (3) Was otherwise properly or innocently made; or (4) Did not change the meaning or language of the instrument. WHOSE BURDEN OF PROOF Party producing the document must account for the alteration. Failure to do so would result in the inadmissibility of evidence.

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F.10. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE [Sec. 33, Rule 132] NOT admissible unless accompanied by a translation into English or Filipino. Parties or their attorneys are directed to have the translation prepared before trial. The OCT written in the Spanish language already formed part of the records of the case for failure of the adverse parties to interpose a timely objection when it was offered as evidence. Any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent and admitted evidence. [Heirs of Doronio v. Heirs of Doronio, G.R. No. 169454 (2007)]

REMEDIAL LAW

V. Evidence

Testimonial

A. QUALIFICATIONS OF A WITNESS WITNESS A witness is one who, being present, personally sees or perceives a thing, a beholder, spectator or eyewitness. One who testifies to what he has seen or heard, or otherwise observed. [Herrera citing Black’s Law Dictionary] QUALIFICATIONS OF A WITNESS [Sec. 20, Rule 130] All persons who can perceive, and, in perceiving, can make their known perception to others, may be witnesses. Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. QUALIFICATIONS OF A WITNESS [Herrera] (1) To observe, the testimonial quality of perception; [Sec. 20, Rule 130] (2) To remember, the testimonial quality of memory; (3) To relate, the testimonial quality of narration; [Sec. 20, Rule 130] (4) To recognize a duty to tell the truth, the testimonial quality of sincerity; [Sec. 1, Rule 132] (5) He must not possess any of the disqualifications imposed by the law or rules. [Sec. 1, Rule 132] A deaf-mute is competent to be a witness so long as he/she has the faculty to make observations and he/she can make those observations known to others. [People v. Aleman y Longhas, G.R. No. 181539 (2013)] Parties declared in default are not disqualified from taking the witness stand for non-disqualified parties. The law does not provide default as an exception. [Marcos v. Heirs of Navarro, G.R. No. 198240 (2013)].

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as a witness for the party presenting him or her. [AFP Retirement and Separation Benefits System v. Republic, G.R. No. 188956 (2013)] W hen determined Qualification of a witness is determined at the time the said witness are produced for examination or at the taking of their depositions. With respect to children of tender years, competence at the time of the occurrence is also taken into account. In case person is convicted of a crime GENERAL RULE: Not disqualified EXCEPTION: Otherwise provided by law, e.g. under Art. 821 of the Civil Code, a person convicted of any of the following crimes cannot be a witness to a will: (a) Falsification of documents, (b) Perjury; or (c) False testimony

B. COMPETENCY CREDIBILITY

VERSUS

COMPETENCY OF A WITNESS [Herrera] (1) One is qualified to take the witness stand if: (2) He is capable of perceiving at the time of the occurrence of the fact; and (3) He came make his perception known Competence

Credibility

A matter of law and of rules

Has nothing to do with the law or rules

Refers to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others

Refers to the weight and trustworthiness or reliability of the testimony

REMEDIAL LAW [Icutanim v. Hernandez, G.R. No. L-1709, June 8, 1948] CREDIBILITY NOT REVIEWABLE Credibility of a witness is a question of fact, which is not reviewable by the Supreme Court [Addenbrook v. People, G.R. No. L-22995 (1967]) TWO KINDS OF INCOMPETENCY TO TESTIFY [Herrera] Absolute Partial Forbidden to testify only on certain matters specified under Secs. 22-23, Forbidden to testify Rule 130 due to on any matter interest or relationship, or to privileges of the parties COMPETENCY PRESUMED A person who takes the witness stand is presumed to possess the qualifications of a witness. His competence may be questioned by the other party by interposing an objection. [Herrera] INCOMPETENCE AND PRIVILEGE [Herrera] Incompetence Privilege Excuses a witness Disqualifies a witness from testifying

C. DISQUALIFICATIONS WITNESSES

OF

EFFECT OF INTEREST IN THE SUBJECT MATTER [Regalado] A person is not disqualified (except if covered by the Dead Man’s statute) Interest only affects credibility, not competency.

EFFECT OF RELATIONSHIP GENERAL RULE: Mere relationship does not impair credibility.

EXCEPTION: REMEDY FOR ERRORS OR QUESTIONS ON To warrant rejection, it must be clearly shown: COMPETENCE (1) Testimony was inherently improbable or Appeal, not certiorari, is the proper remedy defective for the correction of any error as to the (2) Improper/evil motives had moved the witness competency of a witness committed by an to incriminate falsely inferior court in the course of the trial. PAGE 388 OF 425

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C.1. BY REASON OF MENTAL CAPACITY OR IMMATURITY BY REASON OF MENTAL INCAPACITY [Sec. 21(a), Rule 130] Requisites (1) Person must be incapable of intelligently making known his perception to others (2) His incapability must exist at the time of his production for examination [Riano]

BY REASON OF IMMATURITY [Sec. 21(b), Rule 130] Requisites (1) Mental maturity of the witness (child) must render him incapable of perceiving the facts respecting which he is examined. (2) He is incapable of relating his perception truthfully. [Riano]

CONCEPTS When incapacity matters for disqualification Incapacity must occur at the time the witness perceives the event. Presumption of sanity [Herrera] GENERAL RULE: The law presumes that every person is of sound mind, in the absence of proof to the contrary. [Art. 800, Civil Code] EXCEPTION: if the witness is a lawful inmate of an asylum for the insane. [Herrera citing Torres v. Lopez (1926)] A mental retardate is not therefore, per se, disqualified from being a witness. As long as his senses can perceive facts and if he can convey his perceptions in court, he can be a witness. [People v. Española, G.R. No. 119308 (1997), citing People v. Salomon, G.R. No. 96848 (1994)] Unsound mind (1) Includes any mental aberration (organic/functional), induced by drugs/hypnosis (2) Not disqualified as long as the witness can convey ideas by words/signs Deaf-Mutes Deaf-mutes are competent witnesses where they have sufficient knowledge to understand and appreciate the sanctity of an oath and comprehend the facts as to which they wish to

REMEDIAL LAW speak, and are capable of communicating their Ideas with respect thereto. [People v. Hayag, G.R. No. L-38635 (1980)) They may give evidence by signs, or through an interpreter or in writing, and such testimony, through an interpreter, is not hearsay. But sign language must be capable of verification. [People v. Hayag, GR No. L-38635 (1980))

CHILD WITNESS

The competency of a child witness is determined by his capacity for observation, recollection and communication. [People v. Mendoza, G.R. No. 113791 (1996))

C.2. BY REASON OF MARRIAGE

Also known Martial Disqualification Rule or Spousal Immunity

REQUISITES [Sec. 22, Rule 130]

(1) Marriage is valid and existing as of the time of the offer of testimony. (2) That the spouse for or against whom the testimony is offered is a party to the case; (3) That the case is not one against the other. [Herrera] EXCEPTIONS: [Sec. 22, Rule 130] Spouse may testify for or against the other even without the consent of the latter— (1) In a civil case by one against the other; or (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants.

RATIONALE [Alvarez v. Ramirez, G.R. No. 143439 (2005)] (1) There is identity of interests between husband and wife; (2) If one were to testify for or against the other, there is a consequent danger of perjury; (3) Policy of the law is to guard the security and confidence of private life, and to prevent domestic disunion and unhappiness; and (4) Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other.

DURATION The privilege lasts only during the marriage and terminates upon divorce or annulment or death. [Herrera]

SCOPE OF RULE The rule also includes utterance as to facts or mere production of documents. It does not only prevent disclosure of matters communicated in nuptial confidence but is an absolute prohibition

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against the spouse’s testifying to any facts affecting the other however these facts may have been acquired. [Herrera]

WAIVER OF DISQUALIFICATION

If a spouse imputed the conviction to the other.

SPOUSES AS CO-ACCUSED

The other cannot be called as an adverse party witness under this Rule.

C.3. BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY (ALSO KNOWN AS “DEAD MAN’S STATUTE” OR “SURVIVORSHIP RULE”) Also known as Dead Survivorship Rule

Man’s

Statute

or

REQUISITES [Sec. 23, Rule 130]

(1) Defendant is the executor or administrator or a representative of the deceased or of the person of unsound mind; (2) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind; (3) Witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and (4) Subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

APPLICABILITY

This rule is applied only to civil cases.

REMEDIAL LAW (1) The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence other than the testimony of the survivor. [Ong Chua v. Carr, G.R. No. L-29512 (1929)) (2) He may also testify where he was the one sued by the decedent’s estate since the action then is not against the estate. [Tongco v. Vianzon, G.R. No. 27498 (1927)) (3) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. [Goñi v. CA, G.R. No. L-27434 (1986)] (4) No application to a mere witness (5) No application to nominal parties, officers and stockholders against corporations (6) Cannot be used in a negative testimony (7) If the defendant did not object (8) When the party cross-examines the witness (9) Where the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased [Icard v. Marasigan, G.R. No. L-47442 (1941)] (10) Agent of the deceased as to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify [Goñi v. CA, G.R. No. L-27434 (1986)] What the Dead Man’s Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony. [Sanson v. CA, G.R. No. 127745 (2003)]

It is still applicable even if the property has already been judicially adjudicated to the heirs regardless whether the deceased died before or after the suit.

C.4. BY REASON COMMUNICATIONS

RATIONALE

PRIVILEGE

To close lips of the plaintiff when death has closed the lips of the defendant in order to discourage perjury and protect the estate from fictitious claims.

SCOPE Facts favorable to the deceased are not prohibited The rule does not operate to exclude testimony favorable to the deceased because the rule seeks to protect his interests. [Herrera, citing Go Chi Gun v. Co Cho, G.R. No. (L-13342 (1962), which cited Jones on Evidence]

OF

PRIVILEGED

A privilege is a rule of law that, to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he otherwise could be compelled to give, or permits someone usually one of the parties, to prevent the witness from revealing certain information. [Herrera]

HUSBAND AND WIFE [Sec. 24(a), Rule 130] Also known as marital privilege

Rationale Confidential nature of the privilege; to preserve marital and domestic relations.

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REMEDIAL LAW

Requisites: (1) There must be a valid marriage between the husband and wife; (2) There is a communication received in confidence by one from the other; and (3) The confidential communication was received during the marriage. (4) The spouse against whom such is being offered has not given his consent to such testimony.

Marital Disqualification [Sec. 22] Constitutes a total prohibition on any testimony for or against the spouse of the witness.

A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died the since the same was not intended to be confidential. [US v. Antipolo, G.R. No. L13109 (1918)]

Requisites (1) There must be a communication made by the client to the attorney or an advice given by the attorney to his client; (2) The communication must have been given in confidence; and (3) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. (4) The client has not given his consent to the attorney’s testimony thereon.

Scope: “Any communication” Includes utterances, either oral or written, or acts. [Herrera] When not applicable (1) When the communication was not intended to be kept in confidence (2) When the communication was made prior to the marriage (3) When the communication was overheard/comes into the hands of a third party whether legally or not (4) Waiver of the privilege (5) In a civil case by one against the other (6) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. Waiver [Herrera] (1) Failure of the spouse to object; or (2) Calling spouse as witness on cross examination (3) Any conduct constructed as implied consent. The objection to the competency of the spouse must be made when he or she is first offered as a witness. The incompetency is waived by failure to make a timely objection to the admission of spouse’s testimony. [People v. Pasensoy, G. R. No. 140634 (2002)] In Contrast to Marital Marital Disqualification [Sec. 22] One spouse should be a party to the case; Applies only if the marriage is existing at the time the testimony is offered; and

Disqualification Marital Privilege [Sec. 24(a)] Neither of the spouses needs to be a party; Does not cease even after the marriage is dissolved; and

Marital Privilege [Sec. 24(a)] Prohibition is limited to testimony on confidential communications between spouses.

ATTORNEY AND CLIENT [Sec 24(b), Rule 130]

Attorney’s secretary, stenographer, or clerk are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer. Subject-matter of the privilege [Herrera] (1) Communications (2) Observations by the lawyer (regardless of medium of transmission which may include oral or written words and actions) (3) Tangible evidence delivered to a lawyer (4) Documents entrusted to a lawyer When not applicable (1) When the communication made was not for the purpose of creating relationship (even if afterwards he become counsel) (2) When the communication was intended to be made public (3) When the communication was intended to be communicated to others (4) When the communication was intended for an unlawful purpose (5) When the communication was received from third persons not acting in behalf/as agents of clients (6) When the communication was made in the presence of third parties stranger to the attorney-client relationship (7) When the communication has something to do with a client’s contemplated criminal act [People v. Sandiganbayan, G.R. Nos. 115439-41 (1997)] (8) When there is a controversy between the client and attorney [Herrera]

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Identity of Client GENERAL RULE: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. EXCEPTIONS: [Regala v. Sandiganbayan, G.R. No. 105938 and G.R. No. 108113 (1996)]: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. Duration of the privilege In the absence of a statute, the privilege is permanent. It may even be claimed by a client’s executor or administrator after the client’s death. [Herrera]

PHYSICIAN AND PATIENT [Sec. 24(c), Rule 130] Requisites: [Krohn v. CA, G.R. No. 108854 (1994), citing Lim v. CA, G.R. No. 91114 (1992)] (1) Physician is authorized to practice medicine, surgery or obstetrics; (2) Information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; (3) The information was necessary to enable him to act in that capacity; (4) Information, advice or treatment, if revealed, would blacken the reputation of the patient; and (5) Privilege is invoked in a civil case, whether or not the patient is a party thereto. Physician-patient relationship entered into voluntarily.

need

not

be

Where applicable (1) All forms of communication, advice or treatment (2) Information acquired by the physician from his personal observations and examination of the patient

W hen not applicable

(1) Communication was not given in confidence (2) Communication was irrelevant to the professional employment (3) Communication was made for an unlawful purpose

REMEDIAL LAW (4) Communication was intended for the commission/concealment of a crime (5) Communication was intended to be made public/divulged in court (6) When there was a waiver (7) When the doctor was presented as an expert witness and only hypothetical problems were presented to him. [Lim v. CA, G.R. No. 91114 (1992)] Waiver (1) Express waiver – may only be done by the patient. (2) Implied waiver [Herrera] (a) By failing to object (b) When the patient testifies (c) A testator procures an attending doctor to subscribe his will as an attesting witness (d) Disclosure of the privileged information either made or acquiesced by the privilege holder before trial (e) Where the patient examines the physician as to matters disclosed in a consultation (f) Also check Rule 28 on Mental or Physical Examination [Rules on Civil Procedure] Professional capacity When the doctor attends to a patient for curative treatment, or for palliative or preventive treatment. [Herrera] Extent of rule The privilege extends to communications which have been addressed to physician’s assistants or agents. [Herrera] Physician allowed to testify as an expert A doctor is allowed to be an expert witness when he does not disclose anything obtained in the course of his examination, interview and treatment of a patient. [Lim v. CA, G.R. No. 91114 (1992)] Autopsical information If the information was not acquired by the physician in confidence, he may be allowed to testify thereto. But if the physician performing the autopsy was also the deceased’s physician, he cannot be permitted either directly or indirectly to disclose facts that came to his knowledge while treating the living patient. [Herrera, citing US Case Travelers’ Insurance Co. v. Bergeron)] Duration of privilege The privilege continues until the death of the patient. It may be waived by the personal representative of the decedent. [Herrera] Hospital Records procedure

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To allow the disclosure during discovery procedure of the hospital records would be to allow access to evidence that is inadmissible without the patient’s consent. Disclosing them would be the equivalent of compelling the physician to testify on privileged matters he gained while dealing with the patient, without the latter’s prior consent. [Chan v. Chan, G.R. No. 179786 (2013)]

PRIEST AND PENITENT [Sec. 24(d), Rule 130] Requisites (1) Priest or minister must be duly ordained in the sect in which he belongs (2) Confession was made to, or advice given by him pursuant to a religious duty enjoined in the course of discipline of the sect or denomination of the priest. (3) Confession or advice was confidential and penitential in character.

PUBLIC OFFICERS [Sec. 24(e), Rule 130] Requisites (1) Communication was made to the public officer in official confidence; and (2) Public interest would suffer by the disclosure of such communication. Elements of “presidential communications privilege” (1) Must relate to a “quintessential and nondelegable presidential power;” (2) Must be authored or “solicited and received” by a close advisor of the President or the President himself; and (3) Privilege may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere. [Neri v. Senate, G.R. No. 180643 (2008)] Purpose of privilege: protection of public interest The privilege is not intended for the protection of public officers but for the protection of the public interest. When no public interest would be prejudiced, this privilege cannot be invoked. [Banco Filipino v. Monetary Board, G.R. No. 70054 (1986))

PARENTAL AND FILIAL PRIVILEGE RULE [Sec. 25, Rule 130] GENERAL RULE: A person cannot be compelled to testify against his parents (parental privilege), other direct ascendants,

REMEDIAL LAW children or other direct descendants (filial privilege). EXCEPTIONS: [Art. 215, Family Code] Descendant may be compelled to give his testimony in a criminal case when— (1) [against parent or grandparent] The testimony is indispensable in a crime committed against said descendant; or (2) [against parent] In a crime committed by one parent against the other. Applicability The rule is applied to both civil and criminal cases. [Herrera] The privilege cannot apply between stepmothers and stepchildren because the rule applies only to direct ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. [Lee v. CA, G.R. No. 177861 (2010)] A child can waive the filial privilege and choose to testify against his father. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. [People v. Invencion y Soriano, G.R. No. 131636 (2003)]

OTHER PRIVILEGED COMMUNICATION NOT IN THE RULES OF COURT Newsman’s Privilege [RA 53, as amended by RA 1477] GENERAL RULE: Publisher, editor or duly accredited reporter cannot be compelled to reveal the source of any news report or information related in confidence EXCEPTION: Court/House/Committee in Congress finds that such revelation is demanded by security of the State Information in Conciliation Proceedings All information and statements made at conciliation proceedings shall be treated as privileged communications [Art. 233, Labor Code] Data Privacy Act Personal information controllers may invoke the principle of privileged communication over privileged information that they lawfully control or process. Subject to existing laws and regulations, any evidence gathered on privileged information is inadmissible. [Sec. 15, RA 10173] Food and Drug Administration Act Prohibits the use of a person to his own advantage, or revealing, other than to the Secretary of Health

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or officers or employees of the Department of Health or to the courts when relevant in any judicial proceeding under this Act, any information acquired under authority Board of Food Inspection and Board of Food and Drug, or concerning any method or process which as a trade secret is entitled to protection. [Secs. 9, 11 (f) and 12, RA 3720] TRIPS Agreement Undisclosed information or trade secrets are considered privileged communication. It is protected information if it complies with 3 requisites: (1) A secret in a sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of info in question, (2) Has commercial value because it is a secret; (3) Has been subject to reasonable steps, under the circumstances by the person lawfully in control of the information, to keep it a secret. [Art. 39] Electronic Document as Privileged Communication The confidential character of a privileged communication is not solely on the ground that it is in the form of an electronic document. [Sec. 3, Rule 3, Rules on Electronic Evidence]

D. EXAMINATION OF A WITNESS D.1. RIGHTS AND OBLIGATIONS OF A WITNESS [SEC. 3, RULE 132] OBLIGATION

To answer questions, although his answer may tend to establish a claim against him.

RIGHTS (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor (2) Not to be detained longer than the interests of justice require (3) Not to be examined except only as to matters pertinent to the issue (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, e.g., Sec. 8, RA 1379 and other immunity statutes which grant the witness immunity from criminal prosecution for offenses admitted (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must

REMEDIAL LAW answer to the fact of his previous final conviction for an offense.

ONE-DAY EXAMINATION OF WITNESS RULE [AM 03-1-09-SC] A witness has to be fully examined in one (1) day only. It shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons.

D.2. ORDER OF EXAMINATION OF AN INDIVIDUAL WITNESS DIRECT EXAMINATION [Sec. 5, Rule 132] Examination-in-chief of a witness by the party presenting him, on the facts relevant to the issue. The purpose is to elicit facts about the client’s cause of action or defense.

CROSS-EXAMINATION [Sec. 6, Rule 132]

Examination of the witness by the adverse party after said witness has given testimony on direct examination. The purpose is to test the witness’s accuracy and truthfulness, and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Matters covered Any matters stated in the direct examination, or connected therewith Right to cross-examination Cross-examination is the most reliable and effective way known of testing the credibility and accuracy of testimony. This is an essential element of due process. [Herrera, citing Alford v. US (1931)] The right to cross-examine under the constitution is superior to technical rules on evidence. [Herrera, citing People v. Valero (1982)] Partial cross-examination is sufficient where the witness was cross-examined on material points, and full cross-examination was not due to prosecutors’ fault but that of the defense who repeatedly moved for postponement, direct examination cannot be thrown off the case. [Herrera, citing People v. Caparas, 102 SCRA 782] Effect of denial of right to cross-examine Most courts require that the testimony given on direct examination be stricken off – provided the

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unavailability of the witness is through no fault of the party seeking to cross-examine. [Herrera] Cross-examination must be completed or finished. When cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. [Herrera, citing Ortigas, Jr. v. Lufthansa German Airlines (1975)]

RE-DIRECT EXAMINATION [Sec. 7, Rule 132]

Examination of a witness by the counsel who conducted the direct examination after the cross examination. The purpose is for the witness to explain or supplement his answers given during the crossexamination. Matters covered Those stated in the cross-examination, and matters not dealt with, if allowed by the Court

RE-CROSS-EXAMINATION [Sec. 8, Rule 132]

Examination conducted by adverse party upon conclusion of the re-direct examination. Matters covered Those stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion.

RECALLING THE WITNESS [Sec. 9, Rule 132] After both sides have concluded the examination of a witness, either party with leave of court may recall a witness. Why conducted (1) Particularly identified material points were not covered in cross-examination (2) Particularly described vital documents were not presented to the witness (3) Cross-examination was conducted in so inept a manner as to result in a virtual absence thereof [People v. Rivera, G.R. No. 98376 (1991))

D.3. LEADING AND MISLEADING QUESTIONS [SEC. 10, RULE 132] QUESTIONS NOT ALLOWED (1) Misleading Questions – These are questions that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. These are never allowed.

REMEDIAL LAW (2) Leading Questions – These are questions that suggest to the witness the answer, which the examining party desires.

LEADING QUESTIONS GENERAL RULE: Leading questions are not allowed. EXCEPTIONS: (1) On cross examination; (2) On preliminary matters; (3) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (4) On an unwilling or hostile witness; (a) Adverse interest; (b) Unjustified reluctance to testify; (c) His having misled the party into calling him to the witness stand. (5) On a witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party. Test of leading questions: By putting the words or though in the witness’ mind to be echoed back, the examiner is in effect the one testifying, not the witness. [Herrera, citing Escato v Pineda, CA 53 OG 7742]

MISLEADING QUESTIONS Questions containing facts not in evidence. [Herrera] D.4. IMPEACHING A WITNESS METHODS OF IMPEACHMENT OF AN ADVERSE PARTY’S WITNESS [Sec. 11, Rule 132]

(1) By contradictory evidence; (2) By evidence that his general reputation for truth, honesty or integrity is bad; (3) By evidence that he has made at other times statements inconsistent with his present testimony. Evidence of the good character of a witness Evidence of the witness’ good character is not admissible until such character has been impeached. [Sec. 14, Rule 132] Because a witness is presumed to be truthful and of good character, the party presenting him does not have to prove he is good because he is presumed to be good.

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How the witness is impeached by evidence of inconsistent statements (laying the predicate) (1) The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him. (2) Witness may be asked whether he made such statements and also to explain them if he admits making those statements. Purpose: To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same.

D.5. JUDICIAL AFFIDAVIT RULE [AM 12-88-SC] SCOPE Applies to all actions and proceedings, and incidents requiring the reception of evidence before the courts, quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule, and investigating officers and bodies authorized by the SC to receive evidence, including the IBP [Sec. 1].

SUBMISSION OF JUDICIAL AFFIDAVITS AND EXHIBITS IN LIEU OF DIRECT TESTIMONIES

(1) The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (a) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (b) The parties' documentary or object evidence, if any, shall be marked and attached to the judicial affidavits (2) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted

REMEDIAL LAW This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. [Sec. 2]

FORM [Sec. 3]

(1) Language known to the witness, or if not in English or Filipino with a translation in English or Filipino (2) With a sworn attestation executed by the lawyer who conducted or supervised the examination of the witness

CONTENTS [Sec. 3]

(1) The name, age, residence or business address, and occupation of the witness; (2) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (3) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (4) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (a) Show the circumstances under which the witness acquired the facts upon which he testifies; (b) Elicit from him those facts which are relevant to the issues that the case presents; and (c) Identify the attached documentary and object evidence and establish their authenticity; (5) The signature of the witness over his printed name; and (6) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. Sworn attestation [Sec. 4] (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment.

OFFER When made Upon the termination of the testimony of his last witness

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REMEDIAL LAW

How made Party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit.

issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte.

OBJECTION

E.1. EXTRAJUDICIAL ADMISSIONS

When made After each piece of exhibit is offered,

Any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him.

How made Party shall state the legal ground for his objection, if any, to its admission. The court shall immediately make its ruling respecting that exhibit. NOTE: It is sufficient that the exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.

Party’s failure to submit

Witness’ failure to appear at the scheduled hearing Counsel’s failure to appear Non-compliance with requirements

A statement by the accused, direct or implied, of facts pertinent to the issue, and tending in connection with proof of other facts, to prove his guilt. [People v. Lorenzo, G.R. No. 110107 (1995)]

RULE

The act, declaration or omission of a party, as to a relevant fact may be given in evidence against him. [Sec. 26, Rule 130] This rule pertains to extra-judicial admission.

EFFECT OF NON-COMPLIANCE [Sec. 10] Non-compliant behavior

E. ADMISSIONS AND CONFESSIONS

Consequence Deemed to have waived the submission of the same NOTE: Court may allow, only once, late submission, provided the delay is for a valid reason and the defaulting party pays a fine. Affidavit shall not be considered by the court Deemed to have waived his client’s right to crossexamine the witnesses there present Judicial affidavit cannot be admitted as evidence

ISSUANCE OF SUBPOENA [Sec. 5] If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the

ELEMENTS (1) The admission is made by a party to the case (2) It is against interest (3) Made out of court (4) Offered and presented in court in an admissible manner (e.g. non-hearsay) (5) It is an ACT, OMISSION, or DECLARATION

REQUISITES FOR ADMISSIBILITY [Regalado] (1) They must involve matters of fact; (2) They must be categorical and definite; (3) They must be knowingly and voluntarily made; and (4) Is against admitter’s interest.

EFFECT OF AN ADMISSION

It may be given in evidence against the admitter. [Sec. 26, Rule 130] Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala, G.R. No. L-12988 (1918))

RATIONALE

No man would make any declaration against himself unless it is true. [Republic v. Bautista, G.R. No. 169801 (2007))

ADMISSION MUST BE MADE IN CONTEXT

It is a rule that a statement is not competent as an admission where it does not, under reasonable construction, appear to admit or acknowledge the fact which is sought to be proved by it. [CMS Logging, Inc. v. CA, G.R. No. L-41420 (1992))

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Lacbayan v. Samoy, Jr. [G.R. No. 165427, (2011)] ISSUE: WON a Partition Agreement between partners having an extramarital affair is an admission against interest such that a party to it who admitted the existence of co-ownership can no longer assail the agreement. HELD: No. The question on the Partition Agreement indicates a question of law to determine whether the parties have the right to freely divide among themselves the subject properties. An admission must involve matters of fact and not of law.

JUDICIAL ADMISSIONS

AND

EXTRAJUDICIAL

Judicial Extrajudicial Made in connection with Any other admission a judicial proceeding in [Secs. 26 and 32, Rule which it is offered [Sec. 130] 4, Rule 129] May be conclusive [Sec. Rebuttable 4, Rule 129] May be written, oral express or implied

E.2. RES INTER ALIOS ACTA RULE

REMEDIAL LAW

EXCEPTIONS: (1) Partner’s or Agent’s Admission [Sec. 29, Rule 130] (2) Admission by conspirator [Sec. 30, Rule 130] (3) Admission by privies [Sec. 31, Rule 130] Basis of exception A third party may be so united in interest with the party-opponent that the other person’s admissions may be receivable against the party himself. The term “privy” is the orthodox catchword for the relation.

Exception to Res Inter Alios Acta Branch 1: Partner’s or Agent’s Admission [Sec. 29, Rule 130] Requisites for admissibility: [Herrera] (1) The act or declaration is by a partner or agent of the party; (2) The act or declaration is within the scope of his authority; (3) The act or declaration is made during the existence of the partnership or agency; (4) The partnership, or agency, is shown by evidence other than such act or declaration; (5) May be given in evidence against such party.

Things done between strangers ought not to injure those who are not parties to them. [Black’s Law Dictionary].

This rule also applies to the act or declaration of a joint owner, joint debtor, or other persons jointly interested with the party. [Sec. 29, Rule 130]

TWO BRANCHES (1) First branch: Admission by a third party [Sec. 28, Rule 130] (2) Second branch: Similar acts as evidence [Sec. 34, Rule 130]

Statements made after partnership is dissolved As a rule, statements made after the partnership has been dissolved do not fall within the exception, but where the admissions are made in connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partners in said winding up [Regalado].

FIRST BRANCH: ADMISSIONS BY A THIRD PARTY GENERAL RULE: The rights of a party cannot be prejudiced by an act, declaration, or omission of another. Admission by a third party is inadmissible as against another. The act, declaration or omission of another is generally irrelevant, and that in justice, a person should not be bound by the acts of mere unauthorized strangers. The rule is well-settled that a party is not bound by any agreement of which he has no knowledge and to which he has not given his consent and that his rights cannot be prejudiced by the declaration, act or omission of another, except by virtue of a particular relation between them.

Admissions by counsel Admissions by counsel are admissible against the client as the former acts in representation and as an agent of the client, subject to the limitation that the same should not amount to a compromise [Sec. 23, Rule 138] or confession of judgment [Acenas, et al. v. Sison, et al., G.R. No. L17011 (1963)]. Joint interests [Herrera] (1) The joint interest must be first made to appear by evidence other than the admission itself (2) The admission must relate to the subjectmatter of joint interest. The word “joint” must be construed according to its meaning in the common law system, that is, in

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solidum for the whole [Jaucian v. Querol, G.R. No. L-11307 (1918)]. A mere community of interests between several persons is not sufficient to make the admissions of one admissible against all. [Herrera] Just like in partnership and agency, the interest must be a subsisting one unless for the admission to be admissible. [Herrera]

REMEDIAL LAW conspiracy is shown by evidence other than such act or declaration. [People v. Cachuela, G.R. No. 191752 (2013)] Existence of the conspiracy may be inferred from acts of the accused. [People v. Belen, G.R. No. L13895 (1963)) Applies only to extra-judicial statements, not to testimony given on the stand. [People v. Serrano, G.R. No. L-7973 (1959)]

Admission by Privies [Sec. 31, Rule 130] Privies Persons who are partakers or have an interest in any action or thing, or any relation to another [Riano, citing Black’s Law Dictionary] It denotes the idea of succession, not only be right of heirship and testamentary legacy, but also that of succession by singular title, derived from acts inter vivos, and for special purposes. (example: assignee of a credit and one subrogated to it are privies.) [Alpuerto v. Perez Pastor and Roa, G.R. No. L-12794 (1918)] Requisites for Admissibility (1) There must be an act, declaration or an omission by a predecessor-in-interest; (2) Act, declaration or omission must have occurred while he was holding (not after) the title to the property; and (3) Act, declaration or omission must be in relation to the property. Former owner of Real Estate It is necessary that the admission of the former owner of a property has been made while he holds title to the property in order that such admission may be binding upon the present owner. [Herrera, citing Gevero v. IAC, (1990)]

Exception to Res Inter Alios Acta Branch 1: Co-Conspirator’s Admission [Sec. 30, Rule 130] Requisites for admissibility (1) Act or declaration must relate to the conspiracy; (2) It must have been made during the existence of the conspiracy; and (3) Conspiracy must be shown by evidence other than such act/declaration. An exception to the res inter alios acta rule is an admission made by a conspirator under Sec. 30, Rule 130. This provision states that the act or declaration of a conspirator relating to the conspiracy, and during its existence, may be given in evidence against the co-conspirator after the

As regards extrajudicial admissions after termination of conspiracy, before trial GENERAL RULE: Not admissible EXCEPTIONS: (1) Made in the presence of the co-conspirator who expressly/impliedly agreed (tacit admission) (2) Facts in admission are confirmed in the independent extrajudicial confessions made by the co-conspirators after apprehension (interlocking admissions) (3) As a circumstance to determine credibility of witness (4) Circumstantial evidence to show the probability of the latter’s participation [Regalado] Doctrine of interlocking confessions: [People v. Molleda, G.R. No. L-34248 (1978)] Extrajudicial statements of co-accused may be taken as circumstantial evidence against the person implicated to show the probability of the latter’s actual participation, provided that the statements are made by several accused are: (1) Made without collusion (2) Identical with each other in their essential details; (3) Corroborated by other evidence on record Applicable to extrajudicial statements The evidence adduced in court by the conspirators as witnesses are not declarations of conspirators, but direct testimony to the acts to which they testify. This is applicable only when it is sought to introduce extrajudicial declarations and statements of the co-conspirators. [Herrera, citing People v. Vizcarra, (1982)] Similar acts previously done GENERAL RULE: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. (2nd Branch of res inter alios acta rule) [Sec. 34, Rule 130]

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EXCEPTIONS: Said evidence may be received to prove: (1) specific intent or knowledge; (2) identity; (3) plan, system, or scheme; (4) habit; (5) established custom, usage and the like. [Sec. 34, Rule 130] Reason for General Rule The rule is founded upon reason, justice and judicial convenience. The lone fact that a person committed the same or similar act at some prior time affords, as a general rule, no logical guaranty that he committed the act in question. A man’s mind and even his modes of life may change; and objectively, the conditions which he may find himself at a given time make likewise change and induce him to act a different way. [Herrera, citing Justice Moran] Metrobank v. Custodio [G.R. No. 173780 (2011)] FACTS: Respondent was accused of being responsible for cash shortage in the bank’s Laoag branch. Petitioner Metrobank argued that respondent Custodio’s prior involvement in a cash shortage in its Cubao branch is admissible as evidence to prove a scheme or habit on her part. HELD: Respondent’s prior involvement in a cash shortage in the bank’s Cubao branch does not conclusively prove that she is responsible for the loss of PhP600,000 in the Laoag City branch, subject of the instant case. If the prior cash shortage in Cubao showed a reasonable intent or habit on her part, then there was no reason for Metrobank to continue to employ her, considering the degree of trust and confidence required of a bank teller. Nevertheless, Custodio continued to serve the bank even after the case in petitioner Metrobank’s Cubao branch.

E.3. OTHER FORMS OF ADMISSIONS ADMISSION BY SILENCE [Sec. 32, Rule 130] Requisites for Admissibility When silence is deemed an admission: [People v. Paragsa, G.R. No. L-44060 (1978)] (1) Person heard or understood the statement; (2) That he was at a liberty to make a denial; (3) That the statement was about a matter affecting his rights or in which he was interested and which naturally calls for a response; (4) That the facts were within his knowledge; and

REMEDIAL LAW (5) That the fact admitted from his silence is material to the issue When not applicable (1) Statements adverse to the party were made in the course of an official investigation, neither asked to reply nor comment [Sec. 2(b), RA 7438] (2) Party had justifiable reason to remain silent, e.g. acting on advice of counsel [Regalado] Failure to file a comment Respondent’s failure to file a comment despite all the opportunities afforded him constituted a waiver of his right to defend himself. In the natural order of things, a man would resist an unfounded claim or imputation against him. It is generally contrary to human nature to remain silent and say nothing in the face of false accusations. As such, respondents silence may be construed as an implied admission and acknowledgement of the veracity of the allegations against him. [OCA v. Amor, AM No. RTJ-08-2140 (2014)]

CONFESSION

A declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein [Sec. 33, Rule 130] An acknowledgment in express words or terms, by a party, in a criminal case, of the crime charged or some essential parts of it. [People v. Lorenzo, (1995)] Requisites (1) Express and categorical acknowledgement of guilt (2) Facts admitted constitutes a criminal offense (3) Given voluntarily (4) Intelligently made, realizing the importance or legal significance of the act (5) No violation of Secs. 12 and 17, Art. III of the Constitution [Regalado] If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. [Ladiana v. People, G.R. No. 144293 (2002)) Any confession, including a re-enactment, without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming, G.R. No. 120959 (1996)) [T]he basic test for the validity of a confession is – was it voluntarily and freely made. The term "voluntary" means that the accused speaks of his free will and accord, without inducement of any

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kind, and with a full and complete knowledge of the nature and consequences of the confession, and when the speaking is so free from influences affecting the will of the accused, at the time the confession was made, that it renders it admissible in evidence against him. Plainly, the admissibility of a confession in evidence hinges on its voluntariness.[People v. Satorre, G.R. No. 133858 (2003)] Effect of Extrajudicial Confession of Guilt GENERAL RULE: An extrajudicial confession made by an accused is not a sufficient ground for conviction. [Sec. 3, Rule 133] EXCEPTION: When corroborated by evidence of the actual commission of a particular crime (corpus delicti). [Sec. 3, Rule 133] Corpus Delicti Substance of the crime; the fact that a crime has actually been committed [People v. De Leon, G.R. No. 180762 (2009)] As Distinguished from Admissions of a Party Admission of a Party Confession Merely a statement of Acknowledgment of fact guilt or liability Maybe express or tacit Must be express Can be made only by the Maybe made by 3rd party himself, and parties, and in certain admissible against his cases, admissible co-accused in some against a party instances Acts, declarations or Declarations omissions May be in any Criminal case proceeding

F. HEARSAY RULE F.1. GENERAL RULE ON HEARSAY

A witness can testify only as to those facts which he knows of his personal knowledge, or those derived from his own perception. [Sec. 36, Rule 130] The hearsay rule is not limited to oral testimony or statements; it applies to written, as well as oral statements. [Consunji v. CA, G.R. No. 137873 (2001)) If a party does not object to hearsay evidence, the same is admissible, as a party can waive his right to cross-examine [People v. Ola, G.R. No. L-47147 (1987))

REMEDIAL LAW Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v. Lakas ng Manggagawang Pilipino, G.R. No. L-38964 (1975)]

F.2. MEANING OF HEARSAY

It is an out-of-court statement which is offered by the witness in court to prove the truth of the matters asserted by the statement. It is any evidence, whether oral or documentary, if its probative value is not based on personal knowledge of witness but on knowledge of some other person not on witness stand [Regalado]

ELEMENTS (1) Declarant is out of court (2) Out of court declaration is offered as proof of its contents (3) Absence of opportunity for cross-examination

F.3. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS Statements or writings attributed to a person not on the witness stand, which are being offered not to prove the truth of the facts stated therein, but only to prove that such were actually made. These are not covered by the hearsay rule [People v. Cusi, G.R. No. L-20986 (1965)) These are statements which are relevant independently of whether they are true or not. [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)] Two classes of independently relevant statements: (1) Statements which are the very facts in issue, and (2) Statements which are circumstantial evidence of the facts in issue. [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)] They include the following: (a) Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; (b) Statements of a person which show his physical condition, as illness and the like; (c) Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness. [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)]

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OF

The underlying rule against hearsay are serious concerns about the worth (trustworthiness, reliability) of hearsay evidence. Because such evidence: (1) was not given under oath or solemn affirmation; and (2) was not subject to cross-examination by opposing counsel to test the perception, memory, veracity and articulateness of out-ofcourt declarant or actor upon whose reliability on which the worth of the out-of-court testimony depends. [Herrera]

F.5. EXCEPTIONS TO THE HEARSAY RULE

(1) Dying declaration (2) Declaration against interest (3) Act or declaration about pedigree (4) Family reputation or tradition regarding pedigree (5) Common reputation (6) Part of the res gestae (7) Entries in the course of business (8) Entries in official records (9) Commercial lists and the like (10) Learned treaties (11) Testimony or deposition at a former trial

DYING DECLARATION Also known as “antemortem statement” or “statement in articulo mortis” [Sec. 37, Rule 130] Requisites for Admissibility (1) Declaration is one made by a dying person; (2) Declaration was made under the consciousness of an impending death; (3) Declaration refers to cause and surrounding circumstances of such death; (4) Declaration is offered in any case wherein his death is the subject of inquiry; (5) Declarant is competent as a witness had he survived [Geraldo v People, G.R. No. 173608 (2008)); and (6) Declarant should have died. [People v. Macandog, G.R. No. 129534 and 1411691 (2001)] Rationale for Admissibility As a general rule, when a person is at the point of death, every motive to falsehood is silenced. [People v Bacunawa, G.R. No. 136859 (2001)) The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered by the court. [People v. Cerilla, G.R. No. 177147 (2007))

REMEDIAL LAW If the declarant’s statement is made under consciousness of impending death, a subsequent belief in recovery before his actual death does not bar admissibility of his statement [Riano, citing People v. Black (1979), 96 CA3d 846, 158 CR 449] The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was consciousness of impending death. [People v. Latayada, G.R. No. 146865 (2004)) The admissibility of an ante mortem declaration is not affected by the fact that the declarant died hours or several days after making his declaration. It is sufficient that he believe himself in imminent danger of death at the time of such declaration. [Herrera, citing People v. Ericta 77 SCRA 199] People v. Quisayas [G.R. No. 198022 (2014)] FACTS: Victim Januario was stabbed by respondents on his way home. Policemen patrolling the area saw Januario lying on the street. He was brought by the policemen to the hospital. While in the vehicle, the police asked him who hurt him. He answered that it was the respondents. He eventually died because of the stab wounds. ISSUE: WON the testimony of the accused was a dying declaration. HELD: No. It does not appear that the declarant was under the consciousness of his impending death when he made the statements. No questions relative to the second requisite was propounded to Januario. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders a dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. Thus, the utterances made by Januario could not be considered as a dying declaration. However, the Court appreciated the testimony as part of res gestae. Conviction of accused was sustained. Objections to the dying declaration May be premised on any of the requisites for its admissibility embodied in Sec. 37, Rule 130. Counsel who wants a dying declaration excluded must have to deal with the primary question of

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whether or not the evidentiary foundations for the introduction where met. [Riano] Dying declarations are admissible in favor of the defendant as well as against him. [US v. Antipolo, 37 Phil. 726 (1918))

DECLARATION AGAINST INTEREST Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declaration relates to a fact against the interest of the declarant; (3) At the time he made said declaration, declarant was aware that the same was contrary to his interest; and (4) Declarant had no motive to falsify and believed such declaration to be true [Sec. 38, Rule 130] Inability to testify means that the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes v. CA, G.R. No. 111692 (1996)] Declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors-in-interest or even against third persons [Sec. 38, Rule 130] Actual or real interest It is essential that at the time of the statement, the declarant’s interest affected thereby should be actual, real or apparent, not merely contingent, future or, conditional; otherwise the declaration would not in reality be against interest. (example: declarations regarding a declarant’s inheritance are not admissible because these are future interests) [Herrera] Admissible against third persons If all the requisites for admission of a declaration against interest are present, the admission is admissible not only against the declarant but against third persons. [Herrera, citing Viacrusis v. CA, 44 SCRA 176] As Distinguished from Admissions [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)] Declaration against Admission by a party Interest [Sec. 38, Rule [Sec. 26, Rule 130] 130] Admitter is a party Declarant is neither a himself, or in privity with party nor in privity with a such party; party; Admissible whether or Admissible only when not admitter is available declarant is unavailable as a witness as a witness;

REMEDIAL LAW Can be made any time, even during trial; Admissible only against the admitter; and Admissible not as an exception to any rule Made against one’s claim or defense, although not moral or pecuniary interest Primary evidence

Must have been made ante litem motam; Admissible even against 3rd persons; and Admissible as an exception to the hearsay rule Made against one’s pecuniary or moral interest Secondary evidence

ACT OR DECLARATION ABOUT PEDIGREE Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) The pedigree is in issue or is relevant thereto; [Herrera] (3) Declarant must be related by birth or marriage to the person whose pedigree is in issue; (4) Declaration was made before the controversy; and (5) Relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. [Sec. 39, Rule 130] Pedigree includes (1) Relationship; (2) Family genealogy; (3) Birth; (4) Marriage; (5) Death; (6) Dates when these facts occurred; (7) Places where these facts occurred; (8) Names of relatives; and (9) Facts of family history intimately connected with pedigree. [Sec. 39, Rule 130] “Proof other than declaration” GENERAL RULE: Proof of relationship must be shown in evidence other than the declaration. EXCEPTION: The general rule does not apply where the claim is sought to reach the estate of the declarant himself, and not merely to establish a right through his declarations to the property of some other member of the family. [Tison v. CA, G.R. No. 121027 (1997)] Pedigree declaration by conduct This rule may also consist of proof of acts or conduct of relatives and the mode of treatment in the family of one whose parentage is in question. [Herrera, pg. 649] Not applicable to adoption

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The rule allowing proof of pedigree is not applicable to adoption. The absence of proof of an order of adoption by the court, as provided by statute, cannot be substituted by parol evidence that the child has lived with a person, not his parent, and was treated as child during the latter’s lifetime. [Herrera, citing Lazatin v. Campos, G.R. No. L-43955-56 (1979)]

FAMILY REPUTATION REGARDING PEDIGREE

OR

TRADITION

Requisites for Admissibility (1) Witness must be a member, by consanguinity or affinity, of the same family as the subject; and (2) Such reputation or tradition must have existed in that family ante litem motam. [Sec. 40, Rule 130] Other Admissible Evidence (1) Entries in family bibles or other family books; (2) Charts; (3) Engravings on rings; (4) Family portraits and the like [Sec. 40, Rule 130] This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. [Jison v. CA, G.R. No. 124853. (1998)) A person’s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition. [Gravador v. Mamigo, G.R. No. L24989, (1967)] Distinguished from Pedigree [Herrera] Sec. 39 – Declaration about Pedigree There must be a declarant and a witness The witness need not be a relative of the person whose pedigree is in question, it must be the declarant. Independent evidence is needed to establish relationship between declarant and person whose pedigree is in issue

Declaration

REMEDIAL LAW COMMON REPUTATION Requisites for Admissibility (1) Reputation pertains to: (a) facts of public or general interest more than 30 years old, (b) marriage, or (c) moral character (2) Common reputation existed ante litem motam. [Sec. 41, Rule 130] Other Admissible Evidence (1) Monuments (2) Inscriptions in public places [Sec. 41, Rule 130] Pedigree may be established by reputation in the family, but not in the community. [Secs. 40-41, Rule 130] Common reputation is hearsay like any other exception to the hearsay rule, but is admissible because of trustworthiness. [Riano, citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535, 542] Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive. [In re: Florencio Mallare, AM No. 533 (1974)) Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations. [In re: Florencio Mallare, AM No. 533 (1974)]

PART OF THE RES GESTAE

about

Sec. 40 – Family Reputation or Tradition The witness testifying to the family reputation and tradition must be a member of the family member of the person whose pedigree is in controversy. The witness may testify on the relationship between such relationship himself. The author of the reputation need not be established by independent evidence.

Res Gestae This expression signifies merely “transactions” or “things done” and is used in common law as meaning the circumstances which are automatic and undersigned incidents of the particular act in issue, and which are admissible in evidence when illustrative and explanatory of the act. [Herrera] Admissible Statements (1) Spontaneous statem ents Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof: (a) Principal act be a startling occurrence

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(b) Statement made before declarant had opportunity to contrive a falsehood [Talidano v. Falcon Maritime, G.R. No. 172031 (2008)] (c) Statement refer to occurrence in question and attending circumstances [Sec. 42, Rule 130] or that the statements must concern the occurrence in question and its immediate attending circumstances [Talidano v. Falcon Maritime, G.R. No. 172031 (2008)] (2) Verbal acts - Statements, which accompany an equivocal act material to the issue and give it a legal significance (a) Principal act must be equivocal (b) Act must be material to the issue (c) Statement must accompany the equivocal act (d) Statement gives legal significance to equivocal act [Talidano v. Falcon Maritime, G.R. No. 172031 (2008)] (e) Must be made at the time, not after, the equivocal act was being performed A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. [People v. Reyes] A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately after the incident. [People v. Gueron, G.R. No. L-29365 (1983)] ENTRIES IN THE COURSE OF BUSINESS Requisites for Admissibility (1) Entries were made at, or near the time of the transactions referred to; (2) Such entries were made in the ordinary or regular course of business or duty; (3) Entrant was in a position to know the facts stated in the entries; (4) Entrant did so in his professional capacity, or in the performance of duty and in the regular course of business; and (5) Entrant is now dead or unable to testify. [Northwest Airlines v. Chiong, G.R. No. 155550 (2008)]

REMEDIAL LAW

If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. [Cang Yui v. Gardner, G.R. No. L-9974 (1916)] “Business records” are exempt from the hearsay rule. [Sec. 1, Rule 8, Rules on Electronic Evidence] Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity [Sapio v. Undaloc Construction, G.R. No. 155034 (2008)] Reason for rule The duty of the employees to communicate facts is of itself a badge of trustworthiness of the entries [Security Bank and Trust Company v. Gan, G.R. No. 150464 (2006)] These entries are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision. [LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971 (2010)]

ENTRIES IN OFFICIAL RECORDS Requisites for Admissibility (1) Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law [Sec. 44, Rule 130]; (2) Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Barcelon, Roxas Securities v. CIR, 157064 (2006)]; and (3) Entries were duly entered in a regular manner in the official records. Entries in official records, just like entries in the course of business, are merely prima facie evidence of the facts therein stated. [Secs. 43-44, Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries. [People v. Cabuang, G.R. No. 103292 (1993)] Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero, G.R. No. L-22378 (1968)]

COMMERCIAL LISTS AND THE LIKE Requisites for Admissibility

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(1) Statements of matters of interest to persons engaged in an occupation; [Herrera] (2) Such statements are contained in a list; (3) Compilation is published for use by persons engaged in that occupation; and (4) It is generally used and relied upon by them. Need of preliminary proof of trustworthiness There should be requirements of preliminary proof of trustworthiness before such lists are rendered admissible. Some proof must be shown how or in what manner it was made up, where the information it contained was obtained, or whether the quotation of prices made were derived from actual sales or otherwise. [Herrera]

LEARNED TREATISES Requisites for Admissibility (1) Published treatise, periodical or pamphlet is on a subject of history, law, science, or art; and (2) Court takes either: (a) judicial notice of it, or (b) witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject

TESTIMONY OR DEPOSITION AT A FORMER TRIAL Requisites for Admissibility [Sec. 47, Rule 130; Manliclic v. Calaunan, G.R. No. 150157 (2007)] (1) Witness is dead or unable to testify; (2) His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (3) Former case involved the same subject as that in the present case although on different causes of action; (4) Issue testified to by the witness in the former trial is the same issue involved in the present case; and (5) Adverse party had the opportunity to crossexamine the witness in the former case. Inability to testify (meaning and standard) The inability of the witness to testify must proceed from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. Mere refusal shall not suffice. [Tan v. CA, G.R. No. L-22793 (1967))

OTHER EXCEPTIONS OUTSIDE THE RULES OF COURT

REMEDIAL LAW (1) Affidavit in the Rules of Summary Procedure shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose [Sec. 14, Rules on Summary Procedure] (2) Examination of a child witness

G. OPINION RULE Opinion is an inference or conclusion drawn from facts observed. GENERAL RULE: The opinion of witness is not admissible [Sec. 48, Rule 130] EXCEPTIONS (1) Expert witness [Sec. 49, Rule 130] (2) Ordinary witness [Sec. 50, Rule 130]

G.1. OPINION OF EXPERT WITNESS [SEC. 49, RULE 130] The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess, may be received in evidence. Expert witness is one who has made the subject upon which he gives his opinion a matter of particular study, practice or observation and he must have particular and special knowledge on the subject. [People v. Dekingco, G.R. No. 87685 (1990)] Expert evidence is the testimony of one possession in regard to a particular subject or department of human activity not usually acquired by other persons. [Herrera]

ADMITTING EXPERT TESTIMONY Question in admitting expert testimony Whether the opinion called for will aid the fact finder in resolving an issue, or whether the jury or the judge is as well qualified as the witness to draw its own or his own deductions from the hypothetical facts. [Herrera] Court discretion to exclude or include expert evidence If men of common understanding are capable of comprehending the primary facts and drawing correct conclusions from them, expert testimony may be excluded by the Court. [Herrera] Competency of witness is a preliminary question before testimony is admitted It must be shown that the witness is really an expert; determination of competency is a preliminary question. [Herrera]

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REMEDIAL LAW (d) Impressions of the (i) emotion, (ii) behavior, (iii) condition, or (iv) appearance of a person

HYPOTHETICAL QUESTIONS Test Fairness is the ultimate test of hypothetical questions. The Court shall reject a question which unfairly selects parts of the facts proved or omits material facts. If it omits facts, it may be opposed on the ground that it is misleading. [Herrera] Admissibility of hypothetical question Admissibility of hypothetical questions depends on whether it furnishes the tribunal with the means of knowing upon what premises of fact the conclusion is based. [Herrera, citing Magiore v. Sheed (195 A. 392, 173 Md 33)]

EXAMINING AN EXPERT WITNESS Mode of examination of expert witness He may base his opinion either on a first-hand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to him hypothetically, and on the assumption that they are true, formulates his opinion on this hypothesis. [Herrera] How to present an expert witness (1) Introduce and qualify the witness; (2) Let him give his factual testimony, if he has knowledge of the facts; (3) Begin the hypothetical question by asking him to assume certain facts as true; (4) Conclude the question, by first asking the expert if he has an opinion on a certain point (5) assuming that these facts are true and secondly, asking him, after he has answered affirmatively, to give his opinion on the point; (6) After he has stated his opinion, ask him to give his reasons. Dela Llana v. Biong [G.R. No. 182356 (2013)] Despite the fact that petitioner is a physician and even assuming that she is an expert in neurology, she was not presented as an expert witness. As an ordinary witness, she was not competent to testify on the nature, and the cause and effects of whiplash injury.

G.2. OPINION OF ORDINARY WITNESS [SEC. 50, RULE 130]

(1) If proper basis is given, and (2) Regarding: (a) Identity of a person about whom he has adequate knowledge; (b) Handwriting with which he has sufficient familiarity; (c) Mental sanity of a person with whom he is sufficiently acquainted; and

IDENTITY OF A PERSON ABOUT WHOM HE HAS ADEQUATE KNOWLEDGE Statements of a witness as to identity are not to be rejected because he is unable to describe features of the person in question. [Herrera]

Identification by voice is recognized by the courts, especially in a case where it was impossible to see the accused but the witness has known the accused since their childhood. [Herrera, citing US v. Manabat]

HANDWRITING WITH WHICH SUFFICIENT FAMILIARITY

HE

HAS

The ordinary witness must be acquainted with the characteristics of the handwriting of a person. He may only draw on the knowledge which he already has and which enables him to recognize the handwriting. Only experts are allowed to give conclusions from the comparison of samples of handwriting of a person whose handwriting he is not familiar with. [Herrera]

MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTLY ACQUAINTED These are allowed where the witness can adequately describe the actions, looks or symptoms of a person’s sanity or insanity which is impossible for the court to determine. [Herrera]

IMPRESSIONS OF THE EMOTION, BEHAVIOR, CONDITION OR APPEARANCE OF A PERSON

The rule recognizes instances when a witness may be permitted to state his inferences that are drawn from minute facts and details which the witness cannot fully and properly describe in court. Such expressions are expressed to the countenance, the eye and the general manner and bearing of the individual; appearance which are plainly enough recognized by a person of good judgment, but which he cannot otherwise communicate by an expression of results in the shape of an opinion. [Herrera, citing US case Hardy v. Merill]

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H. CHARACTER EVIDENCE

REMEDIAL LAW This is usually offered in rape cases and where the accused invokes the defense of self-defense.

GENERAL RULE: [Sec. 51, Rule 130] Character evidence is not admissible.

In rape cases, the character of a woman may be relevant and admissible on the question of the presence or absence of her consent. While in homicide and assault cases, it may be used as evidence of the victim’s character for turbulence and violence warranting the response of the accused. [Herrera]

EXCEPTIONS: (1) Criminal cases [Sec. 51(a), Rule 130] (2) Civil case [Sec. 51(b), Rule 130] (3) In the case provided for in Sec. 14, Rule 132.

CHARACTER EVIDENCE The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of one’s distinguishing attributes. [Herrera citing Black’s Law Dictionary, pg. 834] Character distinguished from reputation Character is what a man is and depends on attributes he possesses. It signifies reality. Reputation is what he is supposed to be in what people say he is, it depends on attributes which others believe one to possess. It signifies what is accepted to be reality at present. [Herrera, citing Black’s Law Dictionary] H.1. CRIMINAL CASES

(1) Accused – May prove his good moral character, which is pertinent to the moral trait involved in the offense charged. (2) Prosecution – May not prove the bad moral character of the accused, except in rebuttal. (3) Offended Party – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. Good moral character of accused The purpose of presenting evidence of good moral character is to prove the improbability of his doing the act charged. The accused may prove his good moral character only if it is pertinent to the moral trait involved in the offense charged. [Herrera] Bad moral character of accused in rebuttal Unless and until the accused gives evidence of his good moral character the prosecution may not introduce evidence of his bad character. [Herrera, citing People v. Rabanes, G.R. No. 93709 (1992)] Good or bad moral character of offended party

Character evidence must be limited to the traits and characteristics involved in the type of offense charged. Thus: - on a charge of rape : character for chastity - on a charge of assault: character for peaceableness or violence - on a charge of embezzlement : character for honesty. [CSC v. Belagan, G.R. No. 132164 (2004)]

H.2. CIVIL CASES

Moral character is admissible only when pertinent to the issue of character involved in the case. [Sec. 51(b), Rule 130] Evidence of the witness’ good character is not admissible until such character has been impeached. [Sec. 14, Rule 130]

I. RULE ON EXAMINATION OF A CHILD WITNESS [AM NO. 004-07SC] A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, maybe admitted in evidence in any criminal or noncriminal proceeding subject to the following rules: (1) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse part. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (2) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (a) Whether there is a motive to lie; (b) The general character of the declarant child;

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(c) Whether more than one person heard the statement; (d) Whether the statement was spontaneous; (e) The timing of the statement and the relationship between the declarant child and witness; (f) Cross-examination could not show the lack of knowledge of the declaration child; (g) The possibility of faulty recollection of the declarant of child is remote; and (h) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (3) The child witness shall be considered unavailable under the following situations: (a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (b) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

REMEDIAL LAW I.3. COMPETENCY OF CHILD WITNESS PRESUMPTION OF COMPETENCE Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)]

REQUISITES FOR COMPETENCY [People v. Mendoza, G.R. No. 113791. (1996)] (1) Capacity of observation; (2) Capacity of recollection; and (3) Capacity of communication. When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall be conducted. The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] The court has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)]

I.4. EXAMINATION OF A CHILD WITNESS

I.1. APPLICABILITY OF THE RULE Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. [Sec. 1] The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32]

I.2. MEANING OF “CHILD WITNESS” [SEC. 4(A)]

(1) Any person who at the time of giving testimony is less than 18 years; (2) In child abuse cases a child includes one over 18 years, (a) But is found by the court as: (i) Unable to fully take care of himself, or (ii) Protect himself from abuse, neglect, cruelty, exploitation, or discrimination (b) Because of a physical or mental disability or condition. Child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. [People v. Santos, G.R. No. 172322 (2006)]

(1) In open court [Sec. 11] (2) Alternative Modes (a) Live-Link TV Testimony, in Criminal Cases where Child is a Victim or a Witness [Sec. 25] (i) If there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor. (ii) Trauma must be of a kind which would impair the completeness or truthfulness of the child’s testimony. (b) Videotaped Deposition of a Child Witness [Sec. 27] (i) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (ii) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

LIVE-LINK TV TESTIMONY OF A CHILD WITNESS [Sec. 25] Live-link television testimony, in criminal cases where the child is a victim or a witness

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REMEDIAL LAW

The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor.

shown to be the statement of the child and not the product of improper suggestion; (c) the videotape and audiotape machine or device was capable of recording testimony; (d) the person operating the device was competent to operate it; (e) the videotape or audiotape is authentic and correct; and (f) it has been duly preserved.

The trauma must be of a kind which would impair the completeness/truthfulness of the child’s testimony. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

VIDEOTAPED DEPOSITION OF A CHILD WITNESS [Sec. 27] If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. The rights of the accused during trial, especially the right to counsel and to confront and crossexamine the child, shall not be violated during the deposition.

ADMISSIBILITY OF VIDEOTAPED AND AUDIOTAPED IN-DEPTH INVESTIGATIVE OR DISCLOSURE INTERVIEWS IN CHILD ABUSE CASES [Sec. 29] Requisites for admissibility: (1) The child witness is unable to testify in court on grounds and under conditions established under section 28 (c) which are: (a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (b) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (2) The interview of the child was conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (3) The party offering the videotape or audiotape must prove that: (a) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (b) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly

The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse.

I.5. HEARSAY EXCEPTION IN CHILD ABUSE CASES [SEC. 28] Proponent of hearsay statement shall make known to the adverse party the intention to offer such statement and its particulars. If the child is available, court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. If unavailable, the fact of unavailability must be proved by the proponent and his hearsay testimony must be corroborated by other admissible evidence.

I.6. SEXUAL ABUSE SHIELD RULE GENERAL RULE: [Sec. 30(a)] The following are inadmissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; (2) Evidence offered to prove the sexual predisposition of the alleged victim. EXCEPTION: [Sec. 30(b)] Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury or other physical evidence. PROTECTIVE ORDERS

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Video/audio tapes that are part of the court record may be viewed only by parties, their counsel, their expert witness and the guardian ad litem. [Sec. 31(b)]

VI. Offer and Objection

The court may issue additional orders to protect the child’s privacy. [Sec. 31(c)]

GENERAL RULE: Court shall consider no evidence which has not been formally offered. [Sec. 34, Rule 132]

Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof, or an immediate family of the child, shall be liable for contempt of court. [Sec. 31(d)] A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. [Sec. 31(e)]

A. OFFER OF EVIDENCE

Purpose: The purpose for which the evidence is offered must be specified. EXCEPTION: Evidence not formally offered may be admissible when two essential conditions concur: (1) the same must have been duly identified by testimony duly recorded and, (2) the same must have been incorporated in the records of the case. [Mato v. CA, 320 Phil. 344 (1995)] As Distinguished from Identification of Documentary Evidence [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)] Identification of Formal Offer of Exhibit Documentary Evidence Done in the course of the trial and accompanied Done only when the by the marking of the party rests his/her case evidence

WHY FORMAL OFFER IS NECESSARY There is a need for a formal offer of evidence because without such offer, the court cannot determine whether the evidence is admissible or not. [Riano] No evidentiary value can be given to pieces of evidence not formally offered. [Dizon v. CTA, G.R. No. 140944 (2008)] However, where the absence of an offer of a testimonial evidence was not objected to as when the witness was cross-examined by the adverse party despite failure to make an offer of the testimony, the court must consider the testimony. The provisions of the ROC on the inclusion on appeal of documentary evidence or exhibits in the records, cannot be stretched as to include such pleadings or documents not offered at the hearing of the case [Candido v. CA, G.R. No. 107493 (1996)]

WHEN FORMAL OFFER IS NOT REQUIRED (1) In a summary proceeding because it is a proceeding where there is no full-blown trial; (2) Documents judicially admitted or taken judicial notice of;

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(3) Documents, affidavits, and depositions used in rendering a summary judgment; (4) Documents or affidavits used in deciding quasi-judicial or administrative cases [Bantolino v. Coca Cola Bottlers, G.R. No. 153660 (2003)] (5) Lost objects previously marked, identified, described in the record, and testified to by witness who had been subjects of crossexamination in respect to said objects [Tabuena v. CA, G.R. No. 85423 (1991), citing People v. Napat-a, G.R. No. 84951 (1989)] [Riano] The Republic offered the negotiated contracts solely to prove that the Bakunawas had been incorporators or owners, or had held key positions in the corporations that entered into the contracts. The Sandiganbayan correctly ruled, therefore, that the contracts could be considered and appreciated only for those stated purposes, not for the purpose of proving the irregularity of the contracts. Evidence can be considered only for the purposes it was specifically offered. [Republic v Reyes-Bakunawa, G.R. No. 180418 (2013)]

WAIVER OF RIGHT TO MAKE FORMAL OFFER It is deemed waived by a party if it fails to submit within a considerable period of time its formal offer. [Heirs of Pasag v. Parocha, G.R. No. 155483 (2007)) In this case, the court did not allow the petitioners to present their formal offer 10 years after resting its case. In an earlier case of Constantino v. CA [G.R. No. 116018 (1996)], the Court did not allow a formal offer even only after three months because such would, “condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice.”

B.WHEN TO MAKE AN OFFER [SEC. 35, RULE 132] Kind of evidence Testimonial Documentary and Object

When to offer At the time the witness is called to testify After the presentation of a party’s testimonial evidence

The party who terminated the presentation of evidence must make an oral offer of evidence on the very day the party presented the last witness. Otherwise, the court may consider the party’s documentary or object evidence waived. [Heirs of Pasag v. Sps. Parocha, G.R. No. 155483 (2007)]

REMEDIAL LAW MANNER OF OFFER GENERAL RULE: Offer shall be done orally EXCEPTION: Allowed by the court in writing While the trial court may allow the offer to be done in writing, this can only be tolerated in extreme cases where the object evidence or documents are large in number––say from 100 and above, and only where there is unusual difficulty in preparing the offer. Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer. [Catuira v. CA, G.R. No. 105813 (1994)] The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. [People v. Mate, G.R. No. L-34754 (1981)] The defendant cannot offer his evidence before the plaintiff has rested. [Herrera, citing Engersail v. Malabon Sugar Co., 53 Phil. 7450]

C. OBJECTION [SEC. 36, RULE 132] C.1. CONCEPT The party has a right to object to evidence which he considers not admissible under the complaint, even if the questions were asked by the judge. [Francisco] When a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal. [People v. Diaz, G.R. No. 197818 (2015))

C.2. MANNER Excluding inadmissible evidence (1) One has to object to inadmissible evidence; (2) The objection must be timely made; and (3) The grounds for the objection must be specified. [Herrera] What to object to When to object Evidence offered orally Immediately after offer is (testimonial evidence) made A question propounded As soon as the grounds in the course of oral become reasonably examination apparent Within 3 days after Offer of evidence done in notice of the offer, writing unless a different period is allowed by the court

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What to object to When to object The grounds for objection must be specified in any case.

v.

WAIVER OF OBJECTION

C.3. PURPOSES OF OBJECTION [RIANO] (1) Made to keep out inadmissible evidence that would cause harm to client’s cause (rules of evidence are not self-operating) (2) To protect the record (for future appeal) (3) To protect witness from being embarrassed or harassed (4) To expose adversary’s unfair tactics (5) To give trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and (6) To avoid a waiver of inadmissibility Objections must be specific enough to adequately inform the court the rule of evidence or of substantive law that authorizes the exclusion of evidence [Riano]

C.4. CLASSIFICATION OF OBJECTIONS

When the party should have objected but did not. The failure to point out a defect, irregularity or wrong in the admission or exclusion of evidence. [Riano] Effect of waiver A waiver of objection should not be construed as an admission that the evidence is credible. The scope of the waiver is only either on the relevance or competence of the evidence. [Riano] Although hearsay evidence may be admitted because of lack of objection, it is nonetheless without probative value, unless the proponent can show that the evidence falls within the exception to the hearsay evidence rule. [Bayani v. People, G.R. No. 155619 (2007)]

REPETITION OF AN OBJECTION [Sec. 37, Rule 132]

A court may, motu proprio, treat the objection as a continuing one. [Keller v. Ellerman & Bucknall Steamship, G.R. No. L-12308 (1918)]

GENERAL OBJECTIONS Do not clearly indicate to the judge the ground upon which the objections are predicated. In cases where the incompetency of the evidence is so palpable that a mere general objection is deemed sufficient and where the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed. [Riano]

An objection must be seasonably made at the time it is formally offered. Objection prior to the formal offer is premature and could not be considered by the Court as basis for a continuing one. [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

SPECIFIC OBJECTION

D. RULING ON THE OBJECTION [SEC. 38, RULE 132]

FORMAL OBJECTION

GENERAL RULE: Parties who offer objections to questions on whatever ground are entitled to a ruling at the time the objection is made.

SUBSTANTIVE

EXCEPTION: Unless they present a question with regard to which the court desires to inform itself before making its ruling.

States why or how the evidence is irrelevant or incompetent. Directed against the alleged defect in the formulation of the question Made and directed against the very nature of the evidence

C.5. WHEN TO OBJECT Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the ground therefor becomes reasonably apparent. [Bayani v. People, G.R. No. 155619 (2007)] The issue of the admissibility of documentary evidence arises only upon formal offer thereof. This is why objection to the documentary evidence must be made at the time it is formally

In that event it is perfectly proper for the court to take a reasonable time to study the question presented by the objection; but a ruling should always be made during the trial. [Lopez v. Valdez, G.R. No. L-9113 (1915)] A reasonable time must not extend beyond the ninety (90)-day reglementary period from the date of submission of the formal offer of evidence [Beltran v. Paderanga, AM No. RTJ-03-1747 (2003)]

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The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground/s relied upon. Reservation of a ruling by the court on an objection to the admissibility of evidence, without subsequently excluding the same, amounts to a denial of an objection. [People v. Tavera, G.R. No. L-23172 (1925))

POR LO QUE PUEDO VALER PRINCIPLE

The Supreme Court encourages the admission or borderline evidence for whatever it is worth or por lo que puedo valer. [Prats & Co. v. Phoenix Insurance, 52 Phil. 807 (1930))

NO EXPRESS RULING NEEDED The trial court need not make an express ruling admitting the exhibits if there is no objection interposed to their admission. [Herrera, citing Boix v. Rivera, CA Rep. 2d 104] The ruling of the court is required only when there is an objection to a question or to the admission of an exhibit. [Herrera] The ruling on an objection must be given immediately after an objection is made. However, objections based on irrelevancy and immateriality need no specification or explanation. Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. [CruzArevalo v. Querubin-Layosa, AM No. RTJ-06-2005 (2006)]

E. STRIKING OUT AN ANSWER [SEC. 39, RULE 132] MOTION TO STRIKE A motion to strike out goes to admissibility and not to weight; evidence should not be stricken out because of its little probative value. [Herrera] (1) Court may sustain an objection and order the answer given to be stricken off the record if: (a) witness answers the question before the adverse party had the opportunity to object, and (b) such objection is found to be meritorious. (2) The court may also, upon motion, order the striking out of answers, which are (a) incompetent, (b) irrelevant or (c) otherwise improper.

REMEDIAL LAW Other cases when motion to strike is proper (1) When the answer of the witness is unresponsive; (2) When the witness becomes unavailable for cross-examination through no fault of the cross-examining party; (3) When the testimony is allowed conditionally and the condition for its admissibility was not fulfilled; [Riano] (4) Where evidence has been properly received, and its effect has been destroyed by other evidence, or its admissibility has afterward become apparent; [Herrera] Motion to strike out should specify objection A motion to strike out should specify the objection as well as the portion of the evidence which is objected to. [Herrera]

F. TENDER OF EXCLUDED EVIDENCE [SEC. 40, RULE 132] The procedure in Section 40 is known as offer of proof or tender of excluded evidence and is made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence. The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case [Cruz-Arevalo v. QuerubinLayosa, AM No. RTJ-06-2005 (2006)] If an exhibit sought to be presented in evidence is rejected, the party producing it should ask the courts permission to have the exhibit attached to the record. Any evidence that a party desires to submit for the consideration of [a higher] court must be formally offered by him otherwise it is excluded and rejected and cannot even be taken cognizance of on appeal. [Catacutan v. People, G.R. No. 175991 (2011)] Before tender of excluded evidence is made, the evidence must have been formally offered before the court. And before formal offer of evidence is made, the evidence must have been identified and presented before the court [Yu v. CA, G.R. No. 154115 (2005)] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. [Vda. De Flores v. Workmen’s Compensation Commission, G.R. No. L-43316 (1977)]

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HOW TO TENDER EVIDENCE Kind of evidence Documentary

Testimonial

How to tender the evidence Offeror may have the same attached or made part of the record Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony

Rationale (1) to allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and (2) even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal [Riano] Two Methods of making the Tender: [Riano] (1) Where the counsel tells the court what the proposed testimony would be; (2) By using the question and answer form Erroneous Way of Making Tender To make a mere general “offer of proof” without producing the witness or stating the evidence where by the fact in issue is to be proved. [Riano] The SC had advised trial courts to allow the rejected [documentary] evidence to be attached to the record to enable the appellate court to examine the same and determine whether the exclusion of the same was proper or not. [Herrera, citing Banez v. CA, G.R. No. L-30351 (1974)] Harmless error rule [People v. Teehankee, G.R. Nos. 111206-08 (1995)] In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigants. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party.

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

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I. Scope Applicability of Rule

and the

These Rules shall govern the procedure in (1) civil, (2) criminal and (3) special civil actions Involving enforcement or violations of environmental and other related laws , rules and regulations such as but not limited to the following: (1) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; (2) PD 705, Revised Forestry Code; (3) PD 856, Sanitation Code; (4) PD 979, Marine Pollution Decree; (5) PD 1067, Water Code; (6) PD 1151, Philippine Environmental Policy of 1977; (7) PD 1433, Plant Quarantine Law of 1978; (8) PD 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (9) RA 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; (10) RA 4850, Laguna Lake Development Authority Act; (11)RA 6969, Toxic Substances and Hazardous Waste Act; (12) RA 7076, People’s Small-Scale Mining Act;

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(13) RA 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (14) RA 7611, Strategic Environmental Plan for Palawan Act; (15) RA 7942, Philippine Mining Act; (16) RA 8371, Indigenous Peoples Rights Act; (17) RA 8550, Philippine Fisheries Code; (18) RA 8749, Clean Air Act; (19) RA 9003, Ecological Solid Waste Management Act; (20) RA 9072, National Caves and Cave Resource Management Act; (21) RA 9147, Wildlife Conservation and Protection Act; (22) RA 9175, Chainsaw Act; (23) R.A. No. 9275, Clean Water Act; (24) RA 9483, Oil Spill Compensation Act of 2007; and (25) Provisions in CA No. 141, The Public Land Act; RA 6657, Comprehensive Agrarian Reform Law of 1988; RA 7160, Local Government Code of 1991; RA 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws [Amending the NIRC]; RA 7308, Seed Industry Development Act of 1992; RA 7900, High-Value Crops Development (26) Rules of Procedure for Environmental Cases Act; RA 8048, Coconut Preservation Act; RA 8435, Agriculture and Fisheries Modernization Act of 1997; RA 9522, The Philippine Archipelagic Baselines Law; RA 9593, Renewable Energy Act of 2008; RA 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, developm ent, preservation, protection and utilization of the environment and natural resources. [Sec. 3, Rule 1]

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II. Civil Procedure WHO MAY FILE Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law. [Sec. 4, Rule 2] CITIZEN SUIT Any Filipino citizen in representation of others, including m inors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. Citizen suits filed under RA 8749 (Clean Air Act) and RA 9003 (Ecological Solid Waste Management Act) shall be governed by their respective provisions. [Sec. 5, Rule 2]

A. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION GENERAL RULE: No court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. EXCEPTION: The Supreme Court [Sec. 10, Rule 2] Where the issuance of a TEPO is premised on the violation of an environmental law or a threatened damage or injury to the environment by any person, even the government and its agencies, the prohibition against the issuance of a TRO or preliminary injunction is premised on the presumption of regularity on the government and its

REMEDIAL LAW

agencies in enforcing environmental laws and protecting the environment. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee] PROCEDURE Filing of verified Complaint accompanied by (1) documents, affidavits, and/or objects to prove cause of action and (2) certification against forum shopping ↓ Referral/Assignment by raffle to branch of court ↓ Issuance of Temporary Environmental Protection Order [TEPO], when proper, effective for 72 hours from receipt and, during the same period, conduct of a summary hearing for the extension of the effectivity of the TEPO ↓ Service of Summons ↓ Filing of verified Answer within 15 days from receipt of summons ↓ Issuance of Notice of Pre-trial within 2 days from filing of Answer ↓ Submission of Pre-Trial briefs 3 days before pre-trial ↓ Referral to Mediation, Mediation and Mediation Report ↓ Preliminary Conference ↓ Pre-trial Conference/s ↓ Pre-trial Order ↓ Continuous Trial ↓ Judgment and Execution

B. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) B.1. GROUND FOR ISSUANCE It appears from the com plaint that— (1) the matter is of extreme urgency and

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(2) the applicant will suffer grave injustice and irreparable injury [Sec. 8, Rule 2] B.2. PERIOD OF EFFECTIVITY Seventy-two (72) hours from date of receipt of the TEPO by the party or person enjoined [Sec. 8, Rule 2] B.3. DUTY OF COURT The court where the case is assigned shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant. [Sec. 8, Rule 2] The judge shall report any action taken on a TEPO, EPO, TRO or a preliminary injunction, including its modification and dissolution, to the Supreme Court, through the Office of the Court Administrator, within ten days from the action taken. [Sec. 11, Rule 2] B.4. GROUND TO DISSOLVE TEPO A TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable dam age to the party or person enjoined while the applicant m ay be fully com pensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. [Sec. 9, Rule 2]

C. DECLARATION MOTU PROPRIO

OF

DEFAULT

Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for. [Sec. 15, Rule 2]

REMEDIAL LAW

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology. Evidence not presented during the pre-trial, except newly-discovered evidence, shall be deemed waived. [Sec. 5, Rule 3] CONSENT DECREE A judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. [Sec. 4(b), Rule 1]

E. PROHIBITED PLEADINGS AND MOTIONS (1) Motion to dismiss the complaint; (2) Motion for a bill of particulars; (3) Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen days; (4) Motion to declare the defendant in default; (5) Reply and rejoinder; and (6) Third party complaint. [Sec. 2, Rule 2]

F. PERIOD TO TRY AND DECIDE The court shall have a period of one year from the filing of the com plaint to try and decide the case. Before the expiration of the one-year period, the court may petition the Supreme Court for the extension of the period for justifiable cause. The court shall prioritize the adjudication of environmental cases. [Sec. 5, Rule 4]

CONFERENCE;

G. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN SUIT

The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences.

G.1. RELIEFS IN A CITIZEN SUIT If warranted, the court may grant to the plaintiff proper reliefs which shall include— (1) the protection, preservation or rehabilitation of the environment and

D. PRE-TRIAL CONSENT DECREE

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(2) the payment of attorney’s fees, costs of suit and other litigation expenses The court may also require the violator (1) to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator or (2) to contribute to a special trust fund for that purpose subject to the control of the court [Sec. 1, Rule 5] G.2. NO DAMAGES CAN BE AWARDED IN A CITIZEN SUIT This measure is in line with the policy that a citizen suit is filed in the public interest, and in effect, it is the environment which is vindicated in the action. The only recourse of a party or person who wishes to recover damages for injury suffered is to file a separate action under Sec. 4, Rule 2. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court SubCommittee] G.3. JUDGMENT NOT STAYED BY APPEAL Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court. [Sec. 2, Rule 5]

H. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS In the judgment, the court may— a) convert the TEPO to a permanent EPO OR b) issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied [Sec. 3, Rule 5] CONTINUING MANDAMUS A writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied [Sec. 4(c), Rule 1]

REMEDIAL LAW

The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment. [Sec. 3, Rule 5] NOTE: A continuing mandamus was issued in the case of MMDA v. Concerned Residents of Manila Bay, G.R. No. 171947-48 (2008)]

I. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) SLAPP A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. [Sec. 1, Rule 6] The SLAPP provisions apply not only to suits that have been filed in the form of a countersuit, but also to suits that are about to be filed with the intention of discouraging the aggrieved person from bringing a valid environmental complaint before the court. Illustrations: (1) X files a complaint in an environmental case against A [violator of environmental laws] and the A retaliates by filing a complaint for damages against X; (2) X is a witness in a pending environmental case against A and A retaliates by filing a complaint for damages or libel against X; or (3) X is an environmental advocate who rallies for the protection of environmental rights and a complaint for damages is filed against him by A. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]

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If SLAPP is interposed as a defense, it is mandatory for adverse party to file an Opposition [Sec. 2, Rule 6] The hearing on the defense of a SLAPP shall be summary in nature and shall be resolved within 30 days after the summary hearing [Secs. 3-4, Rule 6] I.2. QUANTUM OF EVIDENCE Party asserting that claim is a SLAPP must prove such with substantial evidence. If the court finds a SLAPP defense valid, the plaintiff is required to prove the following: (1) that the case is not a SLAPP; and (2) the merits of the case with preponderance of evidence. [Sec. 3, Rule 6] I.3. RESOLUTION OF THE DEFENSE OF A SLAPP (1) If action is dismissed, dismissal is with prejudice (2) If defense is rejected, action will proceed and evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case [Sec. 4, Rule 6]

REMEDIAL LAW

III. Special Civil Actions A. WRIT OF KALIKASAN A.1. WHO MAY FILE (1) natural or juridical person, (2) entity authorized by law, (3) people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated…involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. A.2. ACTS COVERED BY THE WRIT Unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. [Sec. 1, Rule 7] A.3. WHERE TO FILE The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. [Sec. 3, Rule 7] A.4. PROCEDURE Filing of verified Petition with Certificate Against Forum Shopping ↓ Issuance of Writ of Kalikasan within 3 days from filing of petition ↓ Service of the Writ ↓ Filing of a verified Return within a nonextendible period of ten [10] days after service of the writ ↓ Hearing [Court may call for preliminary conference] ↓ Judgment

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B. PROHIBITED PLEADINGS AND MOTIONS (1) Motion to dismiss; (2) Motion for extension of time to file return; (3) Motion for postponement; (4) Motion for a bill of particulars; (5) Counterclaim or cross-claim; (6) Third-party complaint; (7) Reply; and (8) Motion to declare respondent in default. [Sec. 9, Rule 7]

C. DISCOVERY MEASURES The following discovery measures are available to all parties to the writ: (1) Ocular Inspection (2) Production or inspection of documents and things [Sec. 12, Rule 7] The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. C.1. OCULAR INSPECTION Purpose: To order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. C.2. PRODUCTION OR INSPECTION OF DOCUMENTS Purpose: to order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

D. APPEAL

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reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. [Sec. 16, Rule 7]

E. WRIT MANDAMUS

OF

CONTINUING

E.1. WHEN AVAILABLE (1) An agency or instrumentality of the government or officer thereof either: a) unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein or b) unlawfully excludes another from the use or enjoyment of such right (2) there is no other plain, speedy and adequate remedy in the ordinary course of law [Sec. 1, Rule 8] E.2. WHERE TO FILE (1) Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred (2) Court of Appeals (3) Supreme Court [Sec. 2, Rule 8] E.3. PROCEDURE File a verified Petition with prayer that respondent be ordered to do an act or series of acts until the judgment is fully satisfied, and to pay damages + Certification Against Forum Shopping ↓ Issuance of Writ of Continuing Mandamus and Order to Comment ↓ Filing of Comment within 10 days after receipt of Order ↓ Summary Hearing ↓ Judgment ↓ Return of the Writ

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E.4. DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING MANDAMUS Kalikasan Continuing Mandamus Subject Matter Directed against [a] the Available against unlawful neglect in the an unlawful performance of an act or omission of a act specifically public official or enjoined by law in employee, or connection with the private individual enforcement/ violation or entity, involving of an envt’l rule or [b] environmental the unlawfully damage of such exclusion of another magnitude as to from the use or prejudice the life, enjoyment of such right health or property and in both instances, of inhabitants in there is no other plain, two or more cities speedy and adequate or provinces. remedy in the ordinary course of law. W ho May File (1) natural and juridical persons, (2) entities authorized by law, (3) POs, NGOs, PIG, Person personally on behalf of aggrieved by the persons whose unlawful act or right to a balanced omission and healthful ecology is violated or threatened to be violated Respondent May be public or Government or its private individual officers or entity Docket Fees Exempted Exempted Venue 1] RTC exercising SC or CA territorial jurisdiction, 2] CA, 3] SC Discovery Measures Ocular Inspection and Production or None Inspection Order Damages None Allowed

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IV. Criminal Procedure A. WHO MAY FILE (1) Offended party; (2) Peace officer; (3) Public officer charged with the enforcement of an environmental law [Sec. 1, Rule 9]

B. INSTITUTION OF CRIMINAL AND CIVIL ACTION When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged, shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment. In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. The award shall be used for the restoration and rehabilitation of the environment adversely affected. [Sec. 1, Rule 10]

C. ARREST WITHOUT WARRANT, WHEN VALID (1) When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or

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(2) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Sec. 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws. [Sec. 1, Rule 11]

D. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION [SLAPP] The manner by which to allege that a criminal action is a SLAPP is through a motion to dismiss rather than a motion to quash. A motion to dismiss allows the action to be challenged as a SLAPP, while a motion to quash is directed at the Information. Moreover, granting a motion to dismiss bars the refiling of a SLAPP in accordance with the law of the case. In contrast, the grant of a motion to quash does not bar the filing of a subsequent Information. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]

E. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS The applicable rules and regulations of the concerned government agency shall be followed. In the absence of such rules and regulations, the following procedure shall be observed: (1) Inventory. The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. (2) Return. The apprehending officer shall submit to the issuing court the return of

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the search warrant within five days from date of seizure or in case of warrantless arrest, submit within five days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. (3) Sale Upon Motion. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. (4) Disposition of Proceeds. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment. [Sec. 2, Rule 12]

F. BAIL WRITTEN UNDERTAKING BY ACCUSED (1) To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; (2) To appear whenever required by the court where the case is pending; and (3) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia. [Sec. 2, Rule 13] If the court grants bail, the court may issue a hold-departure order in appropriate cases. [Sec. 1, Rule 13]

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V. Evidence

G. ARRAIGNMENT AND PLEA G.1. WHEN The court shall set the arraignment of the accused within fifteen [15] days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment. [Sec. 1, Rule 15]

A. PRECAUTIONARY PRINCIPLE When human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat. [Sec. 4(b), Rule 1]

G.2. PLEA-BARGAINING On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements.

When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall: (1) Issue an order which contains the pleabargaining arrived at; (2) Proceed to receive evidence on the civil aspect of the case, if any; and (3) Render and promulgate judgment of conviction, including the civil liability for damages. [Sec. 2, Rule 15]

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. [Sec. 1, Rule 20] STANDARDS FOR APPLICATION (1) Threats to human life or health; (2) Inequity to present or future generations; (3) Prejudice to the environment without legal consideration of the environmental rights of those affected. [Sec. 2, Rule 20]

H. PRE-TRIAL

B. DOCUMENTARY EVIDENCE

After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial. [Sec. 1, Rule 16] Parties are required to be under oath in pretrial in order to obviate the use of false or misleading statements at this stage. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court SubCommittee]

I. SUBSIDIARY LIABILITIES In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiary liable under Art. 102 and 103 of the Revised Penal Code. [Sec. 1, Rule 18]

B.1. PHOTOGRAPHIC, VIDEO AND SIMILAR EVIDENCE MUST BE AUTHENTICATED Photographs, videos and similar evidence of events, acts, transactions of wildlife, wildlife by-products or derivatives, forest products or mineral resources subject of a case shall be admissible when authenticated by— (1) the person who took the same (2) some other person present when said evidence was taken, or (3) any other person competent to testify on the accuracy thereof. [Sec. 1, Rule 21] B.2. ENTRIES IN OFFICIAL RECORDS AS PRIMA FACIE EVIDENCE Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. [Sec. 2, Rule 21]

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