UST Preweek Remedial Law 2014

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW

JURISDICTION

7.

Jurisdiction is the power and authority of the court to hear, try and decide a case.

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

Aspects of jurisdiction 1. 2. 3. 4.

Curative statutes (Herrera, Vol. I, p. 106, 2007 ed.).

Jurisdiction over the subject matter Jurisdiction over the parties Jurisdiction over the issues of the case Jurisdiction over the res or the thing involved in the litigation

Objections to jurisdiction over the subject matter

It is determined by the allegations of the complaint regardless of whether or not the plaintiff is entitled to his claims asserted therein.

The court may on its own initiative object to 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 may on its own initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction.

It is conferred by law which may be either the Constitution or a statute (B.P. Blg 129 or RA 7619).

Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal.

It cannot be conferred by the agreement of the parties, by contract or by parties’ silence or acquiescence.

Effect of estoppel on objections to jurisdiction

Jurisdiction over the subject matter

Doctrine of primary jurisdiction (Primary administrative jurisdiction) Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact (BF Homes, Inc. v. Manila Electric Company, December 6,2010). The objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court (Nestle Philippines Inc. v. Uniwide Sales, Inc, October 20, 2010). Doctrine of adherence of jurisdiction (continuity of jurisdiction) GR: Once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. XPNS: 1. Where a subsequent statute expressly prohibits the continued exercise of jurisdiction; 2. Where the law penalizing an act which is punishable is repealed by a subsequent law; 3. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right; 4. Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment; 5. When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void; 6. Once appeal has been perfected;

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The active participation of a party in a case is tantamount to recognition of that court‘s jurisdiction and will bar a party from impugning the court‘s jurisdiction. Jurisprudence however, did not intend this statement to lay down the general rule (Lapanday Agricultural & Development Corp. v. Estita, 449 SCRA 240; Mangaiag v. Catubig-Pastoral, 474 SCRA 153). The Sibonghanoy applies only to exceptional circumstances. The general rule remains: a court‘s lack of jurisdiction may be raised at any stage of the proceedings even on appeal (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, Feb. 6, 2007). Doctrine of estoppel by laches The doctrine of estoppel by laches in relation to objections to jurisdiction first appeared in the landmark case of Tijam vs. Sibonghanoy, 23 SCRA 29, where the SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings. This doctrine is based upon grounds of public policy and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. The SC frowns upon the undesirable practice of submitting one‘s case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction if it is not (BPI v.ALS Mgt. & Devt. Corp., 427 SCRA 564). Jurisdiction over the parties The legal power of the court to render a personal judgment against a party to an action or proceeding How jurisdiction over the plaintiff is acquired By his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court.

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Jurisdiction over the person of the defendant Obtained either by a valid service of summons upon him or by his voluntary submission to the court’s authority.

Regional Trial Courts Exclusive original jurisdiction 1.

Jurisdiction over the person of the defendant is required only in an action in personam; it is not a prerequisite in an action in rem and quasi in rem.

Criteria in determining whether the action is incapable of pecuniary estimation:

Jurisdiction over the issues

First ascertain the nature of the principal action or remedy. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the regional trial courts would depend on the amount of the claim.

It is the power of the court to try and decide issues 1. raised in the pleadings of the parties. 2. by the parties agreement in pre-trial 3. It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings

However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, such actions are cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by Regional Trial Courts.

Jurisdiction over the res or property in litigation 1. 2.

actual or constructive seizure provision of law, e.g. land registration Supreme Court

Original jurisdiction 1. 2. 3. 4.

Rationale: The second class cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of Courts of First Instance (now Regional Trial Courts), which were the lowest courts of record at the time the first organic laws of the Judiciary (Act 136 of the Philippine Commission of June 11, 1901) were enacted allocating jurisdiction (Spouses de Leon v. Court of Appeals, et al., G.R. No. 104796, March 6, 1998; Barangay San Roque,Talisay, Cebu v. Heirs of Francisco Pastor, et al., G.R. No. 138896, June 20, 2000).

cases affecting ambassadors and other public ministers and consuls; petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus Petition for a writ of Amparo Writ of Habeas Data

Appellate jurisdiction 1. 2. 3. 4. 5.

cases on constitutionality cases on jurisdiction of lower court cases in which only errors/ question of law are involved cases on the legality of taxes in criminal cases where the penalty imposed is reclusion perpetua

Example of actions incapable of pecuniary estimation: a. those for specific performance, b. support c. foreclosure of mortgage d. annulment of judgment e. actions questioning the validity of a mortgage f. annulling a deed of sale or conveyance and to recover the price paid g. action for rescission, which is a counterpart of specific performance.

Court of Appeals Original jurisdiction Issuance of writ of mandamus, prohibition and certiorari, habeas corpus and quo warranto

NOTE: Amount of damages maybe claimed in addition to the prayer for specific performance is not determinative of jurisdiction. Where however, the demand is in alternative, the action is one that is capable of pecuniary jurisdiction.

Appellate jurisdiction 1. 2. 3.

4.

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By way of ordinary of appeal from the RTC and Family Court By way of petition for review from the RTC rendered by the RTC in the exercise of its appellate jurisdiction By way of petition for review from the decisions, resolutions orders or awards of CSC and other bodies mentioned in Rule 43 Decisions of MTC in cadastral or land registration cases pursuant to its delegated jurisdiction

The action is incapable of pecuniary estimation

2.

Real Actions: real property with assessed value exceeding P20,000 outside Metro Manila, or exceeds P50,000 in Metro Manila

3.

If the amount involved exceeds P300,000 outside MM or exceeds P400,000 in MM in the following cases: a. Admiralty and maritime cases b. Matters of Probate (testate and intestate) c. Other actions involving personal property d. Demand for money

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4. Cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions 5. All actions involving the contract of marriage and family relations

Special Jurisdiction To hear and decide petitions for a writ of habeas corpus in the absence of all RTC judges in the province or city. It also includes the authority to hear and decide applications for bail in criminal cases in the province or city where the absent RTC judges sit.

Appellate Jurisdiction CIVIL PROCEDURE Cases decided by lower courts in their respective territorial jurisdictions except decisions of lower courts in the exercise of delegated jurisdiction. Metropolitan Trial Courts/Municipal Trial Courts Exclusive original jurisdiction 1.

If the amount involved exceeds P300,000 outside MM or exceeds P400,000 in MM in the following cases: a. Admiralty and maritime cases b. Matters of Probate (testate and intestate) c. Other actions involving personal property d. Demand for money The jurisdictional amount does not include: DIAL-C : i. Damages of whatever kind, ii. Interest iii. Attorney’s fee iv. Litigation expenses and v. Costs.

2.

Real actions - the assessed value of the property does not exceed P20,000 outside Metro Manila and P 50,000 with in Metro Manila. NOTE: The doctrine on which the RTC anchored its denial of petitioner's Motion to Dismiss, as affirmed by the CA - that all cases of recovery of possession or accion publiciana lies with the Regional Trial Courts regardless of the value of the property -- no longer holds true. As things now stand, a distinction must be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and P50,000.00, if within (Quinagoran v. CA, G.R. No. 155179, August 24, 2007) .

3.

Summary procedure; Small Claims - MTC has exclusive jurisdiction over cases falling under Summary Procedure and Rule of Small Claims

Ordinary, Special and Criminal Actions Ordinary civil action- is one by which one party sues another, based on a cause of action, to enforce or protect a right, or to prevent or redress a wrong, whereby the defendant has performed an act or omitted to do an act in violation of the rights of the plaintiff. Special civil action – actions which while governed by the rules for ordinary civil actions, are subject to special rules provided for special civil actions Criminal action- is one by which the State prosecutes a person for an act or omission punishable by law Real Action v. Personal Action Real actions These are actions affecting title to or possession of real property or an interest therein. The issues involved in real actions are title to, ownership, possession, partition, foreclosure of mortgage or condemnation of real property. Examples: Actions for unlawful detainer, forcible entry, accion publiciana, accion reinvindicatoria, to quiet title or to remove a cloud on a title NOTE: Not every action involving real property is a real action because the realty may only be incidental to the subject matter of the suit. Example is an action for damages to real property, while involving realty is a personal action because although it involves real property, it does not involve any of the issues mentioned. Personal actions All other actions which are not real actions.

4.

Actions for forcible entry and unlawful detainer- The MTC has exclusive jurisdiction over forcible entry and unlawful detainer cases.

Delegated Jurisdiction

Significance of distinction between a personal and real action

MTC exercises delegated jurisdiction over Cadastral and Land registration cases: 1. Where there is no controversy or opposition or contested lots the or 2. Value of which does not exceed P100,000.00. NOTE: Decisions of MTC in Cadastral and Land Registration cases shall be appealable to CA. MTC acting under its delegated jurisdiction may be deemed to be acting as RTC.

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Actions that are founded on privity of contract or the recovery of personal property or damages.

It is important for the purpose of determining the venue of the action. NOTE: A real action is “local”, i.e, its venue depends upon the location of property involved in the litigation. A personal action is “transitory”, i.e., its venue depends upon the residence of the plaintiff or defendant.

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Action in Rem, in Personam and Quasi in Rem Action in rem Against the thing itself Jurisdiction over the person of the defendant is not required

Action in personam Against particular persons Jurisdiction over the person of the defendant is required

Determines the state or status of thing

Imposes liability upon a person

Judgment binding on the whole world

Judgment is binding only upon the parties impleaded or their successors in interest

Action in quasi in rem Against particular person Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired Subject the interest of a named defendant over a particular property to an obligation burdening it Judgment is binding upon particular person

Action in personam distinguished from personal action A personal action is not the same as an action in personam. In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract or the recovery of damages; while an action in personam is an action against a person on the basis of his personal liability (Hernandez v. Rural Bank of Lucena, Inc.). Default Default is a procedural concept that occurs when the defending party fails to file his answer within the reglementary period (Bar 1999). Requisites before a party maybe declared in default ( Bar 1999): 1. 2. 3.

4. 5. 6.

There must be a motion to declare the defending party in default filed by the claiming party; Summons has been validly and previously served upon him; The defending party must have failed to file his answer within the reglementary period or within the period fixed by the court; There must be a proof of the failure to file the answer; The defending party must be notified of the motion to declare him in default; and There must be a hearing set for the motion to declare the defendant in default.

NOTE: The rule on default requires the filing of a motion and notice of such motion to the defending party. It is not enough

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that the defendant fails to answer the complaint within the reglementary period (De los Santos v. Carpio, G.R. No. 153696, 11 September 2006). The trial court cannot motu proprio declare a defendant in default as the rules leave it up to the claiming party to protect his or its interests (Viacrusis v. Estenzo, 115 Phil. 556 (1962); Trajano v. Cruz, G.R. No. L-47070, 29 December 1977, 80 SCRA 712) .The trial court should not under any circumstances act as counsel of the claiming party. Effect of a declaration/order of default A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Section 3 (a), Rule 9, Rules of Court ). Loss of standing in court, the forfeiture of one’s right as a party litigant, contestant or legal adversary, is the consequence of an order of default. A party in default loses his right to present his defense, control the proceedings, and examine or cross-examine witnesses. He has no right to expect that his pleadings would be acted upon by the court nor may be object to or refute evidence or motions filed against him (Otero v. Tan , G.R. No. 200134, August 15, 2012). Effect of partial default When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented ( Sec (3) , Rule 9 , Rules of Court). Admission of answer filed out of time It is within the sound discretion of the trial court to permit the defendant to file his answer and to be heard on the merits even after the reglementary period for filing the answer expires. The Rules of Court provides for discretion on the part of the trial court not only to extend the time for filing an answer but also to allow an answer to be filed after the reglementary period. The rule is that the defendant’s answer should be admitted where it is filed before a declaration of default and no prejudice is caused to the plaintiff. Where the answer is filed beyond the reglementary period but before the defendant is declared in default and there is no showing that defendant intends to delay the case, the answer should be admitted ( Sablas v. Sablas , G.R. No. 144568, July 3, 2007). Remedies of a defending party declared in default 1. After notice of order and before judgment – The defendant must file a verified motion to set aside the order of default upon proper showing that: a. His failure to answer was due to FAMEN: fraud, accident, mistake or excusable negligence; and b. That he has a meritorious defense (Sec. 3[b], Rule 9). 2. After judgment and before judgment becomes final and executory

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a. b.

motion for new trial under Rule 37. Appeal from the judgment (Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009)

NOTE: 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: i. The failure of the plaintiff to prove the material allegations of the complaint; ii. The decision is contrary to law; and iii. The amount of judgment is excessive or different in kind from that prayed for. In these cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence (Otero v. Tan, G.R. No. 200134, August 15, 2012). 3. After the judgment becomes final and executory – he may file a petition for relief from judgment under Rule 38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) NOTE: Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992). Amendment and Supplemental Pleadings Amendment 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 or, in the case of a reply, at any time within ten (10) days after it is served. (Sec. 2 ,Rule 10) NOTE: Responsive pleadings are those which seek affirmative relief and/or set up defenses,like an answer. A motion to dismiss is not a responsive pleading for purposes of Sec. 2 of Rule 10 (Alpine Lending Investors v. Corpuz, November 24, 2006).

Amendment to conform to or authorize presentation of evidence When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made (Sec. 5, Rule 10). NOTE: The curing effect under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. Unless the plaintiff has a valid and subsisting cause of action at the time his action is commenced, the defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending, and a supplemental complaint or an amendment setting up such after-accrued cause of action is not permissible (Swagman Hotels and Travel, Inc. V. Court of Appeals , G.R. No. 161135. April 8, 2005). Effect of amended pleadings An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived (Sec 8, Rule 10) Supplemental pleadings Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading (Sec 6, Rule 10).

Amendment by leave of court After the service of a responsive pleading leave of court is required for an amendment ( Sec 3, Rule 10)

Amended pleading supersedes the original pleading; it has retroactive application.

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

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Supplemental pleading distinguished from amended pleadings

Supplemental pleadings sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. It does not supersede the original pleading.

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Motions Omnibus Motion Rule GR: A motion which attacks a pleading, order, judgment, or proceeding should invoke all the grounds then existing and available; otherwise, they shall be deemed waived (Sec. 8, Rule 15). XPNS: The court may dismiss the case motu proprio based on: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Bar by statute of limitations Bar by dismissal An action can no longer be refilled once it is dismissed by the court on the following grounds: 1. Res judicata; 2. Prescription; 3. Extinguishment of the claim or demand; and 4. Unenforceability under the State of Frauds (Sec. 5, Rule 16). NOTE: The remedy being to appeal

6.

Depositions pending action (Rule 23); Depositions before action or pending appeal(Rule 24); Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26); Production or inspection of documents and things (Rule 27); and Physical and mental examination of persons (Rule 28). Depositions

A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. It may be either by oral examination, or by a written interrogatory (Sec. 1, Rule 23). Kinds of depositions: 1. 2.

Deposition de bene esse – one taken pending action (Sec. 1, Rule 23); and Deposition in perpetua rei memoriam – one taken prior to the institution of an apprehended or intended action (Rule 134)

Use of Depositions The importance of the rules of discovery is that they shorten the period of litigation and speed up adjudication. The evident purpose is to enable the parties, consistent with recognized principles, to obtain the fullest possible knowledge of the facts and issues before civil trials and thus prevent said trials from being carried on in the dark.

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Scope of examination Unless otherwise ordered by the court as provided by Sec. 16 or 18, the deponent may be examined regarding: 1. any matter not privileged, 2. which is relevant to the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts 3. Not restricted by a protective order. Written Interrogatories Consequence of refusal to answer The party who fails to serve his answer to written interrogatories may be the subject of a judgment by default. Effect of failure to serve written interrogatories

Modes of Discovery 1. 2. 3. 4. 5.

The rules of discovery serve as (a) devices, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis issues between the parties; and (b) devices for ascertaining the facts relative to those issues (Republic vs. Sandiganbayan, 204 SCRA 212).

A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give deposition pending appeal, unless allowed by the court or to prevent a failure of justice (Sec. 6, Rule 25). Request for Admission Implied admission by adverse party Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. NOTE: Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable Consequences of failure to answer request for admission The facts or documents are deemed admitted.

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Effect of admission Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. 3, Rule 26). Effect of failure to file and serve request for admission A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts (Sec. 5, Rule 26). JUDGMENTS AND FINAL ORDERS Production or Inspection of Documents or Things Requirements for the production or inspection of documents or things: 1. A motion must be filed by a party showing good cause therefor; 2. The motion must sufficiently describe the document or thing sought to be produced or inspected; 3. The motion must be given to all the other parties; 4. The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action; 5. The document or thing sought to be produced or inspected must not be privileged; and 6. The document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least under his control (Sec. 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175) Physical and Mental Examination of Persons This mode of discovery applies to an action in which the mental or physical condition of a party is in controversy. Requisites to obtain order for examination 1. 2. 3. 4.

a motion must be filed for the physical and mental examination; The motion showing good cause for the examination; Notice to the party to be examined and to all the other parties The motion shall specify the time, place, manner, condition and scope of the examination and the person or persons by whom it is made.

2. Making of nunc pro tunc entries which cause no prejudice to any party; and 3. Where judgment is void (Minal v. CA, 221 SCRA 26). Res Judicata: Bar by Former Judgment There is no question that where as between the first case where the judgment is rendered and the second case where such judgment is invoked, there is identity of parties, subject matter and cause of action, the 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 as to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. This is designated as "bar by former judgment". Res Judicata: Conclusiveness of Judgment Where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or judgment was rendered. In fine, the previous judgment is conclusive in the second case only as those matters actually and directly controverted and determined and not as to matters merely involved therein. This is the rule on ‘conclusiveness of judgment’ (San Pedro v. Binalay, 468 SCRA 47). Judgments; “Amended judgment” distinguished from “Supplemental judgment.” In an amended and clarified judgment, the lower 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. The amended and clarified decision is an entirely new decision which supersedes the original decision. Following the court’s differentiation of a supplemental pleading from an amending pleading, it can be said that a supplemental decision does not take the place or extinguish the existence of the original. As its very name denotes, it only serves to bolster or adds something to the primary decision. A supplement exists side by side with the original. It does not replace that which it supplements. (Associated Anglo-American Tobacco Corporation, et al. vs. Court of Appeals, et al.,G.R. No. 167237, April 23, 2010) Judgment; sufficiency of minute resolution of Supreme Court

JUDGMENT Rule of Immutability of Judgment A decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law. In short, once a judgment becomes final and executory, it can no longer be disturbed no matter how erroneous it may be and nothing further can be done therewith except to execute it (Florentino v. Rivera, 479 SCRA 522). XPNS: 1. Clerical Errors;

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As to petitioner’s complaint regarding this Court’s denial of her petition through a mere minute resolution (which allegedly deprived her of due process as the Court did not issue a full-blown decision stating the facts and applicable jurisprudence), suffice it to say that the Court is not dutybound to issue decisions or resolutions signed by the justices all the time. It has ample discretion to formulate ponencias, extended resolutions or even minute resolutions issued by or upon its authority, depending on its evaluation of a case, as long as a legal basis exists. When a minute resolution (signed by the Clerk of Court upon orders of the Court) denies or dismisses a petition or motion for reconsideration for lack of merit, it is understood that the assailed decision or order, together with all its findings of fact and legal conclusions, are

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW deemed sustained. Florencia G. Diaz vs. Republic of the Philippines, G.R. No. 181502, February 2, 2010. Judgment on the Pleadings v. Summary Judgment Judgment on the Pleadings The answer does not tender an issue

Subject 3 days notice rule Only the plaintiff or the defendants as far as the counterclaim, crossclaim or third-party complaint is concerned can file the same.

Summary Judgment There is an issue tendered in the answer, but it is not genuine or real issue Subject to 10 days notice rule Either the plaintiff or the defendant

raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings were ex parte, or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved.(Beatriz Siok Ping Tang VS. Subic Bay Distribution, Inc., G.R. No. 162575, December 15, 2010). Effect of granting a motion for reconsideration If the court grants the motion, it may amend such judgment or final order accordingly (Sec. 3, Rule 37).

Post Judgment Remedies Remedies before a Judgment becomes Final and Executory 1. 2. 3.

Motion for reconsideration Motion for new trial; and Appeal

The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it. Partial reconsideration

The motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order.

If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant consideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37).

When to file

Remedy when the motion is denied

A motion for reconsideration of a judgment or a final order is filed within the period for appeal (Sec. 1 , Rule 40).

The party aggrieved should appeal the judgment. This is so because a second motion for reconsideration is expressly prohibited.

MOTION FOR RECONSIDERATION Object of the motion

Effect of filing of the motion on the period to appeal The filing of a timely motion for reconsideration interrupts the period to appeal (Sec. 2,Rule 40; Sec. 3, Rule 41). Grounds for a motion for reconsideration 1. 2. 3.

The damages awarded are excessive; The evidence is insufficient to justify the decision or final order; The decision or final order is contrary to law.

An order denying a motion for reconsideration or new trial is not appealable, the remedy being an appeal from the judgment or final order under Rule 38. The remedy from an order denying a motion for new trial is not to appeal from the order of denial. Again, the order is not appealable. The remedy is to appeal from the judgment or final order itself subject of the motion for new trial (Sec. 9, Rule 37). MOTION FOR NEW TRIAL Grounds under Rule 37

GR: A motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari. (Office of the Ombudsman v. Laja, G.R. No. 169241, May, 2 2006, 488 SCRA 574, 580). Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by the re-examination of the legal and factual circumstances of the case. (Estate of Salvador Serra Serra v. Heirs of Primitivo Hernaez, 466 SCRA 120, 127 (2005). XPNS: (a) where the order is a patent nullity, as where the court a quo had no jurisdiction; (b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those

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1. 2.

Fraud (extrinsic), accident, mistake (of fact and not of law) or excusable negligence (FAME); Newly discovered evidence (Berry Rule) (Sec. 1, Rule 37)

Requisites for Newly discovered evidence 1. The evidence was discovered after trial; 2. It could not have been discovered and produced at trial even with due diligence; 3. That it is material, not merely cumulative, corroborative, or impeaching; and

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4. It is of such weight that it would probably change the judgment if admitted. NOTE: Motion for Reconsideration cannot be availed twice in all courts EXCEPT in SUPREME COURT. Motion for New Trial, allowed to be availed twice but for new ground.

Petition for Relief from Judgment When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through FAME, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside (Sec. 1, Rule 38).

APPEAL When to File Timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empowered to review a final decision on the ground that it was based upon an erroneous application of law. It is not part of due process but a mere statutory privilege that has to exercised in the manner and in accordance with the provisions of law (Stolt-Nielsen v. NLRC).

A petition for relief from judgment, order or other proceedings must be verified, filed: 1. within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and 2. not more than six (6) months after such judgment or final order was entered, or such proceeding was taken.

Judgments or orders that are not appealable No appeal may be taken from: 1. An order denying a motion for new trial or reconsideration (no longer part of the enumeration as of December 27, 2007 per AM No. 07-7-12 SC); 2. An order denying a petition for relief or any similar motion seeking relief from judgment; 3. An interlocutory order; 4. An order disallowing or dismissing an appeal; 5. 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; 6. An order of execution; 7. A judgment or final order for or against one or more of several parties or in separate claims,counterclaims, cross-claims and third-party complaints, while the main case is pending, unless thecourt allows an appeal therefrom; and 8. An order dismissing an action without prejudice. In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65 (last par., Sec. 1, Rule 41)

These two periods must concur. Both periods are not extendible and are never interrupted. ACTION TO ANNUL JUDGMENT Grounds for annulment 1.

Fraud is extrinsic when it is committed to deprive a party of his day in court, thereby preventing him from asserting his rights to property. Fraud is regarded as extrinsic when it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procure. (Alarcon v. Court of Appeals, et al., G.R.No. 126802, January 28, 2000) Circumstances where extrinsic fraud present a.

Modes of Appeal 1. 2. 3.

b.

Ordinary Appeal Petition for review Petition for review on certiorari

Period of Appeal

c.

The period of appeal is generally fifteen (15) days from notice of judgment or final order, unless otherwise provided by the Rules of Court or other laws. Remedies after Judgment becomes Final and Executory Remedies after judgment becomes final and executor 1. 2. 3. 4.

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Petition for relief from judgment; Action to annul a judgment; Certiorari; and Collateral attack of a judgment.

Extrinsic Fraud

2.

Where the unsuccessful party had been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or Where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or Where the attorney regularly employed corruptly sells out his client's interest to the other side. (Straits Times, Inc. etc. v. Court of Appeals, et al., G.R. No. 126673, prom. August 28, 1998) Lack of Jurisdiction

As a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim

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Certiorari does not interrupt the principal case

1.

The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case (Sec. 7, Rule 65).

2.

If based in extrinsic fraud- the action must be filed within four (4) years from its discovery If based in the lack of jurisdiction – the action must be brought before the action is barred by laches or estoppel (Sec. 3, Rule 47).

Collateral Attack of a Judgment

Petition for Certiorari under Rule 65 The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion.

A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action.

Grave abuse of discretion

Execution, Satisfaction and Effect of Judgments

The term "grave abuse of discretion" has a specific meaning. An act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be so patent and gross as to amount to an "evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility." Furthermore, the use of a petition for certiorari is restricted only to "truly extraordinary cases wherein the act of the lower court or quasi-judicial body is wholly void (Yu v. Judge Reyes-Carpio, G.R. No. 189207, June 15, 2011).

Difference between finality of judgment for purposes of appeal; for purposes of execution For purposes of appeal- an order is final if it disposes of the action as opposed to an interlocutory order which leaves something to be done in the trial court with respect to the merits of the case. For purposes of execution- an order is final or executory after the lapse of the reglementary period to appeal and no such appeal has been perfected. When execution shall issue 1.

Motion for reconsideration A petitioner must first exhaust all other remedies available before resorting to certiorari. GR: Before filing a petition for certiorari under Rule 65 of the Rules of Court, the petitioner is mandated to comply with a condition precedent: the filing of a motion for reconsideration of the assailed order, and the subsequent denial of the court a quo. XPNs: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the 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; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or public interest is involved.

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Execution as a matter of right upon judgment or final orders (Sec.1, Rule 39)

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. The rule is clear that it becomes mandatory or ministerial duty of the court to issue a writ of execution to enforce the judgment which has become executory. 2.

Discretionary execution

Discretionary execution of appealed judgments may be allowed upon concurrence of the following requisites: a. b. c.

there must be a motion by the prevailing party with notice to the adverse party; there must be a good reason for execution pending appeal; and the good reason must be stated in a special order.

The yardstick remains the presence or the absence of good reasons consisting of exceptional circumstances of such urgency as to outweigh the injury or damage that the losing party may suffer, should the appealed judgment be reversed later. Since the execution of a judgment pending appeal is an exception to the general rule, the existence of good reasons is essential (Manacop v. Equitable PCI Bank, G.R. No. 16281417, 25 August 2005).

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Stay of execution of judgment GR: As a rule, an appeal perfected in due time stays the execution of a judgement,

deemed resolved and laid to rest. All that remains is the execution of the decision which is a matter of right. Banaga v. Majaducon, however, enumerates the instances where a writ of execution may be appealed:

XPNS: 1. Those judgments which by express provision of the rules are immediately executory and are not stayed by an appeal ( Sec. 4 , Rule 39) 2. Those judgments that have become the object of a discretionary execution ( Sec. 2 , Rule 39)

1. 2.

Judgment not stayed by appeal

5.

1.

Judgments in actions for a. injunction, b. receivership, c. accounting and d. support ( Sec 4, Rule 39)

6.

2.

Under Rule 70 , a judgment rendered against a defendant in an action for forcible entry and unlawful detainer is immediately upon motion unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond ( sec. 19 , Rule 70)

In these exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error or certiorari), or by a special civil action of certiorari, prohibition, or mandamus. (Danilo L. Parel v. Heirs of Simeon Prudencio, G.R. No. 192217, March 2, 2011)

Writ of execution; instances where writ may be appealed

3. 4.

the writ of execution varies the judgment; there has been a change in the situation of the parties making execution inequitable or unjust; execution is sought to be enforced against property exempt from execution; it appears that the controversy has never been subject to the judgment of the court; the terms of the judgment are not clear enough and there remains room for interpretation thereof; or it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority.

Unjustified delay in the enforcement of a judgment sets at naught the role of courts in disposing justiciable controversies with finality. Once a judgment becomes final and executory, all the issues between the parties are PROVISIONAL REMEDIES Provisional remedies They are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case. (1996 Bar Question)

Subject Matter Jurisdiction

Who may grant it

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Preliminary Attachment (Rule 57) Personal and real property

Preliminary Injunction (Rule 58)

Receivership (Rule 59)

Replevin (Rule 60)

Support (Rule 61)

Particular act(s)

Personal and real property

Money or other forms of support

SC, CA, RTC, Family Court, MeTC, MTC , MCTC and MTCC

SC, CA, RTC, Family Court, MeTC, MTC , MCTC and MTCC

SC, CA, RTC, Family Court, MeTC, MTC , MCTC and MTCC

Personal property capable of manual delivery RTC, Family Court, MeTC, MTC , MCTC and MTCC

Courts where action is pending, the CA or the SC (Sec. 2)

Only the Court where the action is pending; Lower court, CA or SC provided action is pending in the same court which issues the injunction (Sec. 2)

Court where action is pending, the CA or the SC, or a member thereof, even if action is pending in the lower court. Appellate court may allow application for receivership to be decided by the court of origin (Sec. 1)

Only the court where action is pending.

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GR:Family Court XPN: In criminal actions, as long as the civil aspect is tried together with it , the RTC or MTC having jurisdiction may also issue this remedy.(e.g Art. 345 (3) RPC, in crimes against chastity, “In every case to support the offspring...”) Court of origin and appellate court(Ramos v. CA, GR No. L-31897, June 30, 1972).

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When available

At any stage of the action but before entry of final judgment (Sec. 1)

At any stage of the action but before judgment or final order (Sec. 1)

How applied for

File affidavits and applicant’s bond (Sec. 3)

File verified application and applicant’s bond; if application is included in the initiatory pleading, the adverse party should be served with summons together with a copy of the initiatory pleading and the applicant’s affidavit and bond (Sec. 4)

At any stage of the proceeding ; after judgment; anytime prior to satisfaction of judgment; on appeal ( Sec. 1) File verified application and applicant’s bond; application may also be included in initiatory pleading in actions for foreclosure of mortgage (Secs. 1 and 2)

At the commencement of the action but before answer is filed (Sec. 1)

At the commencement of the action or at any time prior to the judgment or final order (Sec. 1)

File affidavits and applicant’s bond (Sec. 2)

File verified application; bond not required (Sec. 1)

Preliminary Preliminary Receivership (Rule Replevin (Rule Attachment (Rule Injunction (Rule 58) 59) 60) 57) Purpose(s) 1. To seize the 1. To require a party To place the property To recover property of the or a court, agency subject of an action possession of adverse party in or a person to or proceeding under personal advance for the refrain from the control of a third property(1999 satisfaction of doing a particular party for its Bar Question). judgment that act or to require preservation may be the performance andadministration recovered in of a particular act litis pendentia and to cases falling protect the rights of under (Sec.1, all the parties under Rule 57) 2. To prevent future the direction of the 2. To enable the injury and court. court to acquire maintain the jurisdiction over status the action by quo(Kencht v. CA, the actual or G.R. No. 97962, constructive November 17, seizure of the 1993). property in those instances where personal service of summons on the creditor cannot be effected (Quasha v. Juan, G.R. No. L54158, November 19, 1982). Grounds 1. GR: In an action 1. That the 1. When the Applicant is: for the recovery applicant is applicant has an 1. The owner of a specified entitled to the interest in the of the amount or relief demanded property or fund property damages which consists in subject of the claimed; or against a party restraining the proceeding and who is about to commission or such property is 2. Entitled to depart from the continuance of in danger of being the Philippines with the act lost, removed or possession intent to complained of, or materially injured thereof but defraud his in requiring the unless a receiver the property creditors performance of is appointed is wrongfully an act for a detained by XPNs:

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Support (Rule 61)

To compel adverse party to provide support while the action is pending in court.

When equity and justice require, having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support

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2.

Moral and exemplary

limited period or 2. perpetually

In an action for 2. money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or by any other 3. person in a fiduciary capacity, or for a willful violation of duty

Commission, continuance or non-performance of the act during the litigation would probably work injustice to the applicant; or

3.

In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person

4.

In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation or in its performance

5.

In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors;

4.

the adverse party (Sec. 2)

After judgment, to preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution when execution has been returned unsatisfied of the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; or When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation (Sec. 1)

6.

Whether principal or ancillary

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In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication Ancillary remedy

Party, court, agency or a person is doing, threatening, or is attempting to do, 3. or is procuring or suffering to be done, some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual (Sec. 3)

In foreclosure of mortgage, when 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 it has been agreed upon by the parties

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

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Ancillary to: 1. Action for support; or

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2.

Effectivity

During the pendency of the case unless earlier discharged or quashed by the court

During the pendency of the case unless earlier discharged or quashed by the court

Until discharged by the court

During the pendency of the case unless the defendant files a redelivery bond

In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing During the pendency of the case

SPECIAL CIVIL ACTION

Interpleader ( Rule 62)

Jurisdiction MTC – where the value of the claim or the personal property does not exceed P300,000 or P400,000 in Metro Manila or where the value of the real property does not exceed P20,000 or P50,000 in Metro Manila.

Venue Where the plaintiff or any of the principal plaintiff resides or where the defendant or any of the principal defendants resides at the option of the plaintiff(Sec. 2, Rule 4).

RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC [Judiciary Act of 1980; BP Blg 129 (sec 19(2), Sec 33(3)as amended by RA 7691]

NOTE: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Who May File A person who claims no interest whatever in the subject matter or an interest which in whole or in part is not disputed by the claimants having claims upon the same subject matter (Sec 1, Rule 62).

RTC

Where the petitioner or 1. the respondent resides at the election of the petitioner (Section 2, NOTE: It would be error to file the Rule 4).

Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation.

2.

All persons who have or claim any interest which could be affected by the declaration.

3.

A person may file an action for reformation of an instrument, to quiet title or to consolidate ownership under Art. 1607 of the Civil Code under this Rule (similar remedies)

petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief (Tano v. Socrates, G.R. No. 110249, August 14, 1997).

Declaratory Relief ( Rule 63)

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When To File Within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending claimants. Otherwise, it may be barred by laches or undue delay. This is because after judgment is obtained against the plaintiff by one claimant, he is already liable to the latter(Wackwack Golf & Country Club v Won, GR L-23851 March 26, 1976). The petition must be filed before there is a breach of contract or violation of the statute or ordinance (Sec 1, Rule 63).

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NOTE: The rights of persons not made parties to the action do not stand to be prejudiced by the declaration (Sec. 2). Since their rights are not to be prejudiced by their non-inclusion, the failure to implead such person does not therefore, affect the jurisdiction of the court over the petition (Baguio Citizen’s Action, Inc. v. The City Council, G.R. No. L27247, April 20, 1983).

Supreme Court on certiorari Supreme Court under Rule 65

The party aggrieved by a judgment or final order or resolution of the Commission on Elections and the Commission on Audit

days from of the or final resolution to be

The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial.

Review of Judgments of COMELEC AND COA (Rule 64 in relation to Rule 65)

1. 2. 3. 4.

RTC, 1. CA SC, Sandiganbayan, COMELEC in aid of their appellate jurisdiction (A.M. No. 077-12-SC). 2.

3. Certiorari, Prohibition, Mandamus (Rule 65)

4.

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Within 30 notice judgment order or sought reviewed.

RTC, if it is directed against a municipal trial court, a corporation, a board, an officer or a person. CA or with the SB, whether or not the same is in aid of the court’s appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or the Rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of MTC /RTC, it shall be filed exclusively with the

A person aggrieved by any tribunal, board or officer exercising judicial or quasijudicial functions which has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction (Sec. 1, Rule 65).

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Within 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed within 60 days counted from the notice of the denial of the motion (Sec. 4, Rule 65 as amended by A.M. No. 07-7-12SC).

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RTC, CA, SC, (Sec. 7, Rule 66) SB in aid of its appellate jurisdiction (PD 1606, 4 as amended by RA No 8249, 4)

Quo warranto

COMELEC, in aid of its appellate jurisdiction (Sec. 4, Rule 65). With the SC, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides. When the Solicitor General commences the action, it may be brought in the RTC of the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66).

The government through the Solicitor General or a Public Prosecutor. It may also be filed by a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another (Secs. 2,3 and 5, Rule 66).

NOTE: Subject to the principle of Hierarchy of Courts

RTC (incapable of pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000). Expropriation (Rule 67)

Foreclosure of REM (Rule 68)

Land: where the property is located

Government or any of its instrumentalities (Riano, 2009)

Personal property: the place where the plaintiff or defendant resides, at the election of the plaintiff (Sec. 2, Rule 4). RTC (incapable of pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000).

Where the land or any part thereof is located (Sec. 2, Rule 4).

RTC 1. (incapable of pecuniary estimation) (Bar 2000 as cited in Riano, 2009) 2.

Real property – where the property is located Personal property – the place where the plaintiff or defendant resides at the election of the plaintiff (Sec. 13, Rule 69).

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MTC, MTCCs, MCTC

Where the property is located because it is a

Action for damages must be commenced within 1 year after the entry of the judgment establishing the petitioner's right to the office in question (Sec. 11, Rule 66). At anytime before the actual taking and entering into possession of the real property

Mortgagee

At any time after the mortgagor defaults in the payment of his debt

A person having the right to compel the partition of real estate(Sec 1, Rule 69).

It can be made anytime and the right to demand partition does not prescribe. Prescription does not run in favor of co-owner or co-heir against his co-owner or co-heirs as long as there is a recognition of the co-ownership expressly or impliedly (Art. 494, NCC)

Partition (Rule 69)

Forcible Entry (Rule 70)

Within 1 year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose.

A person deprived of the possession of any land or

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But a co-owner may acquire ownership by prescription where there exists a clear repudiation of the co-ownership and the co-owners are apprised of the claim of adverse and exclusive ownership (Heirs of Flores Restar v. Heirs of Cichon, 475 SCRA 731). Within 1 year from the date of entry or

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MeTC; covered by Rule on Summary Procedure (Sec 3, RA 7691)

real action 2009)

(Riano,

building by force, intimidation, threat, strategy or stealth (Sec. 1, Rule 70).

taking of possession by force, intimidation, threat, strategy, or stealth. NOTE: In Vda. De Prieto v. Reyes (G.R. No. L-21470, June 23, 1965), the SC ruled that to deprive the lawful possessor of the benefit of the summary action under Rule 70 simply because the stealthy intruder manages to conceal the trespass for more than a year would be to reward clandestine usurpation even if it is unlawful.

MTC, MTCCs, MCTC Metropolitan Trial Courts; covered by Rule on Summary Procedure (Sec 3, RA 7691).s

Where the property is located because it is a real action (Riano,2009)

A lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person (Sec. 1, Rule 70).

Unlawful Detainer (Rule 70)

MTC, RTC, CA, SC

Contempt (Rule 71)

Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court.

Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or other formal charge requiring respondent to show cause why he should not be punished for contempt (Sec. 4, Rule 70).

Where such contempt has been committed

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GR: Within 1 year from the date of the last demand to vacate in case of non-payment of rent or noncompliance with the conditions of the lease. In case of several demands, the one-year period is counted from the last demand. In case of tacit renewal of the lease, the 1 year period is counted from the date of the notice to quit. In case of occupancy on mere tolerance or under a temporary permit, the one-year period is counted from the date of the revocation of the permit. XPN: When the subsequent demands were merely in the nature of reminders of the original demand, in which case the one year period is counted from the first demand (Desbarats v. Laureano, G.R. No. L-21875, September 27, 1966). At any time after the contemptuous act has been committed.

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. 5, Rule 70)

Modes of settlement of estate SPECIAL PROCEEDINGS A petition for declaration of presumptive death may be considered a special proceeding, because it is so classified in the Rules of Court (Rule 107, Rules of Court), as differentiated from an ordinary action which is adversarial. It is a mere application of the proceeding to establish the status of a party or a particular fact, to viz: that a person has been unheard of for a long time and under such circumstance that he may be presumed dead. (2009 Bar Question) SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS Jurisdiction over the estate of the deceased Regional Trial Court Gross value of the estate exceeds 400,000 (within Metro Manila) or 300,000 (outside Metro Manila)

Metropolitan Trial Court Gross value of the estate does not exceed 400,000 (within Metro Manila) or 300,000 (outside Metro Manila)

Venue Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien

1.

Extrajudicial settlement– Where the decedent left no will and no debts and heirs are all of age, or the minors are represented by their representatives duly authorized for the purpose, court proceedings are no longer necessary, but the formal requisites must be complied with (Sec. 1, Rule 74).

2.

Judicial settlement – where proceedings in court is necessary, and includes the following: a. Summary settlement of estate of small value – Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed P10,000, the court may proceed summarily, without the appointment of an executor or administrator (Sec. 2, Rule 74). b. Testate proceedings – When the decedent left a last will and testament (Rules 75-79). c. Intestate proceedings – When the decedent died without a will, or died with a will but was found invalid and thereafter disallowed (Rule 79). d. Partition – When there is no will and the parties entitled to the estate would agree on the project of partition (Rule 69).

Non-Resident Court of the province/city wherein his estate is located

Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI, G.R. Nos. L-21938-39, May 29, 1970). Extent of jurisdiction of probate court The Court, in the exercise of its probate jurisdiction, may issue warrants and processes to compel the attendance of witnesses or to carry into effect their orders and judgments and all other powers granted them by law (Sec. 3, Rule 73).

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deceased (Portugal and Portugal, Jr. v. Portugal-Beltran, G.R. No. 155555, August 16, 2005).

Extrajudicial Settlement v. Summary Settlement of Estate Extrajudicial settlement No court intervention Value of the estate is immaterial Allowed in intestate only No outstanding debts of the estate at the time of settlement Resorted at the instance and by agreement of all heirs

Amount of bond is equal to the value of the personal property. If it is a real property, it is subject to a lien for 2 years. Bond is filed with register of deeds

Summary settlement of the estate Requires summary judicial adjudication Gross value of the estate must not exceed 10K Allowed in testate and intestate succession Available even if there are debts May be resorted by any interested party even a creditor of the estate without the consent of all the heirs Amount of bond determined by the court

Issues of ownership GR: Probate courts cannot determine issues of ownership because they are courts of limited jurisdiction. XPNs: 1. Provisionally for the sole purpose of including the property in the inventory, without prejudice to its final determination in separate action; 2. Agreement between the parties provided no rights of third persons are prejudiced. 3. If the question of collation or advancement. Contents of a petition for allowance of a will 1.

2. Bond is filed with the court

Two-Year Prescriptive Period in Extra-judicial partition GR: After the expiration of two years from the extra-judicial partition, distributees or heirs are barred from objecting to an extra-judicial partition. However the two year period applies only to: 1. Persons who have participated or taken part or had notice of extra-judicial partition 2. When all the persons or heirs of the decedent have taken part in the extra-judicial settlement or are represented by themselves or through their guardians. XPNS: If on the date of the expiration of the two year period, the person authorized to file a claim is a: 1. Minor 2. Incapacitated 3. In prison 4. Outside the Philippines NOTE: He may present his claim within one year after such disability is removed.

3. 4. 5.

Jurisdictional facts: a. Death of the testator and b. His residence at the time of his death c. If non- resident, the province where the estate was left The names, ages and residences of the heirs, legatees and devisees of the testator or decedent. The probable value and character of the property of the estate. The name of the persons for whom letters are prayed. The name of the person having custody of the will if it has not been delivered to the court (Sec. 2, Rule 76).

NOTE: No defect in the petition shall render void the allowance of the will or the issuance of letters testamentary or of administration with the will annexed (Ibid.). Claims in the Settlement of Estate Citing Leung Ben v O’Brien, it explained that the term “implied contracts,” as used in our remedial law, originated from the common law where obligations derived from quasicontracts and from law are both considered as implied contracts. Thus, the term quasi-contract is included in the concept “implied contracts” as used in the Rules of Court. Accordingly, the liabilities of the deceased arising from quasicontracts should be filed as claims in the settlement of his estate, as provided in Section 5, Rule 86 of the Rules of Court. (Metropolitan Bank & Trust Company v. Absolute Management Corporation, G.R. No. 170498, January 9, 2013) Statute of Non-Claims

Declaration of Heirship 1.

If the special proceedings are pending, or if there are no special proceedings filed but there is a need to file one, then the determination of heirship should be raised and settled in said special proceedings.

2.

If the special proceeding had been instituted but had been finally closed and terminated, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the

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GR: Claims against the estate should be filed in not less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory and any action not filed within the period shall be barred forever, unless otherwise falling within any of the exceptions. XPNs: Belated claims may be filed even beyond the period fixed by the court: 1. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed for a period not

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW exceeding 1 month from the order allowing the filing of the belated claims; or (Sec. 2 , Rule 86) 2. Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him. NOTE: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect. (Sikat vs. Vda. De Villanueva, G.R. No. L-35925, Nov. 10, 1932).

ESCHEAT Escheat is a proceeding whereby the real and personal property of a deceased person in the Philippines, become the property of the state upon his death, without leaving any will or legal heirs. Requisites for filing of petition 1. 2. 3.

Three instances of escheat 1. 2.

Claims against the estate of the decedent which are covered by the statute of non claims 1. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. Expenses for the last sickness of the decedent; or 4. Judgment for money against the decedent (Sec. 5, Rule 86). TRUSTEES Trust is the legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property. A trustee under the Rules of Court cannot be appointed based on an implied trust. The provision of the Rules of Court refers to a judicial trust constituted only based on an express trust either from a will or any other written instrument (O’Lao v. Co Cho Chit, G.R. No. 58010, March 31, 1993). NOTE: Notice to and consent of beneficiaries are not essential for the creation of the trust. The fact that beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to accept it is of no importance for it is not essential to the existence of a valid trust and to the right of the beneficiaries to enforce the same that they had knowledge thereof at the time of its creation. Neither is it necessary that the beneficiary should consent to the creation of the trust (De Leon, et. al v. Molo-Peckson, et al., G.R. No.L-17809, Dec. 29, 1962). When ownership can be acquired by Trustee Prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present: 1. 2. 3.

That the trustee has performed unequivocal acts amounting to an ouster of the cestui que trust; That such positive acts of repudiation had been made known to the cestui que trust; and That the evidence thereon should be clear and conclusive (Ceniza v. CA, 181 SCRA 552).

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That a person died intestate; That he left no heirs or person by law entitled to the same; and That the deceased left properties.

When a person dies intestate leaving no heir but leaving property in the Philippines (Sec. 1, Rule 91); Actions for reversion of properties alienated in violation of the constitution or any statute (Sec. 5, Rule 91);

NOTE: Escheat proceedings may be instituted as a consequence of violation of Article XIII of the Constitution which prohibits transfers of private agricultural land to aliens (Rellosa v. Gaw Chee Hun, G.R. No. L-1411, Sept. 29, 1953). 3.

Dormant accounts for 10 years (Unclaimed Balance Act of Banking Laws).

NOTE: An action to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the name of the People of the Philippines in the RTC of the province where the bank is located, in which shall be joined as parties the bank and such creditors or depositors (Republic v. Pres. Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988). GUARDIANSHIP Guardianship is the power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself. Guardianship of Minors - governed by A.M. No. 034-02-05 SC and under the exclusive jurisdiction of the Family Courts Guardianship of Incompetents - governed by Rules 92 to 97 of the Rules of Court and under the exclusive jurisdiction of the Regional Trial Courts Requirement to post a bond The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian (Guerrerov.Teran,G.R.No.L-4898,Mar.19,1909).

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW

WRITS OF HABEAS CORPUS, AMPARO, HABEAS DATA AND KALIKASAN HABEAS CORPUS You have the body

AMPARO To protect

HABEAS DATA You have the data

Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

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

Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Office of the Remedy

To direct the person detaining another to produce the body of the person being detained and show the cause of detention.

To direct the public officers involved to conduct an investigation as to the whereabouts and legality of the detention of a missing person.

To order the disclosure or destruction of data relating to the right to life, liberty or security of a person.

Coverage

Involves the right to liberty of and rightful custody by the aggrieved party.

Where to file

RTC or any judge thereof, CA or any member thereof in instances authorized by law; Sandiganbayan in aid of its appellate jurisdiction, or SC or any member thereof.

Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances. RTC of the place where the threat, act or omission was committed or any of its elements occurred; SB or any justice thereof; CA or any justice thereof; SC or any justice thereof.

It protects the image, privacy, honor, information, selfdetermination and freedom of information of a person. RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner; or with SC, CA or SB when the action concerns public data files or government offices.

Literal interpretation Description

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KALIKASAN It is a Filipino word which means “nature” in English Special remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. To order the protection of the constitutional right to a balanced and healthful ecology and restrain further acts that cause environmental damage of such a magnitude that prejudices the right to life, health or property of inhabitants in two or more cities or provinces. Constitutional right to a balanced and healthful ecology.

In SC or any stations of the CA.

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW

Who may file a petition

1.

2.

Party for whose relief it In the following order: 1. is intended; or 1. Any member of the immediate family 2. Any person on his 2. Any ascendant, behalf descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity 3. Any concerned citizen, organization, association or institution

Respondent

May or may not be an officer.

Public official or employee or a private individual or entity.

Enforceability of the writ

If granted by SC or CA: enforceable anywhere In the Philippines;

Enforceable anywhere in the Philippines regardless of who issued the same

Docket fees

If granted by RTC: enforceable only within the judicial district Payment is required

Petitioner is exempted from payment

NOTE: Rule on indigent petitioner applies. Service of writ

Person who makes the return

When to file a return

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Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found On the day specified in the writ

Served upon the respondent personally; or substituted service

Any aggrieved party; However, in cases of extralegal killings and enforced disappearances: a. Any member of the immediate family b. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity Public official or employee or a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Enforceable anywhere in the Philippines

A natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency.

Payment is required.

Petitioner is exempted from payment

NOTE: Rule on indigent petitioner applies. Served upon the respondent personally; or substituted service

Public official or employee, private individual or entity.

Enforceable anywhere in the Philippines

Served upon the respondent personally; or substituted service.

Respondent

Respondent

Respondent

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits.

The respondent shall file a verified written return together with supporting affidavits within 5 working days from service of the writ, which period may be reasonably

Within non- extendible period of 10 days after the service of writ.

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Return

If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by returnable before court

RTC: such

In writ of habeas corpus in relation to custody of minors, the writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits (Sec. 20, A.M. No. 03-04-04-SC).

If issued by RTC: returnable before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred; If issued by SC or any of its justices: returnable before such court, or before SB, CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

extended by the Court for justifiable reasons. If issued by RTC: returnable before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored;

General denial Liability of the person to whom the writ is directed if he refuses to make a return Hearing

Not prohibited. Forfeit to the aggrieved party the sum of P1000, and may also be punished for contempt.

Not allowed. Imprisonment or fine for committing contempt.

If issued by SC or any of its justices: returnable before such court, or before SB, CA, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored Not allowed. Imprisonment or fine for committing contempt.

Date and time of hearing is specified in the writ.

Summary hearing shall be conducted not later than 7 days from the date of issuance of the writ.

Summary hearing shall be conducted not later than 10 working days from the date of issuance of the writ.

Period of appeal

Within 48 hours from notice of the judgment or final order appealed from.

5 working days from the date of notice of the adverse judgment.

5 working days from the date of notice of the judgment or final order.

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If issued by SC, returnable before such court or CA.

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Not allowed. Indirect contempt.

The hearing including the preliminary conference shall not extend beyond 60 days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data. Within 15 days from the date of notice of the adverse judgment or denial of motion for reconsideration.

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Prohibited pleadings

None

1. 2.

Motion to dismiss; 1. Motion for extension of time to file 2. opposition, affidavit, position paper and other pleadings; 3. NOTE: In writ of amparo, a motion for 4. extension of time to file the return is no longer a prohibited pleading, as it may be 5. granted by the court on highly meritorious cases. 6.

3. 4. 5. 6. 7. 8. 9. 10. 11.

Dilatory motion for postponement; 7. Motion for a bill of particulars; 8. Counterclaim or cross - claim; Third - party complaint; Reply; Motion to declare respondent in default; Intervention; Memorandum; Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

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Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; and Motion to declare respondent in default.

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW

Writ of Habeas Corpus Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” in this context includes quasi-judicial bodies of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration(Carlos Go Sr. v. Luis Ramos, G.R. No. 167569; Jimmy Go v. Luis Ramos, G.R. No. 167570; Hon. Alipio Fernandez v. Jimmy Go, G.R. No. 171946, Sept. 4, 2009). Grounds for the issuance of writ of habeas corpus as a consequence of judicial proceeding 1. 2. 3. 4.

There has been a deprivation of a constitutional right resulting in restraint of person; The court has no jurisdiction to impose the sentence; An excessive penalty has been imposed, the sentence being void as to excess; or Where the law is amended, as when the penalty is lowered (Feria v. CA, G.R. No. 122954, Feb. 15, 2000).

of which he cannot, without danger, be brought before the court or judge; 4. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made (Sec. 10, Rule 102). NOTE: If it appears that the prisoner is in the custody of a public officer under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the validity of the restraint Writ of Amparo Proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. While the writ may lie if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person (Navia et al v. Pardico, GR 184467, June 19, 2012).

Contents of the Petition

Elements of enforced disappearance

A verified petition for a writ of habeas corpus should contain the following:

1.

1. 2.

3. 4.

That the person in whose behalf the application is made is imprisoned or restrained of his liberty; 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; The place where he is so imprisoned or restrained, if known; A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear (Sec. 3, Rule 102).

Contents of the Return When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocally: 1. Whether he has or has not the party in his custody or power, or under restraint; 2. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; 3. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason

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2.

3.

4.

That there be an arrest, detention, abduction or any form of deprivation of liberty; That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; That it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and, That the intention for such refusal is to remove the subject person from the protection of the law for a prolonged period of time. (Navia et al v. Pardico, GR 184467, June 19, 2012).

Difference between the privilege of the writ of amparo and the actual order called the writ of amparo The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ of Amparo. The privilege includes the availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the rule on the Writ of Amparo. After examining the petition and its attached affidavits, the Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondent that will mitigate, if not totally eradicate, the violation of or threat to the petitioner’s life, liberty or security. A judgment which simply grants “the privilege of the writ” cannot be executed. It is tantamount to a failure of the judge to intervene and grant judicial succor to the petitioner. Petitions filed to avail of the privilege of the Writ of Amparo arise out of very real and concrete circumstances. Judicial responses cannot be as tragically symbolic or ritualistic as “granting the privilege of the writ of amparo.”(Secretary Leila M. De Lima, Director Nonnatus R. Rojas and Deputy

UST LAW| ACADEMICS COMMITTEE

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula;G.R. No. 204528, February 19, 2013)

Writ of Habeas Data Contents of the Petition

Contents of the Return 1. Within 5 days after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: The 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 or persons 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. 5. Other matters relevant to the investigation, its resolution and the prosecution of the case (Sec. 9, A.M. No. 07-9-12-SC as amended).

2.

3.

1.

NOTE: It is the Return that serves as the responsive pleading for petitions for the issuance of Writs of Amparo. The requirement to file an Answer is contrary to the intention of the Court to provide a speedy remedy to those whose right to life, liberty and security are violated or are threatened to be violated. The Return in Amparo cases allows the respondents to frame the issues subject to a hearing. Hence, it should be done prior to the hearing, not after. A memorandum, on the other hand, is a synthesis of the claims of the party litigants and is a final pleading usually required before the case is submitted for decision. One cannot substitute for the other since these submissions have different functions in facilitating the suit. More importantly, a memorandum is a prohibited pleading under the Rule on the writ of Amparo. (Secretary Leila M. De Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528, February 19, 2013)

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4.

5.

6.

The personal circumstances of the petitioner and the respondent The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party The actions and recourses taken by the petitioner to secure the data or information The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of. Such other relevant reliefs as are just and equitable (Sec. 6, Ibid.).

NOTE: A petition for habeas data is fatally deficient when there are no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security, has not demonstrated any need for information under the control of police authorities, and has not shown the necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information. In such case, the prayer for the issuance of a writ of habeas data is nothing more than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not(Tapuz et al v. Judge del Rosario et al G.R. No. 182484, June 17, 2008). Contents of the Return The respondent, within 5 working days from the service of the writ, unless reasonably extended by the Court, shall allege: 1.

2.

3.

The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; b. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and c. The currency and accuracy of the data or information held; and Other allegations relevant to the resolution of the proceeding (Sec. 10, ).

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Writ of Kalikasan It is a special remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Contents of a verified petition 1. 2.

3. 4. 5.

6.

7. 8.

Writ of 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. Writ of kalikasan v. Writ of continuing mandamus

Subject Matter

Personal circumstances of the petitioner Name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation The environment law, rule or regulation violated or threatened to be violated The act or omission complained of The environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces All relevant and material evidence consisting of affidavit of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence. Should be accompanied by certification against forum shopping The reliefs prayed for which may include a prayer for the issuance of a TEPO (Sec. 2, Ibid.).

Writ of Kalikasan An unlawful act or omission of a public official or employee, or private individual o, entity, of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces.

NOTE: A verified petition is jurisdictional. Reliefs that may be granted under the writ 1.

2. 3. 4. 5.

Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction and damage; Directing respondent to protect, preserve, rehabilitate or restore the environment; Directing respondent to monitor strict compliance with the decision and orders of the court; Directing respondent to make periodic reports on the execution of the final judgment; Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners (Sec. 15, ibid.).

Interim reliefs available to the petitioner upon filing a verified motion 1. 2.

Ocular inspection; or Production or inspection of documents or things (Sec. 12, Rule 7, AM No. 09-6-8-SC).

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Who may file

One who personally aggrieved

Respondent

Public or private entity or individual Exempted

Exemption from docket fees Venue

is

SC and CA

Discovery Measures

Ocular inspection order Production order Damages for None; the party personal must institute a injury separate action for the recovery of damages. (Philippine Judicial Academy, 2011)

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Writ of Continuing Mandamus Unlawful neglect in the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation, or a right therein. The unlawful exclusion of another from the use or enjoyment of such right and both instances, there is no other plain, speedy and adequate remedy in the ordinary course of law. One who is personally aggrieved by the unlawful act or omission Government and its officers Exempted

SC, CA and RTC that has jurisdiction over the territory where the actionable neglect or omission occurred None

Allow damages for malicious neglect of the performance of the legal duty of the respondent.

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Absentees

Nature of petition for change of name

Purpose of the Rule: Appointment of an administrator over the properties of the absentee.

In rem, because it establishes person’s legal status within the community

Applicability of the Rule: If the absentee left properties; otherwise, such petition is not necessary. (Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986)

Cancellation or Correction of Entries

Persons who may file a petition for declaration of absence and appointment of administrator/trustee 1. 2. 3. 4.

Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; or Those who have over the property of the absentee some right subordinated to the condition of his death

Periods within which a petition for declaration of absence and appointment of administrator/trustee may be filed: 1.

2.

After 2 years: a. From his disappearance and without any news about the absentee; or b. of the last news about the absentee. After 5 years – If he left an administrator of his property.

Changes that can be made under R.A. 9048 as amended by R.A. 10172 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: 1. Correction of clerical or typographical errors 2. Change of first name or nickname, 3. Change of the day and month in the date of birth, 4. Change of sex of a person (Sec. 1 of R.A. 9048 as amended by R.A. 10172) NOTE: R.A. 10172 which was approved on August 15, 2012 now allows the correction of the day and month of the date of birth and sex of a person unlike in R.A. 9048. Moreover, the grounds enumerated are subject to the qualification that the error or mistake to be corrected must be patently clear and it must be within the competence of the local civil registrar or consul general.

Venue RTC where the absentee resided before his disappearance Effectivity Six (6) months after publication of the judgment on declaration of absence in a newspaper of general circulation and in the Official Gazette. The order must also be recorded in the Civil Registry of the place where the absentee last resided Grounds for termination 1. 2. 3.

Absentee appears personally or through an agent; Absentee’s death is proved and heirs appear; or Third person appears showing that he acquired title over the property of the absentee

The obvious effect is to remove from the ambit of Rule 108 the correction or changing of such errors in the entries of civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register. (Lee v. CA, G.R. No. 118387, Oct. 11, 2001) Clerical or typographical error It refers to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth and the like, and can be corrected or changed only by reference to other existing record or records. Grounds for a change of first name under R.A. 9048 1.

Change of Name Grounds for a change of name 1. 2.

3. 4.

5. 6.

2.

Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; Consequence of a change of status; A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; The change will avoid confusion; or When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name should prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

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3.

The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or The change will avoid confusion.

Venue of the petition for correction of entry or change of name under R.A. 9048 GR: Local Civil Registry Office where the record containing the clerical error to be corrected or first name to be changed is kept; Office of the Clerk of Shari’a Court where records of divorces, revocations of divorces, conversions to Islam are kept and where some Muslim marriages are registered; consul general.

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XPN: In case the petitioner is a migrant within or outside the Philippines, meaning his present residence or domicile is different from where his civil registry records are registered, in the nearest Local Civil Registry Office in his area. His petition will be treated as a migrant petition. (Sec. 3) Silverio v. Republic, G.R. No. 174689, Oct. 22, 2007: Jurisdiction over applications for change of first name is now primarily lodged city or municipal civil registrar or consul general concerned. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 and 108, until and unless an administrative petition for change of name is first filed and subsequently denied; b) R.A. 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. In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Republic v. Cagandahan, G.R. No. 166676, Sept. 12, 2008: The court must give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. His congenital condition and his mature decision to be a male must be taken into account. Life is already difficult for the ordinary person. A change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons and the consequences that will follow.

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1. Differences under Rule 103, RA 9048 as amended by RA 10172 and Rule 108 Rule 103

Scope

Change of first name or surname.

RA 9048 as amended by RA 10172 Clerical or typographical errors; change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general. Administrative; hearing is not necessary. Summary as it merely involves clerical errors.

Rule 108

Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries.

Nature

Judicial; hearing is necessary.

Initiated by Where to file

Verified petition. RTC of the province where the petitioner resides at least 3 months prior to the filing of the petition. CA under Rule 41

Sworn affidavit.

Civil Registrar General under (Rule 14, IRR of RA 9048)

CA under Rule 41

Filed by the person desiring to change his name.

Petition is filed by the person of legal age who must have a direct and personal interest in the correction:

Any person interested in the act, event, decree or order concerning the civil

Where to appeal , in case of adverse decision Who may file

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Local Civil Registry office where the record is kept/Consul General.

Judicial; hearing is necessary. Adversarial since it involves substantial errors. Verified petition. RTC where the correspondi ng civil registry is located.

Who must be notified

Solicitor General/ Interested parties.

Publicati on

Order for hearing shall be published once a week for 3 consecuti ve weeks.

Owner of the record; 2. Owner’s spouse, children, parents, brothers, sisters, grandparen ts, guardian; or 3. Anyone authorized by law or owner of the record. Interested parties/Solicitor General need not be notified.

Order for hearing in case of change of first name/nicknam e, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake shall be published once a week for 2 consecutive weeks.

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status of persons.

Civil registrar impleaded as respondent; Solicitor General/ Interested parties. Order for hearing shall be published once a week for 3 consecutive weeks.

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Appeals In Special Proceedings

presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court.

Orders or judgments from which appeal may be taken Venue in Criminal Cases 1. 2.

3.

4. 5.

6.

Allows or disallows a will; Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; Settles the account of an executor, administrator, trustee or guardian; Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for new trial or for reconsideration (Sec. 1).

Period of filing of appeal in special proceedings 1. 2. 3. 4.

Ordinarily, within 30 days (record of appeal) reckoned from the notice of judgment. Habeas corpus cases: within 48 hours from the service of judgment. Writ of amparo and habeas data cases: within 5 working days from the date of notice of the adverse judgment. Writ of Kalikasan: within 15 days from the notice of adverse judgment or denial of motion for reconsideration. CRIMINAL PROCEDURE

Elements of criminal jurisdiction 1.

Penalty attached – The jurisdiction of a Court in criminal cases is determined by the penalty imposable, and not by the penalty ultimately imposed (Guevarra v. Almodovar, 169 SCRA 476). Nature of the offense charged. Territorial jurisdiction over the place of commission of the crime.

Venue is jurisdictional in criminal actions such that the place where the crime was committed determines not only the venue of the action but constitutes an essential element of jurisdiction. This principle acquires even greater import in libel cases, given that Article 360, as amended, specifically provides for the possible venues for the institution of the criminal and civil aspects of such cases (Bonifacio, et. al v. RTC Makati, et al. GR 184800, May 5, 2010). Determination of jurisdiction when fine is the only penalty In cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court: 1. The RTC has jurisdiction where the fine is more than Php 4,000 including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed Php 6,000 (SC Court Circular No. 09-94) except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction of the MTC. 2. The MTC has jurisdiction where the fine is Php 4,000 or less. NOTE: Accessory penalties and civil liabilities are no longer determinative of criminal jurisdiction. Court having jurisdiction on continuing offenses Continuing offensesare those consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g. estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts. Court having jurisdiction over crimes punishable by destierro

Requisites for a valid exercise of criminal jurisdiction

Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the MTC, considering that in the hierarchy of penalties under Art. 71 of the RPC, destierro follows arresto mayor which involves imprisonment (People v. Eduarte, G.R. No. 88232, February 26, 1990).

1.

Court having jurisdiction over complex crime

2. 3.

2.

3.

Jurisdiction over the subject matter – This is the power to hear and determine cases of general class to which the proceeding in question belongs. The offense, by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of. Jurisdiction over the territory – The offense must have been committed or any of its essential ingredients took place within the territorial jurisdiction of the court. It cannot be waived and where the place of the commission was not specifically charged, the place may be shown by evidence. Jurisdiction over the person of the accused – The person charged with the offense must have been brought to its

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In a complex crime, jurisdiction over the whole complex crime must be lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. (Cuyos v. Garcia, 160 SCRA 302 [1988]) Injunction GR: Injunction cannot lie to restrain the commencement of a criminal action because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society [Asutilla vs. PNB, 225 Phil. 40, 43 (1986)].

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW 3. XPNs: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority; 5. Where the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. Where the court has no jurisdiction over the offense; 8. Where it is a case of persecution rather than prosecution; 9. Where the charges are manifestly false and motivated by lust for vengeance; 10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and 11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners (People of the Philippines vs. Joseph V. Grey, G.R. No. 180109, July 26, 2010).

4.

The private prosecutor must be authorized in writing by the Chief Prosecution Office or Regional State Prosecution; and Such will be subject to the court’s approval (Sec. 5, Rule 110).

Crimes that cannot be prosecuted de officio A prosecutor cannot prosecute the following cases where no complaint is filed by offended party: 1. Concubinage 2. Adultery 3. Seduction 4. Abduction 5. Acts of Lasciviousness 6. Defamation (imputation of commission of the foregoing crime) Instances when the State may initiate the action for seduction, abduction or acts of lasciviousness in behalf of the offended party 1. 2.

Prosecution of Offenses

When the offended party dies or becomes incapacitated before a complaint is filed; or The offended party has no known parents, grandparents or guardian (Sec. 5, Rule 110).

Institution of the criminal action

NOTE: This is pursuant to the doctrine of parens patriae.

1.

Intervention by offended party

2.

By filing a complaint with the proper officer for the purpose of conducting the requisite preliminary investigation for offenses where preliminary investigation is required; or By filing an information or complaint directly with MTC for offenses where preliminary investigation is not required.

Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. Prosecution of civil action

NOTE: Unless different rule is provided for in special law No direct filing of a complaint or information with the RTC or MeTC There is no direct filing of an information or complaint with the RTC because its jurisdiction covers offenses which require preliminary investigation.

GR: The institution of the criminal action includes the institution of civil action for recovery of civil liability arising from the offense charged. XPNs: When the offended party 1. Waives the civil action 2. Reserves the right to institute it separately 3. Institutes the civil action prior to the criminal action.

There is likewise no direct filing with the MeTC because in Manila, including other chartered cities, the complaint, as a rule, shall be filed with the office of the prosecutor, unless otherwise provided by their charters. In case of conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, prevails.

NOTE: The Rules provide that the criminal action for violation of B.P. 22 shall be deemed to include the corresponding civil action, and that no reservation to file such civil action separately shall be allowed. [Sec. 1(b), Rule 111, Revised Rules of Criminal Procedure]

Prosecution of criminal actions

Instances when reservation of the civil action is not allowed

GR: The public prosecutor shall prosecute, direct and control all criminal actions commenced by a complaint or information.

1.

XPNs: The private prosecutor (private counsel) may prosecute the case provided that: 1. The public prosecutor has heavy work schedule; or 2. There is lack of public prosecutors;

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2.

3.

Criminal action for violation of B.P. 22 (Sec. 1(b), Rule 111); A claim arising from an offense which is cognizable by the Sandiganbayan (Herrera, Remedial Law, Vol. IV, p. 231, 2007 ed.); and Tax cases.

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Effect of the death of accused or convict on civil action After arraignment and pendency of criminal action GR: Civil liability based on crime extinguished XPN: Independent civil actions based on Arts. 32, 33, 34 and 2176 of NCC

Before arraignment

Offended party may file the civil action against the estate of the deceased

Pending appeal

a.) civil liability arising from the crime is extinguished b.) civil liability predicated from another sources survives, i.e. law , contracts etc.

4. 5. 6.

Name of the offended party; Approximate date of the commission of the offense; and Place where the offense was committed (Sec. 6, Rule 110).

NOTE: In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls. Particularity of the date of the commission of the offense in the complaint or information GR: It is not required. It suffices that the allegation approximates or be as near the actual date when the offense was committed (Sec. 11, Rule 110). XPN: If the date of the commission of the offense constitutes an essential element of the offense (e.g. infanticide, abortion, bigamy) (Sec. 11, Rule 110).

Elements of 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 The resolution of such issue determines whether or not the criminal action may proceed. Information INFORMATION

COMPLAINT

Is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed by him with the court

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.

AFFIDAVIT COMPLAINT One which is filed with the proper officer for purposes of conducting a preliminary investigation

NOTE: An information, when required by law to be filed by a public prosecuting officer, cannot be filed by another. The court does not acquire jurisdiction over the case because there is a defect in the Information. The Supreme Court held in People v. Hon. Garfin: “it is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter thereof. Questions relating to lack of jurisdiction may be raised at any stage of the proceeding. An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent” (Miaque v. Patag, G.R. Nos. 170609-13, January 30, 2009) Sufficiency of a complaint or Information It is sufficient if it states the: 1. Name of the accused; 2. Designation of the offense given by the statute; 3. Acts or omissions complained of as constituting the offense;

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NOTE: The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars under Sec. 10, Rule 116; the failure to move for specification or quashal of the information on any of the grounds provided by the Rules deprives the accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. Besides, the exact date of the commission of the crime is not an essential element of the crime (People v. Elpedes, G.R. Nos. 137106-07, January 31, 2001). Conviction of a crime more serious than that named in the information GR: The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the information and its commission is established by evidence (Buhat v. CA, G.R. No. 120365, December 17, 1996). XPNs: An accused could not be convicted under one act when he is charged with a violation of another if the change from the statute to the other: 1. Involves change in the theory of the trial; 2. Requires of the defendant a different defense; or 3. Surprises the accused in any way (U.S. v. Panlilio, G.R. No. L-9876, December 8, 1914). Matter/s to be alleged if the crime is “committed in relation to his office” Mere allegation in the information that the offense was committed by the accused public officer in relation to his office is not sufficient. The phrase is merely “a conclusion of law,” not a factual averment that would show close intimacy between the offense charged and the discharge of the accused’s official duties. What is controlling is the specific actual allegations in the information(Lacson v. Executive Secretary, G.R. No. 128006, January 20, 1999). NOTE: An offense is deemed committed in relation to public office when the “office” is a constituent element of the offense. The test is whether the offense cannot exist without

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW the office (Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005). The offense need not be connected with official duties. It is enough that it is in relation to office (Lecaroz v. Sandiganbayan, 128 SCRA 324).

157472, Sept. 28, 2007).

Amendment or Substitution of Complaint or Information In order that the amended information which downgrades the nature of the offense could be validly made, the prosecution should file a motion to ask for leave of court with notice to the offended party. (Sec.14 of Rule 110, Revised Rules of Criminal Procedure). The new rule is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution. Substitution If it appears anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Sec. 14, Rule 110). How may amendment be effected When Made

Before plea

After plea and during the trial

Kind of Amendment to be Made 1. Formal amendment 2. Substantial amendment 3. Substantial amendment which: a. Downgrades the nature of the offense charged; or b. Excludes any accused from the complaint or information.

Formal amendment

How Amendment is Made Without leave of court 1. Upon a motion by the prosecutor; 2. With notice to the accused; and 3. With leave of court 1. With leave of court; and 2. Without causing prejudice to the rights of the accused (Sec. 14, Rule 110).

NOTE: Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner (Pacoy v. Cajigal, G.R. No.

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Venue GR: Subject to existing laws, criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or any of its essential ingredients occurred (Sec. 15, Rule 110).

condition sine qua non to the validity of the proceedings in the preliminary investigation”. The presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. Remedies where no PI was conducted

XPNs: 1. An offense was committed on a railroad train, in an aircraft, or in any other public or private vehicle in the course of trip – The criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival [Sec. 15 (b), Rule 110]; 2. Where the offense is committed on board a vessel on its voyage – The criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law[Sec. 15(c), Rule 110]; 3. Felonies under Art. 2 of the RPC – Shall be cognizable by the proper court where the criminal action was first filed [Sec. 15(d), Rule 110]; 4. Continuous or transitory crimes – Such offenses may be tried by the court of any jurisdiction wherever the offender may be found, but the complainant should allege that the offense was committed within the jurisdiction of the court(Herrera, 2007); 5. Piracy – The venue of piracy, unlike all other crimes, has no territorial limits. It is triable anywhere; 6. Libel – The action may be instituted at the election of the offended or suing party in the municipality or city where: a. The libelous article is printed and first published; b. If one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense; c. If the offended party is a public official, where the latter holds office at the time of the commission of the offense; 7. BP 22 cases – The criminal action shall be filed at the place where the check was dishonored or issued. In case of crossed check, the place of the depositary or the collecting bank.

1. Refuse to enter plea upon arraignment and object to further proceedings upon such ground; 2. Insist on preliminary investigation; 3. File a certiorari, if refused; 4. Raise lack of preliminary investigation as error on appeal (US v. Banzuela, GR No. 10172,1915) 5. File for Prohibition (Conde v. CFI, GR No. L-21236, October 1, 1923) Power of Ombudsman to determine Probable Cause It has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. As explained in Esquivel v. Ombudsman, the Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. (M.A. Jimenez Enterprises, Inc., Vs.The Honorable Ombudsman, Jesus P. Cammayo G.R. No. 155307, June 6, 2011) NOTE: Under R.A. No. 6770, also known as the Ombudsman Act of 1989, the Special Prosecutor has the power and authority, under the supervision and control of the Ombudsman, to conduct preliminary investigation and prosecute criminal cases before the Sandiganbayan and perform such other duties assigned to him by the Ombudsman (Calingin v. Desierto, 529 SCRA 720 [2007]). Absent a clear delegation of authority from the Ombudsman to the Special Prosecutor to file the information, the latter would have no authority to file the same. The Special Prosecutor cannot be considered an alter ego of the Ombudsman as the doctrine of qualified political agency does not apply to the Office of the Ombudsman. (Perez v. Sandiganbayan, 503 SCRA 252 [2006]). Assailing the resolution of Secretary of Justice

Preliminary Investigation When mandatory Preliminary investigation is a MATTER OF RIGHT when the imposable penalty is 4 years, 2 months and 1 day. Persons who are authorized to conduct preliminary investigation 1. Provincial or City prosecutors and their assistants; 2. National and Regional State Prosecutors; and 3. Other officers as may be authorized by law (e.g.Ombudman; authorized officer deputized by COMELEC for election offenses). NOTE: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court The new rules on Criminal Procedure “does not require as a

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This Court has adopted a policy of non-interference in the conduct of preliminary investigations and leaves to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against the supposed offender. As in every rule, however, there are settled exceptions. Hence, the principle of non-interference does not apply when there is grave abuse of discretion (Sy Tiong Shiou v. Sy Chim, GR 174168, March 2009). Power of COMELEC to conduct preliminary investigation COMELEC has exclusive power to conduct preliminary investigation of all election offenses: it is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC’s sound discretion.

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELEC’s Exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. (Albaña vs. Belo, G.R. No. 158734, October 2, 2009) Probable cause determined by the judge for purposes of issuing warrant of arrest It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigation prosecutor. (People of the Philippines vs. Joseph “Jojo” V. Grey, G.R. No. 180109, July 26, 2011) The general rule of course is that judge is not required, when determining probable cause for the issuance of warrants of arrests, to conduct a de novo hearing. The judge only needs to personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. (People vs. Hon. Ma. Theresa L. Dela Torre Yadao, G.R. No. 162144-54; November 13, 2012) Bail The security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions prescribed under the rules As a matter of right 1. 2.

2.

Before and after conviction by the MTC Before the conviction by the RTC for an offense which is not penalized by death, reclusion perpetua or life imprisonment

After conviction by the RTC for an offense which is not penalized with death, reclusion perpetua or life imprisonment If the penalty of imprisonment exceeds six (6) years but not more than 20 years, bail shall be denied upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: a. That he is a recidivist, quasi-recidivist or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; b. That he previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification;

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d. e.

That he committed the offense while on probation, parole, or under conditional pardon; That the circumstances of his case indicate the probability of flight if released on bail; or That there is undue risk that during the pendency of the appeal, he may commit another crime.

Neither a matter of right nor a matter of discretion Bail is neither a matter of right nor a matter of discretion if the offense is penalized with death, reclusion perpetua or life imprisonment because you have to file a petition for bail and bail will be granted or will be denied depending on the weight of evidence – whether the evidence of guilt is strong or not. If the evidence of guilt is strong, then bail will be denied. If the evidence of guilt is not strong, bail will be granted. Bail pending appeal The question presented to the Court is this: In an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances [Recidivist, Quasi-recidivist, Habitual delinquent, etc] mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? An application for bail pending appeal may be denied even if the bail-negating circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate court’s denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion. After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends. From then on, the grant of bail is subject to judicial discretion (Leviste v. Court of Appeals, GR 189122, March 17, 2010). Forfeiture or confiscation of the bail If the accused fails to appear; if the accused jumps bail for no valid reason

As a matter of discretion 1.

c.

Cancellation of bail It can either be regular or automatic: a. Regular –upon surrender of the accused, death of the accused b. Automatic cancellation of bail upon- acquittal of the accused, dismissal of the case, or execution of judgment NOTE: In execution of judgment, there is no need provisional liberty for bail, the judgment is being served, no need to be released. The accused has no right to be released anymore. Objection in illegal arrest or lack of or irregularity or lack of preliminary investigation An application for bail is not a bar to objections in illegal arrest or irregularity or lack of preliminary investigation, provided that he raises them before entering his plea. The court shall resolve the matter as early as possible, not later than the start of the trial on the case (Sec. 26, Rule 114).

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW

cases: Arraignment and Plea a. Arraignment is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him (People v. Pangilinan, 518 SCRA 358, March 14, 2007). When made

b. c.

GR: Arraignment must be made before start of the trial or before the prosecution presents its case. XPN: Arraignment which was made after the prosecution rested its case was considered a non-prejudicial error under the following: 1. Counsel of the accused failed to object lack of arraignment during trial 2. Counsel of the accused had full opportunity to crossexamine witnesses (People of the Philippines vs. Atienza, G.R. No. L-3001, June 17, 1950; People of the Philippines vs. Cabale, G.R. Nos. 73249-50, May 8, 1990). NOTE: The principle that the accused is precluded from questioning the legality of the arrest after arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto (Borlongan Jr. v. Pena, GR 143591, May 5, 2010). Plea made before a court with no jurisdiction A plea made before a court with no jurisdiction over criminal action does not give rise to double jeopardy (Zapatos v. People, 411 SCRA 148). Arraignment under an amended information Where the accused has been already arraigned and subsequently, the information was substantially amended, an arraignment on the amended information is MANDATORY because the accused has the constitutional right to be informed of the charge against him, his conviction — which would be only under the second information — suffers from a reversible defect (Cabangangan v. Concepcion, 95 Phil 87).

The accused appears to be suffering from an unsound mental condition which effective renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; There exists a prejudicial question; and A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.

3. Challenge the validity of his arrest or the legality of the warrant issued therefor, 4. Assail the regularity or question the absence of a preliminary investigation of the charge against him 5. Motion to Quash Grounds for suspension of arraignment Upon motion by the proper party on the following grounds: 1. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; 2. There exists a valid prejudicial question; 3. A petition for review of the resolution of the prosecutor is pending at the Department of Justice or the Office of the President (Sec. 11, Rule 116), provided that the period of suspension shall not exceed 60 days counted from the filing of the petition; 4. There are pending incidents such as: a. Motion to Quash b. Motion for Inhibition c. Motion for Bill of Particulars NOTE: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office (Sec. 11, Rule 116).

Improvident plea It is a plea without information as to all the circumstances affecting it. It is based upon a mistaken assumption or misleading information or advice. At any time before the judgment of conviction becomes final, (even after promulgation as long as the decision has not yet attained finality) the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. Remedies of an accused before arraignment 1. Bill of Particulars - The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. 2. Suspension of arraignment - Upon motion by the proper party, the arraignment shall be suspended in the following

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Plea Bargaining

Motion to Quash

Instances when the accused may enter a plea of guilty to a lower offense

GR: At any time BEFORE entering his plea.

1.

During arraignment a. If the offended party is present, the latter must consent with the prosecutor to the plea; and b. That the lesser offense is necessarily included in the offense charged.

XPN: instances where motion to quash may be filed AFTER plea: 1. Facts charged do not constitute an offense 2. Lack of jurisdiction over the offense charged 3. Extinguishment of criminal liability 4. Double jeopardy

2.

After arraignment but before trial provided the following requisites are present: a. The plea of guilty is withdrawn; b. The plea of not guilty and the withdrawal of the previous guilty plea shall be made before trial; c. The lesser offense is necessarily included in the offense charged; and d. The plea must have the consent of the prosecutor and the offended party(Sec. 2, Rule 116).

NOTE: The right to file a motion to quash belongs only to the accused.The court is not authorized to motu proprio initiate a motion to quash by issuing an order requiring an explanation why the information should not be quashed. The court, though, has the discretion to dismiss the case if the information is not sufficient or on any ground provided by law, or to dismiss the information for a different one.

NOTE: No amendment of complaint or information is necessary (Sec. 2). A conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of double jeopardy (People v. Magat, GR No. 130026, May 31, 2000).

1. 2. 3. 4. 5.

3.

After prosecution rests – Allowed only when the prosecution does not have sufficient evidence to establish guilt for the crime charged.

NOTE: One accused of homicide cannot be allowed to plead guilty to attempted or frustrated homicide, although the lesser offense is necessarily included in the offense charged. The reason is that the crime of homicide as defined in Art. 249 of the RPC necessarily produces death; attempted homicide does not (Amatan v. Aujero, A.M. No. RTJ-93-956, September 27, 1995). Instance when plea-bargaining is NOT applicable In violations of the Dangerous Drugs Act regardless of the imposable penalty (Sec. 23, RA 9165). Effect of a plea of guilty GR: A plea of guilty admits the truth of all material facts alleged in the information, including all the aggravating circumstance mentioned therein (People v. Koloh Pohong, GR No. L-32332, August 15, 1973). XPNs: 1. Where the plea of guilt was compelled by violence or intimidation; 2. When the accused did not fully understand the meaning and consequences of his plea; 3. Where the information is insufficient to sustain conviction of the offense charged; 4. Where the information does not charge an offense, any conviction thereunder being void; 5. Where the court has no jurisdiction. XPN to the XPN: If what the accused would prove is an exempting circumstance, it would amount to a withdrawal of his plea of not guilty.

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Requirements of double jeopardy Valid indictment; Competent court; Valid arraignment; Valid plea entered; Case is dismissed or terminated without the express consent of the accused.

NOTE: As a general rule, the dismissal or termination of the case after arraignment and plea of the defendant to a valid information shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or necessarily included in the complaint or information. However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the Trial Court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent, of the defendant, and (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant. (People vs. Sandiganbayan et al., G.R. No. 164577, July 5, 2010) Motion to Quash vs. Demurrer to Evidence Motion to quash Demurer to evidence Filed before the accused Filed after the enters his plea prosecution rested its case Does not go into the Based upon the merits of the case but it is inadequacy of the anchored on matters not evidence adduced by the directly related to the prosecution in support of question of guilt or the accusation innocence of the accused Requires prior leave of Either with leave or court without leave of court Grounds for a motion to quash the complaint or information 1.

That the facts charged do not constitute an offense;

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2. 3. 4. 5. 6.

7. 8. 9.

That the court trying the case has no jurisdiction over the offense charged; That the court has no jurisdiction over the person of the accused; That the officer who filed the information had no authority to do so; That the information does not conform substantially to the prescribed form; That more than one offense is charged except when a single punishment for various offense is prescribed by law; That the criminal action or liability has been extinguished; That it contains various averments which if true would constitute legal excuse or justification; That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (double jeopardy) (Sec. 3, Rule 117).

NOTE: The lack of preliminary investigation is not a ground for a motion to quash under the Rules of Criminal Procedure. Preliminary investigation is only a statutory right and can be waived. The accused should instead file a motion for reinvestigation within five (5) days after he learns of the filing in Court of the case against him (Sec. 6, Rule 112, as amended). Time Bar Rule The provisional dismissal of offenses (made with the express consent of the accused and with notice to the offended party) punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.

Provisional Dismissal Requisites 1.

2. 3. 4.

There must be a motion by the prosecution with the express conformity of the accused, or by the accused himself, or by both the prosecution and the accused for a provisional dismissal of the case; The offended party is notified of the motion for a provisional dismissal of the case; The court issues an order granting the motion and dismissing the case provisionally; The public prosecutor is served with a copy of the order of provisional dismissal of the case (People v. Lacson, et al., G.R. No. 149453, April 1, 2003).

NOTE: The concept of provisional dismissal contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the Rules of Court. Period when provisional dismissal becomes permanent The dismissal shall become permanent if: 1. The case is not revived within 1 year after the issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment not exceeding 6 years or a fine of any amount or both; or 2. The case is not revived within 2 years after the issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment of more than 6 years (Sec. 8, Rule 117). Thus, within the periods stated, the prosecution has to revive the case if it desires to prevent the provisional dismissal becoming permanent and the revival of the case being timebarred.This is known as the TIME BAR RULE. If no revival of the case is made within the prescribed period, the dismissal shall be removed from being provisional and becomes permanent. Pre-Trial

The case of People vs. Lacson (400 SCRA 267, April 1, 2003), has modified the requisites for a provisional dismissal, to wit: (a) prosecution with the expressed of the consent of the accused moves for a provisional dismissal of the case; or both the accused and the prosecution move fpr the provisional dismissal; (b) the offended party is notified of the motion for provisional dismissal of the case; (c) the court issues an order granting the motion and dismissing the case provisionally; and the public prosecutor is served with a copy of the order of provisional dismissal. Under Sec. 8 of Rule 117, the oneyear and two-year time line shall be counted from “the date of issuance of the order of dismissal”. In People vs. Lacson, the reckoning period starts from “the service of order of dismissal on the public prosecutor who has control of the prosecution”. Accordingly, the public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal.

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Court Annexed Mediation vs. Court Referred Mediation Court Annexed Mediation Any mediation process conducted under the auspices of the court that has acquired jurisdiction of the dispute

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Court Referred Mediation A mediation ordered by a court to be conducted in accordance with the agreement of the parties when an action is prematurely commenced in violation of such agreement.

UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Purpose of Court Annexed Mediation and Judicial Dispute Resolution It is intended to put an end to pending litigation through a compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion. It is also intended to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004(R.A. No. 9285), to wit: “to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangement to resolve disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and de-clog court dockets.” Three stages of diversion of cases to Court Annexed Mediation and Judicial Dispute Resolution 1. The first stage is the Court-Annexed Mediation (CAM) where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators. 2. Upon failing to secure a settlement of the dispute during the first stage, a second attempt is made at the JDR stage. There, the JDR judge sequentially becomes a mediator conciliator-early neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt, the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will try the unsettled case. The trial judge shall continue with the pretrial proper and, thereafter, proceed to try and decide the case. 3. The third stage is during the appeal where covered cases are referred to the PMC-Appeals Court Mediation (ACM) unit for mediation. Pre-Trial Proper Where no settlement or only a partial settlement was reached, and there being no joint written motion submitted by the parties, as stated in the last preceding paragraphs, the JDR judge shall turn over the case to the trial judge, determined by re-raffle in multiple sala courts or to the originating court in single sala courts, as the case may be, to conduct pre-trial proper, as mandated by Rules 18 and 118 of the Rules of Court. Pre-trial in a Civil case v. Pre-trial in a Criminal case (1997 Bar Question) Pre-trial in Civil Cases Is set when the plaintiff moves ex parte.

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

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Pre-trial in Criminal Cases Pre-trial is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118). The pre-trial is ordered by the court after arraignment and within 30 days from the date the court acquires

Considers the possibility of an amicable settlement or compromise.

The agreements and admissions may be contained in the record of pre-trial and pre-trial order. The “Minutes of Preliminary Conference, may be signed by either the party or his counsel. A pre-trial brief is required to be submitted (Sec. 6, Rule 18). (Riano, 2011)

jurisdiction over the person of the accused (Ibid.). Does not include the considering of the possibility of amicable settlement of a criminal liability as one of its purpose (Ibid.). All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused. A pre-trial brief is not specifically required.

Matters considered during pre-trial 1. 2. 3. 4. 5.

6.

Plea bargaining; Stipulation of facts; Marking for identification of evidence of parties; Waiver of objections to admissibility of evidence; Modification of the order of the trial if one of the accused admits the charge but interposes a lawful defense (reverse trial); and Such other matters as will promote a fair and expeditious trial of the civil and criminal aspects of the case (Sec. 1).

Effect of non-appearance of counsel for the accused or the prosecutor during the pre-trial without valid justification Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. The court may impose proper sanctions or penalties in the form of reprimand, fines or imprisonment if he does not offer an acceptable excuse for his lack of cooperation (Sec. 3, Rule 118; Sec. 5, Speedy Trial Act). Rationale for the exclusion of the accused in the mandatory appearance during pre-trial The principal reason why the accused is not included in the mandatory appearance is the fear that to include him is to violate his constitutional right to remain silent [Sec. 12(1), Art. III, 1987 Constitution]. NOTE: Unless otherwise required by the court, personal appearance of the accused at the conference is not indispensable. This is aside from the consideration that the accused may waive his presence at all stages of the criminal action, except at the arraignment, promulgation of judgment or when required to appear for identification (Regalado, 2008).

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Judgment Trial Requisites After a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. The trial shall commence within 30 days from receipt of pre-trial order (Sec. 1, Rule 119). Requisites for discharge of accused to become a state witness When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: 1. 2.

3. 4. 5.

There is absolute necessity for the testimony of the accused whose discharge is requested; There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; The testimony of said accused can be substantially corroborated in its material points; Said accused does not appear to be the most guilty; and Said accused has not at any time been convicted of any offense involving moral turpitude.

It must be: 1. Written in official language; 2. Personally and directly prepared by the judge; 3. Signed by the judge; and 4. Contain clearly and distinctly a statement of the facts and the law upon which it is based (Sec. 1, Rule 120). NOTE: The jurisdictional requirements before a judgment may be validly rendered are jurisdiction over the subject matter, territory and the person of the accused (Antiporda, Jr. v. Garchitorena, 321 SCRA 551). When does judgment become final Except where the death penalty is imposed, a judgment becomes final: 1. After the lapse of the period for perfecting an appeal;
 2. When the sentence has been partially or totally satisfied or served; 3. When the accused has waived in writing his right to appeal; or 4. Has applied for probation (Sec. 7). Promulgation of Judgment Instances when presence of the accused is required

Requisites of Trial in absentia

1. 2.

1. 2. 3.

3.

The accused has been arraigned; He has been duly notified of the trial; and His failure to appear is unjustified.

NOTE: The waiver of the accused of appearance or trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. Reverse trial (2007 Bar Question) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial court may allow the accused to present his defense first and thereafter give the prosecution an opportunity to present its rebuttal evidence. A departure from the order of the trial is not reversible error as where it was agreed upon or not seasonably objected to, but not where the change in order of the trial was timely objected by the defense.

4.

Upon arraignment and in entering plea; During trial when his presence is necessary for the purpose of identification; Upon promulgation of judgment except for light offenses When the court with due notice requires so (People v. Joven De Grano, et. al, GR No. 167710, June 5, 2009).

NOTE: There is nothing in the rules that requires the presence of counsel for the promulgation of the judgment of conviction to be valid. While notice must be served on both accused and his counsel, the latter’s absence during the promulgation of judgment would not affect the validity of the promulgation. Indeed, no substantial right of the accused on the merits was prejudiced by such absence of his counsel when the sentence was pronounced. (Marino B. Icdang Vs. Sandiganbayan , G.R. No. 185960, January 25, 2012) Mittimus It is a process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in accordance with the terms of judgment.

Where the order of the trial set forth was not followed by the court to the extent of denying the prosecution an opportunity to present evidence, the judgment is a nullity. If there is not enough evidence to prove the accused’s guilt beyond reasonable doubt, then the defense should file demurrer to evidence.

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW MODIFIES the penalty to reduced to reclusion perpetua or life imprisonment – go up to the SC via notice of appeal

Appeal Modes of Appeal If the penalty imposed is reclusion temporal down, the mode of appeal in criminal cases is the same as in civil cases which means: 1. 2.

3. 4.

RTC renders judgment of conviction, the penalty of which is death – automatic intermediate review to CA. If the CA affirms the judgment of the RTC in imposing the death penalty, then the CA certifies the case to the SC. If the CA reverses RTC’s judgment---It is ACQUITTAL If CA affirms the judgment of conviction of the RTC but

If the penalty imposed is reclusion perpertua or life imprisonment 1.

2.

If the RTC imposes reclusion perpetua or life imprisonment – go up to the CA via notice of appeal for intermediate review purposes. Once the CA affirms the decision of the RTC imposing reclusion perpetua or life imprisonment – the CA promulgates the decision. Here there must be notice to the accused because he will bring it up to the SC via notice of appeal (not automatic)

Search and Seizure SEARCH WARRANT A search warrant 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 therein and bring it before the court (Sec. 1, Rule 126). Requisites: A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines (Sec. 4, Rule 126).

WARRANT OF 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).

Search or seizure without warrant, when lawful: 1) Consented search; 2) As an incident to a lawful arrest; 3) Searches of vessels and aircrafts for violation of 
immigration, customs and drug laws; 4) Searches of moving vehicles; 5) Searches of automobiles at borders or constructive 
borders; 6) Where the prohibited articles are in plain view; 7) Searches of buildings and premises to enforce fire, 
sanitary and building regulations; 8) “Stop and frisk” operations; 9) Exigent and emergency circumstances (in times of war 
and within the area of military operation)

Arrest without warrant, when lawful: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 5, Rule 113).

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Requisites for arrest warrant issued by RTC judge under Sec. 5, Rule 112: a) Within 10 days from the filing of the complaint or 
 information b) The judge shall personally evaluate the resolution 
of the prosecutor and its supporting evidence. c) If he finds probable cause, he shall issue a warrant of arrest d) In case of doubt on the existence of probable cause e) The judge may order the prosecutor to present 
 additional evidence within 5 days from notice; and f) The issue must be resolved by the court within 30 days from the filing of the complaint of information

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Search incidental to lawful arrest The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense (People v. Racho, GR No 186529, Aug. 3, 2010).

consequently. The illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law. However, those personalties seized in violation of the constitutional immunity whose possession is not illegal or unlawful per se ought to be returned to their rightful owner or possessor. EVIDENCE General Principles Scope of the Rules of Evidence

“Knock and announce” principle It states that officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty. Time of service It could be served at any time within its 10-day lifetime, and if its object or purpose cannot be accomplished in one day, the same may not be used for a different purpose on each day. After the articles for which the warrant was issued have been seized, the same warrant cannot be utilized as authority to make another search (Gorospe, 2006, citing Uy Kheytin v. Villareal, 42 Phil. 886). The time must not be one which is intrusive or violative of one’s privacy, like at the middle of the night. Then, too, depending on the locality, what may be reasonable time in one place would not be so in some other cases (Gorospe, 2006). NOTE: 7:30 P.M. is a reasonable time for executing a search warrant in the metropolis. The exact time of the execution of a warrant should be left to the discretion of the law enforcement officers. And in judging the conduct of said officers, judicial notice may be taken not just of the realities of law enforcement, but also the prevailing conditions in the place to be searched. We take judicial notice that 7:30 P.M. in a suburban subdivision in Metro Manila is an hour at which the residents are still up-and-about. To hold said hour as an unreasonable time to serve a warrant would not only hamper law enforcement, but could also lead to absurd results, enabling criminals to conceal their illegal activities by pursuing such activities only at night (Ibid). Remedies against an unlawful search 1. 2.

3. 4.

Motion to quash the search warrant; Motion to suppress as evidence the objects illegally taken (exclusionary rule – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding); Replevin, if the objects are legally possessed; and Certiorari, where the search warrant is a patent nullity.

NOTE: The remedies are alternative. If a motion to quash is denied, a motion to suppress cannot be availed

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The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or by these rules. It is guided by the principle of uniformity. (Sec. 2, Rule 128). NOTE: It does not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases, except by analogy or in suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1, Rules of Court) Factum Probandum v. Factum Probans Factum Probandum Factum Probans The ultimate fact sought to be The intermediate facts established Proposition to be Materials which establish established the proposition Hypothetical Existent Kinds of admissibility of evidence MULTIPLE Evidence that is plainly relevant and competent for two or more purposes will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites of admissibility for other purposes. (Regalado, Vol. II, p.706, 2008 ed.) CONDITION Evidence appears to be immaterial is -AL admitted by the court subject to the condition that its connection with another fact subsequent to be proved will be established. Otherwise, such fact already received will be stricken off the record at the initiative of the adverse party. (Regalado, Vol. II, p.705, 2008 ed.) CURATIVE Evidence that is otherwise improper is admitted (despite objection from the other party) to contradict improper evidence presented or introduced by the other party, to cure, contradict or neutralize such improper evidence. (Regalado, Vol. II, p.706, 2008 ed.)

Two concepts of burden of proof

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW 1. 2.

Burden of going forward – Party’s obligation of producing evidence. Burden of persuasion – The burden of persuading the trier of fact that the burdened party is entitled to prevail.

Principle of Negative Averments GR: Negative allegations need not be proved, whether in civil or criminal cases. XPN: Where such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or the defenses thereto, negative allegations should be proved (Industrial Finance Corp., v.Tobias, G.R. No. L-41555, July 27, 1977). XPN to the XPN: In civil cases, even if the negative allegation is an essential part of the cause of action or defense, it does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party (Regalado, Vol. II, p. 818, 2008 ed.). Judicial Notice and Judicial Admissions

2. 3. 4.

Those which the courts may take judicial notice (Rule 129); Those that are judicially admitted (Rule 129); Those that are conclusively presumed (Rule 131); and Those that are disputably presumed but uncontradicted (Rule 131).

Judicial Notice It is the cognizance of certain facts which judges may properly take and act upon without proof because they are supposed to be known to them. It is based on considerations of expediency and convenience. It displaces evidence, being equivalent to proof (Regalado, 2008). Judicial Admission It is an admission, verbal or written, made by a party in the course of the proceedings in the same case, which does not require proof (Sec. 4). Judicial admission v. Extrajudicial admission JUDICIAL ADMISSIONS Those made in the course of the proceeding in the same case Do not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

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EXTRAJUDICIAL ADMISSIONS Those made out of court or in a judicial proceeding other than the one under consideration Regarded as evidence and must be offered as such, otherwise the court will not consider it in deciding the case.

Requires formal offer for it to be considered

Rebuttable Not admissible if selfserving Not subject to crossexamination

Kinds of Evidence Object evidence Object evidence, also known as real evidence, is that evidence which is addressed to the senses of the court (Sec. 1). It is not limited to the view of an object. It extends to the visual, auditory, tactile, gustatory, and olfactory. It is considered as evidence of the highest order. Categories of authentication

Facts that need not be proved 1.

Judicial admissions need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established. Conclusive upon the admitter Admissible even if selfserving Subject to crossexamination

object

evidence

for

purposes

of

1. Unique objects – those that have readily identifiable marks (e.g. a calibre 40 gun with serial number XXX888) 2. Objects made unique – those that are readily identifiable (e.g. a bolo knife used to hack a victim which could be identified by a witness in court) 3. Non-unique objects – those which have no identifying marks and cannot be marked (e.g. footprints left at a crime scene) (Riano, Evidence: A Restatement for the Bar, p. 148, 2009 ed.) Chain of Custody Chain of Custody Rule in relation to Sec. 21 of the Comprehensive Dangerous Drugs Act of 2002 It is a method of authenticating evidence. It 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, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. (Lopez v. People, G.R. No. 172953, Apr. 30, 2008) Objective Test In People v. Doria, the Court laid down the "objective test" in determining the credibility of prosecution witnesses regarding the conduct of buy-bust operations. It is the duty

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of the prosecution to present a complete picture detailing the buy-bust operation—"from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of sale.” (People vs. Dela Cruz 651 SCRA 597 June 8, 2011)

As long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team, the failure to issue a receipt will not render the items seized/confiscated inadmissible as evidence (People v. Magbanua, G.R. No. 170137, August 27, 2009). Presentation of informant is not a prerequisite in drug cases

Non-compliance with the procedure Non-compliance with Sec. 21, Art. II of RA 9165 is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him or her inadmissible. What is material is the proof that the transaction actually took place, coupled with the presentation before the court of a specimen of the seized object as part of the corpus delicti. Non-compliance with the procedure shall not render void and invalid the seizure of and custody of the drugs only when: 1. Such non-compliance was under justifiable grounds; and 2. The integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. (People v. Dela Cruz, G.R. No. 177222, October 29,2008; People v. Rivera, G.R. No. 182347, October 17, 2008; Sec. 21 (a), Art. II, IRR of RA 9165). NOTE: What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction. The chain of custody requirement performs the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed (People v. Rivera, supra.). When no physical inventory or photograph of the confiscated evidence Generally, non-compliance with Secs. 21 and 86 of RA 9165 does not mean that no buy-bust operation against appellant ever took place. The prosecution’s failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Sec. 21, Art. II of RA 9165 will not discharge the accused from the crime. Noncompliance with said section is not fatal and will not render an accused’s arrest illegal or the items seized or confiscated from him admissible (People v. Dela Cruz, G.R. No. 185717, June 8, 2011). Failure of apprehending officer/team to issue receipt The non-issuance of a receipt for the confiscated drugs weaken the prosecution's case, since such a receipt is not essential to establishing a criminal case for selling or possessing drugs as it is not an element of either crime (People v. Faizal Askalani, G.R. No. 196257, February 8, 2012).

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The presentation of an informant is not a requisite in the prosecution of drug cases. The failure of the prosecution to present the informant does not vitiate its cause as the latter's testimony is not indispensable to a successful prosecution for drug-pushing, since his testimony would be merely corroborative of and cumulative with that of the poseurbuyer who was presented in court and who testified on the facts and circumstances of the sale and delivery of the prohibited drug (People v. Naquito, G.R. No. 180511m July 20, 2008). Rules on DNA In what cases do the Rules on DNA Evidence apply It shall apply whenever DNA evidence is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings (Sec. 1). Things to be considered in assessing the probative value of DNA evidence (Vallejo standard) 1. 2. 3. 4. 5.

How the samples are collected; How they were handled; The possibility of the contamination of the samples; The procedure followed in analyzing the samples; Whether the proper standards and procedures were followed in conducting the tests; and 6. The qualification of the analyst who conducted the tests. Documentary Evidence Requisites for admissibility of documentary evidence 1. 2. 3. 4.

The document must be relevant; The evidence must be authenticated; The document must be authenticated by a competent witness; and The document must be formally offered in evidence (Riano, Evidence: A Restatement for the Bar, p. 183, 2009 ed).

Electronic Evidence It is information stored in electronic form that is relevant to the issues in a particular litigation. It is an equivalent of an original document if it is a printout or output readable by sight or other means, shown to reflect the data accurately (Sec. 1, Rule 4).

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Electronic Document It refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document [Sec. 1(h), Rule 2, REE].

conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence (Sec. 1, Rule 8). NOTE: The presumption provided by the rules may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof (Sec. 2, Rule 8). How to discredit the results of the DNA test

Electronic data message It refers to information generated, sent, received or stored by electronic, optical or similar means (Sec.1 (g), Rule 2, REE). The terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence (Torres vs. PAGCOR G.R. No. 193531: December 14, 2011). The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings and administrative proceeding, not to criminal actions (Ang v. Court of Appeals et al., GR No. 182835, April 20, 2010). Authentication of Electronic Document 1. 2.

3.

By evidence that it had been digitally signed by the person purported to have signed the same; By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or By other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2, Rule 5).

NOTE: Sec. 2, Rule 5 applies only when the document is a private electronic document and when it is offered as authentic. It is not applicable when the electronic document is offered simply for what it is or for what it is claimed to be without regard to whether or not it is authentic (Riano, Evidence: A Restatement for the Bar, p. 180, 2009 ed).

The results of the DNA test may be discredited by questioning and possibly impugning the integrity of the DNA profile by showing a flaw/error in obtaining the biological sample, or in the chain of custody of the biological sample obtained; the testing methodology employed; the scientific standard observed; the forensic DNA laboratory which conducted the test; and the qualification, training and experience of the forensic laboratory personnel who conducted the DNA testing. Best Evidence Rule GR: It provides that when the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original document itself. XPNs: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; 4. When the original is a public record in the custody of a public officer or is recorded in a public office (Sec. 3, Rule 130) NOTE: Where the issue is only as to whether such a document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. (5 Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78)

Authentication of electronic or digital signature 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 as establishing the genuineness of the electronic signature (Sec. 2, Rule 6). Applicability of Hearsay rule to electronic documents A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or

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Three concepts of “original” document 1. 2.

3.

The original of a document is one the contents of which are the subject of inquiry; when a document is in 2 or more copies executed at or about the same time, with identical contents, including signed carbon copies, all such copies are equally regarded as originals; or when an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, including entries in journals and

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ledgers, all the entries are likewise equally regarded as originals (Sec. 4, Rule 130).

Disqualifications of a witness 1.

When secondary evidence may be admitted It may be admitted only by laying the basis for its production and such requires compliance with the following: 1. The offeror must prove the execution and existence of the original document; 2. The offeror must show the cause of its unavailability; and 3. The offeror must show that the unavailability was not due to his bad faith. (Sec. 5. Rule 130)

2. 3. 4.

Disqualified by reason of mental incapacity or immaturity; Disqualified by reason of marriage; Disqualified by reason of death or insanity of adverse party; and Disqualified on the ground of privileged communication: a. Marital privilege; b. Attorney-client privilege; c. Doctor-patient privilege; d. Minister-penitent privilege e. Public officer as regards communications made in official confidence.

Parol Evidence Rule GR: when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement (Sec. 9)

NOTE: Testimonial evidence, to be believed in, must not only proceed from the mouth of a credible witness but foremost be credible in itself (Flores vs. People, 692 SCRA 127, February 27, 2013). Child witness v. Ordinary witness

XPNs: A party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleadings the following: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. Failure of the written agreement to express the true intent of the parties thereto; 3. Validity of the written agreement; or 4. Existence of other terms agreed to by the parties or their successors in interest after Testimonial Evidence Qualifications of a Witness All persons who: 1. can perceive and perceiving; 2. can make known their perception to others (Sec. 20, Rule 130); 3. must take either an oath or an affirmation (Sec. 1, Rule 132; Riano, Evidence: A Restatement for the Bar, p. 245, 2009 ed.); and 4. must not possess the disqualifications imposed by law or the rules (Ibid.)

Child Witness Only the judge is allowed to ask questions to a child witness during preliminary examination Testimony in a narrative form is allowed Leading questions are allowed The child witness is assisted by a support person

Ordinary Witness Opposing counsels are allowed to ask questions during preliminary examination Testimony in a narrative form is not allowed Leading questions are generally not allowed An ordinary witness is not assisted by a support person

Competency v. Credibility Competency of Witness Refers to a witness who can perceive, perceiving, and can make known his perception to others. Refers to a witness who can perceive, perceiving, and can make known his perception to others.

Credibility of Witness Refers to a witness whose testimony is believable

NOTE: After the competence of a witness is allowed, the consideration of his credibility follows (People vs. Pondivida, 692 SCRA 217, February 27, 2013).

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Spousal Immunity v. Marital Privilege Disqualification By Reason Of Marriage (Sec. 22) Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes an absolute and total prohibition for or against the spouse of the witness The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse, the spousewitness cannot testify

Disqualification By Reason Of Marital Privilege (Sec. 24) Can be claimed whether or not the other spouse is a party to the action Can be claimed even after the marriage is dissolved Applies only to confidential communications between the spouses The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into

3.

This rule shall apply to similar communications made to or received by a law student, acting for the legal clinic. (Sec. 3, Rule 138-A) Divulgence by lawyer of client’s identity GR: Lawyers may not invoke the privilege and refuse to divulge the name or identity of their client. XPNs: 1. Where a strong possibility exists that revealing client’s name would implicate the client in the very activity for which he sought the lawyer’s advice; 2. Where disclosure would open the client to civil liability; or 3. Where the prosecutors have no case against the client unless by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual for a crime. Requisites for the application of the Physician-Patient privilege

Exceptions to the spousal immunity 1. 2.

NOTE: This rule does not require a perfected attorney – client relationship. It is enough that the communication or advice be with a view to professional employment. (Sec. 24b, rule 130)

In a civil case by one against the other; or In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Sec. 22, Rule 130). Where the testimony was made outside the marriage.

1. 2.

3.

Elements for the application of the Dead Man’s Statute 1.

2. 3. 4.

The defendant in the case is the executor or the administrator or a representative of the deceased or the person of unsound mind; The suit is upon the claim by the plaintiff against the estate of said deceased or person of unsound mind; The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and The subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (Sec. 23, Rule 130)

NOTE: Rule applies only to a civil case or special proceeding over the estate of a deceased or insane person. Requisites for the application of the Attorney-Client privilege 1. 2.

3.

4. 5.

The action involves a civil case; The relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; The advice or treatment given by him or any information was acquired by the physician while professionally attending to the patient; The information was necessary for the performance of his professional duty; and The disclosure of the information would tend to blacken the reputation of the patient.

Concept of executive privilege Certain types of information like military, diplomatic and other national security matters may be withheld from the public. How examination of witnesses is done The examination of witnesses presented in a trial or hearing shall be done in open court and under oath or affirmation. The answers of the witness shall be given orally unless the witness is incapacitated to speak, or the question calls for a different mode of answer (Sec. 1,Rule 132).

Attorney-client relation; The privilege is invoked with respect to a confidential communication between them in the course of professional employment; and The client has not given his consent to the attorney’s testimony; or if the attorney’s secretary, stenographer or clerk is sought to be examined, that both the client and the attorney have not given their consent. (Regalado, Vol. II, p. 749, 2008 ed.)

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Distinguish the right against self-incrimination of the accused from that of an ordinary witness. Accused Cannot be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused, he cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be required either for the prosecution, for co-accused or even for himself.

Ordinary Witness

May be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminating question at the time it is put to him.

Confession

A statement of fact which does not involve an acknowledgment of guilt or liability

A statement of fact which involves an acknowledgment of guilt or liability

May be made by third persons and in certain cases, are admissible against a party

Can be made only by the party himself and, in some instances, are admissible against his co-accused

May be express or implied

Always express

Requisites of an admission by silence

Doctrine of Incomplete Testimony

1.

GR: It states that when cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record.

2. 3. 4.

XPN: Where the witness was extensively cross-examined on the material points and thereafter failed to appear and cannot be produced despite a warrant for his arrest. Admissibility of offer of compromise against the offeror 1.

Admission

5. 6.

He must have heard or observed the act or declaration of the other person; He must have had the opportunity to deny it; He must have understood the statement; He must have an interest to object, such that he would naturally have done so, if the statement was not true; The facts were within his knowledge; and The fact admitted or the inference to be drawn from his silence is material to the issue (Sec. 32, Rule 130; People v. Paragsa, G.R. No. L-44060, July 20, 1978).

NOTE: The rule does not apply when a person is under an official investigation.

Civil cases Classifications of confession

GR: It is not an admission of any liability, and is not admissible in evidence against the offeror. XPN: When the offer is clearly not only to buy peace but amounts to admission of liability, the offered compromise being the only amount paid (El Vadero de Manila v. Insular Lumber, G.R. No. 21911, Sept. 15, 1924). 2.

Criminal cases

GR: It may be received in evidence as an implied admission of guilt (Sec. 27). XPNs: a. Those involving quasi-offenses or those allowed by law to be compromised (reckless imprudence); b. Those covered by the Katarungang Pambarangay Law; c. Plea of guilty later withdrawn; d. An accepted offer of plea of guilty to a lesser offense; e. An offer to pay medical, hospital and other expenses occasioned by the injury is not admissible in evidence as proof of civil and criminal liability for the injury (Good Samaritan Rule); f. Tax cases, and all criminal violations under the Tax Code except those already filed in court and those involving fraud.

Admission v. Confession

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1.

2.

Judicial confession – is one made by the accused before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain conviction. It is governed by Secs., 1, 3 & 4 of Rule 116. Extrajudicial confession – is one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of corpus delicti. It is governed by Sec. 33 of Rule 130.(Regalado, p. 765)

Doctrine of Interlocking Confessions It states that extrajudicial confessions independently made without collusion which are identical with each other in their essential details and corroborated by other evidence against the persons implicated, are admissible to show the probability of the latter’s actual participation in the commission of the crime. Principle of res inter alios acta alteri nocere non debet This principle literally means “things done between strangers ought not to injure those who are not parties to it”. It has two branches: 1. The rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28). 2. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time (Sec. 34).

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW 4. Two concepts of hearsay evidence 5. 1.

2.

Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. (Regalado, Vol. II, p. 776, 2008 ed.) It also includes all assertions which have not been subjected to cross-examination by the adverse party at the trial in which they are being offered against him. (Herrera, Vol. V, p. 581, 1999 ed.)

NOTE: Newspaper articles amount to “hearsay evidence, twice removed” and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated. (Spouses Viloria vs. Continental Airlines, Inc. G.R. No. 188288: January 16, 2012)

The declaration is offered in a case wherein the declarant’s death is the subject of the inquiry; and The declarant is competent as a witness had he survived. (Geraldo v. People, G.R. No. 173608, Nov. 20, 2008; Riano, Evidence: A Restatement for the Bar, p. 370, 2009 ed.)

Requisites for the admissibility of res gestae 1. 2.

3.

The principal act or the res gestae is a startling occurrence; The statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and The statement made must concern the occurrence in question and it’s immediately attending circumstances (Capila v. People, G.R. No. 146161, July 17, 2006).

Hearsay evidence v. Opinion evidence Hearsay Evidence

Opinion Evidence

Consists of testimony that is not based on personal knowledge of the person testifying

Expert evidence based on the personal knowledge, skill, experience or training of the person testifying and evidence of an ordinary witness on limited matters

Independently relevant statements These are statements which are relevant independently of whether they are true or not. They are neither hearsay nor an exception to the hearsay rule as the purpose thereof is not to prove the truth of the declaration or document (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3, 2001). Non-human evidence It is the testimony of a witness as to statements made by a non-human declarant (e.g. machines and computers). It does not violate the rule on hearsay, hence not covered by the Rule. The workings of the machines can be explained by human witnesses who may then be cross-examined (Herrera, Vol. V, p. 581, 1999 ed.). Requisites of dying declaration to be considered as an exception to the hearsay rule 1. 2. 3.

The declaration is one made by a dying person; The declaration was made by said dying person under a consciousness of his impending death; The declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else;

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Two types of res gestae Verbal Acts The res gestae is the equivocal act Must be contemporaneous with or must accompany the equivocal act to be admissible

Spontaneous Statements The res gestae is the startling occurrence

c.

May be prior to, simultaneous with, or subsequent to the startling occurrence

XPNs to the XPNs: i. In rebuttal, proof of the bad character of the victim is not admissible if the crime was committed through treachery and premeditation; and ii. In rape cases, the evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case (Rape shield law, Sec. 6, R.A. 8505).

NOTE: Suppose, by chance, the declarant survives but is unable to testify due to severe physical and emotional infirmity, his declaration could be admitted as part of the res gestae under Sec. 42 of Rule 130 since it is made by person immediately subsequent to a startling occurrence (People vs. Salafranca, 666 SCRA 501, February 22, 2012). Entries in the course of business v. Entries in official record Entries in the Course of Business It is sufficient that the entrant made the entries pursuant to a duty be it legal, contractual, moral or religious. Entrant must be dead or unable to testify.

Entries in Official Record The entrant, if a private individual, must have acted pursuant to a specific legal duty specially enjoined by law. No such requirement for entries in official record to be admissible.

moral trait involved in the offense charged, unless in rebuttal when the latter opens the issue by introducing evidence of his good moral character; or As to the offended party, his good or bad moral character may be proved as long as it tends to establish in any reasonable degree the probability or improbability of the offense charged.

2.

Civil cases – The moral character of either party thereto cannot be proved unless it is pertinent to the issue of character involved in the case(Sec. 51). Burden of Proof and burden of Evidence

Burden of proof Is the duty of a party to present evidence to establish his claim or defense by the amount of evidence required by law (Sec. 1). It is also called onus probandi.

Admissibility of Opinion of a Witness GR: The opinion of a witness is not admissible. The witness must testify to facts within their knowledge and may not state their opinion even on their examination. XPNs: 1. Opinion of an expert witness (Sec. 49); 2. Opinion of an ordinary witness as to: a. The identity of a person about whom he has adequate knowledge; b. A handwriting with which he has sufficient familiarity; c. The mental sanity of a person with whom he is sufficiently acquainted; and d. The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50). Character Evidence GR: Character evidence is not admissible in evidence. XPNs: 1. Criminal cases: a. The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged; b. The prosecution may not prove the bad moral character of the accused which is pertinent to the

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Burden of proof v. Burden of evidence Burden of Proof

Burden of Evidence Definition It is the duty of a party to provide evidence at any stage of the trial until he has established a prima facie case, or the It is the duty of a party to present evidence on the like duty of the adverse party to meet and overthrow that facts in issue necessary to establish his claim or prima facie case thus established. In both civil and criminal defense by the amount of evidence required by law cases, the burden of evidence lies on the party who (Sec. 1) asserts an affirmative allegation. (Regalado, Vol. II, p. 817, 2008 ed.) Whether it shifts throughout the proceedings Does not shift as it remains throughout the entire case exactly where the pleadings originally placed it

Shifts to the other party when one party has produced sufficient evidence to be entitled to a ruling in his favor

What determines it Generally determined by the developments at the trial, Generally determined by the pleadings filed by the party; or by the provisions of the substantive law or procedural and whoever asserts the affirmative of the issue has the rules which may relieve the party from presenting burden of proof evidence on the fact alleged Effect of a legal presumption It does not shift the burden of proof. However, the one It creates a prima facie case and thereby sustains the said who has the burden of proof is relieved from the time burden of evidence on the point which it covers, shifting being, from introducing evidence in support of his it to the other party. It relieves those favored thereby of averment because the presumption stands in the place of the burden of proving the fact presumed. evidence. (Francisco, p. 356, 1992 ed.) NOTE: In civil cases, a party who alleges a fact has the burden of proving it so it is inaccurate to say that the burden of proof lies on the shoulders of the plaintiff since burden of proof is the duty to present evidence not only to establish a claim but also a defense. Hence, it is the duty of the plantiff who has a claim and the defendant who has a defense.

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Degrees of proof necessary to satisfy the burden of proof 1.

2.

3.

Civil case – Preponderance of evidence It is evidence that is more convincing and more credible than the one offered by the adverse party. Administrative case – Substantial evidence It is the evidence which a reasonable mind might accept as adequate to support a conclusion. Criminal case: a. During preliminary investigation – Well founded belief of the fact of commission of a crime b. Issuance of warrant of arrest – Probable cause c. To convict an accused – Evidence of guilt beyond reasonable doubt d. Accused claims justifying/exempting circumstances – Clear and convincing evidence

deny a claim for rent, if he has been ousted or evicted by title paramount. (Juanita Ermitaño, represented by her Attorneyin-fact, Isabelo Ermitaño vs. Lailanie M. Paglas; G.R. No. 174436. January 23, 2013) Authentication and Proof of Documents When authentication of documents not required 1. 2.

XPN: A private document required by law to be recorded – while they are public documents, the public writing is not the writing itself but the “public record” thereof. Such recording does not make the private writing itself a public document so as to make it admissible without authentication.

Presumptions A presumption is an inference of the existence or nonexistence of a fact which courts are permitted to draw from the proof of other facts. (In the matter of the Intestate Estates of Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006)

3. 4.

5. NOTE: A presumption shifts the burden of going forward with the evidence. It imposes on the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption. Two kinds of presumptions of law 1. 2.

Conclusive presumptions – those which are not permitted to be overcome by any proof to the contrary. Disputable presumptions – those which are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence. (Sec. 3, Rule 131)

The writing is an ancient document (Sec. 21); GR: The writing is a public document or record (Sec. 19);

The writing is a notarial document acknowledged, proved or certified (Sec. 30); The authenticity and due execution of the document has been expressly admitted or impliedly admitted by failure to deny the same under oath; or When such genuineness and due execution are immaterial to the issue.

When a private writing requires authentication; Proof of a private writing The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones (Pontaoe v. Pontaoe, G.R. No. 15958, Apr. 22, 2008). Genuineness of a handwriting

Classes of conclusive presumptions 1. 1.

2.

Estoppel in pais – Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it [Sec. 2, (par. a)]. Estoppel by deed – A party to a property deed is precluded from asserting, as against another party to the deed, any right or title in derogation of the deed, or from denying the truth of any material fact asserted in the deed e.g. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them [Sec. 2 (par. b)]

Conclusive presumptions; estoppel against tenants What a tenant is estopped from denying is the title of his landlord at the time of the commencement of the landlordtenant 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

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2.

3. 4.

It may be proved by any witness who actually saw the person writing the instrument; By any person who is familiar or has acquired knowledge of the handwriting of such person, his opinion as to the handwriting being an exception to the opinion rule under Secs. 48 & 50 of Rule 130; By a comparison of the questioned handwriting from the admitted genuine specimens thereof; or By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule 130).

NOTE: The value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer.(Tamani vs. Salvador, 647 SCRA 132, April 4, 2011)

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Impeachment of a judicial record

2. 3.

By evidence of: 1. Want of jurisdiction in the court or judicial officer;

Collusion between the parties; or Fraud in the party offering the record, in respect to the proceedings (Sec. 29,Rule 132).

Impeaching a Witness

By contradictory evidence

By evidence that his general reputation for truth, honesty, or integrity of the witness is bad

By prior inconsistent statements “laying the predicate"

Refers to the prior testimony of the same witness or other evidence presented by him in the same case, but not the testimony of other witness

Since the weight of the witness’ testimony depends on his credibility, he may be impeached by impairing his credibility by showing his not pleasing reputation but only as regards his reputation for truth, honesty or integrity

Refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying

Hostile Witness

Theory of indivisibility (rule on completeness)

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify or his having misled the party into calling him to the witness stand (Sec. 12,Rule 132).

When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other; and when a detached act, declaration, conversation, writing, or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence (Sec. 17).

Procedure for impeaching a witness by evidence of prior inconsistent statements

Offer and Objection 1.

2. 3.

The witness must be confronted with such statements with the circumstances of the times, places and the persons present in which they were made; The witness must be asked whether he made such statements, and if so, allowed to explain them; and If the statement be in writing it must be shown to the witness before any question is put to him concerning them (Sec. 13,Rule 132).

NOTE: This procedure is also called the rule on laying the predicate. Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on laying the predicate does not apply. Elements of 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. He must be asked whether he made such statements and also to explain them if he admits making those statements (Riano, Evidence: A Restatement for the Bar, p. 327, 2009 ed). Applicability of rule on laying the predicate It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party (Regalado, Vol. II, p. 852, 2008 ed.).

Offer GR: The court shall consider only the evidence which has been formally offered. The purpose for which the evidence is offered must be specified (Sec. 34). XPNs: 1. Marked exhibits not formally offered may be admitted provided it complies with the following requisites: a. must be duly identified by testimony duly recorded; and b. must have been incorporated in the records of the case (Ramos v. Dizon, G.R. No. 137247, Aug. 6, 2006); 2. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speedy administration of justice; 3. In summary judgments under Rule 35 where the judge based his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court; 4. Documents whose contents are taken judicial notice of by the court; 5. Documents whose contents are judicially admitted; or 6. Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of cross-examination of the witness who testified on them during the trial. NOTE: It is basic in the law of evidence that the court shall consider evidence solely for the purpose for which it was

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offered (Ragudo vs. Fabella Estate Tenants Assoc., Inc., 466 SCRA 136). Without a formal offer of evidence, courts are constrained to take no notice of the evidence even if it has been marked and identified (FEBTC vs. CIR, 502 SCRA 87; Parel vs. Prudencio, 487 SCRA 405). Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence (Heirs of Pedro Pasag vs. Parocha, 522 SCRA 410). Exhibits not yet formally offered nor admitted in evidence cannot be considered by the court (Collado vs. Hernando, 161 SCRA 639). A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. It has several functions: (1) to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence; (2) to allow opposing parties to examine the evidence and object to its admissibility; and (3) to facilitate review by the appellate court, which will not be required to review documents not previously scrutinized by the trial court (Union Bank of the Philippines vs. Tiu 657 SCRA 86 September 7, 2011). Requisites in order that evidence not formally offered may be admitted and considered by the court 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. (Ramos vs. Dizon, 498 SCRA 17) When to Make Offer Testimonial Evidence Offer must be made at the time the witness is called to testify. Every time a question is propounded to a witness, there is an implied offer of the evidence sought to be elicited by the question.

Documentary and Object Evidence Must be made after the presentation of party’s testimonial evidence, and before resting his case. The evidence is only offered once, after all the testimonial evidence and prior to the resting of the case for a party.

NOTE: The offer shall be done orally unless allowed by the court to be in writing.

Contemporaneous Objection Rule Requires that a specific and timely objection be made to the admission of evidence. Objections to the admission of evidence must be made seasonably, at the time it is introduce or offered, otherwise they are deemed waived, and will not be entertained for the first time on appeal.(People vs. Banares, 145 SCRA 680) Objections to admissibility of evidence cannot be raised for the first time on appeal. When a party desires the court to reject the evidence offered he must so state in the form of objection. Without objection he cannot raise the question for the first time on appeal.(People vs. Salak, March 14, 2011) The rule on continuing objections GR: When it becomes reasonably apparent in the course of the examination that the questions asked are of the same class as those to which objection has been made (whether sustained or overruled), it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions (Sec. 37). XPNs: 1. Where the question has not been answered, it is necessary to repeat the objection when the evidence is again offered or the question is again asked; 2. Incompetency is shown later; 3. Where objection refers to preliminary question, objection must be repeated when the same question is again asked during the introduction of actual evidence; 4. Objection to evidence was sustained but reoffered at a later stage of the trial; 5. Evidence is admitted on condition that its competency or relevance be shown by further evidence and the condition is not fulfilled, the objection formerly interposed must be repeated or a motion to strike out the evidence must be made; and 6. Where the court reserves the ruling on objection, the objecting party must request a ruling or repeat the objection. When should the court make its ruling on the objection It must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling (Sec. 38)

When should an objection be made Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent. An offer of evidence in writing shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for objection must be specified (Sec. 36).

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UST LAW PRE-WEEK NOTES 2014 REMEDIAL LAW Modes of excluding inadmissible evidence 1. 2.

Objection – when the evidence is offered. Motion to strike out or expunge: a. When the witness answers prematurely before there is reasonable opportunity for the adverse party to object, and such objection is found to be meritorious; b. When the answers are incompetent, irrelevant, or improper (Sec. 39); c. When the witness becomes unavailable for crossexamination through no fault of the crossexamining party; d. When the answer is unresponsive; e. When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled (Riano, Evidence: A Restatement for the Bar, p. 467, 2009 ed.); f. When a witness has volunteered statements in such a way that the party has not been able to object thereto; g. When a witness testifies without a question being addressed to him; or h. When a witness testifies beyond the ruling of the court prescribing the limits within which he may answer.

Tender of excluded evidence or offer of proof When an attorney is not allowed by the court to present testimony which he thinks is competent, material and necessary to prove his case, he must make an offer of proof. This is the method properly preserving the record to the end that the question may be saved for purposes of review. (Caraig, Revised Rules of Evidence 2004 ed., p. 337) How tender of excluded evidence is made 1. As to documentary or object evidence: It may have the same attached to or made part of the record. NOTE: Party should ask that evidence ruled out at the trial be attached to the record of case in order that same may be considered on appeal. (Banez vs. CA., 59 SCRA 15) 2. As to oral evidence: It may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

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