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Victory goes to those with homicidal instinct to succeed... the murderous mania to excel...
Dean W. Riano

SYLLABUS FOR 2011 BAR EXAMINATIONS

REMEDIAL LAW

I. General Principles
E. Jurisdiction of Courts
A. Concept of Remedial Law 1. Supreme Court
B. Substantive Law as Distinguished from Remedial 2. Court of Appeals
Law 3. Court of Tax Appeals
C. Rule-making Power of the Supreme Court 4. Sandiganbayan
1. Limitations on the rule-making power of 5. Regional Trial Courts
the Supreme Court 6. Family Courts
2. Power of the Supreme Court to amend and 7. Metropolitan Trial Courts/Municipal Trial
suspend procedural rules Courts
8. Shariah Courts
D. Nature of Philippine Courts F. Jurisdiction over small claims, cases covered by the
1. Meaning of a court rules on Summary Procedure and Barangay
2. Court as distinguished from a judge Conciliation
3. Classification of Philippine courts G. Totality Rule
4. Courts of original and appellate
jurisdiction III. Civil Procedure
5. Courts of general and special jurisdiction
6. Constitutional and statutory courts A. Actions
7. Courts of law and equity 1. Meaning of ordinary civil actions
8. Principle of judicial hierarchy 2. Meaning of special civil actions
9. Doctrine of non-interference or doctrine of 3. Meaning of criminal actions
judicial stability 4. Civil actions versus Special proceedings
5. Personal actions and real actions
II. Jurisdiction 6. Local and transitory actions
7. Actions in rem, in personam and quasi in
A. Jurisdiction over the parties rem
1. How jurisdiction over the plaintiff is
acquired B. Cause of Action
2. How jurisdiction over the defendant is 1. Meaning of cause of action
acquired 2. Right of Action versus Cause of action
3. Failure to state a cause of action
B. Jurisdiction over the subject matter 4. Test of the sufficiency of a cause of action
1. Meaning of jurisdiction over the subject 5. Splitting a single cause of action and its
matter effects
2. Jurisdiction versus the exercise of 6. Joinder and misjoinder of causes of action
jurisdiction
3. Error of jurisdiction as distinguished from C. Parties to Civil Actions
error of judgment 1. Real Parties in interest; Indispensable
4. How jurisdiction is conferred and parties; Representatives as parties; Necessary
determined parties; Indigent Parties; Alternative
5. Doctrine of primary jurisdiction defendants
6. Doctrine of adherence of jurisdiction 2. Compulsory and permissive joinder of
7. Objections to jurisdiction over the subject parties
matter 3. Misjoinder and non-joinder of parties
8. Effect of estoppel on objections to 4. Class Suit
jurisdiction 5. Suits against entities without juridical
personality
C. Jurisdiction over the issues 6. Effect of death of party litigant
D. Jurisdiction over the res or property in litigation
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D. Venue (2) When a specific denial

1. Venue versus Jurisdiction requires an oath
2. Venue of real actions 5. Effect of failure to plead
3. Venue of personal actions 1. Failure to plead defenses and
4. Venue of actions against non-residents objections
5. When the Rules on Venue Do not Apply 2. Failure to plead a compulsory
6. Effects of Stipulations on Venue counterclaim and cross-claim
6. Default
E. Pleadings a. When a declaration of default is
1. Kinds of Pleadings proper
a. Complaint b. Effect of an order of default
b. Answer c. Relief from an order of default
(1) Negative defenses d. Effect of a partial default
(2) Negative pregnant e. Extent of relief
(3) Affirmative Defenses f. Actions where default are not
c. Counterclaims allowed
(1) Compulsory 7. Filing and Service of pleadings
counterclaim I. Payment of docket fees
(2) Permissive II. Filing versus service of pleadings
counterclaim III. Periods of filing of pleadings
(3) Effect on the IV. Manner of filing
Counterclaim when the V. Modes of service
complaint is dismissed (1) Personal service
d. Cross-claims (2) Service by mail
e. Third (fourth, etc.) party (3) Substituted service
complaints (4) Service of judgments,
f. Complaint-in-intervention final orders or resolutions
g. Reply (5) Priorities in modes of
2. Pleadings allowed in small claim cases and service and filing
cases covered by the rules on summary (6) When service is
procedure deemed complete
3. Parts of a pleading (7) Proof of filing and
a. Caption service
b. Signature and address 8. Amendment
c. Verification and certification a. Amendment as a matter of right
against forum shopping b. Amendments by leave of court
(1) Requirements of a c. Formal amendment
corporation executing the d. Amendments to conform to or
verification/certification of authorize presentation of evidence
non-forum shopping e. Different from supplemental
d. Effect of the signature of counsel pleadings
in a pleading f. Effect of amended pleading
4. Allegations in a pleading
a. Manner of making allegations F. Summons
(1) Condition precedent 1. Nature and purpose of summons in
(2) Fraud, mistake, malice, relation to actions in personam, in rem and
intent, knowledge and quasi in rem
other condition of the 2. Voluntary appearance
mind, judgments, official 3. Personal service
documents or acts 4. Substituted service
b. Pleading an actionable document 5. Constructive service (by publication)
c. Specific denials a. Service upon a defendant where
(1) Effect of failure to make his identity is unknown or where
specific denials his whereabouts are unknown
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b. Service upon residents 6. Distinction between pre-trial in civil case

temporarily outside the Philippines and pre-trial in criminal case
6. Extra-territorial service, when allowed 7. Alternative Dispute Resolution (ADR)
7. Service upon prisoners and minors
8. Proof of service J. Intervention
1. Requisites for intervention
G. Motions 2. Time to intervene
1. Motions in general 3. Remedy for the denial of motion to
a. Definition of a motion intervene
b. Motions versus pleadings
c. Contents and form of motions K. Subpoena
d. Notice of hearing and hearing of 1. Subpoena duces tecum
motions 2. Subpoena ad testificandum
e. Omnibus motion rule 3. Service of subpoena
f. Litigated and ex parte motions 4. Compelling attendance of witnesses;
g. Pro-forma motions Contempt
2. Motions for Bill of Particulars 5. Quashing of subpoena
a. Purpose and when applied for
b. Actions of the court L. Modes of Discovery
c. Compliance with the order and 1. Depositions pending action; Depositions
effect of noncompliance before action or pending appeal
d. Effect on the period to file a a. Meaning of deposition
responsive pleading b. Uses; Scope of examination
3. Motion to Dismiss c. When may objections to
a. Grounds admissibility be made
b. Resolution of Motion d. When may taking of deposition
c. Remedies of plaintiff when the be terminated or its scope limited
complaint is dismissed 2. Written interrogatories to adverse parties
d. Remedies of the defendant when a. Consequences of refusal to
the motion is denied answer
e. Effect of dismissal of complaint b. Effect of failure to serve written
on certain grounds interrogatories
f. When grounds pleaded as 3. Request for Admission
affirmative defenses a. Implied admission by adverse
g. Bar by dismissal party
h. Distinguished from demurrer to b. Consequences of failure to
evidence under Rule 33 answer request for admission
c. Effect of admission
H. Dismissal of Actions d. Effect of failure to file and serve
1. Dismissal upon notice by plaintiff; Two- request for admission
dismissal rule 4. Production or inspection of documents or
2. Dismissal upon motion by plaintiff; effect things
on existing counterclaim 5. Physical and mental examination of
3. Dismissal due to the fault of plaintiff persons
4. Dismissal of counterclaim, cross-claim or 6. Consequences of refusal to comply with
third-party complaint modes of discovery

I. Pre-trial M. Trial
1. Concept of pre-trial 1. Adjournments and postponements
2. Nature and purpose 2. requisites of motion to postpone trial
3. Notice of pre-trial a. for absence of evidence
4. Appearance of parties; effect of failure to b. for illness of party or counsel
appear 3. Agreed statement of facts
5. Pre-trial brief; effect of failure to appear 4. Order of trial; reversal of order
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5. Consolidation or Severance of hearing or f. Period of appeal

trial g. Perfection of appeal
6. Delegation of reception of evidence h. Appeal from judgments or final
7. Trial by commissioners orders of the MTC
a. Reference by consent or ordered i. Appeal from judgments or final
on motion orders of the RTC
b. Powers of the commissioner j. Appeal from judgments or final
c. Commissioner’s report; notice to orders of the CA
parties and hearing on the report k. Appeal from judgments or final
orders of the CTA
N. Demurrer to Evidence l. Review of final judgments or final
1. Ground orders of the COA
2. Effect of denial m. Review of final judgments or
3. Effect of grant final orders of the COMELEC
4. Waiver of right to present evidence n. Review of final judgments or
5. Demurrer to evidence in a civil case versus final orders of the CSC
demurrer to evidence in a criminal case o. Review of final judgments or
final orders of the Ombudsman
O. Judgments and Final Orders p. Review of final judgments or
1. Judgment without trial final orders of the NLRC
2. Contents of a judgment q. Review of final judgments or
3. Judgment on the pleadings final orders of quasi-judicial
4. Summary judgments agencies
a. for the claimant
b. for the defendant 3. Relief from judgments, orders and other
c. when the case not fully proceedings
adjudicated a. Grounds for availing of the
d. affidavits and attachments remedy
5. Judgment on the pleadings versus b. Time to file petition
summary judgments c. Contents of petition
6. Rendition of judgments and final orders
7. Entry of judgment and final order 4. Annulment of Judgments or final orders
and resolutions
P. Post Judgment Remedies a. Grounds for annulment
b. Period to file action
1. Motion for New Trial or reconsideration c. Effects of judgment of annulment
a. Grounds
b. When to file 5. Collateral attack of judgments
c. Denial of the motion; effect
d. Grant of the motion; effect Q. Execution, Satisfaction and Effect of Judgments
e. Remedy when motion is denied, 1. Difference between finality of judgment
Fresh 15-day period rule for purposes of appeal; for purposes of
execution
2. Appeals in General 2. When execution shall issue
a. Judgments and final orders a. Execution as a matter of right
subject to appeal b. Discretionary execution
b. Matters not appealable 3. How a judgment is executed
c. Remedy against judgments and a. Execution by motion or by
orders which are not appealable independent action
d. Modes of appeal b. Issuance and contents of a writ of
(1) Ordinary appeal execution
(2) Petition for review c. Execution of judgments for
(3) Petition for review on money
certiorari d. Execution of judgments for
e. Issues to be raised on appeal specific acts
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e. Execution of special judgments i. Rule on prior or contemporaneous

f. Effect of levy on third persons service of summons in relation to
4. Properties exempt from execution attachment
5. Proceedings where property is claimed by
third persons 5. Receivership
a. in relation to third party claim in a. Cases when receiver may be
attachment and replevin appointed
6. Rules on Redemption b. Requisites
7. Examination of Judgment Obligor When c. Requirements before issuance of
Judgment is unsatisfied an Order
8. Examination of Obligor of Judgment d. General powers of a receiver
Obligor e. Two (2) kinds of bonds
9. Effect of Judgment or Final Orders f. Termination of receivership
10. Enforcement and Effect of Foreign
Judgments or Final Orders 6. Replevin
a. When may writ be issued
R. Provisional Remedies b. Requisites
1. Nature of provisional remedies c. Affidavit and bond; Redelivery
2. Jurisdiction over provisional remedies Bond
d. Sheriff’s duty in the
3. Preliminary Attachment implementation of the writ; when
a. Grounds for issuance of writ of property is claimed by third party
attachment
b. Requisites S. Special Civil Actions
c. Issuance and contents of order of 1. Nature of special civil actions
attachment; affidavit and bond 2. Ordinary civil actions versus special civil
d. Rule on prior or actions
contemporaneous service of 3. Jurisdiction and venue
summons
e. Manner of attaching real and 4. Interpleader
personal property; when property a. Requisites for interpleader
attached is claimed by third person b. When to file
f. Discharge of attachment and the
counter-bond 5. Declaratory Reliefs and Similar Remedies
g. Satisfaction of judgment out of a. Who may file the action
property attached b. Requisites of action for
declaratory relief
4. Preliminary Injunction c. When court may refuse to make
a. Definitions and Differences: judicial declaration
Preliminary Injunction and d. Conversion to ordinary action
Temporary Restraining Order e. Proceedings considered as
b. Requisites similar remedies
c. Kinds of Injunction A. Reformation of an
d. When writ may be issued instrument
e. Grounds for issuance of B. Consolidation of
preliminary injunction ownership
f. Grounds for objection to, or for C. Quieting of title to real
the dissolution of injunction or property
restraining order
g. Duration of TRO 6. Review of Judgments and Final Orders or
h. In relation to RA 8975, Ban on Resolution of the COMELEC and COA
issuance of TRO or Writ of a. Application of Rule 65 under
Injunction in cases involving Rule 64
government infrastructure projects b. Distinction in the application of
Rule 65 to judgments of the
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COMELEC and COA and the h. Appointment of Commissioners;

application of Rule 65 to other Commissioner’s report; Court
tribunals, persons and officers action upon commissioner’s report
i. Rights of plaintiff upon judgment
7. Certiorari, Prohibition and Mandamus and payment
a. Definitions and distinctions j. Effect of recording of judgment
b. Requisites
c. When petition for certiorari, 10. Foreclosure of Real Estate Mortgage
prohibition and mandamus is a. Judgment on foreclosure for
proper payment or sale
d. Injunctive relief b. Sale of mortgaged property;
e. Certiorari distinguished from effect
Appeal by Certiorari; Prohibition c. Disposition of proceeds of sale
and Mandamus distinguished from d. Deficiency judgment
Injunction; when and where to file (1) Instances when court
petition cannot render deficiency judgment
f. Exceptions to filing of motion for e. Judicial foreclosure versus
reconsideration before filing extrajudicial foreclosure
petition f. Equity of redemption versus right
g. Reliefs petitioner is entitled to of redemption
h. Actions/Omissions of MTC/RTC
in election cases 11. Partition
i. Where to file petition a. Who may file complaint; who
j. Effects of filing of an should be made defendants
unmeritorious petition b. Matters to allege in the complaint
for partition
8. Quo Warranto c. Two (2) stages in every action for
a. Distinguish from Quo Warranto partition
in the Omnibus Election Code d. Order of partition and partition
b. When government commence an by agreement
action against individuals e. Partition by commissioners;
c. When individual may commence Appointment of commissioners,
an action Commissioner’s report; Court
d. Judgment in Quo Warranto action upon commissioner’s report
action f. Judgment and its effects
e. Rights of a person adjudged g. Partition of personal property
entitled to public office h. Prescription of action

9. Expropriation 12. Forcible Entry and Unlawful Detainer

a. Matters to allege in complaint for a. Definitions and Distinction
expropriation b. Distinguished from accion
b. Two stages in every action for publiciana and accion
expropriation reinvindicatoria
c. When plaintiff can immediately c. How to determine jurisdiction in
enter into possession of the real accion publiciana and accion
property, in relation to RA 8974 reinvindicatoria
d. New system of immediate d. Who may institute the action and
payment of initial just when; against whom the action may
compensation be maintained
e. Defenses and objections e. Pleadings allowed
f. Order of Expropriation f. Action on the complaint
g. Ascertainment of just g. When demand is necessary
compensation h. Preliminary injunction and
preliminary mandatory injunction
i. Resolving defense of ownership
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j. How to stay the immediate 2. Order of preference

execution of judgment 3. Opposition to issuance of letters
k. Summary procedure, prohibited testamentary; simultaneous filing of petition
pleadings for administration
4. Powers and duties of Executors and
13. Contempt Administrators; restrictions on the powers
a. Kinds of contempt 5. Appointment of Special Administrator
b. Purpose and nature of each 6. Grounds for removal of administrator
c. Remedy against direct contempt;
penalty F. Claims Against the Estate
d. Remedy against indirect 1. Time within which claims shall be filed;
contempt; penalty exceptions
e. How contempt proceedings are 2. Statute of Non-claims
commenced 3. Claim of Executor or administrator against
f. Acts deemed punishable as the Estate
indirect contempt 4. Payment of Debts
g. When imprisonment shall be
imposed G. Actions by and against Executors and
h. Contempt against quasi-judicial Administrators
bodies 1. Actions that may be brought against
executors and administrators
IV. Special Proceedings 2. Requisites before creditor may bring an
action for recovery of property fraudulently
A. Settlement of Estate of Deceased Persons, Venue conveyed by the deceased
and Process
1. Which court has jurisdiction H. Distribution and Partition
2. Venue in judicial settlement of estate 1. Liquidation
3. Extent of jurisdiction of Probate Court 2. Project of Partition
4. Powers and Duties of Probate Court 3. Remedy of an heir entitled to residue but
not given his share
B. Summary Settlement of Estates 4. Instances when probate court may issue
1. Extrajudicial settlement by agreement writ of execution
between heirs, hen allowed
2. Two-year prescriptive period I. Trustees
3. Affidavit of Self-adjudication by sole heir 1. Distinguished from
4. Summary settlement of estates of small executor/administrator
value, when allowed 2. Conditions of the Bond
5. Remedies of aggrieved parties after extra- 3. Requisites for the removal and resignation
judicial settlement of estate of a trustee
4. Grounds for removal and resignation of a
C. Production and Probate of Will trustee
1. Nature of probate proceeding 5. Extent of authority of trustee
2. Who may petition for probate; persons
entitled to notice J. Escheat
1. When to file
D. Allowance or Disallowance of Will 2. Requisites for filing of petition
1. Contents of petition for allowance of will 3. Remedy of respondent against petition;
2. Grounds for disallowing a will period for filing a claim
3. Reprobate; Requisites before will proved
outside allowed in the Philippines; effects of K. Guardianship
probate 1. General powers and duties of guardians
2. Conditions of the bond of the guardian
E. Letters Testamentary and of Administration 3. Rule on Guardianship over minor
1. When and To whom letters of
administration granted L. Adoption
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1. Distinguish domestic adoption from inter- 8. Consolidation

country adoption 9. Effect of filing of a criminal action
2. Domestic Adoption Act 10. Institution of separate action
a. effects of adoption 11. Quantum of proof in application for
b. instances when adoption may be issuance of writ of Amparo
rescinded
c. effects of rescission of adoption P. Change of Name
3. Inter-country Adoption 1. Differences under Rule 103, RA 9048 and
a. when allowed Rule 108
b. functions of the RTC 2. Grounds for change of name
c. "best interest of the minor"
standard Q. Absentees
1. Purpose of the Rule
M. Writ of Habeas Corpus 2. Who may file; when to file
1. Contents of the petition
2. Contents of the Return R. Cancellation or Correction of Entries in the Civil
3. Distinguish peremptory writ from Registry
preliminary citation 1. Entries subject to cancellation or correction
4. When not proper/applicable under Rule 108, in relation to RA 9048
5. When writ disallowed/discharged
6. Distinguish from writ of Amparo and S. Appeals in Special Proceeding
Habeas Data 1. Judgments and orders for which appeal
7. Rules on Custody of Minors and Writ of may be taken
Habeas Corpus in Relation to Custody of 2. When to appeal
Minors (AM No. 03-04-04-SC) 3. Modes of appeal
4. Rule on Advance Distribution
N. Writ of Amparo (AM No. 07-9-12-SC)
1. Coverage
2. Distinguish from habeas corpus and V. Criminal Procedure
habeas data
3. Differences between Amparo and search A. General Matters
warrant 1. Distinguish Jurisdiction over subject
4. Who may file matter from jurisdiction over person of the
5. Contents of return accused
6. Effects of failure to file return 2. Requisites for exercise of criminal
7. Omnibus waiver rule jurisdiction
8. Procedure for hearing 3. Jurisdiction of Criminal courts
9. Institution of separate action 4. When injunction may be issued to restrain
10. Effect of filing of a criminal action criminal prosecution
11. Consolidation
12. Interim reliefs available to petitioner and B. Prosecution of Offenses
respondent 1. Criminal actions, how instituted
13. Quantum of proof in application for 2. Who may file them, crimes that cannot be
issuance of writ of Amparo prosecuted de officio
3. Criminal actions, when enjoined
O. Writ of Habeas Data (AM No. 08-1-16-SC) 4. Control of prosecution
1. Scope of writ 5. Sufficiency of Complaint or Information
2. Availability of writ 6. Designation of Offense
3. Distinguish from Habeas Corpus and 7. Cause of the Accusation
Amparo 8. Duplicity of the Offense; Exception
4. Who may file 9. Amendment or Substitution of complaint
5. Contents of the petition or information
6. Contents of return 10. Venue of criminal actions
7. Instances when petition be heard in 11. Intervention of offended party
chambers
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C. Prosecution of Civil Action G. Rights of the Accused

1. Rule on implied institution of civil action 1. Rights of accused at the trial
with criminal action 2. Rights of persons under Custodial
2. When civil action may proceed Investigation
independently
3. When separate civil action is suspended H. Arraignment and Plea
4. Effect of the death of accused or convict on 1. Arraignment and Plea, how made
civil action 2. When should plea of NOT GUILTY be
5. Prejudicial Question entered
6. Rule on Filing Fees in civil action deemed 3. When may accused enter a plea of guilty
instituted with the criminal action to a lesser offense
4. Accused plead guilty to capital offense,
D. Preliminary Investigation what the court should do
1. Nature of right 5. Searching Inquiry
2. Purposes of preliminary investigation 6. Improvident plea
3. Who may conduct determination of 7. Grounds for suspension of arraignment
existence of probable cause
4. Resolution of investigation prosecutor I. Motion to Quash
5. Review 1. Grounds
6. When warrant of arrest may issue 2. Distinguish from demurrer to evidence
7. Cases not requiring a preliminary 3. Effects of sustaining the motion to quash
investigation 4. Exception to the rule that sustaining the
8. Remedies of accused if there was no motion is not a bar to another prosecution
preliminary investigation 5. Double Jeopardy
9. Inquest 6. Provisional Dismissal

E. Arrest J. Pre-trial
1. Arrest, how made 1. Matters to be considered during pre-trial
2. Arrest without warrant, when lawful 2. What the court should do when
3. Method of arrest prosecution and offended party agree to the
a. by officer with warrant plea offered by the accused
b. by officer without warrant 3. Pre-trial agreement
c. by private person 4. Non-appearance during pre-trial
4. Requisites of a valid warrant of arrest 5. Pre-trial order
5. Determination of Probable Cause for 6. Referral of some cases for Court Annexed
issuance of warrant of arrest Mediation and Judicial Dispute Resolution
6. Distinguish probable cause of fiscal from
that of a judge K. Trial
1. Instances when presence of accused is
F. Bail required by law
1. Nature 2. Requisite before trial can be suspended on
2. When a matter of right; exceptions account of absence of witness
3. When a matter of discretion 3. Trial in Absentia
4. Hearing of application for bail in capital 4. Remedy when accused is not brought to
offenses trial within the prescribed period
5. Guidelines in fixing amount of bail 5. Requisites for discharge of accused to
6. Bail when not required become a state witness
7. Increase or Reduction of Bail 6. Effects of Discharge of accused as state
8. Forfeiture and Cancellation of bail witness
9. Application not a bar to objections in 7. Demurrer to Evidence
illegal arrest, lack of or irregular preliminary
investigation L. Judgment
10. Hold Departure Order & Bureau of 1. Requisites of a judgment
Immigration Watchlist 2. Contents of Judgment
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3. Promulgation of judgment; instances of 3. Evidence in Civil Cases Versus Evidence

promulgation of judgment in absentia in Criminal Cases1avvphi1
4. When does judgment become final (four 4. Proof Versus Evidence
instances) 5. Factum Probans Versus Factum
Probandum
M. New Trial or Reconsideration 6. Admissibility of Evidence
1. Grounds for New Trial a. Requisites for admissibility of
2. Grounds for Reconsideration evidence
3. Requisites before a new trial may be b. Relevance of evidence and
granted on ground of newly discovered collateral matters
evidence c. Multiple admissibility
4. Effects of granting a new trial or d. Conditional admissibility
reconsideration e. Curative admissibility
5. Application of Neypes Doctrine in f. Direct and circumstantial
Criminal Cases evidence
g. Positive and negative evidence
N. Appeal h. Competent and credible evidence
1. Effect of an Appeal 7. Burden of Proof and Burden of Evidence
2. Where to appeal 8. Presumptions
3. How appeal taken a. Conclusive presumptions
4. Effect of appeal by any of several accused b. Disputable presumptions
5. Grounds for dismissal of appeal 9. Liberal Construction of the Rules of
Evidence
O. Search and Seizure 10. Quantum of Evidence (Weight And
1. Nature of search warrant Sufficiency of Evidence)
2. Distinguish from warrant of arrest a. Proof beyond reasonable doubt
3. Application for search warrant, where b. Preponderance of evidence
filed c. Substantial evidence
4. Probable Cause d. Clear and convincing evidence
5. Personal examination by judge of the
applicant and witnesses B. Judicial Notice and Judicial Admissions
6. Particularity of place to be searched and 1. What Need Not be Proved
things to be seized 2. Matters of Judicial Notice
7. Personal property to be seized a. Mandatory
8. Exceptions to search warrant requirement b. Discretionary
a. Search incidental to lawful arrest 3. Judicial Admissions
b. Consented Search a. Effect of judicial admissions
c. Search of moving vehicle b. How judicial admissions may be
d. Check points; body checks in contradicted
airport 4. Judicial Notice of Foreign Laws, Law of
e. Plain view situation Nations and Municipal Ordinance
f. Stop and Frisk situation
g. Enforcement of Custom Laws C. Object (Real) Evidence
9. Remedies from unlawful search and 1. Nature of Object Evidence
seizure 2. Requisites for Admissibility
3. Categories of Object Evidence
P. Provisional Remedies 4. Demonstrative Evidence
1. Nature 5. View of an Object or Scene
2. Kinds of provisional remedies 6. Chain of Custody in Relation to Section 21
of the Comprehensive Dangerous Drugs Act
VI. Evidence of 2002
7. Rule on DNA Evidence (A.M. No. 06-11-5-
A. General Principles SC)
1. Concept of Evidence a. Meaning of DNA
2. Scope of the Rules of Evidence b. Applicable for DNA testing order
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c. Post-conviction DNA testing; j. How a judicial record is

remedy impeached
d. Assessment of probative value of k. Proof of notarial documents
DNA evidence and admissibility l. How to explain alterations in a
e. Rules on evaluation of reliability document
of the DNA testing Methodology m. Documentary evidence in an
unofficial language
D. Documentary Evidence
1. Meaning of Documentary Evidence E. Testimonial Evidence
2. Requisites for Admissibility 1. Qualifications of a Witness
3. Best Evidence Rule 2. Competency Versus Credibility of a
a. Meaning of the rule Witness
b. When applicable 3. Disqualifications of Witnesses
c. Meaning of original a. Disqualification by reason of
d. Requisites for introduction of mental capacity or immaturity
secondary evidence b. Disqualification by reason of
4. Rules on Electronic Evidence (A.M. No. 01- marriage
7-01-SC) c. Disqualification by reason of
a. Meaning of electronic evidence; death or insanity of adverse party
electronic data massage d. Disqualification by reason of
b. Probative value of electronic privileged communications
documents or evidentiary weight; (1) Husband and wife
method of proof (2) Attorney and client
c. Authentication of electronic (3) Physician and patient
documents and electronic (3) and penitent
signatures (4) Public officers
d. Electronic documents and the Parental and filial privilege rule
hearsay rule 4. Examination of a Witness
e. Audio, photographic, video and a. Rights and obligations of a
ephemeral evidence witness
5. Parol Evidence Rule b. Order in the examination of an
a. Application of the parol evidence individual witness
rule (1) Direct examination
b. When parole evidence can be (2) Cross examination
introduced (3) Re-direct examination
c. Distinctions between the best (4) Re-cross examination
evidence rule and parol evidence (5) Recalling the witness
rule c. Leading and misleading
6. Authentication and Proof of Documents questions
a. Meaning of authentication d. Methods of impeachment of
b. Public and private documents adverse party’s witness
c. When a private writing requires e. How the witness is impeached by
authentication; proof of a private evidence of inconsistent statements
writing (laying the predicate)
d. When evidence of authenticity of f. Evidence of the good character of
a private writing is not required a witness
(ancient documents) 5. Admissions and Confessions
e. How to prove genuineness of a a. Res inter alios acta rule
handwriting b. Admission by a party
f. Public documents as evidence; c. Admission by a third party
proof of official record d. Admission by a co-partner or
g. Attestation of a copy agent
h. Public record of a public e. Admission by a conspirator
document f. Admission by privies
i. Proof of lack of record g. Admission by silence
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h. Confessions 7. Tender of Excluded Evidence

i. Similar acts as evidence
6. Hearsay Rule G. Supreme Court Rulings as of December 2010
a. Meaning of hearsay
b. Reason for exclusion of hearsay VII. Revised Rules on Summary Procedure
evidence A. Cases covered by the Rule
c. Exceptions to the hearsay rule B. Effect of failure to answer
(1) Dying declaration C. Preliminary conference and appearances of parties
(2) Declaration against
interest VIII. Katarungang Pambarangay
(3) Act or declaration A. Cases covered
about pedigree B. Subject matter for amicable settlement
(4) Family reputation or C. Venue
tradition regarding D. When parties may directly go to court
pedigree E. Execution
(5) Common reputation F. Repudiation
(6) Part of the res gestae
(7) Entries in the course of IX. Rule of Procedure for Small Claims Cases (AM No. 08-8-
business 7-SC)
(8) Entries in official A. Scope and applicability of the Rule
records B. Commencement of small claims action; Response
(9) Commercial lists and C. Prohibited pleadings and motions
the like D. Appearances
(10) Learned treaties E. Hearing; duty of the judge
(11) Testimony or F. Finality of judgment
deposition at a former
trial1avvphi1 X. Rules of Procedure for Environmental Cases (AM No. 09-6-
7. Opinion Rule 8-SC)
a. Opinion of expert witness A. Scope and Applicability of the Rule
b. Opinion of ordinary witness
8. Character Evidence B. Civil Procedure
a. Criminal cases 1. Prohibition against Temporary Restraining
b. Civil cases Order and Preliminary Injunction
9. Rule on Examination of a Child Witness 2. Pre-trial Conference; Consent Decree
(A.M. No. 004-07-SC) 3. Prohibited Pleadings and Motions
a. Applicability of the rule 4. Temporary Environmental Protection
b. Meaning of "child witness" Order (TEPO)
c. Competency of a child witness 5. Judgment and Execution; Reliefs in a
d. Examination of a child witness citizen’s suit
e. Live-link TV testimony of a child 6. Permanent Environmental Protection
witness Order; Writ of continuing mandamus
f. Videotaped deposition of a child 7. Strategic Lawsuit against Public
witness Participation
g. Hearsay exception in child abuse
cases C. Special Proceedings
h. Sexual abuse shield rule 1. Writ of Kalikasan
i. Protective orders 2. Prohibited pleadings and motions
3. Discovery measures
F. Offer and Objection 4. Writ of Continuing Mandamus
1. Offer of Evidence
2. When to Make an Offer D. Criminal Procedure
3. Objection 1. Who may file
4. Repetition of an Objection 2. Institution of criminal and civil action
5. Ruling 3. Arrest without warrant, when valid
6. Striking Out of an Answer 4. Procedure in the custody and disposition
of seized items
 13

5. Bail IMPORTANT NOTE: This bar coverage description is not

6. Arraignment and Plea intended and should not be used by law schools as a syllabus
7. Pre-trial or course outline in the covered subjects. It has been drawn up
8. Subsidiary liabilities for the limited purpose of ensuring that candidates reviewing
for the bar examinations are guided on what basic and
E. Evidence minimum amounts of laws, doctrines, and principles they need
1. Precautionary principle to know and be able to use correctly before they can be licensed
2. Documentary evidence to practice law. More is required for excellent and
distinguished work as members of the Bar.

CIVIL PROCEDURE
Rules 1 – 71

Remedial Law is that branch of law which

GENERAL PRINCIPLES prescribes the method of enforcing rights or
obtaining redress for their invasion.

SUBSTANTIVE LAW AS DISTINGUISHED

CONCEPT OF REMEDIAL LAW FROM REMEDIAL LAW
 14

Substantive law creates, defines and regulates

rights and duties regarding life, liberty or POWER OF THE SUPREME COURT TO
property which when violated gives rise to a AMEND AND SUSPEND PROCEDURAL RULES
cause of action.
When compelling reasons so warrant or when the
Remedial law prescribes the methods of purpose of justice requires it = discretionary upon
enforcing those rights and obligations created by courts.
substantive law by providing a procedural system
for obtaining redress for the invasion of rights and Reasons that would warrant the suspension:
violations of duties and by prescribing rules as to 1) the existence of special or compelling
how suits are filed, tried and decided by the circumstances;
courts. 2) merits of the case;
3) cause not entirely attributable to the
As applied to criminal law, substantive law is that fault or negligence of the party favored
which declares what acts are crimes and by the suspension of rules
prescribes the punishment for committing them, 4) a lack of showing that the review
as distinguished from remedial law which sought is merely frivolous and dilatory;
provides or regulates the steps by which one who 5) the other party will not be unjustly
commits a crime is to be punished. prejudiced thereby.

 Where substantial and important issues await

RULE-MAKING POWER OF THE SUPREME resolution.
COURT
 When transcendental matters of life, liberty or
state security are involved.
Section 5 (5), Art. VIII of the Constitution provides
that the Supreme Court shall have the power to:
 The constitutional power of the Supreme
a. promulgate rules concerning the
Court to promulgate rules of practice and
protection and enforcement of
procedure necessarily carries with it the
constitutional rights, pleading, practice,
power to overturn judicial precedents on
and procedure in all courts;
points of remedial law through the
b. admission to the practice of law;
amendment of the Rules of Court.
c. the Integrated Bar;
d. and legal assistance to the
underprivileged NATURE OF PHILIPPINE COURTS

Philippine courts are both courts of law and

equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same tribunal.

LIMITATIONS OF THE RULE-MAKING POWER WHAT IS A COURT

OF THE SUPREME COURT a. It is an organ of government belonging to
the judicial department the function of
1) The rules shall provide a simplified and which is the application of the laws to the
inexpensive procedure for the speedy controversies brought before it as well as
disposition of cases the public administration of justice.
2) They shall be uniform for all courts of the b. It is a governmental body officially
same grade assembled under authority of law at the
3) They shall not diminish, increase, or appropriate time and place for the
modify substantive rights. administration of justice through which the
4) The power to admit attorneys to the Bar is State enforces its sovereign rights and
not an arbitrary and despotic one but is powers.
the duty of the court to exercise and c. It is a board or tribunal which decides a
regulate it by a sound and judicial litigation or contest.
discretion.
COURT DISTINGUISHED FROM JUDGE
 Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
 15

a) A court is a tribunal officially assembled under  exercise appellate jurisdiction

authority of law; a judge is simply an officer of  Review cases appealed from courts
such tribunal; of the first level.
b) A court is an organ of the government with a
personality separate and distinct from the (c) Third Level (Court of Appeals,
person or judge who sits on it; Sandiganbayan)
c) A court is a being in imagination comparable CA is an appellate court
to a corporation, whereas a judge is a physical a. reviewing cases appealed to it from
person; the RTC on questions of fact or mixed
d) A court may be considered an office; a judge questions of fact and law
is a public officer; and b. decisions of the RTC in the exercise of
e) The circumstances of the court are not original jurisdiction
affected by the circumstances that would i. as a matter of right
affect the judge. ii. as a matter of discretion.

CLASSIFICATION OF PHILIPPINE COURTS Occasionally, CA may act as a trial court,

as in actions praying for the annulment of
Regular courts engaged in the administration of final and executory judgments of RTCs on
justice are organized into four (4) levels: the ground of extrinsic fraud subsequently
discovered, against which no other
(a) First Level (MTCs, MeTCs, MCTCs) – which remedies lies.
try and decide
(1) Criminal actions involving: Sandiganbayan has jurisdiction
a. violations of city or municipal  over all criminal and civil cases
ordinances committed within their involving
respective territorial jurisdiction; and  graft and corrupt practices act
b. offenses punishable with imprisonment  such other offenses committed
not exceeding six (6) years irrespective by public officers and
of the amount of fine and regardless of employees including those in
other imposable accessory or other GOCCs in relation to their office.
penalties, and  It also has exclusive appellate
jurisdiction over final judgments,
(2) Civil actions including EJECTMENT CASES resolutions, or orders of RTCs whether
(FEUD) and recovery of personal property with in the exercise of their own original or
a value of not more than P300,000 outside appellate jurisdiction over criminal and
MM or does not exceed P400,000 in MM; civil cases committed by public officers
or employees including those in GOCCs
(b) Second Level (RTCs, Family Courts) in relation to their office.
 courts of general jurisdiction
 among the civil actions assigned to (d) Fourth Level (Supreme Court)
them by law are those in which the
subject of litigation is
a. actions incapable of pecuniary
estimation
b. actions involving title to or
possession of real property COURTS OF ORIGINAL AND APPELLATE
where the assessed value of the JURISDICTION
property exceeds P20,000
outside MM or exceeds A court is one with original jurisdiction when
P50,000 in MM. actions or proceedings are originally filed with it.
c. where the demand exclusive of A court is one with appellate jurisdiction when it
interest, damages of whatever has the power of review over the decisions or
kind, attorney’s fees, litigation orders of a lower court.
expenses, and cost, or the
value of the personal property MeTCs, MCTCs and MTCs are courts of original
or controversy exceeds jurisdiction without appellate jurisdiction. RTC is
P300,000 outside MM or likewise a court of original jurisdiction with
exceeds P400,000 in MM. respect to cases originally filed with it; and
appellate court with respect to cases decided by
 16

MTCs within its territorial jurisdiction. (Sec. 22, BP COURTS OF LAW

129). A court of law decides a case according to the
existing laws.
CA is primarily a court of appellate jurisdiction
with competence to review judgments of the RTCs COURTS OF EQUITY
and specified quasi-judicial agencies (Sec. 9[3], A court of equity adjudicates a controversy
BP 129). It is also a court of original jurisdiction according to the common precepts of what is
with respect to cases filed before it involving right and just without inquiring into the terms of
issuance of writs of certiorari, mandamus, quo the statutes.
warranto, habeas corpus, and prohibition. CA is a
court of original and exclusive jurisdiction over PRINCIPLE OF JUDICIAL HIERARCHY
actions for annulment of judgments of RTCs (Sec.
9 [1],[2], BP 129). This is an ordained sequence of recourse to
courts vested with concurrent jurisdiction,
The SC is fundamentally a court of appellate beginning from the lowest, on to the next highest
jurisdiction but it may also be a court of original and ultimately to the highest. This hierarchy is
jurisdiction over cases affecting ambassadors, determinative of the venue of appeals, and is
public ministers and consuls, and in cases likewise determinative of the proper forum for
involving petitions for certiorari, prohibition and petitions for extraordinary writs. This is an
mandamus (Sec. 5[1], Art. VIII, Constitution). The established policy necessary to avoid inordinate
Supreme Court en banc is not an appellate court demands upon the Court’s time and attention
to which decisions or resolutions of a division of which are better devoted to those matters within
the Supreme Court may be appealed. its exclusive jurisdiction, and to preclude the
further clogging of the Court’s docket (Sec. 9[1],
COURTS OF GENERAL AND SPECIAL BP 129; Sec. 5[1], Art. VIII, Constitution of the
JURISDICTION Philippines).

Courts of general jurisdiction are those with A higher court will not entertain direct resort to it
competence to decide on their own jurisdiction unless the redress cannot be obtained in the
and to take cognizance of all cases, civil and appropriate courts. The SC is a court of last
criminal, of a particular nature. Courts of special resort. It cannot and should not be burdened with
(limited) jurisdiction are those which have only a the task of deciding cases in the first instances.
special jurisdiction for a particular purpose or are Its jurisdiction to issue extraordinary writs should
clothed with special powers for the performance be exercised only where absolutely necessary or
of specified duties beyond which they have no where serious and important reasons exist.
authority of any kind.
The doctrine of hierarchy of courts may be
A court may also be considered general if it has disregarded if warranted by the nature and
the competence to exercise jurisdiction over importance of the issues raised in the interest of
cases not falling within the jurisdiction of any speedy justice and to avoid future litigations, or
court, tribunal, person or body exercising judicial in cases of national interest and of serious
or quasi-judicial functions. It is in the context that implications. Under the principle of liberal
the RTC is considered a court of general interpretations, for example, it may take
jurisdiction. cognizance of a petition for certiorari directly filed
before it.
CONSTITUTIONAL AND STATUTORY COURTS
DOCTRINE OF NON-INTERFERENCE OR
A constitutional court is one created by a direct DOCTRINE OF JUDICIAL STABILITY
Constitutional provision. Example of this court is
the SC, which owes its creation from the Courts of equal and coordinate jurisdiction cannot
Constitution itself. Only the SC is a Constitutional interfere with each other’s orders. Thus, the RTC
court. has no power to nullify or enjoin the enforcement
of a writ of possession issued by another RTC. The
A statutory court is one created by law other than principle also bars a court from reviewing or
the Constitution. All courts except the SC are interfering with the judgment of a co-equal court
statutory courts. SB was not directly created by over which it has no appellate jurisdiction or
the Constitution but by law pursuant to a power of review.
constitutional mandate.
 17

This doctrine applies with equal force to

administrative bodies. When the law provides for Instances when appearance of defendant is not
an appeal from the decision of an administrative tantamount to voluntary submission to the
body to the SC or CA, it means that such body is jurisdiction of the court:
co-equal with the RTC and logically beyond the 1) when defendant files the necessary
control of the latter. pleading;
2) when defendant files motion for
reconsideration of the judgment by
JURISDICTION default;
3) when defendant files a petition to set
aside the judgment of default;
4) when the parties jointly submit a
Jurisdiction – the power and authority of the court compromise agreement for approval of the
to hear, try and decide a case. court;
5) when defendant files an answer to the
JURISDICTION OVER THE PARTIES contempt charge;
6) when defendant files a petition for
a) The manner by which the court acquires certiorari without questioning the court’s
jurisdiction over the parties depends on jurisdiction over his person.
whether the party is the plaintiff or the
defendant JURISDICTION OVER THE SUBJECT MATTER
b) Jurisdiction over the plaintiff is acquired by his
filing of the complaint or petition. By doing so, It is the power to deal with the general subject
he submits himself to the jurisdiction of the involved in the action, and means not simply
court. jurisdiction of the particular case then occupying
c) Jurisdiction over the person of the defendant the attention of the court but jurisdiction of the
is obtained either by a valid service of class of cases to which the particular case
summons upon him or by his voluntary belongs. It is the power or authority to hear and
submission to the court’s authority. determine cases to which the proceeding is
d) The mode of acquisition of jurisdiction over question belongs.
the plaintiff and the defendant applies to both
ordinary and special civil actions like When a complaint is filed in court, the basic
mandamus or unlawful detainer cases. questions that ipso facto are to be immediately
resolved by the court on its own:
HOW JURISDICTION OVER PLAINTIFF IS a) What is the subject matter of their
ACQUIRED complaint filed before the court?
 Acquired when the action is commenced b) Does the court have jurisdiction over the
by the filing of the complaint. This said subject matter of the complaint
presupposes payment of the docket fees. before it? Answering these questions
inevitably requires looking into the
HOW JURISDICTION OVER DEFENDANT IS applicable laws conferring jurisdiction.
ACQUIRED
JURISDICTION VERSUS EXERCISE OF
Jurisdiction over the person of the defendant is JURISDICTION
required only in an action in personam; it is not a
prerequisite in an action in rem and quasi in rem. Jurisdiction is the power or authority of the court.
In an action in personam, jurisdiction over the The exercise of this power or authority is the
person is necessary for the court to validly try exercise of jurisdiction.
and decide the case, while in a proceeding in rem
or quasi in rem, jurisdiction over the person of the ERROR OF JURISDICTION VS. ERROR OF
defendant is not a prerequisite to confer JUDGMENT
jurisdiction on the court, provided the latter has
jurisdiction over the res. An ERROR OF JURISDICTION is one where the act
complained of was issued by the court without or
By voluntary appearance of the defendant, in excess of jurisdiction. It occurs when the court
without service of summons or despite a exercises a jurisdiction not conferred upon it by
defective service of summons. The defendant’s law, or when the court or tribunal although with
voluntary appearance in the action shall be jurisdiction, acts in excess of its jurisdiction or
equivalent to service of summons.
 18

with grave abuse of discretion amounting to lack knowledge, experience and services of the
or jurisdiction. administrative tribunal to determine technical
and intricate matters of fact.
An ERROR OF JUDGMENT is one which the court
may commit in the exercise of its jurisdiction. As The objective is to guide a court in determining
long as the court acts within its jurisdiction, any whether it should refrain from exercising its
alleged errors committed in the exercise of its jurisdiction until after an administrative agency
discretion will amount to nothing more than mere has determined some question or some aspect of
errors of judgment. Errors of judgment include some question arising in the proceeding before
errors of procedure or mistakes in the court‘s the court.
findings.
DOCTRINE OF ADHERENCE OF
Errors of judgment are correctible by appeal; JURISDICTION / CONTINUITY OF
errors of jurisdiction are correctible only by the JURISDICTION
extraordinary writ of certiorari. Any judgment
rendered without jurisdiction is a total nullity and Once a court has acquired jurisdiction, that
may be struck down at any time, even on appeal; jurisdiction continues until the court has done all
the only exception is when the party raising the that it can do in the exercise of that jurisdiction.
issue is barred by estoppel. This principle also means that once jurisdiction
has attached, it cannot be ousted by subsequent
HOW JURISDICTION IS CONFERRED AND happenings or events and retains that jurisdiction
DETERMINED until it finally disposes of the case.

Jurisdiction is a matter of substantive law Even the finality of the judgment does not totally
because it is conferred by law. This jurisdiction deprive the court of jurisdiction over the case.
which is a matter of substantive law should be What the court loses is the power to amend,
construed to refer only to jurisdiction over the modify or alter the judgment. Even after the
subject matter. Jurisdiction over the parties, the judgment has become final, the court retains
issues and the res are matters of procedure. The jurisdiction to enforce and execute it.
test of jurisdiction is whether the court has the
power to enter into the inquiry and not whether OBJECTION TO JURISDICTION OVER THE
the decision is right or wrong. SUBJECT MATTER

It is the duty of the court to consider the question When it appears from the pleadings or evidence
of jurisdiction before it looks at other matters on record that the court has no jurisdiction over
involved in the case. If the court finds that it has the subject matter, the court shall dismiss the
jurisdiction, it is the duty of the court to exercise same. (Sec. 1, Rule 9). The court may on its OWN
the jurisdiction conferred upon it by law and to INITIATIVE object to an erroneous jurisdiction and
render a decision in a case properly submitted to may ex mero motu take cognizance of lack of
it. It cannot decline to exercise its jurisdiction. jurisdiction at any point in the case and has a
Failure to do so may be enforced by way of clearly recognized right to determine its own
mandamus proceeding. jurisdiction.

 Note: Jurisdiction over the subject matter Jurisdiction over the subject matter may be raised
is conferred by substantive law which at any stage of the proceedings, even for the first
may either be a Constitution or statute; time on appeal. When the court dismisses the
while jurisdiction over the subject matter complaint for lack of jurisdiction over the subject
is determined by the allegations of matter, it is common reason that the court cannot
the complaint regardless of whether or remand the case to another court with the proper
not the plaintiff is entitled to the claims jurisdiction. Its only power is to dismiss and not to
asserted therein. make any other order.

DOCTRINE OF PRIMARY JURISDICTION EFFECT OF ESTOPPEL ON OBJECTION TO

JURISDICTION
Courts will not resolve a controversy involving a
question which is within the jurisdiction of an The active participation of a party in a case is
administrative tribunal, especially where the tantamount to recognition of that court’s
question demands the exercise of sound jurisdiction and will bar a party from impugning
administrative discretion requiring the special the court’s jurisdiction. The general rule remains:
 19

a court’s lack of jurisdiction may be raised at any 1) by placing the property or thing under its
stage of the proceedings even on appeal. The custody (custodia legis) (the seizure of the
Sibonghanoy applies only to exceptional thing under legal process whereby it is
circumstances. brought into actual custody of law).
Example: attachment of property.
Doctrine of estoppels by laches (in relation to 2) through statutory authority conferring
objections to jurisdiction) = the SC barred a upon it the power to deal with the
belated objection to jurisdiction that was raised property or thing within the court’s
only after an adverse decision was rendered by territorial jurisdiction (institution of a legal
the court against the party raising the issue of proceeding wherein the power of the court
jurisdiction and after seeking affirmative relief over the thing is recognized and made
from the court and after participating in all stages effective). Example: suits involving the
of the proceedings. status of the parties or suits involving the
property in the Philippines of non-resident
The SC frowns upon the undesirable practice of defendants.
submitting one’s case for decision, and then
accepting the judgment only if favorable, but
JURISDICTION OF THE SUPREME COURT
attacking it for lack of jurisdiction if it is not.

JURISDICTION OVER THE ISSUES CRIMINAL CASES

It is the power of the court to try and decide EXCLUSIVE ORIGINAL JURISDICTION
issues raised in the pleadings of the parties. Petitions for certiorari, prohibition and
mandamus against CA and Sandiganbayan
An issue is a disputed point or question to which
parties to an action have narrowed down their CONCURRENT JURISDICTION
several allegations and upon which they are a) With the CA and RTC: petitions for
desirous of obtaining a decision. Where there is certiorari, prohibition and mandamus
no disputed point, there is no issue. against the MTC
b) With the CA: petitions for certiorari,
Generally, jurisdiction over the issues is conferred prohibition and mandamus against the
and determined by the pleadings of the parties. RTC
The pleadings present the issues to be tried and c) with Sandiganbayan: petitions for
determine whether or not the issues are of fact or mandamus, prohibition, certiorari,
law. habeas corpus, injunction and ancillary
a) may also be determined and conferred by writs in aid of its appellate jurisdiction
stipulation of the parties as when in the and over petitions of similar nature,
pre-trial, the parties enter into stipulations including quo warranto arising or that
of facts and documents or enter into may arise in cases filed or which may
agreement simplifying the issues of the be filed.
case.
b) may also be conferred by waiver or failure APPELLATE JURISDICTION
to object to the presentation of evidence a) from the RTC in all criminal cases
on a matter not raised in the pleadings. involving offenses for which the
Here the parties try with their express or penalty is reclusion perpetua or life
implied consent or issues not raised by the imprisonment, and those involving
pleadings. The issues tried shall be treated other offenses which, although not so
in all respects as if they had been raised in punished, arose out of the same
the pleadings. occurrence or which may have been
committed by the accused on the
JURISDICTION OVER THE RES OR PROPERTY same occasion;
IN LITIGATION b) Automatic review where death penalty
is imposed.
Jurisdiction over the res refers to the court’s c) By petition for review on Certiorari
jurisdiction over the thing or the property which is from the CA, Sandiganbayan and from
the subject of the action. the RTC where only error or question of
law is involved
Jurisdiction over the res may be acquired by the
court
 20

 Note: In PP vs. Mateo (2004), the SC held that order, instruction, ordinance or
while the Fundamental Law requires a regulation, legality of a tax, impost,
mandatory review by the SC of cases where assessment, toll or penalty, jurisdiction
the penalty imposed is reclusion perpetua, life of a lower court; and
imprisonment or death, nowhere however, 3) all cases in which the jurisdiction of
has it proscribed an intermediate review. If any court is in issue;
only to ensure utmost circumspection before 4) all cases in which an error or question
the penalty of reclusion perpetua, life of law is involved
imprisonment or death is imposed, the Court
now deems it wise and compelling to provide Exceptions in which factual issues may be
in these cases a review by the CA before the resolved by the Supreme Court:
case is elevated to the SC. A prior a) When the findings are grounded entirely
determination by the CA on, particularly, the on speculation, surmises or conjectures;
factual issues, would minimize the possibility b) When the inference made is manifestly
of an error of judgment. If the CA should mistaken, absurd or impossible;
affirm the penalty of reclusion perpetua, life c) When there is grave abuse of discretion;
imprisonment or death, it could then render d) When the judgment is based on
judgment imposing the corresponding penalty misapprehension of facts;
as the circumstances so warrant, refrain from e) When the findings of facts are conflicting;
entering judgment and elevate the entire f) When in making its findings the CA went
records of the case to the SC for final beyond the issues of the case, or its
disposition. findings are contrary to the admissions of
both the appellant and the appellee;
CIVIL CASES g) When the findings are contrary to the trial
court;
EXCLUSIVE ORIGINAL JURISDICTION in h) When the findings are conclusions without
petitions for certiorari, prohibition and mandamus citation of specific evidence on which they
against the CA, COMELEC, COA, CTA, are based;
Sandiganbayan i) When the facts set forth in the petition as
well as in the petitioner‘s main and reply
CONCURRENT JURISDICTION briefs are not disputed by the respondent;
j) When the findings of fact are premised on
1) With Court of Appeals in petitions for the supposed absence of evidence and
certiorari, prohibition and mandamus against contradicted by the evidence on record;
the RTC, CSC, Central Board of Assessment and
Appeals, NLRC, Quasi-judicial agencies, and k) When the Court of Appeals manifestly
writ of kalikasan, all subject to the doctrine of overlooked certain relevant facts not
hierarchy of courts. disputed by the parties, which, if properly
2) With the CA and RTC in petitions for certiorari, considered, could justify a different
prohibition and mandamus against lower conclusion.
courts and bodies and in petitions for quo
warranto, and writs of habeas corpus, all JURISDICTION OF THE COURT OF APPEALS
subject to the doctrine of hierarchy of courts. (69 Justices)
3) With CA, RTC and Sandiganbayan for petitions
for writs of amparo and habeas data
4) Concurrent original jurisdiction with the RTC in CRIMINAL CASES
cases affecting ambassadors, public ministers
and consuls. EXCLUSIVE ORIGINAL JURISDICTION
a) Actions for annulment of judgment of the
APPELLATE JURISDICTION RTCs
1) by way of petition for review on b) Crimes of Terrorism under Human Security
certiorari (appeal by certiorari under Act of 2007
Rule 45) against CA, Sandiganbayan,
RTC on pure questions of law and CTA CONCURRENT ORIGINAL JURISDICTION
in its decisions rendered en banc. a) With the SC: petitions for certiorari,
2) in cases involving the constitutionality prohibition and mandamus against the RTC
or validity of a law or treaty, b) With the SC and RTC: petitions for certiorari,
international or executive agreement, prohibition and mandamus against the MTC
law, presidential decree, proclamation,
 21

APPELLATE JURISDICTION 2) by way of petition for review from the RTC

rendered by the RTC in the exercise of its
 Notice of Appeal: appellate jurisdiction.
a) From the RTC in the exercise of its 3) by way of petition for review from the
original jurisdiction, except those decisions, resolutions, orders or awards of
appealable to the Sandiganbayan the CSC, CBAA and other bodies
b) From the RTC where penalty imposed is mentioned in Rule 43 and of the Office of
reclusion perpetua or life the Ombudsman in administrative
imprisonment or where a lesser disciplinary cases.
penalty is imposed but for offenses 4) over decisions of MTCs in cadastral or land
committed on the same occasion or registration cases pursuant to its
which arose out of the same delegated jurisdiction; this is because
occurrence that gave rise to the more decisions of MTCs in these cases are
serious offense for which the penalty appealable in the same manner as
of death, reclusion perpetua or life decisions of RTCs.
imprisonment is imposed (Sec. 3, Rule
122 as amended by AM No. 00-5-03-  Note: There is no action to annul the
SC). decision of the CA.

 Automatic Review (i.e. no notice of appeal JURISDICTION OF THE COURT OF TAX

is necessary) from the RTC in cases wherein APPEALS (UNDER RA 9282 AND RULE 5, AM
the death penalty is imposed. 05
11 07CTA)
 Petition for Review from the RTC in cases
appealed thereto from the lower courts and
not appealable to the Sandiganbayan. EXCLUSIVE ORIGINAL OR APPELLATE
JURISDICTION TO REVIEW BY APPEAL
CIVIL CASES
1) Decisions of CIR in cases involving disputed
assessments, refunds of internal revenue
EXCLUSIVE ORIGINAL JURISDICTION
taxes, fees or other charges, penalties in
 in actions for the annulment of the judgments
relation thereto, or other matters arising
of the RTC. under the NIRC or other laws administered by
BIR;
CONCURRENT ORIGINAL JURISDICTION 2) Inaction by CIR in cases involving disputed
1) With SC to issue writs of certiorari, assessments, refunds of IR taxes, fees or
prohibition and mandamus against the other charges, penalties in relation thereto, or
RTC, CSC, CBAA, other quasi-judicial other matters arising under the NIRC or other
agencies mentioned in Rule 43, and the laws administered by BIR, where the NIRC or
NLRC (however, this should be filed first other applicable law provides a specific period
with the CA as per St. Martin Funeral of action, in which case the inaction shall be
Home case), and writ of kalikasan. deemed an implied denial;
2) With the SC and RTC to issue writs of 3) Decisions, orders or resolutions of the RTCs in
certiorari, prohibition and mandamus local taxes originally decided or resolved by
(CPM) against lower courts and bodies and them in the exercise of their original or
writs of quo warranto, habeas corpus, appellate jurisdiction;
whether or not in aid of its appellate 4) Decisions of the Commissioner of Customs
jurisdiction, and writ of continuing a. in cases involving liability for customs
mandamus on environmental cases. duties, fees or other charges, seizure,
3) With SC, RTC and Sandiganbayan for detention or release of property
petitions for writs of amparo and habeas affected, fines, forfeitures or other
data where the action involves public penalties in relation thereto, or
data or government office b. other matters arising under the
Customs law or other laws, part of laws
EXCLUSIVE APPELLATE JURISDICTION or special laws administered by BOC;
1) by way of ordinary appeal from the RTC 5) Decisions of the Central Board of Assessment
and the Family Courts. Appeals in the exercise of its appellate
jurisdiction over cases involving the
assessment and taxation of real property
 22

originally decided by the provincial or city b) over petitions for review of the judgments,
board of assessment appeals; resolutions or orders of the RTC in the
6) Decision of the secretary of Finance on exercise of their appellate jurisdiction over
customs cases elevated to him automatically tax collection cases originally decided by
for review from decisions of the Commissioner the MeTCs, MTCs and MCTCs in their
of Customs which are adverse to the respective jurisdiction.
government under Sec. 2315 of the Tariff and
Customs Code;
JURISDICTION OF THE SANDIGANBAYAN
7) Decisions of Secretary of Trade and Industry in
the case of non-agricultural product,
commodity or article, and the Secretary of ORIGINAL JURISDICTION in all cases involving
Agriculture in the case of agricultural product,
commodity or article, involving dumping 1) Violations of RA 3019 (Anti-Graft and Corrupt
duties and counterveiling duties under Secs. Practices Act)
301 and 302, respectively, of the Tariff and 2) Violations of RA 1379 (Anti-Ill-Gotten Wealth
Customs Code, and safeguard measures Act)
under RA 8800, where either party may 3) Sequestration cases (E.O. Nos. 1,2,14,14-A)
appeal the decision to impose or not to 4) Bribery (Chapter II, Sec. 2, Title VII, Book II,
impose said duties. RPC) where one or more of the principal
accused are occupying the following positions
EXCLUSIVE ORIGINAL JURISDICTION in the government, whether in permanent,
acting or interim capacity at the time of the
1) Over all criminal cases arising from violation commission of the offense:
of the NIRC and the TCC and other laws, part a) Officials of the executive branch
of laws, or special laws administered by the occupying the positions of regional
BIR or the BOC where the principal amount of director and higher, otherwise classified as
taxes and fees, exclusive of charges and Grade 27 and higher, of the Compensation
penalties claimed is less than P1M or where and Position Classification Act of 1989 (RA
there is no specified amount claimed (the 6758)
offenses or penalties shall be tried by the b) Members of Congress and officials thereof
regular courts and the jurisdiction of the CTA classified as G-27 and up under RA 6758
shall be appellate); c) Members of the Judiciary without prejudice
2) In tax collection cases involving final and to the provisions of the Constitution
executory assessments for taxes, fees, d) Chairmen and Members of the
charges and penalties where the principal Constitutional Commissions without
amount of taxes and fees, exclusive of prejudice to the provisions of the
charges and penalties claimed is less than Constitution
P1M tried by the proper MTC, MeTC and RTC. e) All other national and local officials
classified as Grade 27 and higher under
EXCLUSIVE APPELLATE JURISDICTION RA 6758
f) Other offenses or felonies committed by
1) In criminal offenses the public officials and employees
a) over appeals from the judgment, mentioned in Sec. 4(a) of RA 7975 as
resolutions or orders of the RTC in tax amended by RA 8249 in relation to their
cases originally decided by them, in their office
respective territorial jurisdiction, and g) Civil and criminal cases filed pursuant to
b) over petitions for review of the judgments, and in connection with EO Nos. 1, 2, 14-A
resolutions or orders of the RTC in the (Sec. 4, RA 8249)
exercise of their appellate jurisdiction over
tax cases originally decided by the MeTCs,  Note: Without the office, the crime cannot be
MTCs, and MCTCs in their respective committed.
jurisdiction.
APPELLATE JURISDICTION - from the RTC in
2) In tax collection cases cases under PD 1606, as amended by PD 1861,
a) over appeals from the judgments, whether or not the cases were decided b them in
resolutions or orders of the RTC in tax the exercise of their original or appellate
collection cases originally decided by jurisdictions.
them in their respective territorial
jurisdiction; and
 23

CONCURRENT ORIGINAL JURISDICTION WITH 2) Title to, possession of, or interest in,
SC, CA AND RTC for petitions for writs of habeas real property with assessed value exceeding
data and amparo P20,000 outside Metro Manila, or exceeds
P50,000 in Metro Manila
 The requisites that the offender the offender
occupies salary Grade 27 and the offense 3) If the amount involved exceeds P300,000
must be intimately connected with the official outside MM or exceeds P400,000 in MM in
function must concur for the SB to have the following cases:
jurisdiction – Justice Magdangal De Leon a) Admiralty and maritime cases
b) Matters of Probate (testate and
intestate)
JURISDICTION OF THE REGIONAL TRIAL c) Other actions involving personal
COURTS property
d) Demand for money
CRIMINAL CASES
4) Cases not falling within the jurisdiction of any
EXCLUSIVE ORIGINAL JURISDICTION court, tribunal, person or body exercising
judicial or quasi-judicial functions (general
1) Offenses punishable with imprisonment which jurisdiction of RTC)
exceeds 6 years imprisonment
2) Offenses not within the exclusive jurisdiction 5) All actions involving the contract of
of any court, tribunal or body, except those marriage and family relations
falling under the exclusive jurisdiction of the
Sandiganbayan JURISDICTION OF FAMILY COURTS (RA
 Note: In cases where the only penalty is 8369)
fine, the amount thereof shall determine a) Petitions for guardianship, custody of
jurisdiction. If the amount exceeds P4,000, children and habeas corpus involving
the RTC has jurisdiction. children
3) Family Court – Criminal Cases b) Petitions for adoption of children and the
a) One or more of the accused is/are revocation thereof
below 18 years old but not less than c) Complaints for annulment of marriage,
9 years old; declaration of nullity of marriage and
b) Where one of the victims is a minor at those relating to status and property
the time of the commission of the relations of husband and wife or those
offense; living together under different status and
c) Cases against minors cognizable under agreements, and petitions for dissolution
the Dangerous Drugs Act; of conjugal partnership of gains
d) Violations of RA 7610, otherwise known d) Petitions for support and/or
as the “Special Protection of Children acknowledgment
Against Child Abuse, Exploitation and e) Summary judicial proceedings brought
Discrimination Act” as amended by RA under the provisions of EO 209 (Family
7658; and Code)
e) Cases of domestic violation against f) Petitions for declaration of status of
women and their children. children as abandoned, dependent or
neglected children, petitions for voluntary
APPELLATE JURISDICTION or involuntary commitment of children,
 All cases decided by the MTC in their the suspension, termination or restoration
of parental authority and other cases
respective territorial jurisdiction.
cognizable under PD 603, EO 56 (1986)
and other related laws
CIVIL CASES g) Petitions for the constitution of the family
home
EXCLUSIVE ORIGINAL JURISDICTION  In areas where there are no Family
Courts, the above-enumerated
1) The action is incapable of pecuniary cases shall be adjudicated by the
estimation (such as rescission of contract, RTC (RA 8369)
action to revive judgment, declaratory relief
(1st part), support, expropriation)
 24

6) To hear and decide intra-corporate APPELLATE JURISDICTION over cases decided

controversies Sec. 52, Securities and by lower courts in their respective territorial
Regulations Code): jurisdictions except decisions of lower courts in
the exercise of delegated jurisdiction.
a) Cases involving devises or schemes
employed by or any acts, of the board of SPECIAL JURISDICTION – SC may designate
directors, business associates, its officers certain branches of RTC to try exclusively criminal
or partnership, amounting to fraud and cases, juvenile and domestic relations cases,
misrepresentation which may be agrarian cases, urban land reform cases not
detrimental to the interest of the public falling within the jurisdiction of any quasi-judicial
and/or of the stockholders, partners, body and other special cases in the interest of
members of associations or organizations justice.
registered with the SEC
b) Controversies arising out of intra-
JURISDICTION OF METROPOLITAN TRIAL
corporate or partnership relations,
COURTS/MUNICIPAL TRIAL COURTS
between and among stockholders,
members or associates; between any or all
of them and the corporation, partnership CRIMINAL CASES
or association of which they are
stockholders, members or associates, EXCLUSIVE ORIGINAL JURISDICTION
respectively; and between such
corporation , partnership or association 1) Cases covered by Summary proceedings
and the state insofar as it concerns their a) Violations of city or municipal ordinances
individual franchise or right to exist as including traffic laws
such entity b) Violation of rental law
c) Controversies in the election or c) Violation of traffic laws, rules and
appointments of directors, trustees, regulations
officers or managers of such corporations, d) Violation of BP 22 (Bouncing Check Law)
partnerships or associations effective April 15, 2003
d) Petitions of corporations, partnerships or
e) All other criminal cases where the penalty
associations to be declared in the state of
is imprisonment not exceeding 6 months
suspension of payments in cases where
and/or P100,000 fine irrespective of other
the corporation, partnership of association
penalties arising therefrom
possesses sufficient property to cover all
its debts but foresees the impossibility of
2) offenses punishable with imprisonment not
meeting them when they respectively fall
exceeding six (6) years irrespective of the
due or in cases where the corporation,
amount of fine, and regardless of other
partnership of association has no sufficient
imposable accessory or other penalties,
assets to cover its liabilities, but is under
including the civil liability arising from such
the management of a Rehabilitation
offenses or predicated thereon, irrespective of
Receiver or Management Committee.
the kind, nature, value or amount thereof;
provided however, that in offenses involving
damage to property through criminal
CONCURRENT JURISDICTION
negligence, they shall have exclusive original
1) with the Supreme Court in actions
jurisdiction thereof (Sec. 2, RA 7691).
affecting ambassadors, other public
ministers and consuls
3) Offenses involving DAMAGE TO PROPERTY
2) with the SC and CA in petitions for
through CRIMINAL NEGLIGENCE where the
certiorari, prohibition and mandamus
imposable fine is not exceeding P10,000
against lower courts and bodies in
 Note: In cases where the only penalty
petitions for quo warranto, habeas corpus,
is fine, the amount thereof shall
and writ of continuing mandamus on
determine jurisdiction. If the amount
environmental cases
does not exceed P4,000, the MTC has
3) with the SC, CA and Sandigabayan in
jurisdiction.
petitions for writs of habeas data and
amparo
4) All offenses (except violations of RA 3019, RA
4) With Insurance Commissioner – claims not
1379 and Arts. 210 to 212, RPC) committed
exceeding P100,000
by public officers and employees in relation to
their office, including those employed in
 25

GOCCs, and by private individuals charged as is no controversy over the land or in case of
co-principals, accomplices or accessories, contested lands, the value does not exceed P100,
punishable with imprisonment of not more 000 = appealable to the CA
than 6 years OR where none of the accused
holds a position of salary Grade 27 and 1st level courts:
higher. a. Metropolitan Trial Court – Metro Manila;
b. Municipal Trial Courts in Cities – situated in
CIVIL ACTIONS cities
c. Municipal Circuit Trial Court – composed of
EXCLUSIVE ORIGINAL JURISDICTION multi-sala
1) If the amount involved does not exceed d. Municipal Trial Courts – in one municipality
P300,000 outside MM or does not exceed
P400,000 in MM in the following cases:
a) Actions involving personal property SHAR’IAH COURTS
b) Probate Proceeding (testate and
intestate) based on gross value of the
EXCLUSIVE JURISDICTION
estate
c) Admiralty and maritime cases 1) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
d) Demand for money
under the Code of Muslim Personal Laws;
 Note: Do not include Interest,
2) All cases involving disposition, distribution
Damages of whatever kind, Attorney’s and settlement of estate of deceased
fees, Litigation Expenses, and Costs Muslims, probate of wills, issuance of
(IDALEC). However, in cases where the letters of administration of appointment
claim or damages is the main cause of administrators or executors regardless of
action, or one of the causes of action, the nature or aggregate value of the
the amount of such claim shall be property;
considered in determining the 3) Petitions for the declaration of absence
jurisdiction of the court. and death for the cancellation and
correction of entries in the Muslim
2) Actions involving title to, or possession of, real Registries;
property, or any interest therein where the 4) All actions arising from the customary
assessed value of the property or interest contracts in which the parties are Muslims,
therein does not exceed P20,000 outside MM if they have not specified which law shall
or does not exceed P50,000 in MM govern their relations; and
3) Inclusion and exclusion of voters 5) All petitions for mandamus, prohibition,
4) Those governed by the Rules on Summary injunction, certiorari, habeas corpus and
Procedure all other auxiliary writs and processes in
a) Forcible entry and unlawful detainer aid of its appellate jurisdiction
(FEUD)
 With jurisdiction to resolve issue of CONCURRENT JURISDICTION
ownership to determine ONLY issue 1) Petitions of Muslim for the constitution of
of possession (provisional only) the family home, change of name and
 Irrespective of the amount of commitment of an insane person to an
damages or unpaid rentals sought asylum
to be recover 2) All other personal and legal actions not
 Where attorney’s fees are awarded, mentioned in par 1 (d) wherein the parties
the same shall not exceed P20,000 involved are Muslims except those for
b) Other civil cases, except probate forcible entry and unlawful detainer, which
proceeding, where the total amount of the shall fall under the exclusive jurisdiction of
plaintiff’s claim does not exceed P200,000 the MTC.
in MM, exclusive of interests and costs. 3) All special civil actions for interpleader or
declaratory relief wherein the parties are
SPECIAL JURISDICTION over petition for writ of Muslims or the property involved belongs
habeas corpus OR application for bail in criminal exclusively to Muslims
cases in the absence of all RTC judges in the
province or city Cases that can be files:
DELEGATED JURISDICTION to hear and decide 1) Offenses defined and punished under PD
cadastral and land registration cases where there 1083
 26

2) Disputes relating to:

a. Marriage
b. Divorce CRIMINAL CASES
c. Betrothal or breach of contract to
marry 1) Violations of traffic law, rules and regulations;
d. Customary dowry (mahr) 2) Violation of the rental law;
e. Disposition and distribution of 3) All other criminal cases where the penalty
property upon divorce prescribed is imprisonment not exceeding six
f. Maintenance and support and (6) months, or fine not exceeding P1,000, or
consolatory gifts (mut’a) both, irrespective of other imposable
g. Restitution of marital rights penalties, accessory or otherwise, or of the
3) Disputes relative to communal properties civil liability arising therefrom, provided, that
in offenses involving damage to property
JURISDICTION OVER SMALL CLAIMS through criminal negligence, RSP shall govern
where the imposable fine does not exceed
P10,000.
1) MTCs, MeTCs and MCTCs shall have
jurisdiction over actions for payment of  RSP does not apply to a civil case where
money where the value of the claim does not the plaintiff‘s cause of action is pleaded in
exceed P100,000 exclusive of interest and the same complaint with another cause of
costs (Sec. 2, AM 08-8-7-SC, Oct. 27, 2009). action subject to the ordinary procedure;
2) Actions covered are nor to a criminal case where the offense
a) purely civil in nature where the claim or charged is necessarily related to another
relief prayed for by the plaintiff is solely criminal case subject to the ordinary
for payment or reimbursement of sum of procedure.
money, and
b) the civil aspect of criminal actions, either
filed before the institution of the criminal CASES COVERED BY THE RULES ON
action, or reserved upon the filing of the BARANGAY CONCILIATION
criminal action in court, pursuant to Rule
111 (Sec. 4, AM 08-8-7-SC). The Lupon of each barangay shall have the
authority to bring together the parties actually
These claims may be: residing in the same municipality or city for
a) For money owed under the contracts of amicable settlement of all disputes except:
lease, loan, services, sale, or mortgage; 1) Where one party is the government or any
b) For damages arising from fault or subdivision or instrumentality thereof
negligence, quasi-contract, or contract; 2) Where one party is a public officer or
and employee, and the dispute relates to the
c) The enforcement of a barangay amicable performance of his official functions
settlement or an arbitration award 3) Offenses punishable by imprisonment
involving a money claim pursuant to Sec. exceeding one (1) year or a fine exceeding
417 of RA 7160 (LGC). P5,000
4) Offenses where there is no private
CASES COVERED BY RULES ON SUMMARY offended party
PROCEDURE (SEC. 1 RSP) 5) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
CIVIL CASES their differences to amicable settlement
by an appropriate lupon
1) All cases of forcible entry and unlawful 6) Disputes involving parties who actually
detainer (FEUD), irrespective of the amount of reside in barangays of different cities or
damages or unpaid rentals sought to be municipalities, except where such
recovered. Where attorney‘s fees are barangay units adjoin each other and the
awarded, the same shall not exceed P20,000; parties thereto agree to submit their
2) All other cases, except probate proceedings differences to amicable settlement by an
where the total amount of the plaintiff‘s claim appropriate lupon
does not exceed P100,000 (outside MM) or 7) Such other classes of disputes which the
P200,000 (in MM), exclusive of interest and President may determine in the interest of
costs.
 27

justice or upon the recommendation of the special, civil and criminal, ex contractu and ex
Secretary of Justice delicto, penal and remedial, real, personal, and
8) Any complaint by or against corporations, mixed action, action in personam, in rem, and
partnerships, or juridical entities. The quasi in rem.
reason is that only individuals shall be
parties to barangay conciliation ORDINARY CIVIL ACTIONS, SPECIAL CIVIL
proceedings either as complainants or ACTIONS, CRIMINAL ACTIONS
respondents
9) Disputes where urgent legal action is Ordinary civil action is one by which one party
necessary to prevent injustice from being sues another, based on a cause of action, to
committed or further continued, enforce or protect a right, or to prevent or redress
specifically: a wrong, whereby the defendant has performed
a) A criminal case where the accused an act or omitted to do an act in violation of the
is under police custody or rights of the plaintiff. (Sec. 3a) The purpose is
detention primarily compensatory.
b) A petition for habeas corpus by a
person illegally detained or Special civil action – actions which while
deprived of his liberty or one acting governed by the rules for ordinary civil actions,
in his behalf are subject to special rules provided for Special
c) Actions coupled with provisional Civil Actions
remedies, such as preliminary
injunction, attachment, replevin Criminal action is one by which the State
and support pendente lite prosecutes a person for an act or omission
d) Where the action may be barred by punishable by law (Sec. 3[b], Rule 1). The
statute of limitation purpose is primarily punishment.
10) Labor disputes or controversies arising
from employer-employee relationship CIVIL ACTIONS VERSUS SPECIAL
11) Where the dispute arises from the CARL PROCEEDINGS
12) Actions to annul judgment upon a
compromise which can be directly filed in The purpose of an action is either to protect a
court. right or prevent or redress a wrong. The purpose
of special proceeding is to establish a status, a
 It is a condition precedent under Rule 16; right or a particular fact.
can be dismissed but without prejudice
PERSONAL ACTIONS AND REAL ACTIONS
TOTALITY RULE
An action is REAL when it affects title to or
Where there are several claims or causes of possession of real property, or an interest therein.
actions between the same or different parties, All other actions are personal actions.
embodied in the same complaint, the amount of
the demand shall be the totality of the An action is real when it is founded upon the
claims in all the claims of action, irrespective privity of real estate, which means that the realty
of whether the causes of action arose out of the or an interest therein is the subject matter of the
same or different transactions (Sec. 33[1], BP action. The issues involved in real actions are title
129). to, ownership, possession, partition, foreclosure
of mortgage or condemnation of real property.

Not every action involving real property is a real

action because the realty may only be incidental
CIVIL PROCEDURE to the subject matter of the suit. Example is an
action for damages to real property, because
although it involves real property, it does not
involve any of the issues mentioned.
ACTIONS
Real actions are based on the privity of real
Action (synonymous with suit) is the legal and estates; while personal actions are based on
formal demand of one’s right from another privity of contracts or for the recovery of sums of
person made and insisted upon in a court of money.
justice. The kinds of actions are ordinary and
 28

The distinction between real action and personal persons seeking to subject the property of
action is important for the purpose of determining such persons to the discharge of the claims
the venue of the action. A real action is “LOCAL”, assailed. An individual is named as defendant
which means that its venue depends upon the and the purpose of the proceeding is to
location of the property involved in the litigation. subject his interests therein to the obligation
A personal action is “TRANSITORY”, which means or loan burdening the property. It deals with
that its venue depends upon the residence of the status, ownership or liability or a particular
plaintiff or the defendant at the option of the property but which are intended to operate on
plaintiff. these questions only as between the
particular parties to the proceedings and not
LOCAL AND TRANSITORY ACTIONS to ascertain or cut off the rights or interests of
all possible claimants. Examples of actions
A local action is one founded on privity of quasi in rem are action for partition, action for
estates only and there is no privity of contracts. A accounting, attachment, foreclosure of
real action is a local action; its venue depends mortgage.
upon the location of the property involved in  An action in personam is not necessarily a
litigation. “Actions affecting title to or possession personal action. Nor is a real action
of real property, or interest therein, shall be necessarily an action in rem. An in personam
commenced and tried in the proper court which or an in rem action is a classification of
has jurisdiction over the area wherein the real actions according to foundation. For instance,
property involved, or a portion thereof is an action to recover, title to or possession of
situated” (Sec. 1, Rule 4). real property is a real action, but it is an
action in personam, not brought against the
Transitory action is one founded on privity of whole world but against the person upon
contracts between the parties. A personal action whom the claim is made.
is transitory, its venue depends upon the
residence of the plaintiff or the defendant at the SC sums up the basic rules in Biaco vs. Philippine
option of the plaintiff. A personal action “may be Countryside Rural Bank (2007):
commenced and tried where the plaintiff or any 1) The question of whether the trial court has
of the principal plaintiffs resides or where the jurisdiction depends on the nature of the
defendant or any of the principal defendants action – whether the action is in
resides, or in the case of non-resident defendant, personam, in rem, or quasi in rem. The
where he may be found, at the election of the rules on service of summons under Rule
plaintiff”. (Sec. 2, Rule 4). 14 likewise apply according to the nature
of the action.
Actions in rem, in personam and quasi in 2) An action in personam is an action against
rem (this is important in service of summons) a person on the basis of his personal
 An action in rem, one instituted and liability. And action in rem is an action
enforced against the whole world. against the thing itself instead of against
 An action in personam is one filed against a the person. An action quasi in rem is one
definite defendant. It is intended to subject wherein an individual is named as
the interest of defendant on a property to an defendant and the purpose of the
obligation or lien. Jurisdiction over the person proceeding is to subject his interest
(defendant) is required. It is a proceeding to therein to the obligation or lien burdening
enforce personal rights and obligations the property.
brought against the person, and is based on 3) Jurisdiction over the person of the
the jurisdiction of the person, although it may defendant is necessary for the court to
involve his right to, or the exercise of validly try and decide a case against said
ownership of, specific property, or seek to defendant where the action is one in
compel him to control or dispose of it in personam but not where the action is in
accordance with the mandate of the court. rem or quasi in rem. Jurisdiction over the
The purpose is to impose through the res is acquired either
judgment of a court, some responsibility or a. by the seizure of the property
liability directly upon the person of the under legal process, whereby it is
defendant. No other than the defendant is brought into actual custody of the
liable, not the whole world, as in an action for law; or
a sum of money or an action for damages. b. as a result of the institution of legal
 An action quasi in rem, also brought against proceedings, in which the power of
the whole world, is one brought against
 29

the court is recognized and made the complaint or the pleading asserting the claim
effective. “states no cause of action”. This means that the
cause of action must unmistakably be stated or
 Nonetheless, summons must be served alleged in the complaint or that all the elements
upon the defendant not for the purpose of of the cause of action required by substantive law
vesting the court with jurisdiction but must clearly appear from the mere reading of the
merely for satisfying the due process complaint.
requirements.
To avoid an early dismissal of the complaint, the
simple dictum to be followed is: “If you have a
CAUSE OF ACTION (Rule 2) cause of action, then by all means, state it!”
Where there is a defect or an insufficiency in the
MEANING OF CAUSE OF ACTION statement of the cause of action, a complaint
may be dismissed not because of an absence or a
A cause of action is the act or omission by which lack of cause of action by because the complaint
a party (defendant) violates the rights of another states no cause of action. The dismissal will
(plaintiff). therefore, be anchored on a “failure to state a
cause of action”.
It is the delict or wrong by which the defendant
violates the right or rights of the plaintiff. It doesn‘t mean that the plaintiff has no cause of
action. It only means that the plaintiff‘s
The elements are: allegations are insufficient for the court to know
1) A right in favor of the plaintiff by whatever that the rights of the plaintiff were violated by the
means and under whatever law it arises or defendant. Thus, even if indeed the plaintiff
is created; suffered injury, if the same is not set forth in the
2) An obligation on the part of the named complaint, the pleading will state no cause of
defendant to respect or not to violate such action even if in reality the plaintiff has a cause of
right; and action against the defendant.
3) Act or omission on the part of such
defendant in violation of the right of the TEST OF THE SUFFICIENCY OF A CAUSE OF
plaintiff or constituting a breach of the ACTION
obligation of the defendant to the plaintiff
for which the latter may maintain an The test is whether or not admitting the facts
action for recovery of damages or other alleged, the court could render a valid verdict in
appropriate relief. accordance with the prayer of the complaint.

RIGHT OF ACTION VERSUS CAUSE OF To be taken into account are only the material
ACTION allegations in the complaint; extraneous facts and
circumstances or other matter aliunde are not
a) A cause of action refers to the delict or wrong considered but the court may consider in addition
committed by the defendants, whereas right to the complaint the appended annexes or
of action refers to the right of the plaintiff to documents, other pleadings of the plaintiff, or
institute the action; admissions in the records.
b) A cause of action is determined by the
pleadings; whereas a right of action is It is error for the court to take cognizance of
determined by the substantive law; external facts or to hold preliminary hearings to
a) A right of action may be taken away by the determine its existence.
running of the statute of limitations, by
estoppels or other circumstances; which do SPLITTING A SINGLE CAUSE OF ACTION
not at all affect the cause of action; AND ITS EFFECTS
b) There is no right of action where there is no
cause of action! It is the act of instituting two or more suits for the
same cause of action (Sec. 4, Rule 2). It is the
FAILURE TO STATE CAUSE OF ACTION practice of dividing one cause of action into
different parts and making each part the subject
The mere existence of a cause of action is not of a separate complaint.
sufficient for a complaint to prosper. Even if in
reality the plaintiff has a cause of action against In splitting a cause of action, the pleader divides
the defendant, the complaint may be dismissed if a single cause of action, claim or demand into
 30

two or more parts, brings a suit for one of such civil actions or actions governed by
parts with the intent to reserve the rest for special rules.
another separate. This practice is NOT ALLOWED
by the Rules because it breeds multiplicity of When there is a misjoinder of causes of
suits, clogs the court dockets, leads to vexatious action, the erroneously joined cause of action
litigation, operates as an instrument of can be severed or separated from the other
harassment, and generates unnecessary cause of action upon motion by a party or upon
expenses to the parties. the court‘s own initiative. Misjoinder of causes of
action is not a ground for the dismissal of the
The filing of the first may be pleaded in case.
abatement of the other or others and a judgment
upon the merits in any one is available as a bar
PARTIES IN CIVIL ACTION (Rule 3)
to, or a ground for dismissal of, the others

The remedy of the defendant is to file a motion REAL PARTY-IN-INTEREST (e.g. plaintiff and
to dismiss. Hence, if the first action is pending defendant) is the party who stands to be
when the second action is filed, the latter may be benefited or injured by the judgment in the suit,
dismissed based on litis pendencia, there is or the party entitled to the avails of the suit (Sec.
another action pending between the same parties 2, Rule 3).
for the same cause. If a final judgment had been  The interest must be real, which is a present
rendered in the first action when the second substantial interest as distinguished from a
action is filed, the latter may be dismissed based mere expectancy or a future, contingent
on res judicata, that the cause of action is barred subordinate or consequential.
by prior judgment. As to which action should be  It is an interest that is material and direct, as
dismissed would depend upon judicial discretion distinguished from a mere incidental interest
and the prevailing circumstances of the case. in.
 While ordinarily one who is not a privy to a
JOINDER AND MISJOINDER OF CAUSES OF contract may not bring an action to enforce it,
ACTIONS (SECS. 5 AND 6, ULE 2) there are recognized exceptions this rule:
a) Contracts containing stipulations pour
Joinder of causes of action is the assertion of atrui or stipulations expressly
as many causes of action as a party may have conferring benefits to a non-party may
against another in one pleading alone (Sec. 5, sue under the contract provided such
Rule 2). It is the process of uniting two or more benefits have been accepted by the
demands or rights of action in one action, subject beneficiary prior to its revocation by
to the following conditions: the contracting parties (Art. 1311, Civil
a) The party joining the causes of action shall Code).
comply with the rules on joinder of parties b) Those who are not principally or
(same transaction ad common question of subsidiarily obligated in the contract,
law an fact); in which they had no intervention, may
b) The joinder shall not include special civil show their detriment that could result
actions governed by special rules; from it. For instance, Art. 1313, CC,
c) Where the cause of action are between provides that “creditors are protected
the same parties but pertain to different in cases of contracts intended to
venues or jurisdictions, the joinder may be defrauded them”. Further, Art. 1318,
allowed in the RTC provided one of the CC, provides that contracts entered
causes of action falls within the into in fraud of creditors may be
jurisdiction of said court and the venue rescinded when the creditors cannot in
lies therein; and any manner collect the claims due
d) Where the claims in all the causes of them. Thus, a creditor who is not a
action are principally for recovery of party to a contract can sue to rescind
money, the aggregate amount claimed the contract to redress the fraud
shall be the test of jurisdiction (totality committed upon him.
rule).
 Note: Restrictions on joinder of INDISPENSABLE PARTY is a real party-in-
causes of action are: jurisdiction, interest without whom no final determination can
venue, and joinder of parties. The be had of an action (Sec. 7, Rule 3).
joinder shall not include special
 31

 Without the presence of this party, the A lien on the judgment shall or arise if the
judgment of a court cannot attain real court provides otherwise.
judgement.
 The presence of indispensable parties is a REPRESENTATIVES AS PARTIES pertains to the
condition for the exercise of juridical power parties allowed by the court as substitute parties
and when an indispensable party is not before to an action whereby the original parties become
the court, the action should be dismissed. incapacitated of incompetent (Sec. 18, Rule 3).
 The absence of indispensable party renders  The substitution of a party depends on the
all subsequent actions of the court null and nature of the action. If the action is personal,
void for want of authority to act, not only to and a party dies pendent lite, such action
the absent parties but even as to those does not survive, and such party cannot be
present. substituted. If the action is real, death of the
 A person is not an IP if his interest in the defendant survives the action, and the heirs
controversy or subject matter is separable will substitute the dead. A favorable judgment
from the interest of the other parties, so that obtained by the plaintiff therein may be
it will not necessarily be directly or injuriously enforced against the estate of the deceased
affected by a decree which does complete defendant (Sec. 1, Rule 87).
justice between them. Also, a person is not an  In case a party becomes incapacitated or
IP if his presence would merely permit incompetent during the pendency of the
complete relief between him and those action, the court, upon motion, may allow the
already parties to the action, or if he has no action to be continued by or against the
interest in the subject matter of the action. incapacitated or incompetent party with the
 Although normally a joinder of action is assistance of his legal guardian or guardian
permissive (Sec. 6, Rule 3), the joinder of a ad litem (Sec. 18, Rule 20).
party becomes compulsory when the one  In case of transfer, the action may be
involved is an indispensable party. Clearly, continued by or against the original party,
the rule directs a compulsory joinder of IP unless the court upon motion directs the
(Sec. 7, Rule 3). person to whom the interest is transferred to
be substituted in the action or joined with the
NECESSARY PARTY is one who is not original party (Sec. 19, Rule 3).
indispensable but ought to be joined as a party if  An agent may sue or be sued without joining
complete relief is to be accorded as to those his principal except when the contract involve
already parties, of for a complete determination things belonging to the principal (Where the
or settlement of the claim subject of the action. action is allowed to be prosecuted and
 But a necessary party ought to be joined as a defended by a representative or someone
party if complete relief is to be accorded as to acting in a fiduciary capacity, the beneficiary
those already parties (Sec. 8, Rule 3). shall be included in the title of the case and
 The non-inclusion of a necessary party does shall be deemed to be the real property in
not prevent the court from proceeding in the interest, Sec. 3, Rule 3).
action, and the judgment rendered therein
shall be without prejudice to the rights of such ALTERNATIVE DEFENDANTS are those who
necessary party (Sec. 9, Rule 3). may be joined as such in the alternative by the
plaintiff who is uncertain from whom among them
INDIGENT PARTY is one who is allowed by the he is entitled to a relief, regardless of whether or
court to litigate his claim, action or defense upon not a right to a relief against one is inconsistent
ex parte application and hearing, when the court with that against the other (Sec. 13, Rule 3).
is satisfied that such party has no money or  Where the plaintiff cannot definitely identify
property sufficient and available for food, shelter, who among two or more persons should be
basic necessities for himself and his family (Sec. impleaded as a defendant, he may join all of
21, Rule 3). them as defendants in the alternative.
 If one is authorized to litigate as an indigent,  Just as the rule allows a suit against
such authority shall include an exemption defendants in the alternative, the rule also
from the payment of docket fee, and of allows alternative causes of action (Sec. 2,
transcripts of stenographic notes, which the Rule 8) and alternative defenses (Sec. 5[b],
court may order to e furnished by him. Rule 6).
 However, the amount of the docket and other
fees, which the indigent was exempt from COMPULSORY AND PERMISSIVE JOINDER
paying, shall be lien on the judgment OF PARTIES
rendered in the case favorable to the indigent.
 32

b) The persons are so numerous that it is

Joinder of parties is compulsory if there are impracticable to join all as parties;
parties without whom no final determination can c) The parties actually before the court are
be had of an action (Sec. 7, Rule 3). sufficiently numerous and representative
as to fully protect the interests of all
Joinder of parties is permissive when there is concerned; and
a right or relief in favor of or against the parties d) The representatives sue or defend for the
joined in respect to or arising out of the same benefit of all (Sec.12, Rule 3).
transaction or series of transactions, and there is
a question of law or fact common to the parties It shall not be dismissed or compromised without
joined in the action (Sec. 6, Rule 3). the approval of the court.

MISJOINDER AND NON-JOINDER OF PARTIES SUITS AGAINST ENTITIES WITHOUT

JURIDICAL PERSONALITY
A party is
a. misjoined when he is made a party to the A corporation being an entity separate and
action although he should not be distinct from its members has no interest in the
impleaded individual property of its members unless
b. not joined when he is supposed to be transferred to the corporation. Absent any
joined but is not impleaded in the action showing of interests, a corporation has no
personality to bring an action for the purpose of
Under the rules, neither misjoinder nor non- recovering the property, which belongs to the
joinder of parties is a ground for the dismissal of members in their personal capacities.
an action but failure to obey the order of the
court to drop or add a party is a ground for the An entity without juridical personality may be
dismissal of the complaint (Sec. 3, Rule 17). sued under a common name by which it is
Parties may be dropped or added by order of the commonly known when it represents to the
court on motion of any party or on its own plaintiff under a common name, and the latter
initiative at any stage of the action and on such relies on such representation.
terms as are just (Sec. 11, Rule 3). Misjoinder of
parties does not involve questions of jurisdiction Persons associated in an entity without juridical
and not a ground for dismissal. personality maybe sued under the name by which
they are generally or commonly known, but they
CLASS SUIT cannot sue under such name.

A class suit is an action where one or more may EFFECT OF DEATH OF PARTY LITIGANT
sue for the benefit of all if the requisites for said
action are complied with. The death of the client extinguishes the attorney-
client relationship and divests a counsel of his
A class suit does not require commonality of authority to represent the client. Accordingly, a
interest in the questions involved in the suit. dead client has no personality and cannot be
What is required by the Rules is a common or represented by an attorney. Neither does he
general interest in the subject matter of the become the counsel of the heirs of the deceased
litigation. The subject matter of the action means unless his services are engaged by said heirs.
the physical, the things real or personal, the
money, lands, chattels, and the like, in relation to Where the claim is not extinguished by the death
the suit which is prosecuted and not the direct or of the litigant, upon the receipt of the notice of
wrong committed by the defendant. It is not also death, the court shall order the legal
a common question of law that sustains a class representative or representatives of the deceased
suit but a common interest in the subject matter to appear and be substituted for the deceased
of the controversy. within thirty (30) days from notice (Sec. 16, Rule
3).
There is no class suit when interests are
conflicting. Hence, for a class suit to prosper, the The substitution of the deceased would not be
following requisites must concur: ordered by the court in cases where the death of
a) The subject matter of the controversy the party would extinguish the action because
must be of common or general interest to substitution is proper only when the action
many persons; survives.
 33

Where the deceased has no heirs, the court shall

require the appointment of an executor or VENUE OF PERSONAL ACTIONS
administrator. This appointment is not required
where the deceased left an heir because the heir All other actions may be commenced and tried:
under the new rule, may be allowed to be a) where the plaintiff or any of the principal
substituted for the deceased. If there is an heir plaintiffs resides, or
but the heir is a minor, the court may appoint a b) where the defendant or any of the
guardian ad litem for said minor heir (Sec. 13, principal defendants resides
Rule 3).  all at the option of the plaintiff
(Sec. 2, Rule 4).
The court may appoint an executor or
administrator when: VENUE OF ACTIONS AGAINST NON-
a) the counsel for the deceased does not RESIDENTS
name a legal representative; or
b) there is a representative named but he If any of the defendants does not reside and is
failed to appear within the specified period not found in the Philippines, and the action
(Sec. 16, Rule 3). affects the personal status of the plaintiff, or any
property of said defendant located in the
VENUE (Rule 4) Philippines, the action may be
1) commenced and tried in the court of the
place where the plaintiff resides, or
Venue is the place or the geographical area 2) where the property or any portion thereof
where an action is to be filed and tried. In civil is situated or found (Sec. 3, Rule 4), or
cases, it relates only to the place of the suit and 3) at the place where the defendant may be
not to the jurisdiction of the court. found
 at the option of the plaintiff (Sec.
VENUE VERSUS JURISDICTION 2).

a) Jurisdiction is the authority to hear and WHEN THE RULES ON VENUE DO NOT
determine a case; venue is the place where APPLY
the case is to be heard or tried;
b) Jurisdiction is a matter of substantive law; The Rules do not apply
venue of procedural law; a) in those cases where a specific rule or law
c) Jurisdiction establishes a relation between the provides otherwise (i.e. action for
court and the subject matter; venue, a damages arising from libel); or
relation between plaintiff and defendant, or b) where the parties have validly agreed in
petitioner and respondent; writing before the filing of the action on
d) Jurisdiction is fixed by law and cannot be the exclusive venue thereof (Sec. 4, Rule
conferred by the parties; venue may be 4).
conferred by the act or agreement of the
parties; and EFFECTS OF STIPULATIONS ON VENUE
e) Lack of jurisdiction over the subject matter is
a ground for a motu propio dismissal; venue is
The parties may stipulate on the venue as long as
not a ground for a motu propio dismissal
the agreement is
except in cases subject to summary
a) in writing
procedure.
b) made before the filing of the action, and
c) exclusive as to the venue (Sec. 4[b], Rule
VENUE OF REAL ACTIONS 4).

Actions affecting title to or possession of real In interpreting stipulations as to venue, there is a

property, or interest therein, shall be commenced need to inquire as to whether or not the
and tried in the proper court which has agreement is restrictive or not. If the stipulation is
jurisdiction over the area wherein the real RESTRICTIVE, the suit may be filed only in the
property involved or a portion thereof is situated. place agreed upon by the parties. It must be
Forcible entry and detainer actions shall be reiterated and made clear that under Rule 4, the
commenced and tried in the municipal trial court general rules on venue of actions shall not apply
of the municipality or city wherein the real where the parties, before the filing of the action,
property involved, or a portion thereof, is situated have validly agreed in writing on an exclusive
(Sec. 1, Rule 4). venue. The mere stipulation on the venue of an
 34

action, however, is not enough to preclude affirmative defenses, the burden of proof
parties from bringing a case in other venues. If devolves upon the defendant.
the intention of the parties were to restrict venue, c) There are three types specific denials:
there must be accompanying language clearly
and categorically expressing their purpose and 1. Absolute denial - when the defend
design that actions between them be litigated ant specify each material allegation
only at the place named by them. of fact the truth of which he does not
admit and whenever practicable sets
The parties must be able to show that such forth the substance of the matters
stipulation is EXCLUSIVE. In the absence of upon which he relies to support such
qualifying or restrictive words, the stipulation denial.
should be deemed as merely an agreement on an
additional forum, not as limiting venue to the 2. Partial denial – when the defendant
specified place. does not make a total denial of the
material allegations in a specific
paragraph, denying only a part of the
PLEADINGS (Rules 6 - 13)
averment. In doing so he specifies
that part of the truth of which he
Pleadings are written statements of the admits and denies only the
respective claims and defenses of the parties remainder.
submitted to the court for appropriate judgment
(Sec. 1, Rule 6). Pleadings aim to define the 3. Denial by disavowal of
issues and foundation of proof to be submitted knowledge – when the defendant
during the trial, and to apprise the court of the alleges having no knowledge or
rival claims of the parties. information sufficient to form a belief
as to the truth of a material
averment made in the complaint.
KINDS OF PLEADINGS (RULE 6)
Such denial must be made in good
faith.
A. COMPLAINT  When the matter denied by a
disavowal of knowledge is plainly
Complaint is the pleading alleging the plaintiff’s and necessarily within the
cause or causes of action, stating therein the defendant’s knowledge, such
names and residences of the plaintiff and claim shall not be considered as a
defendant (Sec. 3, Rule 6) and should contain a specific denial.
concise statement of the ultimate facts  If the denial does not fall within
constituting the plaintiff’s cause of action. the scope of the abovementioned
kinds of a specific denial, it shall
B. ANSWER be considered a general denial
which is considered as an
admission of the averment not
An answer is a pleading in which a defending
specifically denied.
party sets forth his defenses (Sec. 3, Rule 6). It
may allege legal provisions relied upon for
2. NEGATIVE PREGNANT
defense (Sec. 1, Rule 8). It may be an answer to
 Negative pregnant is an admission in
the complaint, counterclaim or a cross-claim,
third party complaint or complaint-in- avoidance which does not qualify as a
intervention. specific denial.
 It is a form of negative expression which
The defendant may set up two kinds of carries with it an affirmation or at least an
defenses: implication of some kind favorable to the
1. NEGATIVE DEFENSES adverse party. It is a denial pregnant with
a) Negative defenses are the specific denials an admission of the substantial facts
of the material fact or facts alleged in the alleged in the pleading.
pleading of the claimant essential to his  Where a fact is alleged with qualifying or
cause or causes of action (Sec. 5[a], Rule modifying language and the words of the
6). allegation as so qualified or modified are
b) When the answer sets forth negative literally denied, the qualifying
defenses, the burden of proof rests upon circumstances alone are denied while the
the plaintiff, and when the answer alleges fact itself is admitted.
 35

 It is not a specific denial and is usually an material allegations in the pleading of the
admission. claimant, would nevertheless prevent or bar
recovery by him.
AFFIRMATIVE DEFENSES
Affirmative defenses are allegations of new Affirmative defenses include:
matters which, while hypothetically admitting the
a) Fraud g) Estoppel
b) Statute of limitations h) Former recovery
c) Release i) Discharge in bankruptcy
d) Payment j) Any other matter by way of
e) Illegality confession and avoidance
f) Statute of frauds (Sec. 5[b], Rule 6)

C. COUNTERCLAIM 2. PERMISSIVE COUNTERCLAIM

Permissive counterclaim is a counterclaim which
A counterclaim is any claim which a defending does not arise out of nor is it necessarily
party may have against an opposing party (Sec. connected with the subject matter of the
6, Rule 6). It is in itself a claim or cause of action opposing party’s claim. It is not barred even if not
interposed in an answer. It is either compulsory set up in the action.
or permissive.

1. COMPULSORY COUNTERCLAIM
A compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises The requirements of a permissive
out of or is connected with the transaction or counterclaim are:
occurrence constituting the subject matter of the 1) It does not require for its adjudication the
opposing party’s claim and does not require for presence of third parties of whom the
its adjudication, the presence of third parties of court cannot acquire jurisdiction;
whom the court cannot acquire jurisdiction. Such 2) It must be within the jurisdiction of the
a counterclaim must be within the jurisdiction of court wherein the case is pending and is
the court, both as to the amount and the nature cognizable by the regular courts of justice;
thereof, except that in an original action before and
the RTC, the counterclaim may be considered 3) It does not arise out of the same
compulsory regardless of the amount (Sec. 7, transaction or series of transactions
Rule 6). subject of the complaint.

The failure of the defendant to set up a Points to consider:

compulsory counterclaim shall bar its institution, a) even if not set up is not barred because it
subject to the following exceptions: doesn’t arise out of the same transaction
a) If the counterclaim matured or was as that of the complaint
acquired after the defendant had served b) it can be brought as a separate action in
his answer. In such case, it may be itself
pleaded by filing a supplemental answer c) docket fee must be paid
or pleading before judgment; and d) it must be answered by the adverse party
b) When a pleader fails to set up a to prevent default
counterclaim through oversight, e) it needs a certificate against forum
inadvertence, excusable negligence, or shopping.
when justice requires, he may, by leave of
court, set up the counterclaim by 3. EFFECT ON THE COUNTERCLAIM WHEN
amendment of the pleadings before THE COMPLAINT IS DISMISSED
judgment. If a counterclaim has already been pleaded by
the defendant prior to the service upon him of
Points to consider: the plaintiff‘s motion to dismiss, and the court
a) A compulsory counterclaim if not set up is grants the said motion to dismiss, the dismissal
barred shall be limited to the complaint (Sec. 2, Rule
b) It requires no payment of the docket fee 17).
c) Need not be answered
d) Does not need a certificate against forum
shopping
 36

The dismissal upon motion of plaintiff shall be If at any time before judgment, a person not a
without prejudice to the right of the defendant to party to the action believes that he has a legal
prosecute the counterclaim. interest in the matter in litigation in a case in
which he is not a party, he may, with leave of
The defendant if he so desires may prosecute his court, file a complaint-in-intervention in the
counterclaim either in a separate action or in the action if he asserts a claim against one or all of
same action. Should he choose to have his the parties.
counterclaim resolved in the same action, he
must notify the court of his preference within 15 G. REPLY
days from notice of the plaintiff‘s motion to
dismiss. Should he opt to prosecute his Reply is a pleading, the office or function of which
counterclaim in a separate action, the court is to deny, or allege facts in denial or avoidance
should render the corresponding order granting of new matters alleged by way of defense in the
and reserving his right to prosecute his claim in a answer and thereby join or make issue as to such
separate complaint. matters. Even if a party does not file such reply,
all the new matters alleged in the answer are
The dismissal of the complaint under Sec. 3 (due deemed controverted (Sec. 10, Rule 6).
to fault of plaintiff) is without prejudice to the
right of the defendant to prosecute his But you need to file a reply if there is an
counterclaim in the same action or in a separate actionable document denying the due execution
action. This dismissal shall have the effect of of such document under oath
adjudication upon the merits, unless otherwise
declared by the court. The dismissal of the main PLEADINGS ALLOWED IN SMALL CLAIM
action does not carry with it the dismissal of the CASES AND CASES COVERED BY THE RULES
counterclaim (Sec. 6, Rule 16). ON SUMMARY PROCEDURE

D. CROSS-CLAIMS The only pleadings allowed under the Rules on

Summary Procedure are
A cross-claim is any claim by one party against a a) Complaint
co-party arising out of the transaction or b) COMPULSORY COUNTERCLAIM pleaded in
occurrence that is the subject matter either of the the answer,
original action or of a counterclaim therein. Such c) cross-claim pleaded in the answer,
cross-claim may include a claim that the party d) answers
against whom it is asserted is or may be liable to  these pleadings must be verified.
the cross-claimant for all of part of a claim
asserted in the action against the cross-claimant The only pleadings allowed under small claim
(Sec. 8, Rule 6). cases are:
a) Statement of claim
E. THIRD (FOURTH-ETC.) PARTY b) Response
COMPLAINTS c) Counterclaim in the response

It is a claim that a defending party may, with PARTS OF A PLEADING (RULE 7)

leave of court, file against a person not a party to
the action, called the third (fourth, etc.)–party
defendant, for contribution, indemnity, The parts of a pleading under Rule 7 are: the
subrogation or any other relief, in respect of his caption (Sec. 1), the text or the body (Sec. 2), the
opponent‘s claim. signature and address (Sec. 3), the verification
(Sec. 4), and the certification against forum
F. COMPLAINT-IN-INTERVENTION shopping (Sec. 5).

Complaint-in-intervention is a pleading whereby a CAPTION

third party asserts a claim against either or all of
the original parties. If the pleading seeks to unite The caption must set forth the name of the court,
with the defending party in resisting a claim the title of the action, and the docket number if
against the latter, he shall file an answer-in- assigned.
intervention.
The title of the action indicates the names of the
parties. They shall all be named in the original
complaint or petition; but in subsequent
 37

pleadings, it shall be sufficient if the name of the speculation, and that the pleading is filed in good
first party on each side be stated with an faith. The absence of proper verification is cause
appropriate indication when there are other to treat the pleading as unsigned and dismissible.
parties. Their respective participation in the case
shall be indicated. It is, however, been held that the absence of a
verification or the non-compliance with the
SIGNATURE AND ADDRESS verification requirement does not necessarily
render the pleading defective. It is only a formal
Every pleading must be signed by the party or and not a jurisdictional requirement. The
counsel representing him, stating in either case requirement is a condition affecting only the form
his address which should not be a post office box. of the pleading (Sarmeinto vs. Zaratan, 2007).
The absence of verification may be corrected by
The signature of counsel constitutes a certificate requiring an oath. The court may order the
by him that he has read the pleading; that to the correction of the pleading or act on an unverified
best of his knowledge, information, and belief pleading if the attending circumstances are such
there is good ground to support it; and that it is that strict compliance would not fully serve
not interposed for delay. substantial justice, which after all, is the basic
aim for the rules of procedure (Robert
An unsigned pleading produces no legal effect. Development Corp. vs. Quitain, 315 SCRA 150).
However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear CERTIFICATION AGAINST FORUM-SHOPPING
that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately  Needed in initiatory pleadings
files an unsigned pleading, or signs a pleading in
violation of the Rule, or alleges scandalous or The certification against forum shopping is a
indecent matter therein, or fails to promptly sworn statement certifying to the following
report to the court a change of his address, shall matters:
be subject to appropriate disciplinary action. 1) That the party has NOT COMMENCED or
filed any claim involving the same issues
In every pleading, counsel has to indicate his in any court, tribunal, or quasi-judicial
professional tax receipt (PTR) and IBP receipt, the agency and, to the best of his knowledge,
purpose of which is to see to it that he pays his no such other action or claim is pending;
tax and membership due regularly. 2) That if there is such other pending action
or claim, a complete statement of the
VERIFICATION present STATUS thereof; and
3) That if he should therefore learn that the
A verification of a pleading is an affirmation same or similar action or claim has been
under oath by the party making the pleading that filed or is pending, he shall REPORT THAT
he is prepared to establish the truthfulness of the FACT within five (5) days therefrom to the
facts which he has pleaded based on his own court wherein his aforesaid complaint or
personal knowledge. initiatory pleading has been filed.

The general rule under, Sec. 4. Rule 7 is that, Failure to comply with the foregoing requirements
pleading need not be under oath. This means that shall not be curable by mere amendment of the
a pleading need not be verified. A pleading will be complaint or other initiatory pleading but shall be
verified only when a verification is required by a cause for the dismissal of the case without
law or by a rule. prejudice, unless otherwise provided, upon
motion and after hearing.
A pleading is verified by an affidavit, which
declares that: The submission of a false certification or non-
a) the affiant has read the pleading, and compliance with any of the undertakings therein
b) the allegations therein are true and shall constitute indirect contempt of court,
correct to his personal knowledge or without prejudice to the corresponding
based on authentic records. administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful
The verification requirement is significant, as it is and deliberate forum shopping, the same shall be
intended to secure an assurance that the ground for summary dismissal with prejudice and
allegations in a pleading are true and correct and shall constitute direct contempt, as well as a
not the product of the imagination or a matter of
 38

cause for administrative sanctions (Sec. 5, Rule signed by counsel is a defective certification and
7). is a valid cause for dismissal. This is the general
and prevailing rule. A certification by counsel and
Possible Violations (as per Dean Riano): not by the principal party himself is no
1) Non-compliance with the undertaking certification at all. The reason for requiring that it
– dismissal without prejudice must be signed by the principal party himself is
2) False Certification - indirect contempt, that he has actual knowledge, or knows better
administrative and criminal sanction than anyone else, whether he has initiated similar
3) Wilful and deliberate forum shopping action/s in other courts, agencies or tribunals.
– ground for summary dismissal with
prejudice without motion and hearing; it This certification is not necessary when what is
has administrative but without criminal filed is a mere motion for extension, or in criminal
sanctions cases and distinct causes of action.
 So, if the dismissal is without
prejudice, your remedy is REQUIREMENTS OF A CORPORATION
certiorari; if with prejudice, the EXECUTING THE
remedy is appeal (Sec. 1(g), VERIFICATION/CERTIFICATION ON NON-
Rule 41) FORUM SHOPPING
 The dismissal is not a subject of
appeal if the order of dismissal A juridical entity, unlike a natural person, can
is without prejudice. only perform physical acts through properly
 The certification is mandatory delegated individuals. The certification against
under Sec. 5, Rule 7, but not forum shopping where the plaintiff or a principal
jurisdictional. party is a juridical entity like a corporation may
be executed by properly authorized persons. This
There is forum shopping when person may be the lawyer of a corporation.
a) as a result of an adverse opinion in one
forum, a party seeks a favorable opinion, As long as he is duly authorized by the
other than by appeal or certiorari in corporation and has personal knowledge of the
another forum facts required to be disclosed in the certification
b) a party institutes two or more suits in against forum shopping, the certification may be
different courts, either simultaneously or signed by the authorized lawyer.
successively, in order to ask the courts to
rule on the same or related causes and/or EFFECT OF THE SIGNATURE OF COUNSEL IN
to grant the same or substantially the A PLEADING
same reliefs on the supposition that one or
the other court would make a favorable Counsel’s signature signifies that:
disposition or increase a party‘s chances a) He has read the pleading;
of obtaining a favorable decision or action b) That to the best of his knowledge,
c) the elements of litis pendentia are present information and belief there is a good
or where a final judgment in one case will ground to support it; and
amount to res judicata in another. c) That it is not interposed for delay.

It is an act of malpractice, as the litigants trifle ALLEGATIONS IN A PLEADING

with the courts and abuse their processes. It is
improper conduct and degrades the Every pleading shall contain in a mathematical
administration of justice. If the act of the party or and logical form, a plain, concise and direct
its counsel clearly constitutes wilful and statement of the ultimate facts on which the
deliberate forum-shopping, the same shall party relies for his claim and defense, as the case
constitute direct contempt, and a cause for may be, containing the statement of mere
administrative sanctions, as well as a ground for evidenciary facts (Sec. 1, Rule 8).
the summary dismissal of the case with prejudice
(Montes vs. CAMay 4, 2006)
MANNER OF MAKING ALLEGATIONS (RULE
It is the plaintiff or principal party who 8)
executes the certification under oath, and
not the attorney. It must be signed by the party PLEADING CONDITION PRECEDENT
himself and cannot be signed by his counsels. As
a general and prevailing rule, a certification
 39

Conditions precedents are matters which must be b) to attach the original or the copy of the
complied with before a cause of action arises. document to the pleading as an exhibit
When a claim is subject to a condition precedent, and to be part of the pleading; or
the compliance of the same must be alleged in c) to set forth in the pleading said copy of
the pleading. the instrument or document (Sec. 7, Rule
8).
Failure to comply with a condition precedent is an
independent ground for a motion to dismiss: that This manner of pleading a document applies only
a condition precedent for filing the claim has not to one which is the basis of action or a defense.
been complied (Sec. 1[j], Rule 16) (i.e. barangay Hence, if the document does not have the
conciliation, demand, etc) character of an actionable document, as when it
is merely evidentiary, it need not be pleaded
PLEADING A JUDGMENT strictly.

In pleading a judgment or decision of a domestic SPECIFIC DENIALS

or foreign court, judicial or quasi-judicial tribunal,
or of a board or officer, it is sufficient to aver the There are three modes of specific denial which
judgment or decision without need of alleging are contemplated by the Rules, namely:
matters showing the jurisdiction to render such a) By specifying each material allegation of
decision. the fact in the complaint, the truth of
which the defendant does not admit, and
PLEADING FRAUD, MISTAKE, MALICE, whenever practicable, setting forth the
INTENT, KNOWLEDGE AND OTHER substance of the matter which he will rely
CONDITION OF THE MIND JUDGMENTS upon to support his denial;
OFFICIAL DOCUMENTS OR ACTS b) By specifying so much of the averment in
the complaint as is true and material and
When making averments of FRAUD OR MISTAKE, denying only the remainder;
THE CIRCUMSTANCES CONSTITUTING SUCH c) By stating that the defendant is without
FRAUD OR MISTAKE must be stated with knowledge or information sufficient to
particularity (Sec. 5, Rule 8). It is not enough form a belief as to the truth of a material
therefore, for the complaint to allege that he was averment in the complaint, which has the
defrauded by the defendant. Under this provision, effect of denial.
the complaint must state with PARTICULARITY the
fraudulent acts of the adverse party. These The purpose of requiring the defendant to make a
particulars would necessarily include the time, specific denial is to make him disclose the
place and specific acts of fraud committed matters alleged in the complaint which he
against him. succinctly intends to disprove at the trial,
together with the matter which he relied upon to
MALICE, INTENT, KNOWLEDGE OR OTHER support the denial. The parties are compelled to
CONDITIONS OF THE MIND of a person may be lay their cards on the table.
averred GENERALLY (Sec. 5, Rule 8). Unlike in
fraud or mistake, they need not be stated with EFFECT OF FAILURE TO MAKE SPECIFIC
particularity. The rule is borne out of human DENIALS
experience. It is difficult to state the particulars
constituting these matters. Hence, a general Material allegations, except unliquidated
averment is sufficient. damages, not specifically denied are deemed
admitted (Sec. 11, Rule 8).

If the allegations are deemed admitted, there is

PLEADING AN ACTIONABLE DOCUMENT no more triable issue between the parties and if
the admissions appear in the answer of the
An actionable document is a document relied defendant, the plaintiff may file a motion for
upon by either the plaintiff or the defendant. judgment on the pleadings under Rule 34.

Whenever an actionable document is the basis of An admission in a pleading cannot be

a pleading, the rule specifically direct the pleader controverted by the party making such admission
to: because the admission is conclusive as to him. All
a) set forth in the pleading the substance of proofs submitted by him contrary thereto or
the instrument or the document; or inconsistent therewith should be ignored whether
 40

an objection is interposed by a party or not. Said A compulsory counterclaim or a cross-claim not

admission is a judicial admission, having been set up shall be barred (Sec. 2, Rule 9).
made by a party in the course of the proceedings
in the same case, and does not require proof. DEFAULT

A party who desires to contradict his own judicial Default is a procedural concept that occurs when
admission may do so only be either of two ways: the defending party fails to file his answer within
a) by showing that the admission was made the reglementary period. It does not occur from
through palpable mistake; or the failure of the defendant to attend either the
b) that no such admission was made (Sec. 4, pre-trial or the trial.
Rule 129).
WHEN A DECLARATION OF DEFAULT IS
The following are not deemed admitted by the PROPER
failure to make a specific denial:
a) The amount of unliquidated damages; If the defending party fails to answer within the
b) Conclusions in a pleading which do not time allowed therefor, the court shall, upon
have to be denied at all because only motion of the claiming party with notice to the
ultimate facts need be alleged in a defending party, and proof of such failure,
pleading; declare the defending party in default (Sec. 3,
c) Non-material allegations, because only Rule 9).
material allegations need be denied.
In order for the court to declare the defendant in
WHEN A SPECIFIC DENIAL REQUIRES AN default the following requisites must be present:
OATH 1. The court must have validly ACQUIRED
JURISDICTION over the person of the
Specific denials which must be under oath to be defendant either by service of summons
sufficient are: or voluntary appearance;
a) A denial of an actionable document (Sec. 2. The defendant FAILS TO ANSWER within
8, Rule 8); the time allowed therefore;
b) A denial of allegations of usury in a 3. There must be a MOTION to declare the
complaint to recover usurious interest defendant in default;
(Sec. 11, Rule 8). 4. There must be NOTICE to the defendant
by serving upon him a copy of such
motion;
EFFECT OF FAILURE TO PLEAD (RULE 9)
5. There must be PROOF of such failure to
answer; and
FAILURE TO PLEAD DEFENSES AND 6. There must be a HEARING to declare the
OBJECTIONS defendant in default.

Defenses or objections not pleaded either in a It is not correct to declare a party in default of the
motion to dismiss or in the answer are deemed defending party filed an answer
waived.
EFFECT OF AN ORDER OF DEFAULT
Exceptions:
a) Lack of jurisdiction over the subject 1) The party declared in default loses his
matter; standing in court preventing him from taking
b) That there is another action pending part in the trial;
between the same parties for the same 2) The party in default shall still be entitled to
cause (litis pendentia); notices of subsequent proceedings as well as
c) That the action is barred by the statute of to receive notice that he was declared in
limitations (prescription); default;
d) Res judicata. 3) The declaration of default is not an admission
 In all these cases, the court shall of the truth or validity of the plaintiff’s claims.
dismiss the claim.
RELIEF FROM AN ORDER OF DEFAULT
FAILURE TO PLEAD A COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM REMEDY FROM THE NOTICE OF ORDER AND
BEFORE JUDGMENT:
 41

 MOTION TO SET ASIDE ORDER OF the defendant was declared in default,

DEFAULT, showing that without a motion, or without having
a) the failure to answer was due to fraud, served with summons before the
accident, mistake, or excusable expiration of the reglementary period to
negligence, and answer, certiorari is available as a remedy.
b) the defendant has a meritorious
defense—there must be an affidavit of EFFECT OF A PARTIAL DEFAULT
merit (Sec. 3[b], Rule 9).
When a pleading asserting a claim states a
REMEDY AFTER JUDGMENT BUT BEFORE common cause of action against several
FINALITY: defending parties, some of whom answer and the
 MOTION FOR NEW TRIAL (Rule 37); others fail to do so, the court shall try the case
 MOTION FOR RECONSIDERATION; or against all upon the answers thus filed and render
 APPEAL from the judgment as being judgment upon the evidence presented (Sec.
contrary to the evidence or the law (Rule 33[c], Rule 9).
41).
Default is only against those defendant who
 You can directly file an appeal without didn’t file the answer but they can also benefit
passing MR and MNT; or you can MR/MNT from the answering defendants
and if denied, then you can still file an
appeal and have a new “fresh 15 day” EXTENT OF RELIEF
period of appeal (Neypes doctrine)
A judgment rendered against a party in default
 This Neypes doctrine on “fresh period of may not exceed the amount or be different from
appeal” applies to Rule 45 and Sec. 3 (e) that prayed for nor include unliquidated damages
of Rule 122. which are not awarded (Sec. 3[c], Rule 9). In fact,
there can be no automatic grant of relief as the
 The purpose of the doctrine is to court has to weigh the evidence.
standardize the period of appeal.
The court may render judgment before or after
 The appeal shall be taken within fifteen the presentation of evidence. So the court may
(15) days from notice of the award unliquidated damages in case where the
judgment or final order appealed court default defendant in default after the
from. Where a record on appeal is presentation of the evidence.
required, the appellant shall file a notice of
appeal and a record on appeal within ACTIONS WHERE DEFAULT ARE NOT
thirty (30) days from notice of the ALLOWED
judgment or final order.
1) Annulment of marriage;
 So the period of appeal is 15 days from 2) Declaration of nullity of marriage;
notice of judgment or 15 days from 3) Legal separation
final order appealed from. 4) In special civil actions of certiorari, prohibition
and mandamus where comment instead of an
 The SC ruled in one case that this “fresh answer is required to be filed; and
period of appeal” is applicable in criminal 5) Summary procedure.
cases (Judith Yu vs. Judge Samson,
Feb. 9, 2011) FILING AND SERVICE OF PLEADINGS (RULE
13)
REMEDY AFTER JUDGMENT BECOMES FINAL
AND EXECUTORY:
 PETITION FOR RELIEF FROM JUDGMENT PAYMENT OF DOCKET FEES
(Rule 38);
 ACTION FOR NULLITY OF JUDGMENT (Rule It is not simply the filing of the complaint or
47). appropriate initiatory pleading but the payments
of the prescribed docket fee that vests a trial
If the order of default is valid, court with JURISDICTION over the subject matter
Certiorari is not available. If the default or nature of the action. In connection with the
order was improvidently issued, that is, payment of docket fees, the court requires that
 42

all complaints, petitions, answers and similar SERVICE is the act of providing a party with a
pleadings must specify the amount of damages copy of the pleading or paper concerned (Sec. 2,
being prayed for both in the body of the pleading Rule 13).
and in prayer therein and said damages shall be
considered in the assessment of the filing fees; PERIODS OF FILING OF PLEADINGS
otherwise such pleading shall not be accepted for
filing or shall be expunged from the record. The date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as
Any defect in the original pleading resulting in shown by the post office stamp on the envelope
underpayment of the docket fee cannot be cured or the registry receipt, shall be considered as the
by amendment, such as by the reduction of the date of their filing, payment, or deposit in court.
claim as, for all legal purposes, there is no The envelope shall be attached to the record of
original complaint over which the court has the case (Sec. 3, Rule 13)
acquired jurisdiction.
THE FILING OF RESPONSIVE PLEADINGS
The rule on payment of docket fee has, in some SHALL HAVE THE FOLLOWING PERIODS
instances, been subject to the rule on LIBERAL
INTERPRETATION. Thus, in a case, it was held that 1) Answer to the complaint
while the payment of the required docket fee is a  within 15 days after service of
jurisdictional requirement, even its nonpayment summons unless a different period is
at the time of filing does not automatically cause fixed by the court.
the dismissal of the case, as long as the fee is
paid within the applicable prescriptive or 2) Answer of a defendant foreign private
reglementary period. juridical entity
a. If it has a resident agent
Also, if the amount of docket fees is insufficient  within 15 days after service of
considering the amount of the claim, the party summons to such agent.
filing the case will be required to pay the b. If it has no resident agent but it has an
deficiency, but jurisdiction is not automatically agent or officer in the Philippines
lost.  within 15 days after service of
summons to said agent or officer.
Within the period for taking an APPEAL, the
c. If it has no resident agent, agent or officer
appellant shall pay to the clerk of court which
the service of summons shall be made on
rendered the judgment or final order appealed
the proper government office which will
from, the full amount of the appellate court
then forward it by registered mail within
docket and other lawful fees (Sec. 4, Rule 41).
10 days to the corporation’s office
Hence, the Rule now requires that appellate
 the answer must be filed within 30
docket and other lawful fees must be paid within
days from the receipt of the summons
the same period for taking an appeal. Such
by the home office.
payment of docket fee within the prescribed
period is mandatory for the perfection of an
3) When the service is made by publication
appeal.
 within the time specified in the order
Without such payment, the appellate court does granting leave to serve summons by
not acquire jurisdiction over the subject matter of publication which shall not be less than
the action and the decision sought to be 60m days after notice.
appealed from becomes final and executor.
Hence, nonpayment is a valid ground for the 4) When the defendant is a non-resident on
dismissal of an appeal. However, delay in the whom extraterritorial service is made
payment of the docket fees confers upon the  within 60 days from such service.
court a discretionary, not a mandatory power to
dismiss an appeal. 5) Answer to an amended complaint
 where the amendment is a matter of
FILING VERSUS SERVICE OF PLEADINGS right, within 15 days from the service
of amended complaint. If the
FILING is the act of presenting the pleading or amendment is NOT a matter of right,
other paper to the clerk of court; the answer must be filed within 10
days from notice of the order admitting
the same.
 43

 The same periods shall apply to service, the service must be accompanied by a
answers filed on an amended written explanation why the service of filing was
counterclaim , cross claim and third not done personally. Exempt from this
party complaint. explanation are papers emanating from the court.
A violation of this explanation requirement may
6) Answer to counterclaim or cross-claim be a cause for the paper to be considered as not
 within 10 days from service having been filed (Sec. 11, Rule 13).

7) Answer to third-party complaint Personal service is made by:

 the period to answer shall be the same a) delivering a copy of the papers served
as the periods given in answering a personally to the party or his counsel, or
complaint which shall either be 15, 30 b) by leaving the papers in his office with his
or 60 days as the case may be. clerk or a person having charge thereof, or
c) If no person is found in the office, or his
8) Reply office is not known or he has no office,
 within 10 days from the service of the then by leaving a copy of the papers at
pleading responded to. the party’s or counsel‘s residence, if
known, with a person of sufficient age and
9) Answer to supplemental complaint discretion residing therein between eight
 within 10 days from notice of the order in the morning and six in the evening
admitting the supplemental complaint (Sec. 6, Rule 13).
unless a different period is fixed by the
court. SERVICE BY MAIL

MANNER OF FILING The preferred service by mail is by registered

mail. It is deemed complete upon actual receipt
By PERSONAL SERVICE or by REGISTERED MAIL. by the addressee or after 5 days from the date he
The filing of pleadings, appearances, motions, received the first notice of the postmaster
notices, orders, judgments and all other papers whichever is earlier. Service by ordinary mail may
shall be made by presenting the original copies be done only if no registry service is available in
thereof, plainly indicated as such, personally to the locality of either the sender or the addressee
the clerk of court or by sending them by (Sec. 7, Rule 13).
registered mail (Registry Service). In the first
case, the clerk of court shall endorse on the It shall be done by depositing the copy in the post
pleading the date and hour of filing. In the second office, in a sealed envelope, plainly addressed to
case, the date of the mailing of motions, the party or his counsel at his office, if known, or
pleadings, or any other papers or payments or otherwise at his residence, if known, with postage
deposits, as shown by the post office stamp on fully prepaid, and with instructions to the
the envelope or the registry receipt, shall be postmaster to return the mail to the sender after
considered as the date of their filing, payment, or ten (10) days if not delivered.
deposit in court. The envelope shall be attached
to the record of the case (Sec. 3, Rule 13). SUBSTITUTED SERVICE (FILING)

MODES OF SERVICE This mode is availed of only when there is failure

to effect service personally or by mail. This failure
There are two modes of service of pleadings, occurs when the office and residence of the party
judgments, motions, notices, orders, judgments or counsel is unknown.
and other papers:
a) personally, or It is effected by delivering the copy to the clerk of
b) by mail. court, with proof of failure of both personal
service and service by mail (Sec. 8, Rule 13).
However, if personal service and serviced by mail
cannot be made, service shall be done by Substituted service is complete at the time of
substituted service. delivery of the copy to the clerk of court.

PERSONAL SERVICE SERVICE OF JUDGMENTS, FINAL ORDERS

OR RESOLUTIONS
It is the preferred mode of service. If another
mode of service is used other than personal
 44

Final orders or judgments shall be served either office in a sealed envelope

personally or by registered mail. When a party assessed to the court;
summoned by publication has failed to appear in b) With postage fully paid; and
the action, final orders or judgments against him c) With the instructions to the
shall be served upon him also by publication at postmaster to return the mail to
the expense of the prevailing party (Sec. 9). the sender after 10 days if
undelivered.
PRIORITIES IN MODES OF SERVICE AND
FILING PROOF OF SERVICE
1) Proof of personal service shall consist of:
 Personal service is the preferred mode of  the written admission of the party served;
service. or
 The official return of the server; or
 The preferred service by mail is by registered  The affidavit of the party serving (in case
mail. of refusal to receive), containing full
information of the date, place and manner
 The following papers are required to be filed of service (Sec. 13, Rule 13).
in court and served upon the parties affected: 2) Proof of service by registered mail
(a) Judgments; (b) Resolutions; (c) Orders; (d)  Shall be shown by the affidavit of the
Pleadings subsequent to the complaint; (e) mailer showing compliance with Sec. 7,
Written motions; (f) Notices; (g) Appearances; Rule 13 and the registry receipt issued by
(h) Demands; (i) Offers of judgment; (j) the mailing office and present the
Similar papers (Sec. 4, Rule 13). document returned or the card.
3) Proof of service of ordinary mail
WHEN SERVICE IS DEEMED COMPLETE  Service shall be proved by affidavit of the
mailer showing compliance with Sec. 7,
Personal service is deemed complete upon the Rule 13
actual delivery following the above procedure
(Sec. 10, Rule 13). AMENDMENT (RULE 10)

Service by ordinary mail is deemed complete

upon the expiration of ten (10) days after mailing, AMENDMENT AS A MATTER OF RIGHT
unless the court otherwise provides. On the other
hand, service by registered mail is complete upon A plaintiff has the right to amend his complaint
actual receipt by the addressee, or after five (5) once at any time before a responsive
days from the date he received the first notice of pleading is served by the other party or in case
the postmaster, whichever is earlier (Sec. 8, Rule of a reply to which there is no responsive
13). pleading, at any time within ten (10) days after it
is served (Sec. 2, Rule 10).
Substituted service is complete at the time of
delivery of the copy to the clerk of court. Thus, before an answer is served on the plaintiff,
the latter may amend his complaint as a matter
PROOF OF FILING AND SERVICE of right for whatever reasons as it may be,
even to correct the error of judgment. The
PROOF OF FILING defendant may also amend his answer, also as a
The filing of a pleading or paper is proved by its matter of right, before a reply is served upon him.
existence in the record. If it is not in the record (Sec. 2 refers to an amendment made before the
1) If filed PERSONALLY: trial court, not to amendments before the CA).
 Proved by the written or stamped
acknowledgement of its filing by the The CA is vested with jurisdiction to admit or
clerk of court on a copy of the same; deny amended petitions filed before it. Hence,
or even if no responsive pleading has yet been
2) If filed by REGISTERED MAIL: served, if the amendment is subsequent to a
 Proved by the registry receipt AND the previous amendment made as a matter of right,
affidavit of the person who did the the subsequent amendment must be with leave
mailing with a full statement of: of court.
a) The date and place of
depositing the mail in the post So you can amend the complaint to correct the
error of jurisdiction as a matter of right (without
 45

leave of court) before a responsive pleading is the ends of substantial justice will be subserved
served even though there is already a motion to thereby. The court may grant a continuance to
dismiss filed for lack of jurisdiction. The court enable the amendment to be made (Sec. 5, Rule
should deny the motion since such motion is not 10).
a responsive pleading. Note: The amendment as
a matter of right should be filed before the order DIFFERENT FROM SUPPLEMENTAL
to dismiss becomes final. PLEADINGS

AMENDMENTS BY LEAVE OF COURT A supplemental pleading is one which sets forth

transactions, occurrences, or events which have
Leave of court is required for substantial happened since the date of the pleading sought
amendment made after service of a responsive to be supplemented. The filing of supplemental
pleading (Sec. 3, Rule 10). The plaintiff, for pleadings requires leave of court. The court may
example, cannot amend his complaint by allow the pleading only upon such terms as are
changing his cause of action or adding a new one just. This leave is sought by the filing of a motion
without leave of court. with notice to all parties (Sec. 6, Rule 10).

After a responsive pleading is filed, an A supplemental pleading does not extinguish the
amendment to the complaint may be substantial existence of the original pleading, while an
and will correspondingly require a substantial amended pleading takes the place of the original
alteration in the defenses of the adverse party. pleading. A supplemental pleading exists side
The amendment of the complaint is not only with the original; it does not replace that which it
unfair to the defendant but will cause supplements it does not supersede the original
unnecessary delay in the proceedings. Leave of but assumes that the original pleading remain as
court is thus, required. the issues to be tried in the action. A
supplemental pleading supplies the deficiencies
Where no responsive pleading has yet been in aid of an original pleading, not to entirely
served, no defenses would be altered. The substitute the latter.
amendment of the pleading will not then require
leave of court. EFFECT OF AMENDED PLEADING

FORMAL AMENDMENT  An amended pleading supersedes the original

one which it amends (Sec. 8, Rule 10).
A defect in the designation of the parties and  The original pleading loses its status as a
other clearly clerical or typographical errors may pleading, is deemed withdrawn and
be summarily corrected by the court at any disappears from the record. It has been held
stage of the action, at its initiative or on motion, that the original complaint is deemed
provided no prejudice is caused thereby to the superseded and abandoned by the
adverse party (Sec. 4, Rule 10). amendatory complaint only if the latter
introduces a new or different cause of action.
AMENDMENTS TO CONFORM TO OR  The defenses in the original pleadings not
AUTHORIZE PRESENTATION OF EVIDENCE reproduced in the amended pleadings are
waived.
When issues not raised by the pleadings are tried  Admissions in the superseded pleading can
with the express or implied consent of the still be received in evidence against the
parties, they shall be treated in all respects as if pleader.
they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the SUMMONS (Rule 14)
evidence and to raise these issues may be made
upon motion of any party at any time, even after  Summons is a writ or process issued and
judgment; but failure to amend does not affect served upon the defendant in a civil action for
the result of the trial of these issues. the purpose of securing his appearance
therein.
If evidence is objected to at the trial on the  The purpose of summons is to comply with
ground that it is not within the issues made by the constitutional rights on due process
the pleadings, the court may allow the pleadings  The service of summons enables the court to
to be amended and shall do so with liberality if acquire jurisdiction over the person of the
the presentation of the merits of the action and defendant. If there is no service of summons,
 46

any judgment rendered or proceedings had in b) By his voluntary appearance or

a case are null and void, except in case of submission to the jurisdiction of the court.
voluntary appearance. The law requiring the
manner of service of summons is The defendant’s voluntary appearance in the
jurisdictional. action shall be equivalent to service of summons.
 When the defendant is a corporation, Lack of jurisdiction over one’s person maybe
partnership or association organized under invoked in a motion to dismiss alleging such
the laws of the Philippines with a juridical ground. If no motion to dismiss is filed, it may be
personality, service may be made on the raised as an affirmative defense in the answer.
president, managing partner, general
manager, corporate secretary, treasurer, or The inclusion in a motion to dismiss of other
in-house counsel (Sec 11). grounds aside from lack of jurisdiction over the
 If a party dies and there is substitute, there is person of the defendant shall not be deemed a
no need for summons but only an order for voluntary appearance.
him tom appear.
PERSONAL SERVICE
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, It shall be served by HANDLING a copy to the
IN REM AND QUASI IN REM defendant in person, or if he refuses it, by
TENDERING it to him (Sec. 6, Rule 14).
In an action in personam, the purpose of
summons is not only to notify the defendant of SUBSTITUTED SERVICE (SUMMONS)
the action against him but also to acquire
jurisdiction over his person. The filing of the If the defendant cannot be served within a
complaint does not enable the courts to acquire reasonable time, service may be effected:
jurisdiction over the person of the defendant. By 1) By leaving copies of the summons at the
the filing of the complaint and the payment of the defendant’s dwelling house or residence
required filing and docket fees, the court acquires with some person of suitable age and
jurisdiction only over the person of the plaintiff, discretion then residing therein; or
not over the person of the defendant. Acquisition 2) By leaving copies at defendant’s office or
of jurisdiction over the latter is accomplished by a regular place of business with some
valid service of summons upon him. Service of competent person in charge thereof (Sec.
summons logically follows the filing of the 7).
complaint. Note further that the filing of the
complaint tolls the running of the prescriptive The following facts must first be shown for the
period of the cause of action in accordance with service to be valid:
Article 1155 of the Civil Code. 1) The impossibility of the personal service
within a reasonable time
In an action in rem or quasi in rem, 2) The effort exerted to locate the person to
jurisdiction over the defendant is not required be served
and the court acquires jurisdiction over an action 3) Service upon a person of sufficient age
as long as it acquires jurisdiction over the res. and discretion residing in the same place
The purpose of summons in these actions is not or some competent person in charge of his
the acquisition of jurisdiction over the defendant office or regular place of business
but mainly to satisfy the constitutional 4) There should be at least 3 attempts in 2
requirement of due process. days.

VOLUNTARY APPEARANCE It may be resorted to if there are justifiable

causes, where the defendant cannot be served
The defendant's voluntary appearance in the within a REASONABLE TIME (for plaintiff = 7 days;
action shall be equivalent to service of summons. sheriff = 15 – 30 days). An example is when the
The inclusion in a motion to dismiss of other defendant is in hiding and resorted to it
grounds aside from lack of jurisdiction over the intentionally to avoid service of summons, or
person of the defendant shall not be deemed a when the defendant refuses without justifiable
voluntary appearance (Sec. 20, Rule 14). reason to receive the summons.

Jurisdiction over the defendant is acquired by: In substituted service of summons, actual receipt
a) Valid service of summons; or of the summons by the defendant through the
person served must be shown. It further requires
 47

that where there is substituted service, there the frequency of the publication is a matter for
should be a report indicating that the person who the court to determine (Sec. 14, Rule 14).
received the summons in defendant’s behalf was
one with whom petitioner had a relation of The rule does not distinguish whether the action
confidence ensuring that the latter would receive is in personam, in rem or quasi in rem. The tenor
or would be notified of the summons issued in his of the rule authorizes summons by publication
name. whatever the action may be as long as the
identity of the defendant is unknown or his
Substituted service is not allowed in service of whereabouts are unknown.
summons on domestic corporations.
RULES ON SUMMONS ON DEFENDANT
CONSTRUCTIVE SERVICE (BY PUBLICATION)
(1) Resident
As a rule, summons by publication is available (a) Present in the Philippines
only in actions in rem or quasi in rem. It is not 1) Personal service (Rule 14, Sec. 6)
available as a means of acquiring jurisdiction over 2) Substituted service (Rule 14, Sec.
the person of the defendant in an action in 7)
personam. 3) Publication, but only if
a) his identity or whereabouts is
Against a resident, the recognized mode of unknown (Rule 14, Sec. 14);
service is service in person on the defendant and
under Sec. 6 Rule 14. In a case where the b) the action is in rem or quasi in
defendant cannot be served within a reasonable rem
time, substituted service will apply (Sec. 7, Rule (b) Absent from the Philippines
14), but no summons by publication which is 1) Substituted service (Rule 14, Sec.
permissible however, under the conditions set 7)
forth in Sec. 14, Rule 14. 2) Extraterritorial service (Rule 14,
Sec. 16 and 15); action need not be
Against a non-resident, jurisdiction is acquired in rem or quasi in rem
over the defendant by service upon his person
while said defendant is within the Philippines. As (2) Non-resident
once held, when the defendant is a nonresident, 1. Present in the Philippines
personal service of summons in the state is a) Personal service (Sec. 6, Rule 14)
essential to the acquisition of jurisdiction over b) Substituted service (Sec. 7, Rule
him. This is in fact the only way of acquiring 14)
jurisdiction over his person if he does not 2. Absent from the Philippines
voluntarily appear in the action. Summons by a) Action in rem or quasi in rem – only
publication against a nonresident in an action in Extraterritorial service (Rule 14,
personam is not a proper mode of service. Sec. 15)
b) Action in personam, and judgment
Publication is notice to the whole world that the cannot be secured by attachment
proceeding has for its object to bar indefinitely all (e.g. action for injunction)
who might be minded to make an objection of 1) Wait for the defendant to
any sort against the right sought to be come to the Philippines and
established. It is the publication of such notice to serve summons then
that brings the whole world as a party in the case 2) Wait the defendant to
and vests the court with jurisdiction to hear and voluntarily appear in court
decide it. (Rule 14, Sec. 20)
3) Plaintiff cannot resort to
SERVICE UPON A DEFENDANT WHERE HIS extraterritorial service of
IDENTITY IS UNKNOWN OR WHERE HIS summons
WHEREABOUTS ARE UNKNOWN
SERVICE UPON RESIDENTS TEMPORARILY
Where the defendant is designated as unknown, OUTSIDE THE PHILIPPINES
or whenever his whereabouts are unknown and
cannot be ascertained despite a diligent inquiry, Service of summons upon a resident of the
service may, with prior leave of court, be effected Philippines who is temporarily out of the country,
upon the defendant, by publication in a may, by leave of court be effected out of the
newspaper of general circulation. The place and Philippines as under the rules on extraterritorial
 48

service in Sec. 15, Rule 14 by any of the following

modes: When the action is in personam, jurisdiction over
1) by personal service as in Sec. 6, the person of the defendant is necessary for the
2) by publication in a news paper of general court to validly try and decide the case. However,
circulation together with a registered when the defendant is a nonresident, personal
mailing of a copy of the summons and the service of summons in the state is essential to
order of the court to the last known the acquisition of jurisdiction over him.
address of the defendant, or
3) by any manner the court may deem SERVICE UPON PRISONERS AND MINORS
sufficient under Sec. 16.
On a minor. Service shall be made on him
Like in the case of an unknown defendant or one personally and on his legal guardian if he has
whose whereabouts are unknown, the rule one, or if none, upon his guardian ad litem whose
affecting residents who are temporarily out of the appointment shall be applied for by the plaintiff,
Philippines applies in any action. Note also, that or upon a person exercising parental authority
summons by publication may be effected against over him, but the court may order that service
the defendant. made on a minor of 15 or more years of age shall
be sufficient (Sec. 10);
The defendant may however, also be served by
substituted service. This is because even if he is On prisoners. It shall be made upon him
abroad, he has a residence in the Philippines or a (prisoner) by serving on the officer ( becomes the
place of business and surely, because of his deputy sheriff) having the management of the jail
absence, he cannot be served in person within a or institution who is deemed deputized as a
reasonable time. special sheriff for said purpose (Sec. 9).

EXTRA-TERRITORIAL SERVICE, WHEN If served by the sheriff, his deputy, or other

ALLOWED proper court officer, there is no need to be sworn
but this is needed if served by other persons.
Under Sec. 15, Rule 14, extraterritorial service of
summons is proper only in four (4) instances PROOF OF SERVICE
namely:
1) When the action affects the personal When the service has been completed, the server
status of the plaintiffs; shall, within five (5) days therefrom, serve a copy
2) When the action relates to, or the subject of the return, personally or by registered mail, to
of which is, property within the Philippines, the plaintiff‘s counsel, and shall return the
in which the defendant has or claims a lien summons to the clerk who issued it, accompanied
or interest, actual or contingent; by proof of service (Sec. 4, Rule 14).
3) When the relief demanded in such action
consists, wholly or in part, in excluding the The proof of service of summons shall be made in
defendant from any interest in property writing by the server and shall set forth the
located in the Philippines; and manner, place and date of service; shall specify
4) When the defendant non-resident’s any papers which have been served with the
property has been attached within the process and the name of the person who received
Philippines. the same; and shall be sworn to when made by a
person other than a sheriff or his deputy (Sec.
Extraterritorial service of summons applies when 18).
the following requisites concur:
1) The defendant is nonresident; If the service has been made by publication,
2) He is not found in the Philippines; and service may be proved by the affidavit of the
3) The action against him is either in rem or printer, his foreman or principal clerk, or of the
quasi in rem. editor, business or advertising manager, to which
affidavit a copy of the publication shall be
If the action is in personam, this mode of service attached and by an affidavit showing the deposit
will not be available. There is no extraterritorial of a copy of the summons and order for
service of summons in an action in personam. publication in the post office, postage prepaid,
Hence, extraterritorial service upon a nonresident directed to the defendant by registered mail to
in an action for injunction which is in personam is his last known address (Sec. 19).
not proper (Banco Do Brasil vs. CA, 333 SCRA
545).
 49

MOTIONS (Rule 15)

The rule is a procedural principle which requires
that every motion that attacks a pleading,
MOTIONS IN GENERAL, DEFINITION OF judgment, order or proceeding shall include all
MOTION grounds then available, and all objections not so
included shall be deemed waived (Sec. 8).
A motion is an application for relief other than by
a pleading (Sec. 1, Rule 15). Since the rule is subject to the provisions of Sec.
1, Rule 9, the objections mentioned therein are
MOTIONS VERSUS PLEADINGS not deemed waived even if not included in the
motion. These objections are:
A pleading is a written statement of the a) that the court has no jurisdiction over the
respective claims and defenses of the parties subject matter,
submitted to the court for appropriate judgment b) that there is another action pending
(Sec. 1, Rule 6). It may be in the form of a between the same parties for the same
complaint, counterclaim, cross-claim, third-party cause (litis pendencia),
complaint, or complaint-in-intervention, answer c) that the action is barred by a prior
or reply (Sec. 2, Rule 6). judgment (res judicata), and
d) that the action is barred by the statute of
A motion on the other hand is an application for limitations (prescription) (Sec. 1, par. 2,
relief other than a pleading (Sec. 1, Rule 15). Rule 9).

A motion is not a pleading, even when reduced to Even if a motion to dismiss was filed and the
writing; it relates generally to procedural matters, issue of jurisdiction was not raised therein, a
unlike pleadings which generally states party may, when he files an answer, raise the
substantial questions. Moreover, a motion is not lack of jurisdiction as an affirmative defense
an independent remedy, and thus cannot replace because this defense is not barred under the
an action to enforce a legal right. omnibus motion rule.

CONTENTS AND FORM OF MOTIONS A motion to dismiss is a typical example of a

motion subject to omnibus motion rule, since a
A motion shall state the order sought to be motion to dismiss attacks a complaint which is a
obtained, and the grounds which it is based, and pleading.
if necessary shall be accompanied by supporting
affidavits and other papers (Sec. 3). Under the omnibus motion rule, a motion
attacking a pleading like a motion to dismiss shall
All motions must be in writing except those made include all grounds then available and all
in open court or in the course of a hearing or trial objections not so included shall be deemed
(Sec. 2). waived. It can no longer be invoked as affirmative
defense in the answer which the movant may file
NOTICE OF HEARING AND HEARING OF following the denial of his motion to dismiss. The
MOTIONS defense of lack of jurisdiction over the subject
matter is however, a defense not barred by the
Except for motions which the court may act upon failure to invoke the same in a motion to dismiss
without prejudicing the rights of the adverse already filed.
party, every written motion shall be set for
hearing by the applicant. LITIGATED AND EX PARTE MOTIONS

The motion which contains the notice of hearing A litigated motion is one which requires the
shall be served as to ensure its receipt by the parties to be heard before a ruling on the motion
other party at least three (3) days before the date is made by the court. Sec. 4 establishes the
of hearing, unless the court for good cause sets general rule that every written motion is deemed
the hearing on shorter notice. It shall be a litigated motion. A motion to dismiss (Rule 16),
addressed to all parties concerned, and shall a motion for judgment for the pleadings (Rule
specify the time and date of the hearing which 34), and a summary judgment (Rule 35), are
must not be later than ten (10) days after the litigated motions.
filing of the motion (Sec. 4, Rule 15).
An ex parte motion is one which does not
OMNIBUS MOTION RULE require that the parties be heard, and which the
 50

court may act upon without prejudicing the rights The purpose of the motion is to seek an order
of the other party. This kind of motion is not from the court directing the pleader to submit a
covered by the hearing requirement of the Rules bill of particulars which avers matters with
(Sec. 2). An example of an ex parte motion is that sufficient definitiveness or particularity to enable
one filed by the plaintiff pursuant to Sec. 1, Rule the movant to prepare his responsive pleading
18, in which he moves promptly that the case be (Sec. 1, Rule 12), not to enable the movant to
set for pre-trial. A motion for extension of time is prepare for trial. The latter purpose is the
an ex parte motion made to the court in behalf of ultimate objective of the discovery procedures
one or the other of the parties to the action, in from Rules 23 to 29 and ever of a pre-trial under
the absence and usually without the knowledge Rule 18.
of the other party or parties. Ex parte motions are
frequently permissible in procedural matters, and In other words, the function of a bill of particulars
also in situations and under circumstances of is to clarify the allegations in the pleading so an
emergency; and an exception to the rule adverse party may be informed with certainty of
requiring notice is sometimes made where notice the exact character of a cause of action or a
or the resulting delay might tend to defeat the defense. Without the clarifications sought by the
objective of the motion. motion, the movant may be deprived of the
opportunity to submit an intelligent responsive
Motion of course – a motion for a certain kind of pleading.
relief or remedy to which the movant is entitled
as a matter of right, and not as a matter of This is to avert the danger where the opposing
discretion on the part of the court. Moreover, the party will find difficulty in squarely meeting the
allegations contained in such a motion do not issues raised against him and plead the
have to be investigated or verified. An example corresponding defenses which if not timely raised
would be a motion filed out of time, because this in the answer will be deemed waived.
motion may be disposed of the court on its own
initiative. Another example would be a motion to A motion for a bill of particulars is to be filed
sell certain property after the period given by the before, not after responding to a pleading (Sec. 1,
court to the debtor to pay has elapsed, and such Rule 12). Thus, where the motion for bill of
previous order had specified that the property be particulars is directed to a complaint, the motion
sold in case of default. should be filed within fifteen (15) days after
service of summons. If the motion is directed to a
Special motion – the opposite of a motion of counterclaim, then the same must be filed within
course, here the discretion of the court is ten (10) days from service of the counterclaim
involved; usually an investigation of the facts which is the period provided for by Sec. 4, Rule
alleged is required. 11 to answer a counterclaim.

PRO-FORMA MOTIONS In case of a reply to which no responsive pleading

is provided for by the Rules, the motion for bill of
The Court has consistently held that a motion particulars must be filed within ten (10) days of
which does not meet the requirements of the service of said reply (Sec. 1, Rule 12).
Sections 4 and 5 of Rule 15 on hearing and notice
of the hearing is a mere scrap of paper, which the ACTIONS OF THE COURT
clerk of court has no right to receive and the trial
court has no authority to act upon and one which Upon receipt of the motion which the clerk of
will be treated as a motion intended to delay the court must immediately bring to the attention of
proceedings. Service of a copy of a motion the court, the latter has three possible options,
containing a notice of the time and the place of namely:
hearing of that motion is a mandatory 1) to deny the motion outright,
requirement, and the failure of movants to 2) to grant the motion outright or
comply with these requirements renders their 3) to hold a hearing on the motion.
motions fatally defective.
COMPLIANCE WITH THE ORDER AND
EFFECT OF NON-COMPLIANCE
MOTIONS FOR BILL OF PARTICULARS
(RULE 12) If a motion for bill of particulars is granted, the
court shall order the pleader to submit a bill of
PURPOSE AND WHEN APPLIED FOR particulars to the pleading to which the motion is
directed. The compliance shall be effected within
 51

ten (10) days from notice of the order, or within

MOTION TO DISMISS (RULE 16)
the period fixed by the court (Sec. 3, Rule 12).

In complying with the order, the pleader may file  A motion to dismiss is not a pleading. It is
the bill of particulars either in a separate pleading merely a motion. It is an application for relief
or in the form or an amended pleading (Sec. 3, other than by a pleading (Sec. 1, Rule 15).
Rule 12). The bill of particulars submitted  The pleadings allowed under the Rules are:
becomes part of the pleading for which it is a) complaint, (b) answer, (c)
intended (Sec. 6, Rule 12). counterclaim, (d) cross-claim, (e) third
(fourth, etc.) –party complaint, (f)
If the order to file a bill of particulars is not complaint in intervention (Sec. 2, Rule
obeyed, or in case of insufficient compliance 6), and reply (Sec. 10, Rule 6). A
therewith, the court may: motion is not one of those specifically
a) order the striking out of the pleading; or designated as a pleading.
b) the portions thereof to which the order  Failure to state a cause of action
was directed; or
c) make such other order as it deems just GROUNDS
(Sec. 4).
Under Sec. 1, Rule 16, a motion to dismiss may
EFFECT ON THE PERIOD TO FILE A be filed on any of the following grounds:
RESPONSIVE PLEADING a) Lack of jurisdiction over the person of the
defending party;
A motion for bill of particulars is not a pleading b) Lack of jurisdiction over the subject matter
hence, not a responsive pleading. Whether or not of the claim;
his motion is granted, the movant may file his c) The venue is improperly laid;
responsive pleading. When he files a motion for d) The plaintiff has no legal capacity to sue;
BOP, the period to file the responsive pleading is e) There is another action pending between
stayed or interrupted. the same parties and for the same cause
(lis pendens);
After service of the bill of particulars upon him or f) The cause of action is barred by a prior
after notice of the denial of his motion, he may judgment (res judicata) or by the statute
file his responsive pleading within the period to of limitations (prescription);
which he is entitled to at the time the motion for g) The pleading asserting the claim
bill of particulars is filed. If he has still eleven (11) states no cause of action;
days to file his pleading at the time the motion h) The claim or demand has been paid,
for BOP is filed, then he has the same number of waived, abandoned, or otherwise
days to file his responsive pleading from the extinguished;
service upon him of the BOP. i) The claim on which the action is founded
is unenforceable under the provisions of
If the motion is denied, then he has the same the statute of frauds; and
number of days within which to file his pleading j) A condition precedent for filing the action
counted from his receipt of the notice of the order has not been complied with.
denying his motion. If the movant has less than
five (5) days to file his responsive pleading after The language of the rule, particularly on the
service of the bill of particulars or after notice of relation of the words “abandoned” and “otherwise
the denial of his motion, he nevertheless has five extinguished” to the phrase “claim or demand
(5) days within which to file his responsive deemed set forth in the plaintiff’s pleading” is
pleading. (Sec.5, Rule 12). broad enough to include within its ambit the
defense of bar by laches.
A seasonable motion for a bill of particulars
interrupts the period within which to answer. After However, when a party moves for the dismissal of
service of the bill of particulars or of a more the complaint based on laches, the trial court
definite pleading, or after notice of denial of his must set a hearing on the motion where the
motion, the moving party shall have the same parties shall submit not only their arguments on
time to serve his responsive pleading, if any is the questions of law but also their evidence on
permitted by the rules, as that to which he was the questions of fact involved. Thus, being factual
entitled at the time of serving his motion, but no in nature, the elements of laches must be proved
less than five (5) days in any event. or disproved through the presentation of
evidence by the parties.
 52

 The filing of an appeal from an order

RESOLUTION OF MOTION denying a motion to dismiss is not the
remedy prescribed by existing rules.
After the hearing, the court may dismiss the  The order of denial, being interlocutory
action or claim, deny the motion, or order the is not appealable (Sec 1[c], Rule 4).
amendment of the pleading. The court shall not
defer the resolution of the motion for the reason 2) Civil action under Rule 65 (Certiorari)
that the ground relied upon is not indubitable. In  In order to justify the grant of the
every case, the resolution shall state clearly and extraordinary remedy of certiorari, the
distinctly the reasons therefor (Sec. 3). must be a showing that the denial of
the motion was tainted with grave
REMEDIES OF PLAINTIFF WHEN THE abuse of discretion amounting to lack
COMPLAINT IS DISMISSED of jurisdiction. Without such showing,
Rule 65 cannot be availed of as a
Where the dismissal is final but is without remedy.
prejudice (interlocutory), the plaintiff may simply  The general rule is that the denial of a
re-file the action depending upon the ground for motion to dismiss cannot be
the dismissal of the action. For instance, if the questioned in a special civil action for
ground for dismissal was anchored on improper certiorari which is a remedy designed
venue, the plaintiff may file the action in the to correct errors of jurisdiction and not
proper venue. errors of judgment. Neither can a
denial of a motion to dismiss be the
Where the dismissal is final and it bars the re- subject of an appeal unless and until a
filing of the case, he may appeal from the order final judgment or order is rendered.
of dismissal where the ground relied upon is one  A writ of certiorari is not intended to
which bars the refiling of the complaint like res correct every controversial
judicata, prescription, extinguishment of the interlocutory ruling. It is resorted to
obligation or violation of the statute of frauds only to correct a grave abuse of
(Sec. 5, Rule 16). discretion or a whimsical exercise of
judgment equivalent to lack of
Since the complaint cannot be refiled, the jurisdiction. Its function is limited to
dismissal is with prejudice. Under Sec. 1[h], Rule keeping an inferior court within its
41, it is an order dismissing an action without jurisdiction and to relieve persons from
prejudice which cannot be appealed from. arbitrary acts, acts which courts or
Conversely, where the dismissal is with prejudice, judges have no power or authority in
an appeal from the order of dismissal is not law to perform. It is not designed to
precluded. correct erroneous findings and
conclusions made by the courts.
Where the dismissal is without prejudice and the
court gravely abused its discretion in doing so, 3) File an appeal
the plaintiff may resort to certiorari (Sec. 1, Rule
 This remedy is appropriate in the
41).
instances where the defendant is barred
from refiling the same action of claim if
REMEDIES OF THE DEFENDANT WHEN THE
the dismissal is based on the following
MOTION IS DENIED
grounds:
a) The cause of action is barred by a
1) File answer within the balance of the
prior judgment
period prescribed by Rule 11 to which he was
b) The cause of action is barred by
entitled at the time of serving his motion, but
the statute of limitations
not less than five (5) days in any event (Sec.
c) The claim or demand has been
4, Rule 16).
paid, waived, abandoned or
 As a rule, the filing of an answer, going otherwise extinguished
through the usual trial process, and d) The claim on which the action is
the filing of a timely appeal from an founded is unenforceable under the
adverse judgment are the proper provisions of the statute of frauds.
remedies against a denial of a motion
to dismiss. 4) The denial of a motion to dismiss is
interlocutory, hence, the remedy is to file an
 53

answer, proceed to trial, and await judgment should be an end to litigation (republicae
before interposing an appeal. ut sit litium); and
 The denial should be raised as an error 2) the hardship on the individual of being
of the trial court on appeal. vexed twice for the same cause (nemo
debet bis vexari et eadem causa).
EFFECT OF DISMISSAL OF COMPLAINT ON
CERTAIN GROUNDS Accordingly, courts will simply refuse to reopen
what has been decided. They will not allow the
When the complaint is dismissed on the grounds same parties or their privies to litigate anew a
of: question once it has been considered and
a)prior judgment decided with finality. Litigations must end and
b)by the statute of limitations terminate sometime and somewhere. The
c)payment, waiver, abandonment or effective and efficient administration of justice
extinguishment of the claim requires that once a judgment has become final,
d) unenforceability of the cause of action the prevailing party should not be deprived of the
under the statute of frauds fruits of the verdict by subsequent suits on the
 the dismissal shall bar the refiling of same issues filed by the same parties.
the same action or claim, but this is
without prejudice to the right of the Res judicata comprehends two distinct
other party to appeal from the order of concepts:
dismissal because such dismissal is a a) bar by a former judgment
final order, not merely interlocutory  bars the prosecution of a second
(Sec. 5). action upon the same claim, demand
or cause of action.
WHEN GROUNDS PLEADED AS b) conclusiveness of judgment
AFFIRMATIVE DEFENSES  a fact or question which was in issue in
a former suit and was there judicially
If no motion to dismiss has been filed, any of the passed upon and determined by a
grounds provided for dismissal may be pleaded court of competent jurisdiction, is
as an affirmative defense in the answer and, in conclusively settled by the judgment
the discretion of the court, a preliminary hearing therein as far as the parties to that
may be had thereon as if a motion to dismiss has action and persons in privity with them
been filed (Sec. 6, Rule 16). are concerned and cannot be again
litigated in any future action between
Implied under Sec. 6, Rule 16 is that the grounds such parties or their privies, in the
for a motion to dismiss are not waived even if the same court or any other court of
defendant fails to file a motion to dismiss concurrent jurisdiction on either the
because he may still avail of the defenses under same or different cause of action,
Rule 16 as affirmative defenses in his answer. while the judgment remains
unreversed by proper authority.
As a rule, a preliminary hearing is not authorized
when a motion to dismiss has been filed. An DISTINGUISHED FROM DEMURRER TO
exception previously carved out as if the trial EVIDENCE (RULE 33)
court had not categorically resolved the motion to
dismiss. Another exception would be justified Demurrer to evidence is a motion to dismiss filed
under the liberal construction rule as when it is by the defendant after the plaintiff had rested his
evident that the action is barred by res judicata. A case on the ground of insufficiency of evidence. It
strict application of Sec. 6 would accordingly lead may be filed after the plaintiff has completed the
to absurdity when an obviously barred complaint presentation of his evidence. It is an aid or
continues to be litigated. The denial of a motion instrument for the expeditious termination of an
to dismiss does not preclude any future reliance action similar to a motion to dismiss, which the
on the grounds relied thereupon. court or tribunal may either grant or deny.

BAR BY DISMISSAL Distinctions:

a) A motion to dismiss should be filed within
the time for but prior to the filing of the
Res judicata as a ground for dismissal is based on
two grounds, namely: answer of the defending party to the
pleading asserting the claim against him;
1) public policy and necessity, which makes
it to the interest of the State that there a demurrer to evidence may be filed only
 54

after the plaintiff has completed the

presentation of his evidence.  The dismissal as a matter of right ceases
b) A motion to dismiss is anchored on when an answer or a motion for summary
preliminary objections; a demurrer is judgment is served on the plaintiff and not
anchored on one ground—insufficiency of when the answer or the motion is filed
evidence; and with the court. Thus, if a notice of
c) If a motion to dismiss is denied, the dismissal is filed by the plaintiff even after
defendant may file his responsive pleading an answer has been filed in court but
(answer) or else he may declared in before the responsive pleading has been
default and if granted, plaintiff may appeal served on the plaintiff, the notice of
or if subsequent case is not barred, he dismissal is still a matter of right.
may re-file the case.
d) In a demurrer, if denied, the defendant TWO-DISMISSAL RULE
may present his evidence and if granted,
plaintiff appeals and the order of dismissal The two-dismissal rule applies when the plaintiff
is reversed, the defendant loses his right has:
to present evidence. a) twice dismissed actions;
b) based on or including the same claim; and
Rule 17 is based on allegations; while Rule 33 is c) in a court of competent jurisdiction.
based on evidence  The second notice of dismissal will bar
the refiling of the action because it will
DISMISSAL OF ACTIONS (Rule 17) operate as an adjudication of the claim
upon the merits.
1) DISMISSAL UPON NOTICE BY PLAINTIFF 2) DISMISSAL UPON MOTION BY PLAINTIFF

 At any time before the service of an  Once either an answer or motion for
answer or the service of a motion for summary judgment has been served on
summary judgment, a complaint may be the plaintiff, the dismissal is no longer a
dismissed by the plaintiff by filing a notice matter of right and will require the filing of
of dismissal. Upon the filing of the notice a motion to dismiss, not a mere notice of
of dismissal, the court shall issue an order dismissal.
confirming the dismissal (Sec. 1, Rule 17).
This dismissal shall be without prejudice to
the re-filing of the complaint, except  The motion to dismiss will now be subject
when: to the approval of the court which will
1) The notice of dismissal provides decide on the motion upon such terms and
that the dismissal is with prejudice; conditions as are just (Sec. 2, Rule 17)
or unless otherwise specified in the order,
2) The plaintiff has previously the dismissal shall be without prejudice. .
dismissed the same case in a court The dismissal under Sec. 2 is no longer a
of competent jurisdiction. matter of right on the part of the plaintiff
but a matter of discretion upon the court.
 It is not the order confirming the dismissal
which operates to dismiss the complaint. EFFECT OF DISMISSAL UPON EXISTING
As the name of the order implies, said COUNTERCLAIM
order merely confirms a dismissal already
effected by the filing of the notice of If a counterclaim has already been pleaded by
dismissal. The court does not have to the defendant prior to the service upon him of
approve the dismissal because it has no the plaintiff’s motion to dismiss, and the court
discretion on the matter. Before an answer grants said motion to dismiss, the dismissal “shall
or a motion for summary judgment has be limited to the complaint” (Sec. 2, Rule 17).
been served upon the plaintiff, the
dismissal by the plaintiff by the filing of The dismissal of the complaint does not carry
the notice is a matter of right. The with it the dismissal of the counterclaim, whether
dismissal occurs as of the date of the it is a compulsory or a permissive counterclaim
notice is filed by the plaintiff and not the because the rule makes no distinction. The
date the court issues the order confirming defendant, if he so desires may prosecute his
the dismissal. counterclaim either in a separate action or in the
 55

same action. Should he choose to have his Pre-trial is a mandatory conference and personal
counterclaim resolved in the same action, he confrontation before the judge between the
must notify the court of his preference within parties and their respective counsel.
fifteen (15) days from the notice of the plaintiff‘s
motion to dismiss. Should he opt to prosecute his It is conducted after the last pleading has been
counterclaim in a separate action, the court served and filed, it shall be the duty of the
should render the corresponding order granting plaintiff to promptly move ex parte that the case
and reserving his right to prosecute his claim in a be set for pre-trial (within 5 days from the last
separate complaint. pleading has been filed).

DISMISSAL DUE TO THE FAULT OF NATURE AND PURPOSE

PLAINTIFF
The conduct of a pre-trial is mandatory. Pre-trial
A complaint may be dismissed by the court motu is a procedural device intended to clarify and limit
proprio or upon a motion filed by the defendant. the basic issues between the parties. It thus
The dismissal is this case will be through reasons paves the way for a less cluttered trial and
attributed to his fault. resolution of the case. Its main objective is to
simplify, abbreviate and expedite trial, or totally
Sec. 2, Rule 17 provides the following grounds for dispense with it.
dismissal:
a) Failure of the plaintiff, without justifiable It is a basic precept that the parties are bound to
reasons, to appear on the date on the date honor the stipulations made during the pre-trial.
of the presentation of his evidence in
chief; The court shall consider the following maters in
b) Failure of the plaintiff to prosecute his the pre-trial:
action for an unreasonable length of time; 1) The possibility of an amicable settlement
c) Failure of the plaintiff to comply with the or a submission to alternative modes of
Rules of Court; dispute resolution;
d) Failure of the plaintiff to obey any order of 2) Simplification of issues;
the court; 3) Necessity or desirability of amendments to
e) Failure to appear at the trial; or the pleadings;
f) Lack of jurisdiction. 4) Possibility of obtaining stipulations or
admissions of facts and of documents to
The dismissal shall have the effect of an avoid unnecessary proof;
adjudication upon the merits and is thus with 5) Limitation of the number of witnesses;
prejudice to the re-filing of the action, unless the 6) Advisability of a preliminary reference of
court declares otherwise. issues to a commissioner;
7) Propriety of rendering judgment on the
DISMISSAL OF COUNTERCLAIM, CROSS- pleadings, or summary judgment, or of
CLAIM OR THIRD-PARTY COMPLAINT dismissing the action should a valid
ground therefor be found to exist;
The rule on the dismissal of a complaint applies 8) Advisability or necessity of suspending the
to the dismissal of any counterclaim, cross-claim, proceedings; and
or third-party claim. 9) Other matters as may aid in the prompt
disposition of the action (Sec. 2, Rule 18).
A voluntary dismissal by the claimant alone by
notice pursuant to Sec. 1, Rule 17 shall be made NOTICE OF PRE-TRIAL
before a responsive pleading or a motion for
summary judgment is served or, if there is none, The notice of pre-trial shall be served on the
before the introduction of evidence at the trial or counsel of the party if the latter is represented by
hearing (Sec. 4). counsel. Otherwise, the notice shall be served on
the party himself. The counsel is charged with the
PRE-TRIAL (Rule18) duty of notifying his client of the date, time and
place of the pre-trial (Sec. 3, Rule 18).

CONCEPT OF PRE-TRIAL Notice of pre-trial is so important that it would be

grave abuse of discretion for the court for
example, to allow the plaintiff to present his
evidence ex parte for failure of the defendant to
 56

appear before the pre-trial who did not receive The parties shall file with the court their
through his counsel a notice of pre-trial. respective pre-trial briefs which shall be received
at least three (3) days before the date of the pre-
In one case, the SC said that there is no legal trial. This pre-trial brief shall be served on the
basis for a court to consider a party notified of adverse party (Sec. 6, Rule 18).
the pre-trial and to consider that there is no
longer a need to send notice of pre-trial merely The pre-trial brief shall contain the following
because it was his counsel who suggested the matters:
date of pre-trial. 1) A statement of their willingness to enter
into an amicable settlement or alternative
If the plaintiff failed to move for pre-trial, the modes of dispute resolution, indicating the
clerk of court shall do so. desired terms thereof;
2) A summary of admitted facts and
APPEARANCE OF PARTIES; EFFECT OF proposed stipulation of facts;
FAILURE TO APPEAR 3) The issues to be tried or resolved;
4) The documents or exhibits to be
It shall be the duty of both the parties and their presented, stating the purposes thereof;
counsels to appear at the pre-trial (Sec. 4, Rule 5) A manifestation of their having availed of
18). or their intention to avail of discovery
procedures or referral to commissioners;
The failure of the plaintiff to appear shall be and
cause for the dismissal of the action. This 6) The number and names of the witnesses,
dismissal shall be with prejudice except when the and the substance of their respective
court orders otherwise (Sec. 5, Rule 18). Since testimonies (Sec.6, Rule 18).
the dismissal of the action shall be with prejudice,
unless otherwise provided, the same shall have  Failure to file the pre-trial brief shall have the
the effect of an adjudication on the merits thus, same effect as failure to appear at the pre-
final. The remedy of the plaintiff is to appeal from trial.
the order of dismissal. An order dismissing an a. If it is the plaintiff who fails to file a
action with prejudice is appealable. Under the pre-trial brief, such failure shall be
Rules, it is only when the order of dismissal is cause for dismissal of the action.
without prejudice, that appeal cannot be availed b. If it is the defendant who fails to do so,
of (Sec. 1[h], Rule 41). Since appeal is available, such failure shall be cause to allow the
certiorari is not the remedy because the plaintiff to present his evidence ex
application of a petition for certiorari under Rule parte.
65 is conditioned upon the absence of appeal or  A pre-trial brief is not required in a criminal
any plain, speedy and adequate remedy (Sec. 1, case.
Rule 65).
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
The failure of the defendant to appear shall CASE AND PRE-TRIAL IN CRIMINAL CASE
be cause to allow the plaintiff to present his
evidence ex parte and for the court to The pre-trial in a civil case is set when the
render judgment on the basis of the plaintiff moves ex parte to set the case for pre-
evidence presented by the plaintiff (Sec. 5, trial (Sec.1, Rule 18). The pre-trial in criminal
Rule 18). The order of the court allowing the case is ordered by the court and no motion to set
plaintiff to present his evidence ex parte does not the case for pre-trial is required from either the
dispose of the case with finality. The order is prosecution or the defense (Sec. 1, Rule 118).
therefore, merely interlocutory; hence, not
appealable. Under Sec. 1(c) of Rule 41, no appeal The motion to set the case for pre-trial in a civil
may be taken from an interlocutory order. The case is made after the last pleading has been
defendant who feels aggrieved by the order may served and. In a criminal case, the pre-trial is
move for the reconsideration of the order and if ordered by the court after arraignment and within
the denial is tainted with grave abuse of thirty (30) days from the date the court acquires
discretion, he may file a petition for certiorari. jurisdiction over the person of the accused.

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO The pre-trial in a civil case considers the
FILE possibility of an amicable settlement as an
important objective. The pre-trial in a criminal
case does not include the considering of the
 57

possibility of amicable settlement of criminal Mandatory Mandatory

liability as one of its purposes. Presence of defendant Accused need not be
and counsel present, but his
In a civil case, the agreements and admissions mandatory counsel must be
made in the pre-trial are not required to be present, otherwise he
signed by the parties and their counsels. They are may be sanctioned
to be contained in the record of pre-trial and the Amicable settlement is Amicable settlement is
pre-trial order (Sec. 7, Rule 18). In a criminal discussed not discussed, unless
case, all agreements or admissions made or the criminal case is
entered during the pre-trial conference shall be covered by summary
reduced in writing and signed by the accused and procedure
counsel; otherwise, they cannot be used against Agreement included in Agreements or
the accuse (Sec. 2, Rule 118). pre-trial order need admissions must be
not be in writing written and signed by
The sanctions for non-appearance in a pre-trial the accused and
are imposed upon the plaintiff or the defendant in counsel to be
a civil case. The sanctions in a criminal case are admissible against
imposed upon the counsel for the accused or the him.
prosecutor.

CIVIL PRE-TRIAL CRIMINAL PRE-TRIAL

Intervention is a legal proceeding by which a

person who is not a party to the action is
ALTERNATIVE DISPUTE RESOLUTION (ADR)
permitted by the court to become a party by
intervening in a pending action after meeting the
1) If the case has already filed a complaint conditions and requirements set by the Rules.
with the trial court without prior recourse This third person who intervenes is one who is not
to arbitration, the proper procedure to originally impleaded in the action.
enable an arbitration panel to resolve the
parties dispute pursuant to the contract is Intervention is merely a collateral or accessory or
for the trial court to stay the proceedings. ancillary to the principal action ad not an
After the arbitration proceeding has independent proceeding. With the final dismissal
already been pursued and completed, of the original action, the complaint in
then the trial court may confirm the award intervention can no longer be acted upon.
made by the arbitration panel.
REQUISITES FOR INTERVENTION
A party has several judicial remedies available at
its disposal after the Arbitration Committee 1) There must be a motion for intervention filed
denied its Motion for Reconsideration: before rendition of judgment by the trial
1) It may petition the proper RTC to issue an court. A motion is necessary because leave of
order vacating the award on the grounds court is required before a person may be
provided for under Sec. 24 of the allowed to intervene.
Arbitration Law; 2) The movant must show in his motion that he
2) File a petition for review under Rule 43 has:
with the Court of Appeals on questions of a) A legal interest in the matter in litigation,
fact, of law, or mixed questions of fact and the success of either of the parties in the
law (Sec. 41, ADR); action, or against both parties;
3) File a petition for certiorari under Rule 65 b) That the movant is so situated as to be
on the ground that the Arbitration adversely affected by a distribution or
Committee acted without or in excess of other disposition of property in the
its jurisdiction or with grave abuse of custody of the court or of an officer
discretion amounting to lack or excess of thereof; and
jurisdiction. c) That the intervention must not only unduly
delay or prejudice the adjudication of the
rights of the original parties and that the
INTERVENTION (Rule 19) intervenor’s rights may not be fully
protected in a separate proceeding.
 58

d) The intervenor’s rights may not be fully Republic, or an officer or agency thereof,
protected in a separate proceeding. the tender need not be made.
3) The service must be made so as to allow
TIME TO INTERVENE the witness a reasonable time for
preparation and travel to the place of
The motion to intervene may be filed at any time attendance.
before the rendition of judgment by the trial court 4) If the subpoena is duces tecum, the
(Sec. 2, Rule 18). Intervention after trial and reasonable cost of producing the books,
decision can no longer be permitted. documents or things demanded shall also
be tendered.
REMEDY FOR THE DENIAL OF MOTION TO
INTERVENTION Service of a subpoena shall be made by the
sheriff, by his deputy, or by any other person
1) The appellate court may exercise sound specially authorized, who is not a party and is not
judicial discretion less than eighteen (18) years of age (Sec. 6, Rule
2) An indispensable party can intervene even 21).
after the rendition of judgment
3) The remedy of the aggrieved party is appeal. COMPELLING ATTENDANCE OF WITNESSES;
Mandamus will not lie except in case of grave CONTEMPT
abuse of discretion and if there is no other
plain, speedy and adequate remedy. In case of failure of a witness to attend, the court
or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness,
SUBPOENA (Rule 21) may issue a warrant to the sheriff of the province,
or his deputy, to arrest the witness and bring him
Court cannot issue subpoena absent any action before the court or officer where his attendance is
required, and the cost of such warrant and
Subpoena is a process directed to a person seizure of such witness shall be paid by the
requiring him to attend and to testify at the witness if the court issuing it shall determine that
hearing or the trial of an action, or at any his failure to answer the subpoena was wilful and
investigation conducted under the laws of the without just cause (Sec. 8).
Philippines, or for taking of his deposition (Sec. 1,
Rule 21). Failure by any person without adequate cause to
obey a subpoena served upon him shall be
SUBPOENA DUCES TECUM - is a process deemed a contempt of the court from which the
directed to a person requiring him to bring subpoena is issued. If the subpoena was not
with him at the hearing or trial of an action issued by a court, the disobedience thereto shall
any books, documents, or other things under be punished in accordance with the applicable
his control. law or Rule (Sec. 9).

SUBPOENA AD TESTIFICANDUM – is a Exceptions:

process directed to a person requiring him to a) Where the witness resides more than one
attend and testify at the hearing or the trial of hundred (100) kilometers from his
the action, or at any investigation conducted residence to the place where he is to
by the competent authority, or for the taking testify by the ordinary course of travel
of his deposition. (Viatory Right), or
b) Where the permission of the court in which
SERVICE OF SUBPOENA the detained prisoner’s case is pending
was not obtained.
It shall be made in the same manner as personal
or substituted service of summons. QUASHING OF SUBPOENA
1) The original shall be exhibited and a copy
thereof delivered to the person on whom it The court may quash a subpoena duces tecum
is served. upon motion promptly made and, in any event, at
2) Tendering to him the fees for one day‘s or before the time specified therein:
attendance and the kilometrage allowed a) if it is unreasonable and oppressive, or
by the Rules, except that when a b) the relevancy of the books, documents or
subpoena is issued by or on behalf of the things does not appear, or
 59

c) if the person is whose behalf the subpoena relevant documents or relevant matters of
is issued fails to advance the reasonable fact through requests for admissions;
cost of the production thereof. d) To inspect relevant documents or objects,
and lands or other property in the
Subpoena ad testificandum may be quashed possession and control of the adverse
on the ground that the witness is NOT BOUND party; and
THEREBY. In either case, the subpoena may be e) To determine the physical or mental
quashed on the ground that the witness fees and condition of a party when such is in
kilometrage (within 100 kilometrage unless the controversy.
witness maybe cited indirect contempt) allowed
by the Rules were not tendered when the
DEPOSITIONS PENDING ACTION (RULE 23);
subpoena was served.
DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
MODES OF DISCOVERY (Rules 23 -28)
MEANING OF DEPOSITION
 You can use this at any stage of the
proceeding; applicable also in special A deposition is the taking of the testimony of any
proceedings person, whether he be a party or not, but at the
 Written interrogatories to parties is used only instance of a party to the action. This testimony
for the purpose of calling the defendant to the is taken out of court. It may be either by oral
witness stand examination, or by a written interrogatory (Sec.
1, Rule 23).
MODES OF DISCOVERY
USES OF DEPOSITIONS PENDING ACTION
1) Depositions pending action (Rule 23);
2) Depositions before action or pending At the trial or upon the hearing of a motion or an
appeal (Rule 24); interlocutory proceeding, any part or all of a
3) Interrogatories to parties (Rule 25) deposition, so far as admissible under the rules of
4) Admission by adverse party (Rule 26); evidence, may be used against any party who
5) Production or inspection of documents and was present or represented at the taking of the
things (Rule 27); and deposition or who had due notice thereof.
6) Physical and mental examination of
persons (Rule 28). A deposition may be sought for use in a future
action (Rule 24), during a pending action (Rule
The importance of the rules of discovery is that 23), or for use in a pending appeal (Rule 24).
they shorten the period of litigation and speed up
adjudication. The evident purpose is to enable  deposition benne esse – taken for use
the parties, consistent with recognized principles, during a pending action (Rule 23).
to obtain the fullest possible knowledge of the  deposition in perpetuam rei
facts and issues before civil trials and thus memoriam – taken to perpetuate a
prevent said trials from being carried on in the testimony for use in future proceedings as
dark. The rules of discovery serve as (a) devices, when it is sought before the existence of
along with the pre-trial hearing under Rule 18, to an action, or for cases on appeal.
narrow and clarify the basis issues between the
parties; and (b) devices for ascertaining the facts Any or all of the deposition, so far as admissible
relative to those issues. under the rules of evidence, may be used (a)
against any party who was present or
The basic purposes of the rules of discovery are: represented at the taking of the deposition, or (b)
a) To enable a party to obtain knowledge of against one who had due notice of the deposition
material facts within the knowledge of the (Sec. 4, Rule 23).
adverse party or of third parties through
depositions; The deposition may be used for the following
b) To obtain knowledge of material facts or purposes:
admissions from the adverse party 1) For contradicting or impeaching the
through written interrogatories; testimony of the deponent as a witness;
c) To obtain admissions from the adverse 2) The deposition of a party or of any one
party regarding the genuineness of who at the time of taking the deposition
was an officer, director, or managing
 60

agent of a public or private corporation, 2) that it is conducted in such manner as

partnership, or association which is a reasonably to annoy, embarrass, or
party may be used by an adverse party for oppress the deponent or party.
any purpose;
3) For any purpose by any party, where the WRITTEN INTERROGATORIES TO ADVERSE
deponent is a witness if the court finds PARTIES
that:
a) The witness is dead; CONSEQUENCES OF REFUSAL TO ANSWER
b) The witness resides more than 100 The party who fails to serve his answer to written
kilometers from the place of trial or interrogatories may be the subject of a judgment
hearing, or is out of the Philippines, by default
unless it appears that his absence
was procured by the party offering EFFECT OF FAILURE TO SERVE WRITTEN
the deposition; INTERROGATORIES
c) That the witness is unable to A party not served with written interrogatories
attend or testify because of age, may not be compelled by the adverse party to
sickness, infirmity, or give testimony in open court, or to give
imprisonment; or deposition pending appeal, unless allowed by the
d) That the party offering the court or to prevent a failure of justice (Sec. 6,
deposition has been unable to Rule 25).
procure the attendance of
witnesses by subpoena; or This provision encourages the use of written
e) When exceptional circumstances interrogatories although a party is not compelled
exist (Sec. 4, Rule 23). to use this discovery procedure, the rule imposes
sanctions for his failure to serve written
SCOPE OF EXAMINATION interrogatories by depriving him of the privilege
to call the adverse party as a witness or to give a
Unless otherwise ordered by the court as deposition pending appeal.
provided by Sec. 16 or 18, the deponent may be
examined regarding:
a) any matter not privileged REQUEST FOR ADMISSION (RULE 26)
b) which is relevant to the pending action,
whether relating to the claim or defense of A party, although not compelled by the Rules, is
any other party, including the existence, advised to file and serve a written request for
description, nature, custody, condition, admission on the adverse party of those material
and location of any books, documents, or and relevant facts at issue and actionable
other tangible things and the identity and document (as a result, you need not authenticate
location of persons having knowledge of it) which are, or ought to be, within the personal
relevant facts knowledge of said adverse party.
c) Not restricted by a protective order.
The party who fails to file and serve the request
WHEN MAY OBJECTIONS TO ADMISSIBILITY shall not be permitted to present evidence on
BE MADE such facts (Sec. 5, Rule 26).

Objection may be made at the trial or hearing to IMPLIED ADMISSION BY ADVERSE PARTY
receiving in evidence any deposition or part
thereof for any reason which would require the Each of the matters of which an admission is
exclusion of the evidence if the witness were then requested shall be deemed admitted unless,
present and testifying (Sec. 6). within a period designated in the request, which
shall not be less than fifteen (15) days after
WHEN MAY TAKING OF DEPOSITION BE service thereof, or within such further time as the
TERMINATED OR ITS SCOPE LIMITED court may allow on motion, the party to whom
the request is directed files and serves upon the
At any time during the taking of the deposition, party requesting the admission a sworn
any party or deponent may ask for the statement either denying specifically the matters
termination or limiting of the scope of the of which an admission is requested or setting
deposition upon showing: forth in detail the reasons why he cannot
1) that the examination is being conducted in truthfully either admit or deny those matters.
bad faith; or
 61

Objections to any request for admission shall be

DOCUMENTS OR THINGS (RULE 27)
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  This is prelude to the presentation of
preceding paragraph and his compliance secondary evidence.
therewith shall be deferred until such objections
are resolved, which resolution shall be made as  This Rule applies only to a pending action and
early as practicable. the documents or things subject of the motion
should not be privileged and must be those
CONSEQUENCES OF FAILURE TO ANSWER within the possession, control or custody of a
REQUEST FOR ADMISSION party. The petition must be sufficiently
described and identified as well as material to
Each of the matters of which an admission is any matter involved in the pending action.
requested (facts or documents) shall be deemed
admitted unless within a period designated in the
request which shall not be less than 15 days after PHYSICAL AND MENTAL EXAMINATION OF
service thereof, or within such further time as the PERSONS (RULE 28)
court may allow on motion, the party to whom
the request is directed files and serves upon the This mode of discovery applies to an action in
party requesting the admission a sworn which the mental or physical condition of a party
statement either denying specifically the matter is in controversy.
of which an admission is requested or setting
forth in detail the reason why he cannot truthfully Requisites to obtain Order for Examination:
either admit or deny those matters. a) A MOTION must be filed for the physical
and mental examination;
EFFECT OF ADMISSION b) The motion showing Good Cause for the
examination;
Any admission made by a party pursuant to such c) NOTICE to the party to be examined and
request is for the purpose of the pending action to all the other parties
only and shall not constitute an admission by him d) The motion shall SPECIFY the time, place,
for any other purpose nor may the same be used manner, condition and scope of the
against him in any other proceeding (Sec. 3). examination and the person or persons by
whom it is made.
EFFECT OF FAILURE TO FILE AND SERVE
REQUEST FOR ADMISSION Waiver of privilege. Where the person
examined requests and obtains a report or the
A party who fails to file and serve a request for results of the examination, the consequences are:
admission on the adverse party of material and 1) He has to furnish the other party a copy of
relevant facts at issue which are, or ought to be, any previous or subsequent examination
within the personal knowledge of the latter, shall of the same physical and mental
not be permitted to present evidence on such condition; and
facts (Sec. 5). 2) He waives any privilege he may have in
that action or any other involving the
same controversy regarding the testimony
PRODUCTION OR INSPECTION OF of any other person who has so examined
him or may thereafter examine him.

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY (RULE 29)

REFUSAL TO COMPLY
WITH MODES OF SANCTIONS
DISCOVERY
 The court may, upon application, compel a refusing deponent an
Refusal to answer answer.
any question  If granted and refusal to answer is without substantial justification,
the court may require the refusing party to pay the proponent the
amount of the reasonable expenses incurred in obtaining the order,
including attorney's fees.
 If denied and filed without substantial justification, the court may
 62

require the proponent to pay to the refusing party or deponent the

amount of the reasonable expenses incurred in opposing the
application, including attorney's fees.
 A refusal to answer after being directed by the court to do so may
be considered a contempt of that court.
Refusal to be Sworn Cite the disobedient deponent in Contempt of court
The court may make the following orders:
1) An order that the matters regarding which the questions were
asked, or the character or description of the thing or land, or
the contents of the paper, or the physical or mental condition of
the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with
Refusal to answer the claim of the party obtaining the order;
designated questions 2) An order refusing to allow the disobedient party to support or
or refusal to produce oppose designated claims or defenses or prohibiting him from
documents or to introducing in evidence designated documents or things or
submit to physical or items of testimony, or from introducing evidence of physical or
mental examination mental condition;
3) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party; and
4) In lieu of any of the foregoing orders or in addition thereto, an
order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a
physical or mental examination (Sec. 3, Rule 29).

Refusal to admit The court may, upon application, issue an order to pay the proponent
actionable document the amount of the reasonable expenses incurred in obtaining the
order, including attorney's fees.

The court, on motion and notice, may:

Failure of party to 1) may strike out all or any part of any pleading of that party;
attend or serve 2) dismiss the action or proceeding or any part thereof;
answers 3) enter a judgment by default against disobedient party;
4) order to pay reasonable expenses incurred by the other,
including attorney's fees.

TRIAL (Rule 30)

A motion for postponement should not be filed on
the last hour especially when there is no reason
A trial is the judicial process of investigating and why it could not have been presented earlier.
determining the legal controversies, starting with
the production of evidence by the plaintiff and Postponement is not a matter of right. It is
ending with his closing arguments. addressed to the sound discretion of the court.

ADJOURNMENTS AND POSTPONEMENTS REQUISITES OF MOTION TO POSTPONE

TRIAL FOR ABSENCE OF EVIDENCE
The general rule is that a court may adjourn a
trial from day to day, and to any stated time, as 1) A motion for postponement stating the ground
the expeditious and convenient transaction of relied upon must be filed;
business may require (Sec. 2). 2) The motion must be supported by an affidavit
or sworn certification showing:
However, the court has no power to adjourn a a. the materiality or relevancy of the
trial for a period longer than one month from evidence; and
each adjournment, nor more than three (3) b. that due diligence has been used to
months in all, except when authorized in writing procure it (Sec. 3).
by the Court Administrator.
 63

3) If the adverse party admits the facts given in of their defense, in the order to be
evidence, the trial shall not be postponed prescribed by the court;
even if he reserves the right to object to the 6) The parties may then respectively adduce
admissibility of the evidence. rebutting evidence only, unless the court,
for good reasons and in the furtherance of
REQUISITES OF MOTION TO POSTPONE justice, permits them to adduce evidence
TRIAL FOR ILLNESS OF PARTY OR COUNSEL upon their original case; and
7) Upon admission of the evidence, the case
1) A motion for postponement stating the ground shall be deemed submitted for decision,
relied upon must be filed; unless the court directs the parties to
2) The motion must be supported by an affidavit argue or to submit their respective
or sworn certification showing: memoranda or any further pleadings.
a. that the presence of the party or
counsel at the trial is indispensable; If several defendants or third party defendants
and and so forth having separate defenses appear by
b. that the character of his illness is such different counsel, the court shall determine the
as to render his non-attendance relative order of presentation of their evidence
excusable (Sec. 4). (Sec. 5).

AGREED STATEMENTS OF FACTS REVERSAL OF ORDER

The parties to any action may agree in writing When the accused admits the act or omission
upon the facts involved in litigation d submit the charged in the complaint or information but
case for judgment on the facts agreed upon, interposes a lawful defense, the order of trial may
without the introduction of evidence. No trial shall be modified (Sec. 11, Rule 119).
thus be held.
Since the defendant admits the plaintiff’s claim
If the parties agree to only some facts in issue, but seeks to avoid liability based on his
trial shall be held as to the disputed facts in such affirmative defense, he shall proceed first to
order as the court shall prescribe. prove his exemption.

The agreed statement of facts is conclusive on CONSOLIDATION OR SEVERANCE OF

the parties, as well as on the court. Neither of the HEARING OR TRIAL (RULE 31)
parties may withdraw from the agreement, nor
may the court ignore the same.
Consolidation When actions involving a
ORDER OF TRIAL common question of law OR facts are pending
before the court, it may order a joint hearing or
Subject to the provisions of Sec. 2, Rule 31 trial of any or all the matters in issue in the
(Separate trials), and unless the court for special actions; it may order all the actions consolidated;
reasons otherwise directs, the trial shall be and it may make such orders concerning
limited to the issues stated in the pre-trial order proceedings therein as may tend to avoid
and shall proceed as follows: unnecessary costs or delay (Sec. 1).
1) The plaintiff shall adduce evidence in
support of his complaint; Modes of consolidating cases:
2) The defendant shall then adduce evidence a) By recasting the cases already instituted –
in support of his defense, counterclaim, reshaping of the case by amending the
cross-claim and third party complaint; pleading and dismissing some cases and
3) The third party defendant, if any, shall retaining only one case. There must be
adduce evidence of his defense, joinder of causes of action and of parties;
counterclaim, cross-claim and fourth-party b) By consolidation proper or by
complaint; consolidating the existing cases – it is a
4) The fourth party, and so forth, if any, shall joint trial with a joint decision, the cases
adduce evidence of the material facts retaining their original docket numbers;
pleaded by them; and
5) The parties against whom any c) By test-case method – by hearing only the
counterclaim or cross-claim has been principal case and suspending the hearing
pleaded, shall adduce evidence in support on the other cases until judgement has
 64

been rendered in the principal case. The or any specific question involved
cases retain their original docket numbers. therein;
2) When the taking of an account is
Severance (Separate) Trials. The court, in necessary for the information of the
furtherance of convenience or to avoid prejudice, court before judgment, or for carrying
may order a separate trial of any claim, cross- a judgment or order into effect;
claim, counterclaim, or third party complaint, or 3) When a question of fact, other than
of any separate issue or of any number of claims, upon the pleadings, arises upon
cross-claims, counterclaim, third party complaints motion or otherwise, in any stage of a
or issue (Sec. 2). case, or for carrying a judgment or
 Note: Consolidation is not a remedy in order into effect (Sec. 2).
case of forum shopping!
POWERS OF COMMISSIONER
DELEGATION OF RECEPTION OF EVIDENCE
Under the Rules, the court’s order may specify or
As a general rule, the judge shall personally limit the powers of the commissioner. Hence, the
receive the evidence to be adduced by the order may direct him to:
parties. However, the reception of evidence may a) Report only upon particular issues;
be delegated under the following conditions: b) Do or perform particular acts; or
1) The delegation may be made only in c) Receive and report evidence only.
default or ex parte hearings, and in any
case where the parties agree in writing; The order may also fix the date for beginning and
2) The delegation may be made only by the closing of the hearings and for the filing of his
clerk of court who is a member of the bar; report.
3) Said clerk of court shall have no power to
rule on of evidence objections to any Subject to such limitations stated in the order,
question or to the admission of exhibits; the commissioner:
and a) Shall exercise the power to regulate the
4) He shall submit his report and the proceedings in every hearing before him;
transcripts of the proceedings, together b) Shall do all acts and take all measures
with the objections to be resolved by the necessary or proper for the efficient
court, within ten (10) days from performance of his duties under the order;
termination of the hearing. c) May issue subpoenas and subpoenas
duces tecum, and swear witnesses; and
d) Rule upon the admissibility of evidence,
TRIAL BY COMMISSIONERS (RULE 32) unless otherwise provided in the order of
reference (Sec. 3, Rule 32).
Commissioner includes a referee, an auditor and
an examiner (Sec. 1) COMMISSIONER’S REPORT; NOTICE TO
PARTIES AND HEARING ON THE REPORT
REFERENCE BY CONSENT
The commissioner’s report is not binding upon
By written consent of both parties, the court may the court which is free to adopt, modify, or reject,
order any or all of the issues in a case to be in whole or in part, the report. The court may
referred to a commissioner to be agreed upon by receive further evidence or recommit the report
the parties or to be appointed by the court. with instructions (Sec. 11, Rule 32)

REFERENCE ORDERED ON MOTION Notice of the filing of the report must be sent to
the parties for the purpose of giving them an
When the parties do not consent, the court may, opportunity to present their objections. The
upon the application of either or on its own failure to grant the parties, in due form, this
motion, direct a reference to a commissioner in opportunity to object, may, in some instances,
the following cases: constitute a serious error in violation of their
1) When the trial of an issue of fact substantial rights.
requires the examination of a LONG
ACCOUNT on either side, in which case The rule, however, is not absolute. In one case, it
the commissioner may be directed to was ruled that although the parties were not
hear and report upon the whole issue notified of the filing of the commissioner’s
reports, and the court failed to set said report for
 65

hearing, if the parties who appeared before the WAIVER OF RIGHT TO PRESENT EVIDENCE
commissioner were duly represented by counsel
and given an opportunity to be heard, the If the demurrer is granted but on appeal the order
requirement of due process has been satisfied, of dismissal is reversed, the defendant is deemed
and a decision on the basis of such report, with to have waived his right to present evidence.
the other evidence of the case is a decision which
meets the requirements of fair and open hearing. DEMURRER TO EVIDENCE IN A CIVIL CASE
VERSUS DEMURRER TO EVIDENCE IN A
In the hearing to be conducted on the CRIMINAL CASE
commissioner’s report, the court will review only
so much as may be drawn in question by proper In a civil case, leave of court is not required
objections. It is not expected to rehear the case before filing a demurrer. In a criminal case, leave
upon the entire record. of court is filed with or without leave of court
(Sec. 23, Rule 119).
DEMURRER TO EVIDENCE (Rule 33)
In a civil case, if the demurrer is granted, the
order of dismissal is appealable—since the
Demurrer to evidence is a motion to dismiss filed motion is interlocutory. In a criminal case, the
by the defendant after the plaintiff had rested his order of dismissal is not appealable because of
case on the ground of INSUFFICIENCY OF the constitutional policy against double jeopardy
EVIDENCE. —denial is tantamount to acquittal, final and
executory.
The provision of the Rules governing demurrer to
evidence does not apply to an election case. In civil case, if the demurrer is denied, the
defendant may proceed to present his evidence.
GROUND In a criminal case, the accused may adduce his
evidence only if the demurrer is filed with leave of
After plaintiff has finished presenting his court. He cannot present his evidence if he filed
evidence, the defendant may move for the the demurrer without leave of court (Sec. 23,
dismissal of the complaint on the ground that Rule 119).
upon the facts and the law, the plaintiff has
shown no right to relief. In civil case, the plaintiff files a motion to deny
motion to demurrer to evidence. In criminal case,
EFFECT OF DENIAL; EFFECT OF GRANT the court may motu proprio deny the motion.

In the event his motion is denied, the defendant

JUDGMENTS AND FINAL ORDERS (Rules 34 –
does not waive his right to offer evidence. The
36)
defendant shll have the right to present his
evidence. An order denying a demurrer to
evidence is interlocutory and is therefore, not JUDGMENT WITHOUT TRIAL
appealable. It can however be the subject of a
petition for certiorari in case of grave abuse of The theory of summary judgment is that although
discretion or an oppressive exercise of judicial an answer may on its face appear to tender
authority. issues—requiring trial—yet if it is demonstrated
by affidavits, depositions, or admissions that
If the motion is granted and the order of dismissal those issues are not genuine, but sham or
is reversed on appeal , the movants loses his fictitious, the Court is justified in dispensing with
right to present the evidence on his behalf. The the trial and rendering summary judgment for
appellate court in case it reverses the grant of plaintiff.
the motion, should render the judgment therein
based on the evidence submitted by the plaintiff. The court is expected to act chiefly on the basis
of the affidavits, depositions, admissions
It is not correct for the appellate court reversing submitted by the movants, and those of the other
the order granting the demurrer to remand the party in opposition thereto.
case to the trial court for further proceedings. The
appellate court should, instead of remanding the The hearing contemplated (with 10-day notice) is
case, render judgment on the basis of the for the purpose of determining whether the issues
evidence submitted by the plaintiff. are genuine or not, not to receive evidence on
the issues set up in the pleadings. A hearing is
 66

not thus de riguer. The matter may be resolved, In cases of unliquidated damages, or admission of
and usually is, on the basis of affidavits, the truth of allegation of adverse party, the
depositions, admissions. material facts alleged in the complaint shall
always be proved.
In one case, the summary judgment here was
justified, considering the absence of opposing
SUMMARY JUDGMENTS (RULE 35)
affidavits to contradict the affidavits.

CONTENTS OF A JUDGMENT A summary judgment or accelerated judgment is

a procedural technique to promptly dispose of
Judgment has two parts: cases where the facts appear undisputed and
1) the body of the judgment or the ratio certain from the pleadings, depositions,
decidendi, and admissions and affidavits on record, of for
2) the dispositive portion of the judgment or weeding out sham claims or defenses at an early
fallo. stage of the litigation to avoid the expense and
 The body of the decision (ratio loss of time involved in a trial.
decidendi) is not the part of the
judgment that is subject to execution Moreover, said summary judgment must be
but the fallo because it is the latter premised on the absence of any other triable
which is the judgment of the court. genuine issues of fact. Otherwise, the movants
 The importance of fallo or dispositive cannot be allowed to obtain immediate relief. A
portion of a decision should state genuine issue is such issue of fact which requires
whether the complaint or petition is presentation of evidence as distinguished from a
granted or denied, the specific relief sham, fictitious, contrived or false claim.
granted, and the costs.
 It is the dispositive part of the The requisites are:
judgment that actually settles and 1) there must be no genuine issue as to any
declares the rights and obligations of material fact, except for the amount of
the parties, finally, definitively, and damages; and
authoritatively. 2) the party presenting the motion for
summary judgment must be entitled to a
The general rule is that where there is a conflict judgment as a matter of law.
between the fallo and the ratio decidendi, the
fallo controls. This rule rests on the theory that FOR THE CLAIMANT
the fallo is the final order while the opinion in the
body is merely a statement ordering nothing. A party seeking to recover upon a claim,
Where the inevitable conclusion from the body of counterclaim, or cross-claim or to obtain a
the decision is so clear that there was a mere declaratory relief may, at any time after the
mistake in the dispositive portion, the body of the pleading in answer thereto has been served,
decision prevails. move with supporting affidavits, depositions or
admissions for a summary judgment in his favor
A judgment must have the signature of the judge. upon all or any part thereof (Sec. 1).

JUDGMENT ON THE PLEADINGS (RULE 34) FOR THE DEFENDANT

A party against whom a claim, counterclaim, or

Where an answer fails to tender an issue, or cross-claim is asserted or a declaratory relief is
otherwise admits the material allegations of the sought may, at any time, move with supporting
adverse party‘s pleading, the court may, on affidavits, depositions or admissions for a
motion of that party, direct judgment on such summary judgment in his favor as to all or any
pleading. part thereof (Sec. 2).

The following actions CANNOT be the subject of a WHEN THE CASE NOT FULLY ADJUDICATED
judgment on the pleadings:
1) declaration of nullity of marriage
If judgment is not rendered upon the whole case,
2) annulment of marriage
the court shall ascertain what material facts exist
3) legal separation
without substantial controversy and those that
are controverted. The court shall then render a
 67

partial judgement with trial to proceed on the not yet been filed with the clerk of court and
matters that remain controverted. before its filing does not yet constitute the real
judgment of the court. It is NOT the writing of the
AFFIDAVITS AND ATTACHMENTS judgment or its signing which constitutes
rendition of the judgment.
Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts A judgment or final order determining the
as would be admissible in evidence, and shall merits of the case shall be in writing personally
show affirmatively that the affiant is competent and directly prepared by the judge, stating clearly
to testify to the matters stated therein. Certified and distinctly the facts and the law on which it is
true copies of all papers or parts thereof referred based, signed by him, and filed with the clerk of
to in the affidavit shall be attached thereto or the court (Sec. 1, Rule 36).
served therewith (Sec. 5).
ENTRY OF JUDGMENT AND FINAL ORDER
Should it appear to its satisfaction at any time
that any of the affidavits presented pursuant to If no appeal or motion for new trial or
the Rules are presented in bad faith, or solely for reconsideration is filed within the time provided in
the purpose of delay, the court shall forthwith the Rules, the judgment or final order shall
order the offending party or counsel to pay to the forthwith be entered by the clerk in the book of
other party the amount of the reasonable entries of judgments.
expenses which the filing of the affidavits caused
him to incur, including attorney‘s fees. It may, The record shall contain the dispositive part of
after hearing, further adjudge the offending party the judgment or final order and shall be signed by
or counsel guilty of contempt (Sec. 6). the clerk, with a certificate that such judgment or
final order has become final and executory (Sec.
JUDGMENTS ON THE PLEADINGS VERSUS 2).
SUMMARY JUDGMENTS
The entry of judgment refers to the physical act
a) In the judgment on the pleadings, the answer performed by the clerk of court in entering the
does not tender an issue; in summary dispositive portion of the judgment in the book of
judgment, there is an issue tendered in the entries of judgment and after the same has
answer, but it is not genuine or real issue as become final and executory.
may be shown by affidavits and depositions
that there is no real issue and that the party is The date of finality of the judgment or final order
entitled to judgment as a matter of right; shall be deemed the date of its entry. Thus,
b) In judgment on the pleadings, the movants while there has been no physical entry of
must give a 3-day notice of hearing; while in judgment in the book of entries, it is
summary judgment, the opposing party is deemed to have been constructively made
given 10 days notice; at the time of the finality of the judgment
c) In judgment on the pleadings, the entire case or final order.
may be terminated; while in summary
judgment, it may only be partial; There are some proceedings the filing of which is
d) In judgment on the pleadings, only the reckoned from the date of the entry of judgment:
plaintiff or the defendants as far as the 1) the execution of a judgment by motion is
counterclaim, cross-claim or third-party within five (5) years from the entry of the
complaint is concerned can file the same; judgment (Sec. 6, Rule 39);
while in summary judgment, either the 2) the filing of a petition for relief has, as one
plaintiff or the defendant may file it. of its periods, not more than six (6)
months from the entry of the judgment or
RENDITION OF JUDGMENTS AND FINAL final order (Sec. 3, Rule 38).
ORDERS
POST JUDGMENT REMEDIES
Rendition of judgment is the filing of the same (Rules 37, 38, 40–47, 52, 53)
with the clerk of court. It is NOT the
pronouncement of the judgment in open court
Remedies before a judgment becomes final
that constitutes the rendition. Even if the
and executory
judgment has already been put in writing and
signed, it is still subject to amendment if it has
 68

a) Motion for reconsideration (prohibited in a of the judgment or final order. A record on

case that falls under summary procedure) appeal shall be required only in special
(Rules 37, 52); proceedings and other cases of multiple or
b) Motion for new trial (Rules 37, 53); and separate appeals (Sec. 3, Rule 40).
c) Appeal (Rules 40, 41, 42, 43, 45)
DENIAL OF THE MOTION; EFFECT
Remedies after judgment becomes final and
executory  If the motion is denied, the movants has a
a) Petition for relief from judgment; “fresh period" of fifteen days from receipt
b) Action to annul a judgment; or notice of the order denying or dismissing
c) Certiorari; and the motion for reconsideration within which to
d) Collateral attack of a judgment. file a notice of appeal of the judgment or final
order.
MOTION FOR NEW TRIAL OR  Meaning, the defendant is given a “fresh
RECONSIDERATION (RULE 37) period” of 15 days counted from the receipt of
the order dismissing the motion for new trial
or reconsideration.
GROUNDS FOR A MOTION FOR NEW TRIAL  When the motion for new trial is denied on the
ground of fraud, accident, mistake of fact or
1) Fraud (extrinsic), accident, mistake (of fact law, or excusable negligence, the aggrieved
and not of law) or excusable negligence party can no longer avail of the remedy of
(FAMEN) which ordinary prudence could not petition for relief from judgment
have guarded against and by reason of which
such aggrieved party has probably been GRANT OF THE MOTION; EFFECT
impaired in his rights;
2) Newly discovered evidence (Berry Rule),  If a new trial be granted, the original
which he could not, with reasonable diligence, judgment shall be vacated or set aside, and
have discovered and produced at the trial, the action shall stand for trial de novo; but the
and which if presented would probably alter recorded evidence taken upon the former trial
the result; and so far as the same is material and competent
3) Award of excessive damages, or insufficiency to establish the issues, shall be used at the
of the evidence to justify the decision, or that new trial without retaking the same (Sec. 6).
the decision is against the law (Sec. 1, Rule  The filing of the motion for new trial or
37). reconsideration interrupts the period to
appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
GROUNDS FOR A MOTION FOR  If the court grants the motion (e.g., it finds
RECONSIDERATION that excessive damages have been awarded
or that the judgment or final order is contrary
1) The damages awarded are excessive; to the evidence or law), it may amend such
2) The evidence is insufficient to justify the judgment or final order accordingly (Sec. 3).
decision or final order; The amended judgment is in the nature of a
3) The decision or final order is contrary to law. new judgment which supersedes the original
judgment. It is not a mere supplemental
 2nd MR is not allowed except in SC decision which does not supplant the original
but only serves to add something to it.
WHEN TO FILE  If the court finds that a motion affects the
issues of the case as to only a part, or less
 A motion for new trial should be filed within than all of the matters in controversy, or only
the period for taking an appeal. Hence, it one, or less that all of the parties to it, the
must be filed before the finality of the order may grant a reconsideration as to such
judgment. issues if severable without interfering with the
 No motion for extension of time to file a judgment or final order upon the rest (Sec. 7).
motion for reconsideration shall be allowed.
 The period for appeal is within 15 days after REMEDY WHEN MOTION IS DENIED
notice to the appellant of the judgment or
final order appealed from.  The party aggrieved should appeal the
 Where a record on appeal is required, the judgment. This is so because a second motion
appellant shall file a notice of appeal and a for reconsideration is expressly prohibited.
record on appeal within 30 days from notice
 69

 An order denying a motion for reconsideration APPEALS IN GENERAL

or new trial is not appealable, the remedy
being an appeal from the judgment or final The right to appeal is not part of due process but
order under Rule 38. The remedy from an a mere statutory privilege that has to be
order denying a motion for new trial is not to exercised only in the manner and in accordance
appeal from the order of denial. Again, the with the provisions of law
order is not appealable. The remedy is to
appeal from the judgment or final order itself The general rule is that the remedy to obtain
subject of the motion for new trial (Sec. 9, reversal or modification of judgment on the
rule 37). merits is appeal. This is true even if the error, or
one of the errors, ascribed to the court rendering
FRESH 15-DAY PERIOD RULE the judgment is its lack of jurisdiction over the
subject matter, or the exercise of power in excess
 If the motion is denied, the movants has a thereof, or grave abuse of discretion in the
fresh period of 15 days from receipt or notice findings of facts or of law set out in the decision.
of the order denying or dismissing the motion
for reconsideration within which to file a Certain rules on appeal:
notice to appeal. a) No trial de novo anymore. The appellate
 This new period becomes significant if either a courts must decide the case on the basis
motion for reconsideration or a motion for of the record, except when the
new trial has been filed but was denied or proceedings were not duly recorded as
dismissed. when there was absence of a qualified
 This fresh period rule applies only to Rule 41 stenographer.
governing appeals from the RTC but also to b) There can be no new parties.
Rule 40 governing appeals from MTC to RTC, c) There can be no change of theory (Naval
Rule 42 on petitions for review from the RTC vs. CA, 483 SCRA 102).
to the CA, Rule 43 on appeal from quasi- d) There can be no new matters.
judicial agencies to the CA, and Rule 45 e) There can be amendments of pleadings to
governing appeals by certiorari to the SC. conform to the evidence submitted before
 Accordingly, this rule was adopted to the trial court.
standardize the appeal periods provided in f) The liability of solidarity defendant who
the Rules to afford fair opportunity to review did not appeal is not affected by appeal of
the case and, in the process, minimize errors solidarity debtor.
of judgment. g) Appeal by guarantor does not inure to the
 Obviously, the new 15 day period may be principal.
availed of only if either motion is filed; h) In ejectment cases, the RTC cannot award
otherwise, the decision becomes final and to the appellant on his counterclaim more
executory after the lapse of the original than the amount of damages beyond the
appeal period provided in Rule 41 (Neypes vs. jurisdiction of the MTC.
CA., Sept. 14, 2005). i) The appellate court cannot dismiss the
 The Neypes ruling shall not be applied where appealed case for failure to prosecute
because the case must be decided on the
no motion for new trial or motion for
basis of the record.
reconsideration has been filed in which case
the 15-day period shall run from notice of the
judgment. JUDGMENTS AND FINAL ORDERS SUBJECT
 The fresh period rule does not refer to the TO APPEAL
period within which to appeal from the order
An appeal may be taken only from judgments or
denying the motion for new trial because the
final orders that completely dispose of the case
order is not appealable under Sec. 9, Rule 37.
(Sec. 1, Rule 41). An interlocutory order is not
The non-appealability of the order of denial is
appealable until after the rendition of the
also confirmed by Sec. 1(a), Rule 41, which
judgment on the merits.
provides that no appeal may be taken from an
order denying a motion for new trial or a
motion for reconsideration. MATTERS NOT APPEALABLE
 The SC ruled in one case that this “fresh
period of appeal” is also applicable in criminal No appeal may be taken from:
cases (Judith Yu vs. Judge Samson, Feb. 1) An order denying a motion for new trial or
9, 2011) a motion for reconsideration;
 70

2) An order denying a petition for relief or  Rule 65 refers to the special civil actions of
any similar motion seeking relief from certiorari, prohibition and mandamus (CPM).
judgment;  Practically, it would be the special civil action
3) An interlocutory order; of certiorari that would be availed of under
4) An order disallowing or dismissing an most circumstances. The most potent remedy
appeal; against those judgments and orders from
5) An order denying a motion to set aside a which appeal cannot be taken is to allege and
judgment by consent, confession or prove that the same were issued without
compromise on the ground of fraud, jurisdiction, with grave abuse of discretion or
mistake or duress, or any other ground in excess of jurisdiction, all amounting to lack
vitiating consent; of jurisdiction.
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- MODES OF APPEAL (SEC. 2, RULE 41)
claims, and third-party complaints, while
the main case is pending, unless the court (a) ORDINARY APPEAL
allows an appeal therefrom; and The appeal to the CA in cases decided by
8) An order dismissing and action without the RTC in the exercise of its original
prejudice (Sec. 1, Rule 41). jurisdiction shall be taken by filing a
notice of appeal with the court which
A question that was never raised in the courts rendered the judgment or final order
below cannot be allowed to be raised for the first appealed from and serving a copy thereof
time on appeal without offending basic rules of upon the adverse party.
fair play, justice and due process. For an  No record on appeal shall be required
appellate court to consider a legal question, it except in special proceedings and
should have been raised in the court below. It other cases of multiple or separate
would be unfair to the adverse party who would appeals where the law or the Rules so
have no opportunity to present evidence in require. In such cases, the record on
contra to the new theory, which it could have appeal shall be filed and served in like
done had it been aware of it at the time of the manner.
hearing before the trial court. It is true that this
rule admits of exceptions as in cases of lack of (b) PETITION FOR REVIEW
jurisdiction, where the lower court committed  The appeal to the CA in cases decided
plain error, where there are jurisprudential by the RTC in the exercise of its
developments affecting the issues, or when the appellate jurisdiction shall be by
issues raised present a matter of public policy. petition for review in accordance
with Rule 42.
The court may consider an error not raised on
appeal provided the same falls within any of the (c) PETITION FOR REVIEW ON CERTIORARI
following categories:  In all cases where only questions of law
1) It is an error that affects the jurisdiction
are raised or involved, the appeal shall be
over the subject matter;
to the SC by petition for review on
2) It is an error that affects the validity of the
certiorari in accordance with Rule 45.
judgment appealed from;
3) It is an error which affects the
ISSUES TO BE RAISED ON APPEAL
proceedings;
4) It is an error closely related to or
Whether or not the appellant has filed a motion
dependent on an assigned error and
for new trial in the court below, he may include in
properly argued in the brief; or
his assignment or errors any question of law or
5) It is a plain and clerical error.
fact that has been raised in the court below and
which is within the issues framed by the parties
REMEDY AGAINST JUDGMENTS AND
(Sec. 15, Rule 44).
ORDERS WHICH ARE NOT APPEALABLE
1) In an Ordinary Appeal, the appeal raises
the questions of fact or mixed questions of
 In those instances where the judgment or final
fact and law.
order is not appealable, the aggrieved party 2) In Petition for Review, the appeal raises
may file the appropriate special civil action questions of fact, of law or mixed
under Rule 65. questions of fact and law.
 71

3) In a Petition for Review on Certiorari,  The court may grant and additional period
the appeal raises purely questions of law. of 15 days only provided the extension is
sought
PERIOD OF APPEAL a) upon proper motion, and
b) there is payment of the full amount
PERIOD OF ORDINARY APPEAL UNDER RULE of the docket and other lawful fees
40 and the deposit for costs before the
 An appeal may be taken (from MTC to expiration of the reglementary
RTC) within 15 days after notice to the period.
appellant of the judgment or final order  No further extension shall be granted
appealed from. Where a record on appeal except for the most compelling reason and
is required, the appellant shall file a notice in no case to exceed 15 days.
of appeal and a record on appeal within 30
days after notice of the judgment or final PERIOD OF APPEAL BY PETITION FOR
order. REVIEW UNDER RULE 43
 The period of appeal shall be interrupted  The appeal shall be taken within 15 days
by a timely motion for new trial or from notice of the award, judgment, final
reconsideration. order or resolution, or from the date of its
 No motion for extension of time to file a last publication, if publication is required
motion for new trial or reconsideration by law for its effectivity, or of the denial of
shall be allowed (Sec. 2). petitioner’s motion for new trial or
reconsideration duly filed in accordance
PERIOD OF ORDINARY APPEAL UNDER RULE with the governing law of the court or
41) agency a quo.
 The appeal shall be taken within 15 days  Only one (1) motion for reconsideration
from notice of the judgment or final order shall be allowed. Upon proper motion and
appealed from. Where a record on appeal the payment of the full amount of the
is required, the appellants shall file a docket fee before the expiration of the
notice of appeal and a record on appeal reglementary period, the CA may grant an
within 30 days from notice of the additional period of 15 days only within
judgment or final order. which to file the petition for review.
 However, on appeal in habeas corpus  No further extension shall be granted
cases shall be taken within 48 hours from except for the most compelling reason and
notice of the judgment or final order in no case to exceed 15 days (Sec. 4).
appealed from (AM No. 01-1-03-SC, June
19, 2001). PERIOD OF APPEAL BY PETITION FOR
 The period of appeal shall be interrupted REVIEW ON CERTIORARI UNDER RULE 45
by a timely motion for new trial or  The appeal which shall be in the form of a
reconsideration. verified petition shall be filed within 15
 No motion for extension of time to file a days from notice of the judgment, final
motion for new trial or reconsideration order or resolution appealed from, or
shall be allowed (Sec. 3). within 15 days from notice of the denial of
 If the record on appeal is not transmitted the petitioner’s motion for new trail or
to the CA within 30 days after the motion for reconsideration filed in due
perfection of appeal, either party may file time.
a motion with the trial court, with notice to  The Supreme Court may, for justifiable
the other, for the transmittal of such reasons, grant an extension of 30 days
record or record on appeal (Sec. 3, Rule only within which to file the petition
44). provided:
a) there is a motion for extension of
PERIOD OF PETITION FOR REVIEW UNDER time duly filed and served;
RULE 42 b) there is full payment of the docket
 The petition shall be filed and served and other lawful fees and the
within 15 days from notice of the decision deposit for costs; and
sought to be reviewed or of the denial of c) the motion is filed and served and
petitioner’s motion for new trial or the payment is made before the
reconsideration filed in due time after expiration of the reglementary
judgment. period.
 72

MODE OF PERIOD OF APPEAL Period of appeal if party files MFR or New

APPEAL Trial (Neypes Doctrine)
Ordinary Appeal
(Rules 40, 41)
a) Notice of Within 15 days from Within 15 days from receipt of order denying
Appeal (Rule 40) receipt of judgment or final motion for reconsideration or new trial
order
b) Record on Within 30 days from The 30-day to file the notice of appeal and record
Appeal (Rule 41) receipt of judgment or final on appeal should reckoned from the receipt of the
order order denying the motion for new trial or motion
for reconsideration (Zayco vs. Himlo, April 16,
2008)
Petition for Within 15 days from Within 15 days from receipt of the order denying
Review (Rule 42) receipt of judgment motion for reconsideration or new trial
Petition for Within 15 days from Within 15 days from receipt of the order denying
Review (Rule 43) receipt of judgment or final motion for reconsideration or new trial
order or of last publication
Appeal by Within 15 days from Within 15 days from receipt of the order denying
Certiorari (Rule receipt of judgment or final motion for reconsideration or new trial
45) order

PERFECTION OF APPEALS corresponding docket and other lawful

fees, the appeal is deemed perfected as to
For Ordinary Appeals from MTC to the RTC the petitioner.
(Rule 40) and from the RTC to the CA (Rule  The RTC loses jurisdiction over the case
41). upon the perfection of the appeals filed in
 A party’s appeal by notice of appeal is due time and the expiration of the time to
deemed perfected as to him upon the appeal of the other parties.
filing of the notice of appeal in due time.  However, before the CA give due course to
Upon such perfection or the expiration of the petition, the RTC may issue orders for
the same to appeal by the other parties, the protection and preservation of the
the court loses jurisdiction over the rights of the parties which do not involve
subject matter thereof any matter litigated by the appeal,
 A party’s appeal by record on appeal is approve compromises, permit appeals of
deemed perfected as to him with respect indigent litigants, order execution pending
to the subject matter thereof upon the appeal in accordance with Sec. 2, Rule 39,
approval of the record on appeal filed in and allow withdrawal of the appeal.
due time. The court has jurisdiction only  Except in civil cases decided under Rules
over the subject matter thereof upon such on Summary Procedure, the appeal shall
approval for the expiration of the time to stay the judgment or final order unless the
appeal of the other parties. CA, the law, or the Rules provide
 In either case, prior to the transmittal of otherwise.
the original record or the record on
appeal, the court may issue orders for the APPEAL FROM JUDGMENTS OR FINAL
protection and preservation of the rights ORDERS OF THE MTC
of the parties which do not involve any
matter litigated by the appeal, approve An appeal from a judgment or final order of a MTC
compromises, permit appeals of indigent may be taken to the RTC exercising jurisdiction
litigants, order execution pending appeal over the area over which the MTC sits. The title of
in accordance with Sec. 2, Rule 39, and the case shall remain as it was in the court of
allow withdrawal of the appeal (Sec. 9, origin, but the party appealing the case shall be
Rule 41). further referred to as the appellant and the
adverse party as the appellee (Sec. 1, Rule 40).
Perfection of Appeal by Petition for Review
under Rule 42. (Sec.8) Where the MTC dismisses a case for lack of
 Upon the timely filing of a petition for jurisdiction of such dismissal is made to the RTC,
review and the payment of the should the latter affirm the dismissal and if it has
jurisdiction over the subject matter, the RTC is
 73

obliged to try the case as if it were originally filed i) The findings of fact of the CA are
with it. premised on the supposed absence of
evidence and contradicted by the
The appeal is taken by filing a notice of appeal evidence on record; or
with the court that rendered the judgment or final j) Those filed under Writs of amparo,
order appealed from. The notice of appeal shall habeas data, or kalikasan.
indicate the parties to the appeal, the judgment
or final order or part thereof appealed from, and APPEAL FROM JUDGMENTS OR FINAL
state the material dates showing the timeliness of ORDERS OF THE CTA
the appeal. A record on appeal shall be required
only in special proceedings and in other cases of Under Sec. 11 of RA 9282, no civil proceeding
multiple or separate appeals. involving matters arising under the NIRC, the TCC
or the Local Government Code shall be
APPEAL FROM JUDGMENTS OR FINAL maintained, except as herein provided, until and
ORDERS OF THE RTC unless an appeal has been previously filed with
the CTA and disposed of in accordance with the
There are three modes of appealing a judgment provisions of the Act.
or final order of the RTC:
1) Ordinary Appeal (Rule 41) from the A party adversely affected by a resolution of a
judgment or final order of the RTC in the Division of CTA on a motion for reconsideration or
exercise of its original jurisdiction new trial, may file a petition for review with the
2) Petition for Review (Rule 42) from the CTA en banc.
judgment or final order of the RTC to the
CA in cases decided by the RTC in the Sec. 11 of RA 9282 further provides that a party
exercise of its appellate jurisdiction adversely affected by a decision or ruling of the
3) Petition for Review on Certiorari (Rule CTA en banc may file with the SC a verified
45) petition for review on certiorari pursuant to
Rule 45.
APPEAL FROM JUDGMENTS OR FINAL
ORDERS OF THE CA REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC
a) Appeal from the judgments or final orders of
the CA concerning purely questions of law A judgment, resolution or final order of the
which must be distinctly set forth may be COMELEC may be brought by the aggrieved party
elevated to the SC by way of Rule 45: to the SC on certiorari under Rule 65 in relation to
Petitions for Review on Certiorari. Rule 64, by filing the petition within 30 days from
b) The general rule is that the SC shall not notice.
entertain questions of fact, except in the
following cases: REVIEW OF FINAL ORDERS OF THE CSC
a) The conclusion of the CA is grounded
entirely on speculations, surmises and A judgment, final order or resolution of the Civil
conjectures; Service Commission may be taken to the CA
b) The inference made is manifestly under Rule 43. Note the difference between the
mistaken, absurd or impossible; mode of appeal from a judgment of the CSC and
c) There is grave abuse of discretion; the mode of appeal from the judgments of other
d) The judgment is based on constitutional commissions.
misapprehension of facts;
e) The findings of facts are conflicting; REVIEW OF FINAL ORDERS OF THE COA
f) The CA in making its findings went
beyond the issues of the case and the A judgment, resolution or final order of the
same is contrary to the admissions of Commission on Audit may be brought by the
both appellant and appellee; aggrieved party to the SC on certiorari under
g) The findings are contrary to those of Rule 65 in relation to Rule 64, by filing the
the trial court; petition within 30 days from notice.
h) The facts set forth in the petition as
well as in the petitioner‘s main and REVIEW OF FINAL ORDERS OF THE
reply briefs are not disputed by the OMBUDSMAN
respondents;
 74

Appeals from decisions of the Ombudsman in fact and law by filing a verified petition for
administrative disciplinary actions should be review with the CA.
brought to the CA under Rule 43.  The appeal shall NOT stay the award,
judgment, final order or resolution sought to
The CA has jurisdiction over orders, directives be reviewed UNLESS the CA shall direct
and decisions of the Office of the Ombudsman in otherwise upon such terms as it may deem
administrative cases only under Rule 43. just.
 But in cases in which it is alleged that the
Ombudsman has acted with grave abuse RELIEFS FROM JUDGMENTS (or petition for
of discretion amounting to lack or excess relief from denial of appeal) ORDERS AND
of jurisdiction amounting to lack or excess OTHER PROCEEDINGS (RULE 38)
of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed with A petition for relief from judgment is an equitable
the SC to set aside the Ombudsman’s remedy that is allowed only in exceptional cases
order or resolution. when there is no other available or adequate
remedy.
In criminal or non-administrative case,
the ruling of the Ombudsman shall be A remedy where a party seek to set aside a
elevated to the SC by way of Rule 65. judgment rendered against him by a court
whenever he was unjustly deprived of a hearing
The SC’s power to review over resolutions and or was prevented from taking an appeal because
orders of the Office of the Ombudsman is of fraud, accident, mistake or excusable
restricted on to determining whether grave abuse negligence.
of discretion has been committed by it. The Court
is not authorized to correct every error or mistake Under Sec. 5, Rule 38, the court may grant
of the Office of the Ombudsman other than grave preliminary injunction to preserve the rights of
abuse of discretion. The remedy is not a petition the parties upon the filing of a bond in favor of
for review on certiorari under Rule 45. the adverse party. The bond is conditioned upon
the payment to the adverse party of all damages
REVIEW OF FINAL ORDERS OF THE NLRC and costs that may be awarded to such adverse
party by reason of the issuance of the injunction
The remedy of a party aggrieved by the decision (Sec. 5).
of the National Labor Relations Commission
(NLRC) is to promptly move for the GROUNDS FOR AVAILING OF THE REMEDY
reconsideration of the decision and if denied to (PETITION FOR RELIEF)
timely file a special civil action of certiorari under
Rule 65 within 60 days from notice of the When a judgment or final order is entered, or any
decision. other proceeding is thereafter taken against a
party in any court through (a) fraud, (b) accident,
In observance of the doctrine of hierarchy of (c) mistake, or (c) excusable negligence (FAMEN),
courts, the petition for certiorari should be filed in he may file a petition in such court and in the
the CA (St. Martin Funeral Homes vs. NLRC, Sept. same case praying that the judgment, order or
16, 1998). Should the same be filed with the SC, proceeding be set aside (Sec. 1, Rule 38).
the latter shall dismiss the same instead of
referring the action to the CA. When the petitioner has been prevented from
taking an appeal by fraud, mistake, or excusable
REVIEW OF FINAL ORDERS OF THE QUASI- negligence (Sec. 2).
JUDICIAL AGENCIES
TIME TO FILE PETITION
 Appeals from judgments and final orders of
quasi-judicial bodies/agencies are now A petition for relief from judgment, order or other
required to be brought to the CA. proceedings must be verified, filed:
 This rule was adopted precisely to provide a 1) within 60 days after the petitioner learns
uniform rule of appellate procedure from of the judgment, final order, or other
quasi-judicial bodies. proceeding to be set aside, and
 The appeal under Rule 43 may be taken to the 2) not more than six (6) months after such
CA whether the appeal involves a question of judgment or final order was entered, or
fact, a question of law, or mixed questions of such proceeding was taken.
 75

 These two periods must concur. Both b) The prescriptive period shall not be
periods are not extendible and are suspended if the extrinsic fraud is
never interrupted. attributable to the plaintiff in the original
action.
CONTENTS OF PETITION 2) On the ground of Lack of Jurisdiction
a) The questioned judgment, order or
The petition must be verified and must be resolution shall be set aside and
accompanied with affidavits showing fraud, rendered null and void. The nullity
accident, mistake or excusable negligence relied shall be without prejudice to the
upon and it must have an affidavit of merit refiling of the original action in the
showing the facts constituting the petitioner’s proper court.
good and substantial cause of action or defense, b) The prescriptive period to re-file shall
as the case may be. be deemed suspended from the filing
of such original action until the finality
ANNULMENT OF JUDGMENTS OR FINAL of the judgment of annulment.
ORDERS AND RESOLUTIONS (RULE 47)
COLLATERAL ATTACK OF JUDGMENTS
The annulment of judgment if a remedy
independent of the case where the judgment A collateral attack is made when, in another
sought to be annulled was rendered and may be action to obtain a different relief, an attack on the
availed of though the judgment may have been judgment is made as an incident in said action.
executed.
This is proper only when the judgment, on its
Its purpose is to have the judgment set aside so face, is null and void, as where it is patent that
that there will be a renewal of litigation where the the court which rendered said judgment has no
ordinary remedies of new trial, appeal, relief from jurisdiction.
judgment are no longer available without the
petitioner’s fault. Examples:
 A petition for certiorari under Rule 65 is a
GROUNDS FOR ANNULMENT direct attack. It is filed primarily to have
(you should be a party to the case) an order annulled.
 An action for annulment of a judgment is
1) Extrinsic Fraud – exists when there is a likewise a direct attack on a judgment.
fraudulent act committed by the prevailing  A motion to dismiss a complaint for
party outside the trial of the case, whereby collection of a sum of money filed by a
the defeated party was prevented from corporation against the defendant on the
presenting fully his side of the case by ground that the plaintiff has no legal
deception practiced on him by the prevailing capacity to use is a collateral attack on
party. the corporation. A motion to dismiss is
2) Lack of Jurisdiction – refers to either lack of incidental to the main action for sum of
jurisdiction over the person of the defendant money. It is not filed as an action intended
or over the subject matter of the claim. to attack the legal existence of the
plaintiff.
PERIOD TO FILE ACTION
EXECUTION, SATISFACTION AND EFFECT OF
If based on Extrinsic Fraud JUDGMENTS (Rule 39)
 action must be filed within four (4) years
from its discovery
 Issuance of the writ is ministerial
If based on Lack of Jurisdiction  Granting of the writ is judicial
 before it is barred by laches or estoppels
DIFFERENCE BETWEEN FINALITY OF
EFFECTS OF JUDGMENT OF ANNULMENT JUDGMENT FOR PURPOSE OF APPEAL; FOR
PURPOSES OF EXECUTION
1) On Extrinsic Fraud
a) The court, upon motion may order the trial For purposes of appeal, an order is final if it
court to try the case as if a motion for new disposes of the action as opposed to an
trial had been granted. interlocutory order which leaves something to be
 76

done in the trial court with respect to the merits proceeding upon the execution of the period to
of the case. appeal therefrom if no appeal has been duly
perfected.
For purposes of execution, an order is final or
executory after the lapse of the reglementary A discretionary execution is called “discretionary”
period to appeal and no such appeal has been precisely because it is not a matter of right. The
perfected. execution of a judgment under this concept is
addressed to the discretionary power of the court
WHEN EXECUTION SHALL ISSUE; and cannot be insisted upon but simply prayed
EXECUTION AS A MATTER OF RIGHT (SEC. and hoped for because a discretionary execution
1) is not a matter of right.

Execution is a matter of right upon the expiration Requisites for discretionary execution:
of the period to appeal and no appeal was 1) There must be a motion filed by the
perfected from a judgment or order that disposes prevailing party with notice to the adverse
of the action or proceeding. Once a judgment party;
becomes final and executory, the prevailing party 2) There must be a hearing of the motion for
can have it executed as a matter of right, and the discretionary execution;
issuance of a writ of execution becomes the 3) There must be good reasons to justify the
ministerial duty of the court compellable by discretionary execution; and
mandamus except in certain cases, as when 4) The good reasons must be stated in a
subsequent events would render execution of special order (Sec. 2, Rule 39).
judgment unjust.
HOW A JUDGMENT IS EXECUTED (SEC. 4)
Judgments and orders become final and executor
by operation of law and not by judicial Judgments in actions for injunction, receivership,
declaration. The trial court need not even accounting and support, and such other
pronounce the finality of the order as the same judgments as are now or may hereafter be
becomes final by operation of law. Its finality declared to be immediately executory, shall be
becomes a fact when the reglementary period for enforceable after their rendition and shall not be
appeal lapses, and no appeal is perfected within stayed by an appeal taken therefrom, unless
such period. otherwise ordered by the trial court.

Execution is a matter or right, except in the On appeal, the appellate court in its discretion
following cases: may make an order suspending, modifying,
a) Where judgment turns out to be restoring or granting the injunction, receivership,
incomplete or conditional; accounting, or award of support. The stay of
b) Judgment is novated by the parties; execution shall be upon such terms as to bond or
c) Equitable grounds (i.e., change in the otherwise as may be considered proper for the
situation of the parties—supervening fact security or protection of the rights of the adverse
doctrine) party.
d) Execution is enjoined (i.e., petition for
relief from judgment or annulment of Judgments that may be altered or modified after
judgment with TRO or writ of preliminary becoming final and executory:
injunction); 1) Facts and circumstances transpire which
e) Judgment has become dormant; or render its execution impossible or unjust;
f) Execution is unjust or impossible. 2) Support;
3) Interlocutory judgment.
DISCRETIONARY EXECUTION (SEC. 2) –
execution pending appeal EXECUTION BY MOTION OR BY
INDEPENDENT ACTION (SEC. 6)
It constitutes an exception to the general rule
that a judgment cannot be executed before the a) Once revived, then you can file a motion for
lapse of the period for appeal or during the execution
pendency of an appeal.
b) Execution by MOTION may be had if the
Under Sec. 1, Rule 39, execution shall issue only enforcement of the judgment is sought within
as a matter of right upon a judgment or final 5 years from the date of its entry.
order that finally disposes of the action or
 77

c) Execution by INDEPENDENT ACTION is when profits due as of the date of the

the 5 year period has lapsed from the entry of issuance of the writ, aside from the
judgment and before it is barred by the principal obligation under the
statute of limitations. This action to revive the judgment. For this purpose, the motion
judgment must be filed within 10 years from for execution shall specify the amounts
the date the judgment became final. of the foregoing reliefs sought by the
movants.
ISSUANCE AND CONTENTS OF A WRIT OF
EXECUTION (SEC. 8) EXECUTION OF JUDGMENT FOR MONEY
(SEC. 9)
This is only upon motion and its lifetime is 5
years; as a rule, it is issued by the court of a) Immediate payment on demand – The
original jurisdiction officer enforcing the writ shall demand from
the judgment obligor the immediate payment
The writ of execution shall: of the full amount stated in the judgment
1) issue in the name of the Republic of the including the lawful fees in cash, certified
Philippines from the court which granted check payable to the judgment oblige or any
the motion; other form of payment acceptable to him
2) state the name of the court, the case (Sec. 9).
number and title, the dispositive part of  the sheriff is required to first make a
the subject judgment or order; and demand on the obligor for the immediate
3) require the SHERIFF (should make a report payment of the full amount stated in the
every 30 days) or other proper officer to writ of execution
whom it is directed to enforce the writ
according to its term, in the manner b) Satisfaction by levy – If the judgment
hereinafter provided: obligor cannot pay all or part of the obligation
a) If the execution be against the in cash, certified check or other mode of
property of the judgment obligor, to payment, the officer shall levy upon the
satisfy the judgment, with interest, out properties of the judgment obligor.
of the real or personal property of such  The judgment obligor shall have the
judgment obligor; option to choose which property or part
b) If it be against real or personal thereof may be levied upon. Should he fail
property in the hands of personal to exercise the option, the officer shall first
representatives, heirs, devisees, levy on the personal properties, if any, and
legatees, tenants, or trustees of the then on the real properties if the personal
judgment obligor, to satisfy the properties are insufficient to answer for
judgment, with interest, out of such the personal judgment but the sheriff shall
property; sell only so much of the property that is
c) If it be for the sale of real or personal sufficient to satisfy the judgment and
property, to sell such property, lawful fees
describing it, and apply the proceeds
in conformity with the judgment, the c) Garnishment of debts and credits – The
material parts of which shall be recited officer may levy on the debts due the
in the writ of execution; judgment obligor including bank deposits,
d) If it be for the delivery of the financial interests, royalties, commissions and
possession of real or personal other personal property not capable of
property, to deliver the possession of manual delivery in the possession or control
the same, describing it, to the party of the third persons.
entitled thereto, and to satisfy any
costs, damages, rents, or profits EXECUTION OF JUDGMENT FOR SPECIFIC
covered by the judgment out of the ACTS (SEC. 10)
personal property of the person
against whom it was rendered, and if If the judgment requires a person to perform a
sufficient personal property cannot be specific act, said act must be performed but if the
found, then out of the real property; party fails to comply within the specified time,
and the court may direct the act to be done by
e) In all cases, the writ of execution shall someone at the cost of the disobedient party and
specifically state the amount of the the act when so done shall have the effect as if
interest, costs, damages, rents, or done by the party
 78

teachers, and other professionals, not

If the judgment directs a conveyance of real or exceeding 300,000 pesos;
personal property, and said property is in the 8) One fishing boat and accessories not
Philippines, the court in lieu of directing the exceeding the total value of 100,000 pesos
conveyance thereof, may by an order divest the owned by a fisherman and by the lawful use
title of any party and vest it in others, which shall of which he earns his livelihood;
have the force and effect of a conveyance 9) So much of the salaries, wages, or earnings of
executed in due form of law. the judgment obligor for his personal services
with 4 months preceding the levy as are
EXECUTION OF SPECIAL JUDGMENTS (SEC. necessary for the support of his family;
11) 10) Lettered gravestones;
11) Monies, benefits, privileges, or annuities
When a judgment requires the performance of accruing or in any manner growing out of any
any act other, a certified copy of the judgment life insurance;
shall be attached to the writ of execution and 12) The right to receive legal support, or money
shall be served by the officer upon the party or property obtained as such support, or any
against whom the same is rendered, or upon any pension or gratuity from the government; and
other person required thereby, or by law, to obey 13) Properties specially exempted by law (Sec.
the same, and such party or person may be 13, Rule 39).
punished for contempt if he disobeys such
judgment. If the property is the subject of execution because
of a judgment for the recovery of the price or
EFFECT OF LEVY ON THIRD PERSONS upon judgment of foreclosure of a mortgage upon
the property, the property is not exempt from
The levy on execution shall create a lien in favor execution.
of the judgment obligee over the right, title and
interest of the judgment obligor in such property PROCEEDINGS WHERE PROPERTY IS
at the time of the levy, subject to liens and CLAIMED BY THIRD PERSONS (SEC. 16)
encumbrances then existing.
If the property levied on is claimed by any person
PROPERTIES EXEMPT FROM EXECUTION other than the judgment obligor or his agent, the
(SEC. 13) officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the
EXCEPT as otherwise expressly provided by law, officer, files a bond approved by the court to
the following property, and no other, shall be indemnify the third-party claimant in a sum not
exempt from execution: less than the value of the property levied on.
1) The judgment obligor‘s family home as
provided by law, or the homestead in which The officer shall not be liable for damages for the
he resides, and the land necessarily used in taking or keeping of the property, to any third-
connection therewith; party claimant if such bond is filed.
2) Ordinary tools and implements personally
used by him in his trade, employment, or Requisites for a claim by a third person:
livelihood; a) The property is levied;
3) Three horses, or three cows, or three b) The claimant is a person other than the
carabaos, or other beasts of burden, such as judgment obligor or his agent;
the judgment obligor may select necessarily c) Makes an affidavit of his title thereto or
used by him in his ordinary occupation; right to the possession thereof stating the
4) His necessary clothing and articles for grounds of such right or title; and
ordinary personal use, excluding jewelry; d) Serves the same upon the officer making
5) Household furniture and utensils necessary for the levy and the judgment obligee.
housekeeping, and used for that purpose by
the judgment obligor and his family, such as IN RELATION TO THIRD PARTY CLAIM IN
the judgment obligor may select, of a value ATTACHMENT AND REPLEVIN
not exceeding 100,000 pesos.
6) Provisions for individual or family use Remedies available to a third person not party to
sufficient for four months; the action but whose property is the subject of
7) The professional libraries and equipment of execution:
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, a) TERCERIA
 79

 By making an affidavit of his title thereto is absolute and no right of redemption

or his right to possession thereof, stating may be exercised.
the grounds of such right or title.
 The affidavit must be served upon the WHO MAY REDEEM?
sheriff and the attaching party (Sec. 14, a) Judgment obligor, or his successor in
Rule 57). interest in the whole or any part of the
 Upon service of the affidavit upon him, the property;
sheriff shall not be bound to keep the b) Redemptioner – a creditor having a lien by
property under attachment except if the virtue of an attachment, judgment or
attaching party files a bond approved by mortgage on the property sold, or on
the court. some part thereof, subsequent to the lien
 The sheriff shall not be liable for damages under which the property was sold.
for the taking or keeping of the property, if
such bond shall be filed. WHEN TO REDEEM?
a) By the judgment obligor - within 1 year
b) EXCLUSION OR RELEASE OF PROPERTY from the date of the registration of the
 Upon application of the third person certificate of sale.
through a motion to set aside the levy on b) By the redemptioner - within 1 year from
attachment, the court shall order a the date of the registration of the
summary hearing for the purpose of certificate of sale if he is the first
determining whether the sheriff has acted redemptioner, or
rightly or wrongly in the performance of c) Within 60 days after the last redemption if
his duties in the execution of the writ of he is a subsequent redemptioner, provided
attachment. that the judgment debtor has not
 The court may order the sheriff to release exercised his right of redemption.
the property from the erroneous levy and
to return the same to the third person.  In all cases the judgment obligor shall
 In resolving the application, the court have the entire period of one (1) year from
cannot pass upon the question of title to the date of the registration of the sale to
the property with any character of finality redeem the property. If the judgment
but only insofar as may be necessary to obligor redeems, no further redemption is
decide if the sheriff has acted correctly or allowed and he is restored to his estate.
not.
REDEMPTION PRICE
c) INTERVENTION
 This is possible because no judgment has a) By the judgment obligor
yet been rendered and under the rules, a 1. Purchase price
motion for intervention may be filed any 2. 1% interest thereon up to the time of
time before the rendition of the judgment redemption
by the trial court (Sec. 2, Rule 19). 3. Any amount of assessments or taxes
which the purchaser may have paid
d) ACCION REINVINDICATORIA thereon after purchase, and interest on
 The third party claimant is not precluded such last named amount at the same
rate.
by Sec. 14, Rule 57 from vindicating his
 If the purchaser be also a creditor having a
claim to the property in the same or in a
separate action. prior lien to that of the redemptioner,
 He may file a separate action to nullify the other than the judgment under which such
purchase was made, the amount of such
levy with damages resulting from the
other lien, with interest.
unlawful levy and seizure. This action may
be a totally distinct action from the former
b) By the redemptioner
case.
1. Amount paid on the last redemption;
2. 2% interest thereon
RULES ON REDEMPTION
3. Any amount of assessments or taxes
which the last previous redemptioner
WHAT MAY BE REDEEMED?
paid after the redemption by him with
 The right of redemption is available only
interest on such last-named amount;
to real properties. When personal
properties are sold in execution their sale
 80

4. Amount of any liens held by the last

redemptioner prior to his own, with When the return of a writ of execution against the
interest. property of a judgment obligor shows that the
judgment remains unsatisfied, in whole or in part,
Generally in judicial foreclosure sale, there is no and upon proof to the satisfaction of the court
right of redemption, but only equity of which issued the writ, that person, corporation, or
redemption. In sale of estate property to pay off other juridical entity has property of such
debts of the estate, there is no redemption at all. judgment obligor or is indebted to him, the court
Only in extrajudicial foreclosure sale and sale on may, by an order, require such person,
execution is there the right of redemption. corporation, or other juridical entity, or any officer
or member thereof, to appear before the court or
If no redemption be made within one (1) year a commissioner appointed by it, at a time and
from the date of the registration of the certificate place within the province or city where such
of sale, the purchaser is entitled to a conveyance debtor resides or is found, and be examined
and possession of the property; or, if so concerning the same.
redeemed whenever sixty (60) days have elapsed
and no other redemption has been made, and The service of the order shall bind all credits due
notice thereof given, and the time for redemption the judgment obligor and all money and property
has expired, the last redemptioner is entitled to of the judgment obligor in the possession or in
the conveyance and possession. control of such person, corporation, or juridical
entity from the time of service; and the court may
Upon the expiration of the right of redemption, also require notice of such proceedings to be
the purchaser or redemptioner shall be given to any party to the action in such manner
substituted to and acquire all the rights, title, as it may deem proper.
interest and claim of the judgment obligor to the
property as of the time of the levy. EFFECT OF JUDGMENT OR FINAL ORDERS:
RES JUDICATA (SEC. 47)
The possession of the property shall be given to
the purchaser or last redemptioner by the same In case of a judgment or final order against a
officer unless a third party is actually holding the specific thing, or in respect to the probate of a
property adversely to the judgment obligor. will, or the administration of the estate of a
deceased person, or in respect to the personal,
EXAMINATION OF JUDGMENTS OBLIGOR political, or legal condition or status of a
WHEN JUDGMENT IS UNSATISFIED (SEC. particular person or his relationship to another,
36) the judgment or final order is conclusive upon the
title to the thing, the will or administration, or the
When the return of a writ of execution issued condition, status or relationship of the person;
against property of a judgment obligor, or any however, the probate of a will or granting of
one of several obligors in the same judgment, letters of administration shall only be prima facie
shows that the judgment remains unsatisfied, in evidence of the truth of the testator or intestate;
whole or in part, the judgment obligee, at any
time after such return is made, shall be entitled In other cases, the judgment or final order is, with
to an order from the court which rendered the respect to the matter directly adjudged or as to
said judgment, requiring such judgment obligor to any other matter that could have been raised in
appear and be examined concerning his property relation thereto, conclusive between the parties
and income before such court or before a and their successors in interest by title
commissioner appointed by it, at a specified time subsequent to the commencement of the action
and place; and proceedings may thereupon be or special proceeding, litigating for the same
had for the application of the property and thing and under the same title and in the same
income of the judgment obligor towards the capacity; and
satisfaction of the judgment.
In any other litigation between the same parties
But no judgment obligor shall be so required to or their successors in interest, that only is
appear before a court or commissioner outside deemed to have been adjudged in a former
the province or city in which such obligor resides judgment or final order which appears upon its
or is found. face to have been so adjudged, or which was
actually and necessarily included therein or
EXAMINATION OF OBLIGOR OF JUDGMENT necessary thereto.
OBLIGOR (SEC. 37)
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ENFORCEMENT AND EFFECT OF FOREIGN JURISDICTION OVER PROVISIONAL

JUDGMENTS OR FINAL ORDERS (SEC. 48) REMEDIES

1) In case of a judgment or final order upon a The court which grants or issues a provisional
specific thing, the judgment or final order is remedy is the court which has jurisdiction over
conclusive upon the title to the thing; and the main action. Even an inferior court may grant
2) In case of a judgment or final order against a a provisional remedy in an action pending with it
person, the judgment or final order is and within its jurisdiction.
presumptive evidence of a right as between
the parties and their successors in interest by
PRELIMINARY ATTACHMENT (RULE 57)
a subsequent title. In either case, the
judgment or final order may be repelled by
evidence of a want of jurisdiction, want of Preliminary attachment is a provisional remedy
notice to the party, collusion, fraud, or clear issued upon order of the court where an action is
mistake of law or fact. pending to be levied upon the property of the
defendant so the property may be held by the
A foreign judgment on the mere strength of its sheriff as security for the satisfaction of whatever
promulgation is not yet conclusive, as it can be judgment may be rendered in the.
annulled on the grounds of want of jurisdiction,
want of notice to the party, collusion, fraud, or When availed of and is granted in an action
clear mistake of law or fact. purely in personam, it converts the action to one
that is quasi in rem. In an action in rem or quasi
It is likewise recognized in Philippine in rem, jurisdiction over the res is sufficient.
jurisprudence and international law that a foreign Jurisdiction over the person of the defendant is
judgment may be barred from recognition if it not required.
runs counter to public policy.
There is no separate action called preliminary
attachment. It is availed of in relation to a
principal action.
PROVISIONAL REMEDIES (Rules
57-61) Preliminary attachment is designed to:
1) Seize the property of the debtor before
final judgment and put the same in
custodial egis even while the action is
NATURE OF PROVISIONAL REMEDIES pending for the satisfaction of a later
judgment.
Provisional remedies are temporary, auxiliary, 2) To enable the court to acquire jurisdiction
and ancillary remedies available to a litigant for over the res or the property subject of the
the protection and preservation of his rights while action in cases where service in person or
the main action is pending. They are writs and any other service to acquire jurisdiction
processes which are not main actions and they over the defendant cannot be affected.
presuppose the existence of a principal action.
Three stages in the grant of the Preliminary
Provisional remedies are resorted to by litigants Attachment
for any of the following reasons: 1) The court issues the order granting the
1) To preserve or protect their rights or application
interests while the main action is pending; 2) The writ of attachment issues pursuant to
2) To secure the judgment; the order granting the writ
3) To preserve the status quo; or 3) The writ if implemented
4) To preserve the subject matter of the
action. For the 2 initial stages, it is not necessary that
jurisdiction over the person of the defendant be
Provisional remedies specified under the first obtained. However, once the implementation
rules are: of the writ commences, the court must have
1. Preliminary attachment (Rule 57); acquired jurisdiction over the defendant for
2. Preliminary injunction (Rule 58); without such jurisdiction, the court has no power
3. Receivership (Rule 59); or authority to act in any manner against the
4. Replevin (Rule 60); and defendant.
5. Support pendent lite (Rule 61).
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PRELIMINARY ATTACHMENT HAS converted to his own use by a public

THREE TYPES officer, or an officer of a corporation, or an
attorney, factor, broker, agent or clerk, in
(a) PRELIMINARY ATTACHMENT – one issued at the course of his employment as such, or
the commencement of the action or at any time by any other person in a fiduciary
before entry of judgment as security for the capacity, or for a willful violation of duty;
satisfaction of any judgment that may be 3) In an action to recover the possession of
recovered. Here the court takes custody of the property unjustly or fraudulently taken,
property of the party against whom attachment is detained or converted, when the property,
directed. or any party thereof, has been concealed,
removed, or disposed of to prevent its
(b) GARNISHMENT – plaintiff seeks to subject being found or taken by the applicant or
either the property of defendant in the hands of a an authorized person;
third person (garnishee) to his claim or the 4) In an action against a party who has been
money which said third person owes the guilty of a fraud in contracting the debt or
defendant. Garnishment does not involve actual incurring the obligation upon which the
seizure of property which remains in the hands of action the action is brought, or in the
the garnishee. It simply impounds the property in performance thereof;
the garnishee’s possession and maintains the 5) In an action against a party who has
status quo until the main action is finally decided. removed or disposed of his property, or is
Garnishment proceedings are usually directed about to do so, with intent to defraud his
against personal property, tangible or intangible creditors; or
and whether capable of manual delivery or not. 6) In an action against a party who does not
reside and is not found in the Philippines,
(c) LEVY ON EXECUTION – writ issued by the or on whom summons may be served by
court after judgment by which the property of the publication (Sec. 1).
judgment obligor is taken into custody of the
court before the sale of the property on execution REQUISITES
for the satisfaction of a final judgment. It is the
preliminary step to the sale on execution of the The issuance of an order/writ of execution
property of the judgment debtor. requires the following:
1) The case must be any of those where
 The grant of the remedy is addressed to preliminary attachment is proper;
the discretion of the court whether or not 2) The applicant must file a motion whether
the application shall be given full credit is ex parte or with notice and hearing;
discretionary upon the court. In 3) The applicant must show by affidavit
determining the propriety of the grant, the (under oath) that there is no sufficient
court also considers the principal case security for the claim sought to be
upon which the provisional remedy enforced; that the amount claimed in the
depends. action is as much as the sum of which the
order is granted above all counterclaims;
GROUNDS FOR ISSUANCE OF WRIT OF and
ATTACHMENT 4) The applicant must post a bond executed
to the adverse party.
At the commencement of the action or at any  This is called an ATTACHMENT
time before entry of judgment, a plaintiff or any BOND, which answers for all
proper party may have the property of the damages incurred by the party
adverse party attached as security for the against whom the attachment was
satisfaction of any judgment that may be issued and sustained by him by
recovered in the following cases: reason of the attachment.
1) In an action for the recovery of a specified
amount of money or damages, other than ISSUANCE AND CONTENTS OF ORDER OF
moral and exemplary, on a cause of action ATTACHMENT
arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is An order of attachment may be issued either ex
about to depart from the Philippines with parte or upon motion with notice and hearing by
intent to defraud his creditors; the court in which the action is pending, or by the
2) In an action for money or property CA or the SC.
embezzled or fraudulently misapplied or
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It may issue ex parte and even before the

summons is served upon the defendant. In attaching REAL PROPERTY, or growing crops
However, the writ may not be enforced and thereon or any interest therein, a copy of the
validly implemented unless preceded or order shall be filed with the registry of deeds
simultaneously served with the summons, a copy along with a description of the property attached
of the complaint, application for attachment, the and by leaving a copy of such order with the
order of attachment and the attachment bond. occupant of the property, if any or such other
person or his agent if found within the province.
AFFIDAVIT AND BOND
In attaching PERSONAL PROPERTY capable of
The order of attachment shall be granted only manual delivery - by taking and safely keeping it
when it appears by the affidavit of the applicant in his custody after issuing the corresponding
that the requisites for a grant of attachment are receipt therefor.
present.
As to STOCKS OR SHARES, or an interest thereon,
The applicant must thereafter give a bond by leaving with the president or managing agent
executed to the adverse party in the amount of the company, a copy of the writ, and a notice
fixed by the court in its order granting the stating that the stock or interest of the party
issuance of the writ, conditioned that the latter against whom the attachment is issued is
will pay all the costs which may be adjudged to attached in pursuance of such writ.
the adverse party and all damages which he may
sustain by reason of the attachment, if the court DEBTS AND CREDITS, including bank deposits,
shall finally adjudge that the applicant was not financial interest, royalties, commissions and
entitled thereto other personal property not capable of manual
delivery shall be attached by leaving with the
RULE ON PRIOR OR CONTEMPORANEOUS person owing such debts, or in possession or
SERVICE OF SUMMONS control of such credits or other personal property,
or with his agent, a copy of the writ, and notice
 Enforcement of the writ or preliminary that such properties are attached.
attachment must be preceded by
contemporaneously accompanied by the As to interest of the party against whom
service of summons, copy of the complaint, attachment is issued in property BELONGING TO
application and affidavit of the attachment THE ESTATE OF THE DECEDENT are attached by
and the bond in favor of the adverse party. giving a copy of the writ and notice to the
 The failure to acquire jurisdiction over the executor or administrator and the office of the
person of the adverse party shall render the clerk of court where is the estate is being settled.
implementation of the writ void.
If the property to be attached is IN CUSTODIA
Exceptions to the requirement: LEGIS, a copy of the writ shall be filed with the
1) Where the summons could not be served proper court or quasi-judicial agency, and notice
personally or by substituted service of the attachment served upon the custodian of
despite diligent efforts; such property.
2) The defendant is a resident of the
Philippines who is temporarily out of the WHEN PROPERTY ATTACHED IS CLAIMED BY
country; THIRD PERSON
3) The defendant is a non-resident; or
4) The action is one in rem or quasi in rem The third party may resort to any of the following
(Sec. 5). remedies which are cumulative and thus could be
resorted independently and separately from the
MANNER OF ATTACHING REAL AND others:
PERSONAL PROPERTY a) He may avail of the remedy of terceria -
by making an affidavit of his title thereto
The sheriff enforcing the writ shall without delay or his right to possession thereof, stating
and with all reasonable diligence attach, to await the grounds of such right or title. The
judgment and execution in the action, only so affidavit must be served upon the sheriff
much of the property in the Philippines of the and the attaching party. The sheriff shall
party against whom the writ is issued, not exempt not be bound to keep the property under
from execution, as may be sufficient to satisfy the attachment except if the attaching party
applicant's demand. files a bond approved by the court.
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b) The third person may invoke the court’s PROPERTY ATTACHED

authority in the same case and move for a
summary hearing on his claim to decide if If judgment is rendered in favor of the attaching
the sheriff has acted correctly or not. party and execution issued, the sheriff may cause
c) The third party may file a separate action the judgment to be satisfied out of the property
to nullify the levy with damages resulting attached, if it be sufficient for that purpose.
from the unlawful levy and seizure. This
action may be totally distinct from the
case in which the attachment was issued. PRELIMINARY INJUNCTION (RULE 58)

HOW TO PREVENT THE ATTACHMENT  Can be provisional remedy and can also
an action
The party whose property is sought to be
attached, my prevent the attachment by doing DEFINITIONS AND DIFFERENCES:
either of two things: PRELIMINARY INJUNCTION AND
1) By depositing with the court an amount TEMPORARY RESTRAINING ORDER
equal to the value of the property to be
attached; or A preliminary injunction is an order granted at
2) By giving a counter bond executed to the any stage of an action or proceeding prior to the
applicant, in an amount equal to the bond judgment or final order, requiring a party or a
posted by the latter to secure the court, agency or a person to either refrain
attachment. (prohibitory) from or to perform (mandatory) a
particular act or acts during the pendency of the
DISCHARGE OF ATTACHMENT AND THE action.
COUNTER-BOND
Temporary restraining order (TRO) is issued is an
If the attachment has already been enforced, the order to maintain the status quo between and
party whose property has been attached may file among the parties until the determination of the
a MOTION to discharge the attachment. This prayer for a writ of preliminary injunction. The
motion shall be with notice and hearing. After due status quo is the last, actual, peaceable and
notice and hearing, the court shall discharge the uncontested situation which precedes a
attachment if the movants makes a CASH controversy.
DEPOSIT or files a COUNTER-BOND executed to
the attaching party with the clerk of court where The judge may issue a TRO with a limited life of
the application is made. 20 days from date of issue. If before the
expiration of the 20 day period, the application
Attachment may likewise be discharged without for preliminary injunction is denied, the TRO
the need for filing of a counter-bond. This is would be deemed automatically vacated. If no
possible when the party whose property has been action is taken by the judge within the 20 day
attached files a motion to set aside or discharge period, the TRO would automatically expire on
the attachment and during the hearing of the the 20th day by the sheer force of law, no judicial
motion, he proves that: declaration to that effect being necessary.
1) The attachment was improperly or
irregularly issued or enforced; or A writ of preliminary injunction cannot be granted
2) The bond of the attaching creditor is without notice and hearing. A TRO may be
insufficient; or granted ex parte if it shall appear from facts
3) The attachment is excessive and must be shown by affidavits or by the verified application
discharged as to the excess; or that great or irreparable injury would result to the
4) The property is exempt from execution, applicant before the matter can be heard on
and as such is also exempt from notice, the court in which the application for
preliminary attachment. preliminary injunction was made my issue a TRO
 “Improperly” (e.g. writ of attachment was not ex parte for a period not exceeding 20 days from
based on the grounds in Sec. 1) service to the party sought to be enjoined.

 “Irregularly” (e.g. writ of attachment was REQUISITES

executed without previous or
contemporaneous service of summons) 1) There must be a verified petition,
2) The application must establish that he has a
SATISFACTION OF JUDGMENT OUT OF right of relief or a right to be protected and
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that the act against which the injunction is 2) The commission, continuance or non-
sought violates such right, performance of the act or acts complained of
3) The applicant must establish that there is a during the litigation would probably work
need to restrain the commission of the injustice to the applicant; or
continuance of the acts complained of and if 3) A party, court, agency or a person is doing,
not enjoined would work injustice to him, threatening or is attempting to do, or is
4) A bond must be posted, unless otherwise procuring or suffering to be done, some act or
exempted by the court. acts probably in violation of the rights of the
5) The threatened injury must be incapable of applicant respecting the subject of the action
pecuniary estimation. or proceeding, and tending to render the
judgment ineffectual.
KINDS OF INJUNCTION
GROUNDS FOR OBJECTION TO OR FOR THE
PROHIBITORY – its purpose is to prevent a DISSOLUTION OF INJUNCTION OR
person from the performance of a particular act RESTRAINING ORDER
which has not yet been performed.
1) Preliminary – secured before the finality 1) Upon showing of insufficiency of the
of judgment. application;
2) Final – issued as a judgment, making the 2) Other grounds upon affidavit of the party or
injunction permanent. It perpetually person enjoined;
restrains a person from the continuance or 3) Appears after hearing that irreparable
commission of an act and confirms the damage to the party or person enjoined will
previous preliminary injunction. It is one be caused while the applicant can be fully
included in the judgment as the relief or compensated for such damages as he may
part of the relief granted as a result of the suffer, and the party enjoined files a counter-
action, hence, granted only after trial and bond;
no bond is required. 4) Insufficiency of the bond;
5) Insufficiency of the surety or sureties.
MANDATORY – its purpose is to require a person
to perform a particular positive act which has DURATION OF TRO
already been performed and has violated the
rights of another. The lifetime of a TRO is 20 days, which is non-
a) Preliminary extendible (AM 02-02-07-SC).
b) Final
Requisites for the issuance of mandatory If it is shown that the applicant would suffer great
preliminary injunction or irreparable injury before the application for the
(a) The invasion of the right is material and writ of injunction can be heard, the court may
substantial; issue a temporary restraining order (TRP) ex
(b) The right of a complainant is clear and parte which shall be effective for a period not
unmistakable; exceeding twenty (20) days from service on the
(c) There is an urgent and permanent party sought to be enjoined. Within the said
necessity for the writ to prevent serious twenty-day period, the court must order said
damage. party to show cause why the injunction should
not be granted, determine within the same period
WHEN WRIT MAY BE ISSUED whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding
It may be issued at any stage prior to the order.
judgment or final order.
If the matter is of extreme urgency and the
GROUNDS FOR ISSUANCE OF PRELIMINARY applicant will suffer grave injustice and
INJUNCTION irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a
1) The applicant is entitled to the relief single sala court may issue ex parte a temporary
demanded, and the whole or part of such restraining order effective for only seventy-two
relief consists in restraining the commission or (72) hours. Within such period, the judge shall
continuance of the act or acts complained of, conduct a summary hearing to determine
or in requiring the performance of an act or whether the temporary restraining order shall be
acts either for a limited period or perpetually; extended to 20 days. The 72 hours shall be
or included in the maximum 20 day period.
 86

such notice shall be preceded or

If a TRO is by the Court of Appeals or a member contemporaneously accompanied by a service of
thereof, it shall be effective for sixty (60) days summons, together with a copy of the complaint
from notice to service party to be enjoined. or initiatory pleading and the applicant’s affidavit
and bond, upon the adverse party in the
If a TRO is issued by the Supreme Court or a Philippines.
member thereof, it shall be effective until further
orders. It is not available where
a) the summons could not be served
BAN OF TRO OR WRIT OF INJUNCTION IN personally or by substituted service
CASES INVOLVING GOVERNMENT despite diligent efforts or
INFRASTRUCTURE PROJECTS: RA 8975 b) where the adverse party is a resident of
the Philippines temporarily absent
No court except the SC shall issue any or therefrom or is a non-resident thereof.
preliminary injunction or preliminary mandatory
injunction against the government or it SUMMARY/STAGES OF INJUNCTION
subdivisions, officials or any person or entity
whether public or private acting under the (1) SEVENTY-TWO (72) HOUR TEMPORARY
government direction, to restrain, prohibit or RESTRAINING ORDER
compel the following acts: a) If the matter is of extreme urgency and
1) Acquisition, clearance and development of the applicant will suffer grave injustice
the right of way and/or site or location of and irreparable injury;
any government project, b) Issued by executive judge of a multi-sala
2) Bidding or awarding of a contract or court or the presiding judge of a single-
project of the national government, sala court;
3) Commencement, prosecution, execution, c) Thereafter must
implementation, operation of any such i. Serve summons and other
contract or project, documents
4) Termination or rescission of any such ii. Conduct summary hearing to
contract/project and determine whether the TRO shall
5) The undertaking or authorization of any be extended to 20 days until the
other lawful activity necessary for such application for preliminary
contract or project. injunction can be heard.
 Any TRO, preliminary injunction and
preliminary mandatory injunction issued in (2) TWENTY (20) DAY TRO
violation of the above prohibition shall be a) If it shall appear from the facts shown by
void. affidavits or by the verified application
that great or irreparable injury would
Exceptions to the prohibition: result to the applicant before the matter
a) In cases of extreme urgency; can be heard on notice;
b) If it involves constitutional issue; b) If application is included in initiatory
c) Grave injustice and irreparable pleading:
injury will arise unless a TRO is 1. Notice of raffle shall be preceded,
issued. or contemporaneously
accompanied, by service of
 In one case, the SC said that injunction is summons, together with a copy of
not available to stop infrastructure the complaint or initiatory pleading
projects of the government including and the applicant‘s affidavit and
arrastre and stevedoring operations. bond, upon the adverse party in
the Philippines;
RULE ON PRIOR OR CONTEMPORANEOUS 2. Raffled only after notice to and in
SERVICE OF SUMMONS IN RELATION TO the presence of the adverse party
ATTACHMENT or the person to be enjoined.
c) Issued with summary hearing (to
When an application for a writ of preliminary determine whether the applicant will
injunction or TRO is made in a complaint or other suffer great or irreparable injury) within 24
initiatory pleading, the case, if filed in a multi-sala hours after sheriff‘s return of service
court, shall be raffled only after notice to and in and/or records are received by the branch
the presence of the adverse party. In any event, selected by raffle;
 87

d) Within 20-day period, the court must order

RECEIVERSHIP (RULE 59)
said person to show cause why the
injunction should not be granted, and
determine whether or not the preliminary  Can be applied even judgment is final and
injunction shall be granted, and executory
accordingly issue the corresponding order;  Receivership is a provisional remedy wherein
e) Including the original 72 hours, total the court appoints a representative to
effectivity of TRO shall: preserve, administer, dispose of and prevent
1. Not exceed 20 days, if issued by an the loss or dissipation of the real or personal
RTC or MTC; property during the pendency of an action.
2. Not exceed 60 days, if issued by  It may be the principal action itself or a mere
the CA or a member thereof; provisional remedy; it can be availed of even
3. Until further orders, if issued by the after the judgment has become final and
SC. executory as it may be applied for to aid
f) TRO is automatically vacated upon execution or carry judgment into effect.
expiration of the period and without
granting of preliminary injunction; CASES WHEN RECEIVER MAY BE
g) Effectivity is not extendible without need APPOINTED
of any judicial declaration to that effect;
h) No court shall have authority to extend or Upon a verified application, one or more receivers
renew the same on the same ground for of the property subject of the action or
which it was issued. proceeding may be appointed by the court where
the action is pending or by the Court of Appeals
(3) PRELIMINARY INJUNCTION or by the Supreme Court, or a member thereof, in
a) Hearing and prior notice to the party the following cases:
sought to be enjoined; 1. The party applying for the appointment of
b) If application is included in initiatory a receiver has an interest in the property
pleading: or fund which is the subject of the action
1. Notice of raffle shall be preceded, or proceeding, and that such property or
or contemporaneously fund is in danger of being lost, or
accompanied, by service of materially injured unless a receiver be
summons, together with a copy of appointed to administer and preserve it;
the complaint or initiatory pleading 2. In an action by the mortgagee for the
and the applicant's affidavit and foreclosure of a mortgage that the
bond, upon the adverse party in property is in danger of being wasted or
the Philippines. dissipated or materially injured, and that
2. Raffled only after notice to and in its value is probably insufficient to
the presence of the adverse party discharge the mortgage debt, or that the
or the person to be enjoined parties have so stipulated in the contract
c) Applicant posts a bond of mortgage;
3. After judgment, to preserve the property
(4) FINAL INJUNCTION during the pendency of an appeal, or to
 Note that a bond is required only in dispose of it according to the judgment, or
preliminary injunctions, but is not required to aid execution when the execution has
in TROs. After lapse of the 20 day TRO, the been returned unsatisfied or the judgment
court can still grant a preliminary obligor refuses to apply his property in
injunction. satisfaction of the judgment, or otherwise
 Note that irreparable injury is always a to carry the judgment into effect;
requisite in TROs. But in the 72 hour TRO, 4. Whenever in other cases it appears that
grave injustice must also be shown. In the the appointment of a receiver is the most
20 day TRO, the ground is great or convenient and feasible means of
irreparable injury. Without a preliminary preserving, administering, or disposing of
injunction, a TRO issued by the CA expires the property in litigation.
without necessity of court action.
REQUISITES
 Only SC ca issue a Status Quo Order
1) Verified application;
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2) Appointed by the court where the action is 1) Applicant’s Bond (for appointment of
pending, or by the CA or by the SC, or a receiver) – To pay the damages the adverse
member thereof; party may sustain by reason of appointment
 During the pendency of an appeal, the of receiver; and
appellate court may allow an application 2) Receiver’s Bond (of the appointed receiver,
for the appointment of a receiver to be aside from oath) – To answer for receiver’s
filed in and decided by the court of origin faithful discharge of his duties.
and the receiver appointed to be subject 3) Counter Bond
to the control of said court.
3) Applicant’s bond conditioned on paying the TERMINATION OF RECEIVERSHIP
adverse party all damages he may sustain by
the appointment of the receiver in case the Whenever the court, motu proprio or on motion of
appointment is without sufficient cause; either party, shall determine that the necessity
4) Receiver takes his oath and files his bond. for a receiver no longer exists, it shall, after due
notice to all interested parties and hearing, settle
REQUIREMENTS BEFORE ISSUANCE OF AN the accounts of the receiver, direct the delivery of
ORDER the funds and other property in his possession to
the person adjudged to be entitled to receive
1) Before issuing the order appointing a receiver them, and order the discharge of the receiver
the court shall require the applicant to file a from further duty as such.
bond executed to the party against whom the
application is presented, in an amount to be The court shall allow the receiver such reasonable
fixed by the court, to the effect that the compensation as the circumstances of the case
applicant will pay such party all damages he warrant, to be taxed as costs against the
may sustain by reason of the appointment of defeated party, or apportioned, as justice
such receiver in case the applicant shall have requires.
procured such appointment without sufficient
cause; and Receivership shall also be terminated when:
2) The court may, in its discretion, at any time a) its continuance is not justified by the facts
after the appointment, require an additional and circumstances of the case; or
bond as further security for such damages. b) court is convinced that the powers are
abused.
GENERAL POWERS OF A RECEIVER
REPLEVIN (RULE 60)
1) To bring and defend, in such capacity, actions
in his own name
2) To take and keep possession of the property in It is a proceeding by which the owner or one who
controversy has a general or special property in the thing
3) To receive rents taken or detained seeks to recover possession in
4) To collect debts due to himself as receiver or specie, the recovery of damages being only
to the fund, property, estate, person, or incidental.
corporation of which he is the receiver
5) To compound for and compromise the same Replevin may be a main action or a provisional
6) To make transfer remedy. As a principal action its ultimate goal is
7) To pay outstanding debts to recover personal property capable of manual
8) To divide the money and other property that delivery wrongfully detained by a person. Used in
shall remain among the persons legally this sense, it is a suit in itself.
entitled to receive the same
9) To do such acts respecting the property as the It is a provisional remedy in the nature of
court may authorize. possessory action and the applicant who seeks
10) However, funds in the hands of a receiver immediate possession of the property involved
may be invested only by order of the court need not be the holder of the legal title thereto. It
upon the written consent of all the parties to is sufficient that he is entitled to possession
the action. No action may be filed by or thereof.
against a receiver without leave of the court
which appointed him. WHEN MAY WRIT BE ISSUED

TWO (2) KINDS OF BONDS a) The provisional remedy of replevin can only
be applied for before answer.
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b) A party praying for the recovery of possession It is required that the redelivery bond be filed
of personal property may, at the within the period of 5 days after the taking of the
commencement of the action or at any time property. The rule is MANDATORY.
before answer, apply for an order for the
delivery of such property to him. SHERIFF’S DUTY IN THE IMPLEMENTATION
OF THE WRIT; WHEN PROPERTY IS
REQUISITES CLAIMED BY THIRD PARTY

The applicant must show by his own affidavit or Upon receiving such order, the sheriff must serve
that of some other person who personally knows a copy on the adverse party, together with a copy
the facts: of the application, affidavit and bond, and must
1) A party praying for the provisional remedy take the property and retain it in his custody.
must file an application for a writ of
replevin. His application must be filed at If the property be concealed in a building or
the commencement of the action or at any enclosure, the sheriff must demand its delivery,
time before the defendant answers, and and if it be not delivered, he must cause the
must contain an affidavit particularly building or enclosure to be broken open and take
describing the property to which he the property into his possession.
entitled of possession.
2) The affidavit must state that the property If within five (5) days after the taking of the
is wrongfully detained by the adverse property by the sheriff, the adverse party does
party, alleging therein the cause of the not object to the sufficiency of the bond or if the
detention. It must also state that the adverse party so objects and the court affirms its
property has not been destrained or taken approval of the applicant's bond or approves a
for tax assessment or a fine pursuant to new bond, or if the adverse party requires the
law, or seized under a writ of execution or return of the property but his bond is objected to
preliminary attachment, or otherwise and found insufficient and he does not file an
placed in custodia legis. If it has been approved bond, the property shall be delivered to
seized, then the affidavit must state that it the applicant.
is exempt from such seizure or custody.
3) The affidavit must state the actual market If for any reason the property is not delivered to
value of the property; and the applicant, the sheriff must return it to the
4) The applicant must give a bond, executed adverse party.
to the adverse party and double the value
of the property. A 3rd party claimant may vindicate his claim to
the property, and the applicant may claim
AFFIDAVIT AND BOND; REDELIVERY BOND damages against such 3rd party, in the same or
separate action.
Affidavit, alleging:
a) That the applicant is the owner of property A claim on the indemnity bond should be filed
claimed, describing it or entitled to its within 120 days from posting of such bond.
possession;
b) That the property is wrongfully detained If the property taken is claimed by a third person
by the adverse party, alleging cause of its and make an affidavit of his title or right to the
detention; possession thereof and serves such affidavit upon
c) That the property has not been distrained the sheriff while the latter has possession of the
or taken for tax assessment or fine or property and a copy thereof upon the applicant,
under writ of execution/attachment or the sheriff shall not be bound to keep the
placed under custodia legis or if seized, property under replevin or deliver it to the
that it is exempt or should be released; applicant UNLESS the applicant on demand of
and said sheriff, shall file a bond approved by the
d) The actual market value of the property. court to indemnify the third-party claimant in the
sum not less than the value of the property.
Bond, which must be double the value of
property, to answer for the return of property if The sheriff shall not be liable for damages, for the
adjudged and pay for such sum as he may taking or keeping of such property, to any such
recover from the applicant. third-party claimant if such bond shall be filed.
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MTC like the actions for forcible entry and

unlawful detainer. There are also special civil
SPECIAL CIVIL ACTIONS (Rules 62 actions which cannot be commenced in the MTC,
– 71) foremost of which are the petitions for certiorari,
prohibition, and mandamus.

The VENUE in ordinary civil actions is determined

NATURE OF SPECIAL CIVIL ACTIONS
by either the residence of the parties where the
action is personal or by the location of the
Special civil actions are basically ordinary civil
property where the action is real. This does not
proceedings; what makes them special are the
always apply to a special civil action.
distinct peculiarities inherent in their very nature
not found in ordinary civil actions.
While ordinary civil actions when filed are
denominated as ―complaints, some special civil
They are actions in themselves, but possessing
actions are not denominated as such but
special matters that required special procedures.
―petitions.
For this reason, these proceedings are classified
as special civil actions.
(a) Special civil actions initiated by filing of
a Petition:
Sec. 1, Rule 62 provides that rules provided for
1) Declaratory relief other than similar
ordinary civil actions are applicable in special civil
remedies;
proceedings, which are not inconsistent with or
2) Review of adjudication of the COMELEC
may serve to supplement the provisions of the
and COA;
rules relating to such special civil actions.
3) Certiorari, prohibition and mandamus;
4) Quo warranto; and
ORDINARY CIVIL ACTIONS VERSUS SPECIAL
5) Contempt
CIVIL ACTIONS
(b) Special civil actions initiated by filing of
Although both types of actions are governed by a Complaint:
the rules for ordinary civil actions, there are 1) Interpleader;
certain rules that are applicable only to specific 2) Expropriation;
special civil actions. The fact that an action is 3) Foreclosure of real estate mortgage;
subject to special rules other than those 4) Partition; and
applicable to ordinary civil actions is what makes 5) Forcible entry and unlawful detainer.
a civil action special.
JURISDICTION AND VENUE
An ordinary civil action must be based on a
CAUSE OF ACTION. This means that the
The subject matter of a petition for declaratory
defendant must have performed an act or
relief raises issues which are not capable of
omitted to do an act in violation of the rights of
pecuniary estimation and must be filed with the
another. These definitions do not fit the
Regional Trial Court. It would be error to file the
requirements of a cause of action in certain
petition with the Supreme Court which has no
special civil actions.
original jurisdiction to entertain a petition for
declaratory relief.
 The cause of action as defined and required of
an ordinary civil action finds no application to
the special civil action of declaratory relief. It INTERPLEADER (RULE 62)
finds no application also in a complaint for
interpleader. In this action, the plaintiff may
It is a special civil action filed by a person, who
file a complaint even if he has sustained no
has property in his possession or an obligation to
actual transgression of his rights. In fact, he
render, wholly or partially, against whom two
actually has no interest in the subject matter
conflicting claims are made upon the same
of the action. This is not so in an ordinary civil
subject matter and over which he claims no
action.
interest, to compel the claimants to interplead
and to litigate their conflicting claims among
Ordinary civil actions may be filed initially in
themselves.
either the MTC or the RTC depending upon the
JURISDICTIONAL AMOUNT OR THE NATURE of the
REQUISITES FOR INTERPLEADER
action involved. On the other hand, there are
special civil actions which can only be filed in an
 91

1) There must be two or more claimants with

adverse or conflicting interests to a property 1) Any person interested under a deed, will,
in the custody or possession of the plaintiff; contract or other written instrument or whose
2) The plaintiff in an action for interpleader has rights are affected by a statute, executive
no claim upon the subject matter of the order or regulation, ordinance or other
adverse claims or if he has an interest at all, governmental regulation may before breach
such interest is not disputed by the claimants; or violation thereof, bring an action in the RTC
3) The subject matter of the adverse claims to determine any question of construction or
must be one and the same; and validity arising and for a declaration of his
4) The parties impleaded must make effective rights or duties, thereunder.
claims. 2) Those who may sue under the contract should
be those with interest under the contract like
WHEN TO FILE the parties, the assignees and the heirs as
required by substantive law.
Whenever conflicting claims upon the same 3) If it be a statute, executive order, regulation
subject matter are or may be made against a or ordinance, the petitioner is one whose
person who claims no interest whatever in the rights are affected by the same. The other
subject matter, or an interest which in whole or in parties are all persons who have or claim any
part is not disputed by the claimants, he may interest which would be affected by the
bring an action against the conflicting claimants declaration. The rights of person not made
to compel them to interplead and litigate their parties to the action do not stand to be
several claims among themselves. prejudiced by the declaration.

REQUISITES OF ACTION FOR DECLARATORY

DECLARATORY RELIEFS AND SIMILAR
RELIEF
REMEDIES (RULE 63)
1) The subject matter must be a deed, will,
An action for declaratory relief is brought to contract or other written instrument, statute,
secure an authoritative statement of the rights executive order or regulation or ordinance;
and obligations of the parties under a contract or 2) The terms of said document or the validity
a statute for their guidance in the enforcement or thereof are doubtful and require judicial
compliance with the same. Thus, the purpose is construction;
to seek for a judicial interpretation of an 3) There must have been no breach of said
instrument or for a judicial declaration of a document;
person’s rights under a statute and not to ask for 4) There must be actual justiciable controversy
affirmative reliefs like injunction, damages or any or the ripening seeds of one (there is
other relief beyond the purpose of the petition as threatened litigation the immediate future);
declared under the Rules. 5) there must be allegation of any threatened,
imminent and inevitable violation of
The subject matter in a petition for declaratory petitioner’s right sought to be prevented by
relief is any of the following: the declaratory relief sought;
a) Deed; 6) The controversy is between persons whose
b) Will; interests are adverse;
c) Contract or other written instrument; 7) The issue must be ripe for judicial
d) Statute; determination e.g. administrative remedies
e) Executive order or regulation; already exhausted;
f) Ordinance; or 8) The party seeking the relief has legal interest
g) Any other governmental regulation. in the controversy; and
9) Adequate relief is not available thru other
The petition for declaratory relief is filed before means.
the occurrence of any breach or violation of the
deed, contract, statute, ordinance or executive WHEN COURT MAY REFUSE TO MAKE
order or regulation. It will not prosper when JUDICIAL DECLARATION
brought after a contract or a statute has already
been breached or violated. If there has already Grounds for the court to refuse to exercise
been a breach, the appropriate ordinary civil declaratory relief;
action and not declaratory relief should be filed. a) A decision would not terminate the
uncertainty or controversy which gave rise
WHO MAY FILE THE ACTION to the action; or
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b) The declaration or construction is not The contract is to be reformed because despite

necessary and proper under the the meeting of minds of the parties as to the
circumstances as when the instrument or object and cause of the contract, the instrument
the statute has already been breached. which is supposed to embody the agreement of
the parties does not reflect their true agreement
In declaratory relief, the court is given the by reason of mistake, inequitable conduct or
discretion to act or not to act on the petition. It accident. The action is brought so the true
may therefore choose not to construe the intention of the parties may be expressed in the
instrument sought to be construed or could instrument (Art. 1359, CC).
refrain from declaring the rights of the petitioner
under the deed or the law. The instrument may be reformed if it does not
 A refusal of the court to declare rights or express the true intention of the parties because
construe an instrument is actually the of lack of skill of the person drafting the
functional equivalent of the dismissal of instrument (Art. 1363, CC).
the petition.
If the parties agree upon the mortgage or pledge
On the other hand, the court does not have the of property, but the instrument states that the
discretion to refuse to act with respect to actions property is sold absolutely or with a right of
described as similar remedies. Thus, in an action repurchase, reformation of the instrument is
for reformation of an instrument, to quiet or to proper (Art. 1365, CC).
consolidate ownership, the court cannot refuse to
render a judgment. Where the consent of a party to a contract has
been procured by fraud, inequitable conduct or
CONVERSION TO ORDINARY ACTION accident, and an instrument was executed by the
parties in accordance with the contract, what is
If before final termination of the case, a breach defective is the contract itself because of vitiation
should take place, the action may be converted of consent.
into ordinary action to avoid multiplicity of suits.
The remedy is not to bring an action for
Ordinary civil action – plaintiff alleges that his reformation of the instrument but to file an action
right has been violated by the defendant; for annulment of the contract (Art. 1359, CC).
judgment rendered is coercive in character; a writ
of execution may be executed against the Reformation of the instrument cannot be brought
defeated party. to reform any of the following:
1) Simple donation inter vivos wherein no
Special civil action of declaratory relief – an condition is imposed;
impending violation is sufficient to file a 2) Wills; or
declaratory relief; no execution may be issued; 3) When the agreement is void (Art. 1666,
the court merely makes a declaration. CC).

PROCEEDINGS CONSIDERED AS SIMILAR B. CONSOLIDATION OF OWNERSHIP

REMEDIES
The concept of consolidation of ownership under
Similar remedies are: Art. 1607, Civil Code, has its origin in the
(a) Action for reformation of an substantive provisions of the law on sales. Under
instrument; the law, a contract of sale may be extinguished
(b) Action for quieting of title; and either by legal redemption (Art. 1619) or
(c) Action to consolidate ownership (Art. conventional redemption (Art. 1601).
1607, Civil Code).
Legal redemption (retracto legal) is a statutory
A. REFORMATION OF AN INSTRUMENT mandated redemption of a property previously
sold. For instance, a co-owner of a property may
It is not an action brought to reform a contract exercise the right of redemption in case the
but to reform the instrument evidencing the shares of all the other co-owners or any of them
contract. It presupposes that there is nothing are sold to a third person (Art. 1620). The owners
wrong with the contract itself because there is a of adjoining lands shall have the right of
meeting of minds between the parties. redemption when a piece of rural land with a size
of one hectare or less is alienated (Art. 1621).
 93

Conventional redemption (pacto de retro) sale is Audit may be brought by the aggrieved party to
one that is not mandated by the statute but one the Supreme Court on certiorari. The filing of a
which takes place because of the stipulation of petition for certiorari shall not stay the execution
the parties to the sale. The period of redemption of the judgment or final order or resolution sought
may be fixed by the parties in which case the to be reviewed, unless the SC directs otherwise
period cannot exceed ten (10) years from the upon such terms as it may deem just. To prevent
date of the contract. In the absence of any the execution of the judgment, the petitioner
agreement, the redemption period shall be four should obtain a temporary restraining order or a
(4) years from the date of the contract (Art. writ of preliminary injunction because the mere
1606). filing of a petition does not interrupt the course of
the principal case.
When the redemption is not made within the
period agreed upon, in case the subject matter of Decisions of the Civil Service Commission shall be
the sale is a real property, Art. 1607 provides appealed to the Court of Appeals which has
that the consolidation of ownership in the vendee exclusive appellate jurisdiction over all
shall not be recorded in the Registry of Property judgments or final orders of such commission (RA
without a judicial order, after the vendor has 7902).
been duly heard.
The petition shall be filed within thirty (30) days
The action brought to consolidate from notice of the judgment or final order or
ownership is not for the purpose of resolution sought to be reviewed. The filing of a
consolidating the ownership of the property motion for new trial or reconsideration of said
in the person of the vendee or buyer but for judgment or final order or resolution, if allowed
the registration of the property. The lapse of under the procedural rules of the Commission
the redemption period without the seller a retro concerned, shall interrupt the period herein fixed.
exercising his right of redemption consolidates If the motion is denied, the aggrieved party may
ownership or title upon the person of the vendee file the petition within the remaining period, but
by operation of law. Art. 1607 requires the filing which shall not be less than five (5) days in any
of the petition to consolidate ownership because event, reckoned from notice of denial.
the law precludes the registration of the
consolidated title without judicial order. Note that petition for review from decisions of
quasi-judicial agencies to the CA should be within
C. QUIETING OF TITLE TO REAL PROPERTY 15 days and does not stay the decision appealed.

This action is brought to remove a cloud on title Petition for review from decisions of the RTC
to real property or any interest therein. The decided in its appellate jurisdiction filed to the CA
action contemplates a situation where the should be filed within 15 days and stays
instrument or a record is apparently valid or execution, unless the case is under the rules of
effective but is in truth and in fact invalid, Summary Procedure. Special civil actions of
ineffective, voidable or unenforceable, and may certiorari, prohibition, and mandamus, from
be prejudicial to said title to real property. Comelec and COA should be filed within 30 days,
and does not stay the decision appealed.
It may also be brought as a preventive remedy to
prevent a cloud from being cast upon title to real Bottomline: Decisions of quasi-judicial bodies are
property or any interest therein (Art. 476). not stayed by appeal alone. Decisions of regular
courts are stayed on appeal. Although in petition
The plaintiff need not be in possession of the real for review on certiorari to the SC via Rule 45,
property before he may bring the action as long there is no express provision on effect of appeal
as he can show that he has a legal or an on execution.
equitable title to the property which is the subject
matter of the action (Art. 477). The “not less than 5 days” provision for filing a
pleading applies only to:
a) filing an answer after a denial of a MtD;
REVIEW OF JUDGMENTS AND FINAL ORDERS b) filing an answer after denial or service of a
OR RESOLUTION OF THE COMELEC AND COA bill of particulars;
(RULE 64) c) filing an special civil action for certiorari
from a decision of the Comelec or CoA
A judgment or final order or resolution of the after denial of a MfR or MNT. It does not
Commission on Elections and the Commission on apply to filing appeal from decisions of
 94

other entities after denial of a MfR or MNT. of the trial that had resulted in the rendition of
In such cases, either the parties have a the judgment or order complained of. Since the
fresh 15 days, or the balance. issue is jurisdiction, an original action for
certiorari may be directed against an
APPLICATION OF RULE 65 UNDER RULE 64 interlocutory order of the lower court prior to an
appeal from the judgment.
Sec. 7, Art. IX-A of the Constitution reads, “unless
otherwise provided by the Constitution or by law, Where the error is not one of jurisdiction, but of
any decision, order or ruling of each commission law or fact which is a mistake of judgment, the
may be brought to the Supreme Court on proper remedy should be appeal. Hence, if there
certiorari by the aggrieved party within 30 days was no question of jurisdiction involved in the
from receipt of a copy thereof.” The provision was decision and what was being questioned was
interpreted by the Supreme Court to refer to merely the findings in the decision of whether or
certiorari under Rule 65 and not appeal by not the practice of the other party constitutes a
certiorari under Rule 45. To implement the above violation of the agreement, the matter is a proper
constitutional provision, the SC promulgated Rule subject of appeal, not certiorari.
64.
Filing of petition for certiorari does not
DISTINCTION IN THE APPLICATION OF RULE interrupt the course of the principal action
65 TO JUDGMENTS OF THE COMELEC AND nor the running of the reglementary periods
COA AND THE APPLICATION OF RULE 65 TO involved in the proceeding, unless an
OTHER TRIBUNALS, PERSONS AND application for a restraining order or a writ
OFFICERS of preliminary injunction to the appellate
court is granted. Neither does it interrupt the
Rule 64 Rule 65 reglementary period for the filing of an answer
Directed only to the Directed to any nor the course of the case where there is no writ
judgments, final orders tribunal, board or of injunction.
or resolutions of the officers exercising
COMELEC and COA; judicial or quasi-judicial In a summary proceeding, petitions for certiorari,
functions; prohibition or mandamus against an interlocutory
Filed within 30 days Filed within 60 days order of the court are not allowed.
from notice of the from notice of the
judgment; judgment; Certiorari is not and cannot be made a substitute
The filing of a motion The period within which for an appeal where the latter remedy is available
for reconsideration or a to file the petition if the but was lost through fault or negligence. The
motion for new trial if motion for remedy to obtain a reversal of judgment on the
allowed interrupts the reconsideration or new merits is appeal. This holds true even if the error
period for the filing of trial is denied is 60 ascribed to the lower court is its lack of
the petition for days from notice of the jurisdiction over the subject matter, or the
certiorari. If the motion denial of the motion. exercise of power in excess thereof, or grave
is denied, the abuse of discretion. The existence and availability
aggrieved party may of the right to appeal prohibits the resort to
file the petition within certiorari because one of the requirements for
the remaining period, certiorari is that there is no appeal.
but which shall not be
less than 5 days Exceptions to the rule that certiorari is not
reckoned from the available when the period for appeal has lapsed
notice of denial. and certiorari may still be invoked when appeal is
lost are the following:
 5-day Rule does not apply in filing of 1) Appeal was lost without the appellant’s
negligence;
notice of appeal
2) When public welfare and the advancement
of public policy dictates;
CERTIORARI, PROHIBITION AND MANDAMUS 3) When the broader interest of justice so
(RULE 65) requires;
4) When the writs issued are null and void;
and
Certiorari is a remedy for the correction of errors 5) When the questioned order amounts to an
of jurisdiction, not errors of judgment. It is an oppressive exercise of judicial authority.
original and independent action that was not part
 95

CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary Prohibition is an extraordinary Mandamus is an extraordinary

writ ANNULLING OR MODIFYING writ COMMANDING a tribunal, writ commanding a tribunal,
the proceedings of a tribunal, corporation, board or person, corporation, board or person, to
board or officer exercising whether exercising judicial, do an act REQUIRED to be done:
judicial or quasi-judicial quasi-judicial or ministerial a) When he unlawfully neglects
functions when such tribunal, functions, TO DESIST from the performance of an act
board or officer has acted further proceedings when said which the law specifically
without or in excess of its or his proceedings are without or in enjoins as a duty, and there
jurisdiction, or with grave abuse excess of its jurisdiction, or with is no other plain, speedy and
of discretion amounting to lack abuse of its discretion, there adequate remedy in the
or excess of jurisdiction, there being no appeal or any other ordinary course of law; or
being no appeal or any other plain, speedy and adequate b) When one unlawfully
plain, speedy and adequate remedy in the ordinary course excludes another from the
remedy in the ordinary course of law (Sec. 2, Rule 65). use and enjoyment of a right
of law (Sec. 1, Rule 65). or office to which the other
is entitled (Sec. 3, Rule 65).
Directed against a person Directed against a person Directed against a person
exercising to judicial or quasi- exercising judicial or quasi- exercising ministerial duties
judicial functions judicial functions, or ministerial
functions
The tribunal, board or officer The tribunal, corporation, board It must be the duty of the
has acted without, or in excess or person must have acted defendant to perform the act,
of jurisdiction or with abuse of without or in excess of which is ministerial and not
discretion amounting to lack or jurisdiction or with grave abuse discretionary, because the same
excess or jurisdiction of discretion amounting to lack is mandated by law.
of jurisdiction;
There is no appeal or any plain, There is no appeal or any plain, The defendant unlawfully
speedy and adequate remedy speedy and adequate remedy neglects the performance of the
in the ordinary course of law. in the ordinary course of law. duty enjoined by law;
Object is to correct Object is to prevent Object is to compel
Purpose is to annul or modify Purpose is to stop the Purpose is to compel
the proceedings proceedings performance of the act required
and to collect damages
Person or entity must have Person or entity must have Person must have neglected a
acted without or in excess of acted without or in excess of ministerial duty or excluded
jurisdiction, or with grave abuse jurisdiction, or with grave abuse another from a right or office
of discretion of discretion
A person aggrieved thereby A person aggrieved thereby The person aggrieved thereby
may file a verified petition in may file a verified petition in may file a verified petition in
the proper court, alleging the the proper court, alleging the the proper court, alleging the
facts with certainty and praying facts with certainty and praying facts with certainty and praying
that judgment be rendered that judgment be rendered that judgment be rendered
annulling or modifying the commanding the respondent to commanding the respondent,
proceedings of such tribunal, desist from further proceedings immediately or at some other
board or officer, and granting in the action or matter specified time to be specified by the
such incidental reliefs as law therein, or otherwise granting court, to do the act required to
and justice may require. The such incidental reliefs as law be done to protect the rights of
petition shall be accompanied and justice may require. The the petitioner, and to pay the
by a certified true copy of the petition shall likewise be damages sustained by the
 96

judgment, order or resolution accompanied by a certified true petitioner by reason of the

subject thereof, copies of all copy of the judgment, order or wrongful acts of the respondent.
pleadings and documents resolution subject thereof, The petition shall also contain a
relevant and pertinent thereto, copies of all pleadings and sworn certification of non-forum
and a sworn certification of non- documents relevant and shopping.
forum shopping. pertinent thereto, and a sworn
certification of non-forum
shopping.

PROHIBITION INJUNCTION

Always the main action May be the main action or just a provisional
remedy
Directed against a court, a tribunal exercising Directed against a party
judicial or quasi-judicial functions
Ground must be the court acted without or in Does not involve a question of jurisdiction
excess of jurisdiction

PROHIBITION MANDAMUS

To prevent an act by a respondent To compel an act desired

May be directed against entities exercising May be directed against judicial and non-judicial
judicial or quasi-judicial, or ministerial functions entities
Extends to discretionary functions Extends only to ministerial functions

MANDAMUS QUO WARRANTO

Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or
franchise
Respondent, without claiming any right to the Respondent usurps the office
office, excludes the petitioner

 Mandamus can be issued to perform an act but not to approve a certain request

INJUNCTIVE RELIEF injunction has been issued against the public

respondent from further proceeding in the case.
The court in which the petition is filed may issue
orders expediting the proceedings, and it may The public respondent shall proceed with the
also grant a temporary restraining order or a writ principal case within ten (10) days from the filing
of preliminary injunction for the preservation of of a petition for certiorari with a higher court or
the rights of the parties pending such tribunal, absent a Temporary Restraining Order
proceedings. The petition shall not interrupt the (TRO) or a Writ of Preliminary Injunction, or upon
course of the principal case unless a temporary its expiration. Failure of the public respondent to
restraining order or a writ of preliminary proceed with the principal case may be a ground
for an administrative charge (AM 07-7-12-SC,
Dec. 12, 2007).

CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL ACTION

(RULE 45) (RULE 65)
Called petition for review on certiorari, is a A special civil action that is an original action and not a
mode of appeal, which is but a continuation mode of appeal, and not a part of the appellate
of the appellate process over the original process but an independent action.
case;
 97

Seeks to review final judgments or final May be directed against an interlocutory order of the
orders; court or where not appeal or plain or speedy remedy
available in the ordinary course of law
Raises only questions of law; Raises questions of jurisdiction because a tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction;
Filed within 15 days from notice of judgment Filed not later than 60 days from notice of judgment,
or final order appealed from, or of the denial order or resolution sought to be assailed and in case a
of petitioner‘s motion for reconsideration or motion for reconsideration or new trial is timely filed,
new trial; whether such motion is required or not, the 60 day
period is counted from notice of denial of said motion;
Extension of 30 days may be granted for Extension no longer allowed;
justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition precedent,
reconsideration; subject to exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject of the
petition unless enjoined or restrained;
Parties are the original parties with the The tribunal, board, officer exercising judicial or quasi-
appealing party as the petitioner and the judicial functions is impleaded as respondent
adverse party as the respondent without
impleading the lower court or its judge;
Filed with only the Supreme Court May be filed with the Supreme Court, Court of Appeals,
Sandiganbayan, or Regional Trial Court
SC may deny the decision motu propio on
the ground that the appeal is without merit,
or is prosecuted manifestly for delay, or that
the questions raised therein are too
unsubstantial to require consideration.

 The remedies of appeal and certiorari are those rare instances when appeal is
mutually exclusive and not alternative or satisfactorily shown to be an inadequate
successive. The antithetic character of remedy. Thus, a petitioner must show valid
appeal and certiorari has been generally reasons why the issues raised in his
recognized and observed save only on petition for certiorari could not have been
raised on appeal.

PROHIBITION MANDAMUS INJUNCTION

Prohibition is an extraordinary Mandamus is an extraordinary Main action for injunction seeks

writ commanding a tribunal, writ commanding a tribunal, to enjoin the defendant from
corporation, board or person, corporation, board or person, to the commission or continuance
whether exercising judicial, do an act required to be done: of a specific act, or to compel a
quasi-judicial or ministerial (a) When he unlawfully neglects particular act in violation of the
functions, to desist from the performance of an act which rights of the applicant.
further proceedings when said the law specifically enjoins as a Preliminary injunction is a
proceedings are without or in duty, and there is no other provisional remedy to preserve
excess of its jurisdiction, or plain, speedy and adequate the status quo and prevent
with abuse of its discretion, remedy in the ordinary course future wrongs in order to
there being no appeal or any of law; or (b) When one preserve and protect certain
other plain, speedy and unlawfully excludes another interests or rights during the
adequate remedy in the from the use and enjoyment of pendency of an action.
ordinary course of law a right or office to which the
(Sec. 2, Rule 65). other is entitled (Sec. 3, Rule
65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, To compel the performance of a For the defendant either to
 98

excess, usurpation or ministerial and legal duty; refrain from an act or to perform
assumption of jurisdiction; not necessarily a legal and
ministerial duty;
May be directed against May be directed against judicial Directed against a party
entities exercising judicial or and non-judicial entities
quasi-judicial, or ministerial
functions
Extends to discretionary Extends only to ministerial Does not necessarily extend to
functions functions ministerial, discretionary or
legal functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the May be brought in the Supreme May be brought in the Regional
Supreme Court, Court of Court, Court of Appeals, Trial Court which has jurisdiction
Appeals, Sandiganbayan, or in Sandiganbayan, or in the over the territorial area where
the Regional Trial Court which Regional Trial Court which has respondent resides.
has jurisdiction over the jurisdiction over the territorial
territorial area where area where respondent resides.
respondent resides.

EXCEPTIONS TO FILING OF MOTION FOR include such other incidental reliefs as law and
RECONSIDERATION BEFORE FILING justice may require. The court, in its judgment
PETITION may also award damages and the execution of
the award for damages or costs.
1) When the issue is one purely of law;
2) When there is urgency to decide upon the ACTIONS/OMISSIONS OF MTC/RTC IN
question and any further delay would ELECTION CASES
prejudice the interests of the government or
of the petitioner; Under Rule 65, the proper party who can file a
3) Where the subject matter of the action is petition for certiorari, prohibition or mandamus is
perishable; the person aggrieved by the action of a trial court
4) When order is a patent nullity, as where the or tribunal in a criminal case pending before it.
court a quo has no jurisdiction or there was no
due process; Ordinarily, the petition is filed in the name of the
5) When questions have been duly raised and People of the Philippines by the Solicitor General.
passed upon by the lower court; However, there are cases when such petition may
6) When is urgent necessity for the resolution of be filed by other parties who have been
the question; aggrieved by the order or ruling of the trial
7) When Motion for Reconsideration would be courts. In the prosecution of election cases, the
useless, e.g. the court already indicated it aggrieved party is the Comelec, who may file the
would deny any Motion for Reconsideration; petition in its name through its legal officer or
8) In a criminal case, where relief from order of through the Solicitor General if he agrees with the
arrest is urgent and the granting of such relief action of the Comelec.
by the trial court is improbable;
9) Where the proceedings was ex parte or in WHERE TO FILE PETITION
which the petitioner had no opportunity to Supreme Court Subject to the doctrine
object; of hierarchy of courts
10) When petitioner is deprived of due process and only when
and there is extreme urgency for urgent relief; compelling reasons
and exist for not filing the
11) When issue raised is one purely of law or same with the lower
public interest is involved. courts
Regional Trial If the petition relates
RELIEFS PETITIONER IS ENTITLED TO Court to an act or an
omission of an MTC,
The primary relief will be annulment or corporation, board,
modification of the judgment, order or resolution officer or person
or proceeding subject of the petition. It may also Court of Appeals If the petition involves
 99

only an act or an omission b) a public officer who performs an act

of a quasi-judicial constituting forfeiture of a public office; or
agency, unless c) an association which acts as a corporation
otherwise provided by within the Philippines without being legally
law or rules incorporated or without lawful authority to
Court of Appeals Whether or not in aid do so.
or the of appellate
Sandiganbayan jurisdiction
Commission on In election cases QUO WARRANTO QUO WARRANTO
Elections involving an act or an (RULE 66) (ELECTION CODE)
omission of an MTC or
RTC Subject of the Subject of the petition
As amended by AM petition is in relation is in relation to an
No. 07-7-12-SC, Dec. to an appointive elective office;
12, 2007 office;
The issue is the Grounds relied upon
A petition for certiorari must be based on legality of the are: (a) ineligibility to
jurisdictional grounds because as long as the occupancy of the the position; or (b)
respondent acted with jurisdiction, any error office by virtue of a disloyalty to the
committed by him or it in the exercise thereof will legal appointment; Republic.
amount to nothing more than an error of Petition is brought May be instituted with
judgment which may be reviewed or corrected by either to the the COMELEC by any
appeal. Supreme Court, the voter contesting the
Court of Appeals or election of any member
EFFECTS OF FILING OF AN the Regional Trial of Congress, regional,
UNMERITORIOUS PETITION Court; provincial or city officer;
or to the MeTC, MTC or
The Court may impose motu proprio, based on MCTC if against any
res ipsa loquitur, other disciplinary sanctions or barangay official;
measures on erring lawyers for patently dilatory Filed within one (1) Filed within ten (10)
an unmeritorious petition for certiorari. year from the time days after the
the cause of ouster, proclamation of the
The court may dismiss the petition if it finds the or the right of the results of the election;
same patently without merit or prosecuted petitioner to hold
manifestly for delay, or if the questions raised the office or position
therein are too unsubstantial to require arose;
consideration. Petitioner is the
Petitioner may be any
person entitled to voter even if he is not
In such event, the court may award in favor of the the office; entitled to the office;
respondent treble costs solidarily against the The court has to When the tribunal
petitioner and counsel, in addition to subjecting declare who the
declares the candidate-
counsel to administrative sanctions. person entitled to elect as ineligible, he
the office is if he is
will be unseated but the
the petitioner. person occupying the
QUO WARRANTO (RULE 66)
second place will not be
declared as the one
Quo warranto is a demand made by the state duly elected because
upon some individual or corporation to show by the law shall consider
what right they exercise some franchise or only the person who,
privilege appertaining to the state which, having duly filed his
according to the Constitution and laws they certificate of candidacy,
cannot legally exercise by virtue of a grant and received a plurality of
authority from the State. votes.
 HRET has jurisdiction involving member of
It is a special civil action commenced by a Congress
verified petition against:
a) a person who usurps a public office, WHEN GOVERNMENT COMMENCE AN
position or franchise; ACTION AGAINST INDIVIDUALS
 100

Quo warranto is commenced by a verified petition alleged usurper within one (1) year from the
brought in the name of the Government of the entry of judgment establishing his right to the
Republic of the Philippines by the Solicitor office in question.
General, or in some instances, by a public
prosecutor. When the action is commenced by
EXPROPRIATION (RULE 67)
the Solicitor General, the petition may be brought
in the Regional Trial Court of the City of Manila,
the Court of Appeals or the Supreme Court. 1) To be filed with the RTC; this is action
incapable of pecuniary estimation
An action for the usurpation of a public office, 2) Expropriation is an exercise of the State’s
position or franchise may be commenced by a power of eminent domain wherein the
verified petition brought in the name of the government takes a private property for
Republic of the Philippines thru the Solicitor public purpose upon payment of just
General against: compensation.
1) A person who usurps, intrudes into, or
unlawfully holds or exercises a public MATTERS TO ALLEGE IN COMPLAINT FOR
office, position or franchise; EXPROPRIATION
2) A public officer who does or suffers an act
which, by the provision of law, constitutes An expropriation proceeding is commenced by
a ground for the forfeiture of his office; the filing of a verified complaint which shall:
3) An association which acts a corporation a) State with certainty the right of the
within the Philippines without being legally plaintiff to expropriation and the purpose
incorporated or without lawful authority so thereof;
to act. b) Describe the real or personal property
sought to be expropriated; and
WHEN INDIVIDUAL MAY COMMENCE AN c) Join as defendants all persons owning or
ACTION claiming to own, or occupying, any part of
the property or interest therein showing as
 The petition may be commenced by a private far as practicable the interest of each
person in his own name where he claims to be defendant. If the plaintiff cannot with
entitled to the public office or position alleged accuracy identify the real owners,
to have been usurped or unlawfully held or averment to that effect must be made in
exercised by another. the complaint.
 Accordingly, the private person may maintain
the action without the intervention of the TWO STAGES IN EVERY ACTION FOR
Solicitor General and without need for any EXPROPRIATION
leave of court.
 In bringing a petition for quo warranto, he 1) Determination of the authority of the plaintiff
must show that he has a clear right to the to expropriate (appealable already at this
office allegedly being held by another. It is not stage) – this includes an inquiry into the
enough that he merely asserts the right to be propriety of the expropriation, its necessity
appointed to the office. and the public purpose. This stage will end in
the issuance of an order of expropriation if the
JUDGMENT IN QUO WARRANTO ACTION court finds for the plaintiff or in the dismissal
of the complaint if it finds otherwise.
Of office, position or franchise, judgment shall be 2) Determination of just compensation through
rendered that such respondent be ousted and the court-appointed commissioners.
altogether excluded therefrom, and that the
petitioner recover his costs. Such further WHEN PLAINTIFF CAN IMMEDIATELY ENTER
judgment may be rendered determining the INTO POSSESSION OF THE REAL PROPERTY
respective rights in and to the public office, IN RELATION TO RA 8974
position or franchise of the parties to the action
as justice requires. Except for the acquisition of right-of-way, site or
location for any national government
RIGHTS OF A PERSON ADJUDGED ENTITLED infrastructure project through expropriation, the
TO PUBLIC OFFICE expropriator shall have the right to take or enter
upon the possession of the real property involved
If the petitioner is adjudged to be entitled to the if he deposits with the authorized government
office, he may sue for damages against the depositary an amount equivalent to the assessed
 101

value of the property for purposes of taxation to justice, may permit amendments to the answer to
be held by such bank subject to the orders of the be made not later than ten (10) days from the
court. such deposit shall be in money, unless in filing thereof.
lieu thereof the court authorizes the deposit of a
certificate of deposit of a government bank of the However, at the trial of the issue of just
Philippines payable on demand to the authorized compensation, whether or not a defendant has
government depositary. previously appeared or answered, he may
present evidence as to the amount of the
NEW SYSTEM OF IMMEDIATE PAYMENT OF compensation to be paid for his property, and he
INITIAL JUST COMPENSATION may share in the distribution of the award.

For the acquisition of right-of-way, site or location ORDER OF EXPROPRIATION

for any national government infrastructure
project through expropriation, upon the filing of If the objections to and the defenses against the
the filing of the complaint, and after due notice to right of the plaintiff to expropriate the property
the defendant, the implementing agency shall are overruled, or when no party appears to
immediately pay the owner of the property the defend as required by this Rule, the court may
amount equivalent to the sum of: issue an order of expropriation declaring that the
1) 100 PERCENT of the value of the property plaintiff has a lawful right to take the property
based on the current relevant zonal sought to be expropriated, for the public use or
valuation of the BIR; and purpose described in the complaint, upon the
2) The value of the improvements and/or payment of just compensation to be determined
structures as determined under Sec. 7 of as of the date of the taking of the property or the
RA 8974 (Sec. 4, RA 8974). filing of the complaint, whichever came first.

 LGU – 15% market value A final order sustaining the right to expropriate
the property may be appealed by any party
DEFENSES AND OBJECTIONS aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the just
Omnibus Motion Rule — a motion attacking a compensation to be paid.
pleading, order, judgment or proceeding shall
include all objections then available, and all After the rendition of such an order, the plaintiff
objections not so included shall be deemed shall not be permitted to dismiss or discontinue
waived. the proceeding except on such terms as the court
deems just and equitable.
If a defendant has no objection or defense to the
action or the taking of his property, he may file  Appealable with the CA
and serve a notice of appearance and a
manifestation to that effect, specifically ASCERTAINMENT OF JUST COMPENSATION
designating or identifying the property in which
he claims to be interested, within the time stated The order of expropriation merely declares that
in the summons. Thereafter, he shall be entitled the plaintiff has the lawful to expropriate the
to notice of all proceedings affecting the same. property but contains no ascertainment of the
compensation to be paid to the owner of the
If a defendant has any objection to the filing of or property.
the allegations in the complaint, or any objection
or defense to the taking of his property, he shall So upon the rendition of the order of
serve his answer within the time stated in the expropriation, the court shall appoint not more
summons. The answer shall specifically designate than three (3) commissioners to ascertain the just
or identify the property in which he claims to compensation for the property. Objections to the
have an interest, state the nature and extent of appointment may be made within 10 days from
the interest claimed, and adduce all his service of the order of appointment. The
objections and defenses to the taking of his commissioners are entitled to fees and their fees
property. No counterclaim, cross-claim or third- shall be taxed as part of the costs of the
party complaint shall be alleged or allowed in the proceedings, and all costs shall be paid by the
answer or any subsequent pleading. plaintiff except those costs of rival claimants
litigating their claims.
A defendant waives all defenses and objections
not so alleged but the court, in the interest of
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Where the principal issue is the determination of

just compensation, a hearing before the Action upon the report. Upon the expiration of
commissioners is indispensable to allow the the period of ten (10) days referred to in the
parties to present evidence on the issue of just preceding section, or even before the expiration
compensation. Although the findings of the of such period but after all the interested parties
commissioners may be disregarded and the trial have filed their objections to the report or their
court may substitute its own estimate of the statement of agreement therewith, the court
value, the latter may do so only for valid reasons, may, after hearing, accept the report and render
that is where the commissioners have applied judgment in accordance therewith; or, for cause
illegal principles to the evidence submitted to shown, it may recommit the same to the
them, where they have disregarded a clear commissioners for further report of facts; or it
preponderance of evidence, or where the amount may set aside the report and appoint new
allowed is either grossly inadequate or excessive. commissioners; or it may accept the report in
part and reject it in part; and it may make such
APPOINTMENT OF COMMISSIONERS; order or render such judgment as shall secure to
COMMISSIONER’S REPORT; COURT ACTION the plaintiff the property essential to the exercise
UPON COMMISSIONER’S REPORT of his right of expropriation, and to the defendant
just compensation for the property so taken.
Appointment. Upon the rendition of the order of
expropriation, the court shall appoint not more RIGHTS OF PLAINTIFF UPON JUDGMENT
than three (3) competent and disinterested AND PAYMENT
persons as commissioners to ascertain and report
to the court the just compensation for the After payment of the just compensation as
property sought to be taken. The order of determined in the judgment, the plaintiff shall
appointment shall designate the time and place have the right to enter upon the property
of the first session of the hearing to be held by expropriated and to appropriate the same for the
the commissioners and specify the time within public use or purpose defined in the judgment or
which their report shall be submitted to the court. to retain possession already previously made.
Copies of the order shall be served on the parties.
Objections to the appointment of any of the Title to the property expropriated passes from the
commissioners shall be filed with the court within owner to the expropriator upon full payment of
ten (10) days from service, and shall be resolved just compensation.
within thirty (30) days after all the commissioners
shall have received copies of the objections. EFFECT OF RECORDING OF JUDGMENT

Report. The court may order the commissioners The judgment entered in expropriation
to report when any particular portion of the real proceedings shall state definitely, by an adequate
estate shall have been passed upon by them, and description, the particular property or interest
may render judgment upon such partial report, therein expropriated, and the nature of the public
and direct the commissioners to proceed with use or purpose for which it is expropriated.
their work as to subsequent portions of the
property sought to be expropriated, and may When real estate is expropriated, a certified copy
from time to time so deal with such property. The of such judgment shall be recorded in the registry
commissioners shall make a full and accurate of deeds of the place in which the property is
report to the court of all their proceedings, and situated, and its effect shall be to vest in the
such proceedings shall not be effectual until the plaintiff the title to the real estate so described
court shall have accepted their report and for such public use or purpose.
rendered judgment in accordance with their
recommendations. Except as otherwise expressly
FORECLOSURE OF REAL ESTATE MORTGAGE
ordered by the court, such report shall be filed
(RULE 68)
within sixty (60) days from the date the
commissioners were notified of their
appointment, which time may be extended in the  A real estate mortgage is an accessory
discretion of the court. Upon the filing of such contract executed by a debtor in favor of a
report, the clerk of the court shall serve copies creditor as security for the principal
thereof on all interested parties, with notice that obligation.
they are allowed ten (10) days within which to file  This principal obligation is a simple loan or
objections to the findings of the report, if they so mutuum described in Art. 1953, Civil Code. To
desire. be a real estate mortgage, the contract must
 103

be constituted on either immovables (real This clause known as a DRAGNET

property) or inalienable real rights. If CLAUSE OR BLANKET mortgage clause
constituted on movables, the contract is a has its origins in American jurisprudence.
chattel mortgage (Art. 2124, CC).  The Supreme Court ruled that mortgages
 A mortgage contract may have a provision given to secure future advancements are
in which the mortgage is a security for valid and legal contracts (Prudential Bank
past, present and future indebtedness. vs. Alviar, 464 SCRA 353).

JUDGMENT ON FORECLOSURE FOR The equity of redemption starts from the ninety-
PAYMENT OR SALE day period set in the judgment of the court up to
the time before the sale is confirmed by an order
If after the trial, the court finds that the matters of the court. Once confirmed, no equity of
set forth in the complaint are true, it shall render redemption may further be exercised.
a judgment containing the following matters:
a) An ascertainment of the amount due to The order of confirmation is appealable and if not
the plaintiff upon the mortgage debt or appealed within the period for appeal becomes
obligation, including interest and other final. Upon the finality of the order of
charges as approved by the court, as well confirmation or upon the expiration of the period
as costs; of redemption when allowed by law, the
b) A judgment of the sum found due; purchaser at the auction sale or last
c) An order that the amount found due be redemptioner, if any, shall be entitled to the
paid to the court or to the judgment possession of the property and he may secure a
obligee within the period of not less than writ of possession, upon, motion, from the court
90 days nor more than 120 days from the which ordered the foreclosure unless a third party
entry of judgment; and is actually holding the same adversely to the
d) An admonition that in default of such judgment obligor.
payment the property shall be sold at
public auction to satisfy the judgment. DISPOSITION OF PROCEEDS OF SALE

The judgment of the court on the above matters The proceeds of the sale of the mortgaged
is considered a final adjudication of the case and property shall, after deducting the costs of the
hence, is subject to challenge by the aggrieved sale, be paid to the person foreclosing the
party by appeal or by other post-judgment mortgage, and when there shall be any balance
remedies. or residue after paying off the mortgage debt
due, the same shall be paid to junior
The period granted to the mortgagor for the encumbrancers in the order of their priority. If
payment of the amount found due by the court is there be any further balance after paying them or
not just a procedural requirement but s if there be no junior encumbrancers, the same
substantive right given by law to the mortgagee shall be paid to the mortgagor or any person
as his first chance to save his property from final entitled thereto.
disposition at the foreclosure sale.
DEFICIENCY JUDGMENT
SALE OF MORTGAGED PROPERTY; EFFECT
If there be a balance due to the plaintiff after
The confirmation of the sale shall divest the applying the proceeds of the sale, the court, upon
rights in the property of all parties to the action motion, shall render judgment against the
and shall vest their rights in the purchaser, defendant for any such balance. Execution may
subject to such rights of redemption as may be issue immediately if the balance is all due the
allowed by law. The title vests in the purchaser plaintiff shall be entitled to execution at such
upon a valid confirmation of the sale and time as the remaining balance shall become due
retroacts to the date of sale. and such due date shall be stated in the
judgment. Note that the deficiency judgment is in
The import of Sec. 3 includes one vital effect: The itself a judgment hence, also appealable.
equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no No independent action need be filed to recover
further redemption, unless allowed by law (as in the deficiency from the mortgagor. The deficiency
the case of banks as mortgagees). judgment shall be rendered upon motion of the
mortgagee. The motion must be made only after
the sale and after it is known that a deficiency
 104

exists. Before that, any court order to recover the foreclose the
deficiency is void. It has been held that the mortgaged property
mortgagor who is not the debtor and who merely in case of default.
executed the mortgage to secure the principal
debtor’s obligation is not liable for the deficiency
unless he assumed liability for the same in the EQUITY OF RIGHT OF
contract. REDEMPTION REDEMPTION
The right of A right granted to a
Since a deficiency judgment cannot be obtained defendant mortgagor debtor mortgagor, his
against the mortgagor who is not the debtor in to extinguish the successor in interest or
the principal obligation, mortgagee may have to mortgage and retain any judicial creditor or
file a separate suit against the principal debtor. ownership of the judgment creditor or
property by paying any person having a
INSTANCES WHEN COURT CANNOT RENDER the debt within 90 to lien on the property
DEFICIENCY JUDGMENT 120 days after the subsequent to the
entry of judgment or mortgage or deed of
Where the debtor-mortgagor is a non-resident even after the trust under which the
and who at the time of the filing of the action for foreclosure sale but property is sold to
foreclosure and during the pendency of the prior to confirmation. repurchase the
proceedings was outside the Philippines, it is property within one
believed that a deficiency judgment would not be year even after the
procedurally feasible. confirmation of the sale
and even after the
A deficiency judgment is by nature in personam registration of the
and jurisdiction over the person is mandatory. certificate of
Having been outside the country, jurisdiction over foreclosure sale.
his person could not have been acquired. May be exercised There is no right of
even after the redemption in a judicial
foreclosure sale foreclosure of
EXTRA-JUDICIAL JUDICIAL provided it is made mortgage under Rule
FORECLOSURE (ACT FORECLOSURE before the sale is 68. This right of
3135) (RULE 68) confirmed by order redemption exists only
of the court. in extrajudicial
No complaint is filed; Complaint is filed with foreclosures where
the courts; there is always a right
There is a right of No right of redemption of redemption within
redemption. except when one year from the date
Mortgagor has a right mortgagee is a of sale (Sec. 3, Act
of redemption for 1 banking institution; 3135), but interpreted
year from registration equity of redemption by the Court to mean
of the sale; only (90 to 120 days, one year from the
and any time before registration of the sale.
confirmation of May also exist in General rule: In judicial
foreclosure sale); favor or other foreclosures there is
Mortgagee has to file Mortagagee can move encumbrances. If only an equity of
a separate action to for deficiency subsequent lien redemption which can
recover any judgment in the same holders are not be exercised prior to
deficiency; action impleaded as parties the confirmation of the
Buyer at public Buyer at public in the foreclosure foreclosure sale. This
auction becomes auction becomes suit, the judgment in means that after the
absolute owner only absolute owner only favor of the foreclosure sale but
after finality of an after confirmation of foreclosing before its confirmation,
action for the sale; mortgagee does not the mortgagor may
consolidation of bind the other lien exercise his right of pay
ownership; holders. In this case, the proceeds of the
Mortgagee is given a Mortgagee need not their equity of sale and prevent the
special power of be given a special redemption remains confirmation of the
attorney in the power of attorney. unforeclosed. A sale.
mortgage contract to separate foreclosure
 105

proceeding has to be render it unserviceable for the use for

brought against which it is intended (Art. 495);
them to require them 5) When the condition imposed upon
to redeem from the voluntary heirs before they can demand
first mortgagee or partition has not yet been fulfilled (Art.
from the party 1084).
acquiring the title to
the mortgaged WHO MAY FILE COMPLAINT; WHO SHOULD
property. BE MADE DEFENDANTS
If not by banks, the Exception: there is a
mortgagors merely right of redemption if The action shall be brought by the person who
have an equity of the foreclosure is in has a right to compel the partition of real estate
redemption, which is favor of banks as or of an estate composed of personal property, or
simply their right, as mortgagees, whether both real and personal property. The plaintiff is a
mortgagor, to the foreclosure be person who is supposed to be a co-owner of the
extinguish the judicial or extrajudicial. property or estate sought to be partitioned. The
mortgage and retain This right of defendants are all the co-owners. All the co-
ownership of the redemption is explicitly owners must be joined.
property by paying provided in Sec. 47 of
the secured debt the General Banking Accordingly, an action will not lie without the
prior to the Law of 2000. While the joinder of all co-owners and other persons having
confirmation of the law mentions the interest in the property. All the co-owners,
foreclosure sale. redemption period to therefore, are indispensable parties.
be one year counted
from the date of MATTERS TO ALLEGE IN THE COMPLAINT
registration of the FOR PARTITION
certificate in the
Registry of Property The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate
description of the real estate of which partition is
demanded, and shall join as defendants all other
PARTITION (RULE 69)
persons interested in the property. He must also
include a demand for the accounting of the rents,
Partition is the separation, division and profits and other income from the property which
assignment of a thing held in common among he may be entitled to. These cannot be
those to whom it may belong. demanded in another action because they are
parts of the cause of action for partition. They will
It presupposes the existence of a co-ownership be barred if not set up in the same action
over a property between two or more persons. pursuant to the rule against splitting a single
The rule allowing partition originates from a well- cause of action.
known principle embodied in the Civil Code, that
no co-owner shall be obliged to remain the co- STAGES IN EVERY ACTION FOR PARTITION
ownership. Because of this rule, he may demand
at any time the partition of the property owned in A reading of the Rules will reveal that there are
common. actually three (3) stages in the action, each of
which could be the subject of appeal:
Instances when a co-owner may not demand 1) the order of partition where the property
partition at any time: of the partition is determined;
1) There is an agreement among the co- 2) the judgment as to the accounting of the
owners to keep the property undivided for fruits and income of the property; and
a certain period of time but not exceeding 3) the judgment of partition.
ten years (Art. 494);
2) When partition is prohibited by the donor ORDER OF PARTITION AND PARTITION BY
or testator for a period not exceeding 20 AGREEMENT
years (Art. 494);
3) When partition is prohibited by law (Art. During the trial, the court shall determine
494); whether or not the plaintiff is truly a co-owner of
4) When the property is not subject to a the property, that there is indeed a co-ownership
physical division and to do so would among the parties, and that a partition is not
 106

legally proscribed thus may be allowed. If the

court so finds that the facts are such that a The commissioners shall make a full and accurate
partition would be in order, and that the plaintiff report to the court of all their proceedings as to
has a right to demand partition, the court will the partition, or the assignment of real estate to
issue an order of partition. one of the parties, or the sale of the same. Upon
the filing of such report, the clerk of court shall
The court shall order the partition of the property serve copies thereof on all the interested parties
among all the parties in interest, if after trial it with notice that they are allowed ten (10) days
finds that the plaintiff has the right to partition. It within which to file objections to the findings of
was held that this order of partition including an the report, if they so desire. No proceeding had
order directing an accounting is final and not before or conducted by the commissioners shall
interlocutory and hence, appealable; thus, pass the title to the property or bind the parties
revoking previous contrary rulings on the matter. until the court shall have accepted the report of
A final order decreeing partition and accounting the commissioners and rendered judgment
may be appealed by any party aggrieved thereby. thereon.

Partition by agreement. The order of partition Upon the expiration of the period of ten (10) days
is one that directs the parties or co-owners to referred to in the preceding section, or even
partition the property and the parties may make before the expiration of such period but after the
the partition among themselves by proper interested parties have filed their objections to
instruments of conveyance, if they agree among the report or their statement of agreement
themselves. If they do agree, the court shall then therewith, the court may, upon hearing, accept
confirm the partition so agreed upon by all of the the report and render judgment in accordance
parties, and such partition, together with the therewith; or, for cause shown, recommit the
order of the court confirming the same, shall be same to the commissioners for further report of
recorded in the registry of deeds of the place in facts; or set aside the report and appoint new
which the property is situated. There always commissioners; or accept the report in part and
exists the possibility that the co-owners are reject it in part; and may make such order and
unable to agree on the partition. If they cannot render such judgment as shall effectuate a fair
partition the property among themselves, the and just partition of the real estate, or of its
next stage in the action will follow the value, if assigned or sold as above provided,
appointment of commissioners. between the several owners thereof.

PARTITION BY COMMISSIONERS; JUDGMENT AND ITS EFFECTS

APPOINTMENT OF COMMISSIONERS
COMMISSIONER’S REPORT; COURT ACTION The judgment shall state definitely, by metes and
UPON COMMISSIONER’S REPORT bounds and adequate description, the particular
portion of the real estate assigned to each party,
If the parties are unable to agree upon the the effect of the judgment shall be to vest in each
partition, the court shall appoint not more than party to the action in severalty the portion of the
three (3) competent and disinterested persons as real estate assigned to him.
commissioners to make the partition,
commanding them to set off to the plaintiff and to If the whole property is assigned to one of the
each party in interest such part and proportion of parties upon his paying to the others the sum or
the property as the court shall direct. sums ordered by the court, the judgment shall
state the fact of such payment and of the
When it is made to appear to the commissioners assignment of the real estate to the party making
that the real estate, or a portion thereof, cannot the payment, and the effect of the judgment shall
be divided without prejudice to the interests of be to vest in the party making the payment the
the parties, the court may order it assigned to whole of the real estate free from any interest on
one of the parties willing to take the same, the part of the other parties to the action.
provided he pays to the other parties such
amounts as the commissioners deem equitable, If the property is sold and the sale confirmed by
unless one of the interested parties asks that the the court, the judgment shall state the name of
property be sold instead of being so assigned, in the purchaser or purchasers and a definite
which case the court shall order the description of the parcels of real estate sold to
commissioners to sell the real estate at public each purchaser, and the effect of the judgment
sale under such conditions and within such time shall be to vest the real estate in the purchaser or
as the court may determine. purchasers making the payment or payments,
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free from the claims of any of the parties to the

action. FORCIBLE ENTRY UNLAWFUL DETAINER
The possession of The possession of the
A certified copy of the judgment shall in either the defendant is defendant is lawful from
case be recorded in the registry of deeds of the unlawful from the the beginning becomes
place in which the real estate is situated, and the beginning; issue is illegal by reason of the
expenses of such recording shall be taxed as part which party has expiration or
of the costs of the action. prior de facto termination of his right
possession; to the possession of the
PARTITION OF PERSONAL PROPERTY property;
The law does not Plaintiff must first make
The provisions of this Rule shall apply to require previous such demand which is
partitions of estates composed of personal demand for the jurisdictional in nature;
property, or of both real and personal property, in defendant to
so far as the same may be applicable. vacate;
The plaintiff must The plaintiff need not
PRESCRIPTION OF ACTION prove that he was have been in prior
in prior physical physical possession;
 Prescription of action does not run in favor of possession of the
a co-owner or co-heir against his co-owner or premises until he
co-heirs as long as there is a recognition of was deprived by
the co-ownership expressly or impliedly. the defendant; and
The one year The one-year period is
 The action for partition cannot be barred by period is generally counted from the date
prescription as long as the co-ownership counted from the of last demand.
exists. date of actual entry
on the property.
 But while the action to demand partition of a
co-owned property does not prescribe, a co-
owner may acquire ownership thereof by ACCION PUBLICIANA ACCION
prescription where there exists a clear REINVINDICATORI
repudiation of the co-ownership and the co- A
owners are apprised of the claim of adverse A plenary ordinary civil An action for the
and exclusive ownership. action for the recovery recovery of the
of the better right of exercise of
possession (juridical ownership,
FORCIBLE ENTRY AND UNLAWFUL DETAINER
possession), must be particularly
(RULE 70)
filed after the recovery of
expiration of one year possession as an
The actions for forcible entry and unlawful from the accrual of the attribute or incident
detainer belong to the class of actions known by cause of action or from of ownership;
the generic name accion interdictal (ejectment) the unlawful
where the issue is the right of physical or material withholding of
possession of the subject real property possession of the
independent of any claim of ownership by the realty. In other words, if
parties involved. at the time of the filing
of the complaint more
Accion Interdictal comprises two distinct than one year had
causes of action: elapsed since
 FORCIBLE ENTRY (DETENTACION), defendant had turned
where one is deprived of physical plaintiff out of
possession of real property by means of possession or
force, intimidation, strategy, threats or defendant‘s possession
stealth (FISTS); had become illegal, the
 UNLAWFUL DETAINER (DESAHUICO), action will be not one of
where one illegally withholds possession forcible entry or
after the expiration or termination of his unlawful detainer but
right to hold possession under any an accion
contract, express or implied. The basis of the The basis for the
 108

recovery of possession recovery of possession, by virtue of any contract, express or

is the plaintiff‘s real possession is implied, or the legal representatives or assigns of
right of possession or ownership itself. any such lessor, vendor, vendee, or other person,
jus possessionis, which may, at any time within one (1) year after such
is the right to the unlawful deprivation or withholding of possession,
possession of the real bring an action in the proper Municipal Trial Court
property independent against the person or persons unlawfully
of ownership. withholding or depriving of possession, or any
Jurisdiction is based on the value of the of the person or persons claiming under them, for the
property applying 20K and 50K rule restitution of such possession, together with
damages and costs.

HOW TO DETERMINE JURISDICTION IN Unless otherwise stipulated, such action by the

ACCION PUBLICIANA AND ACCION lessor shall be commenced only after demand to
REINVINDICATORIA pay or comply with the conditions of the lease
and to vacate is made upon the lessee, or by
The actions of forcible entry and unlawful serving written notice of such demand upon the
detainer are within the exclusive and original person found on the premises, or by posting such
jurisdiction of the MTC, MeTC and MCTC and shall notice on the premises if no person be found
be governed by the rules on summary procedure thereon, and the lessee fails to comply therewith
irrespective of the amount of damages or rental after fifteen (15) days in the case of land or five
sought to be recovered. (5) days in the case of buildings.

In actions for forcible entry, two allegations are PLEADINGS ALLOWED

mandatory for the MTC to acquire jurisdiction:
1) plaintiff must allege his prior physical The only pleadings allowed to be filed are the
possession of the property; and complaint, compulsory counterclaim and cross-
2) he must also allege that he was deprived claim pleaded in the answer, and the answers
of his possession by force, intimidation, thereto. All pleadings shall be verified.
strategy, threat or stealth.
ACTION ON THE COMPLAINT
If the alleged dispossession did not occur by any
of these means, the proper recourse is to file not The court may, from an examination of the
an action for forcible entry but a plenary action to allegations in the complaint and such evidence as
recover possession. may be attached thereto, dismiss the case
outright on any of the grounds for the dismissal of
Both actions must be brought within one year a civil action which are apparent therein. If no
from the date of actual entry on the land, in case ground for dismissal is found, it shall forthwith
of forcible entry, and from the date of last issue summons.
demand, in case of unlawful detainer.
WHEN DEMAND IS NECESSARY
Jurisdiction is determined by the allegations of
the complaint. The mere raising of the issue of Unless there exists a stipulation to the contrary,
tenancy does not automatically divest the court an unlawful detainer case shall be commenced
of jurisdiction because the jurisdiction of the only after the demand to pay or comply with the
court is determined by the allegations of the conditions of the lease and to vacate is made
complaint and is not dependent upon the upon the lessee.
defenses set up by the defendant.
The requirement for a demand implies that the
WHO MAY INSTITUTE THE ACTION AND mere failure of the occupant to pay rentals or his
WHEN; AGAINST WHOM THE ACTION MAY failure to comply with the conditions of the lease
BE MAINTAINED does not ipso facto render his possession of the
premises unlawful. It is the failure to comply with
A person deprived of the possession of any land the demand that vests upon the lessor a cause of
or building by force, intimidation, threat, strategy, action.
or stealth, or a lessor, vendor, vendee, or other
person against whom the possession of any land The demand may be in the form of a written
or building is unlawfully withheld after the notice served upon the person found in the
expiration or termination of the right to hold premises. The demand may also be made by
 109

posting a written notice on the premises if no 2) File a supersedeas bond to pay for the
person can be found thereon. It has been ruled, rents, damages and costs accruing down
however, that the demand upon a tenant may be to the time of the judgment appealed
oral. Sufficient evidence must be adduced to from; and
show that there was indeed a demand like 3) Deposit periodically with the RTC, during
testimonies from disinterested and unbiased the pendency of the appeal, the adjudged
witnesses. amount of rent due under the contract or
if there be no contract, the reasonable
PRELIMINARY INJUNCTION AND value of the use and occupation of the
PRELIMINARY MANDATORY INJUNCTION premises.

The court may grant preliminary injunction, in Exceptions to the rule:

accordance with the provisions of Rule 58, to 1) Where delay in the deposit is due to fraud,
prevent the defendant from committing further accident, mistake, or excusable
acts of dispossession against the plaintiff. negligence;
2) Where supervening events occur
A possessor deprived of his possession through subsequent to the judgment bringing
forcible entry or unlawful detainer may, within about a material change in the situation of
five (5) days from the filing of the complaint, the parties which makes execution
present a motion in the action for forcible entry or inequitable; and
unlawful detainer for the issuance of a writ of 3) Where there is no compelling urgency for
preliminary mandatory injunction to restore him the execution because it is not justified by
in his possession. The court shall decide the the circumstances.
motion within thirty (30) days from the filing
thereof. SUMMARY PROCEDURE, PROHIBITED
PLEADINGS
RESOLVING DEFENSE OF OWNERSHIP
Forcible entry and unlawful detainer actions are
The assertion by the defendant of ownership over summary in nature designed to provide for an
the disputed property does not serve to divest expeditious means of protecting actual
the inferior court of its jurisdiction. The defendant possession or the right to possession of the
cannot deprive the court of jurisdiction by merely property involved. These actions shall both fall
claiming ownership of the property involved. under the coverage of the Rules of Summary
Procedure irrespective of the amount of damages
When the defendant raises the issue of or unpaid rental sought to be recovered.
ownership, the court may resolve the issue of
ownership only under the following conditions: Prohibited pleadings and motions:
1) When the issue of possession cannot be a) Motion to dismiss the complaint except on
resolved without resolving the issue of the ground of lack of jurisdiction over the
ownership; and subject matter, or failure to comply with
2) The issue of ownership shall be resolved section 12;
only to determine the issue of possession. b) Motion for a bill of particulars;
c) Motion for new trial, or for reconsideration
Such judgment would not bar an action between of a judgment, or for reopening of trial;
the same parties respecting title to the land or d) Petition for relief from judgment;
building. The resolution of the MeTC on the e) Motion for extension of time to file
ownership of the property is merely provisional or pleadings, affidavits or any other paper;
interlocutory. Any question involving the issue of f) Memoranda;
ownership should be raised and resolved in a g) Petition for certiorari, mandamus, or
separate action brought specifically to settle the prohibition against any interlocutory order
question with finality. issued by the court;
h) Motion to declare the defendant in default;
HOW TO STAY THE IMMEDIATE EXECUTION i) Dilatory motions for postponement;
OF JUDGMENT j) Reply;
k) Third-party complaints;
Defendant must take the following steps to stay l) Interventions
the execution of the judgment:
1) Perfect an appeal;
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whose behalf the court into disrepute or

CONTEMPT (RULE 71)
violated order was disrespect;
made;
Contempt is a disregard of, or disobedience to the The purpose is to The purpose is to
rules or orders of a judicial body, or an compensate for the punish, to vindicate the
interruption of its proceedings by disorderly benefit of a party; authority of the court
behavior or insolent language, in its presence or and protect its outraged
so near thereto as to disturb the proceedings or dignity;
to impair the respect due to such body. The rules of procedure Should be conducted in
governing contempt accordance with the
Contempt of court is disobedience to the court by proceedings or principles and rules
acting in opposition to its authority, justice and criminal prosecutions applicable to criminal
dignity. It signifies not only a willful disregard or ordinarily are cases, insofar as such
disobedience of the court‘s orders but also inapplicable to civil procedure is consistent
conduct tending to bring the authority of the contempt proceedings. with the summary
court and the administration of law into disrepute nature of contempt
or, in some manner to impede the due proceedings.
administration of justice.

The reason for the power to punish for contempt DIRECT INDIRECT CONTEMPT
is that respect of the courts guarantees the CONTEMPT
stability of their institution. Without such In general is It is not committed in the
guarantee, said institution would be resting on committed in the presence of the court, but
shaky foundation. presence of or so done at a distance which
near the court or tends to belittle, degrade,
It is inherent in all courts; its existence is judge while obstruct or embarrass the
essential to the preservation of order in judicial performing the court and justice;
proceedings and to the enforcement of judicial function
judgments, orders and mandates of the courts, as to obstruct or
and consequently, to the due administration of interrupt the
justice. proceedings
before it;
Contempt proceedings has dual function: Acts constituting Acts constituting indirect
1) Vindication of public interest by direct contempt contempt are:
punishment of contemptuous conduct; are:
and a) Misbehavior in After a charge in writing
2) Coercion to compel the contemnor to do the presence has been filed, and an
what the law requires him to uphold the of or so near opportunity given to the
power of the Court, and also to secure the the court as to respondent to comment
rights of the parties to a suit awarded by obstruct or thereon within such period
the Court. interrupt the as may be fixed by the
proceedings court and to be heard by
KINDS OF CONTEMPT; PURPOSE AND before it; himself or counsel, a
NATURE OF EACH b) Disrespect person guilty of any of the
toward the following acts may be
1) Civil or Criminal, depending on the nature and court; punished for indirect
effect of the contemptuous act. c) Offensive contempt:
2) Direct or indirect, according to the manner of personalities
commission. towards 1) Misbehavior an officer
others; of a court in the
CIVIL CONTEMPT CRIMINAL CONTEMPT d) Refusal to be performance of his
It is the failure to do It is a conduct directed sworn as a official duties or in his
something ordered to against the authority witness or to official transactions;
be done by a court or a and dignity of the court answer as a 2) Disobedience of or
judge for the benefit of or a judge acting witness; resistance to a lawful
the opposing party judicially; it is an e) Refusal to writ, process, order, or
therein and is obstructing the subscribe an judgment of a court,
therefore and offense administration of justice affidavit or including the act of a
against the party in which tends to bring the deposition person who, after being
 111

when lawfully dispossessed or ejected The punishment for indirect contempt depends
required to do from any real property upon the level of the court against which the act
so; by the judgment or was committed;
f) Acts of a party process of any court of a) Where the act was committed against an
or a counsel competent jurisdiction, RTC or a court of equivalent or higher
which enters or attempts or rank, he may be punished by a fine not
constitute induces another to exceeding 30,000 pesos or imprisonment
willful and enter into or upon such not exceeding 6 months, or both;
deliberate real property, for the b) Where the act was committed against a
forum purpose of executing lower court, he may be punished by a fine
shopping; acts of ownership or not exceeding 5,000 pesos or
g) Unfounded possession, or in any imprisonment not exceeding one month,
accusations or manner disturbs the or both. Aside from the applicable
allegations or possession given to the penalties, if the contempt consists in the
words in a person adjudged to be violation of a writ of injunction, TRO or
pleading entitled thereto; status quo order, he may also be ordered
tending to 3) Any abuse of or any to make complete restitution to the party
embarrass the unlawful interference injured by such violation of the property
court or to with the processes or involved or such amount as may be
bring it into proceedings of a court alleged and proved;
disrepute. not constituting direct c) Where the act was committed against a
contempt under section person or entity exercising quasi-judicial
1 of this Rule; functions, the penalty imposed shall
4) Any improper conduct depend upon the provisions of the law
tending, directly or which authorizes a penalty for contempt
indirectly, to impede, against such persons or entities.
obstruct, or degrade the
administration of The person adjudged in indirect contempt may
justice; appeal from the judgment or final order of the
5) Assuming to be an court in the same manner as in criminal cases.
attorney or an officer of The appeal will not however have the effect of
a court, and acting as suspending the judgment if the person adjudged
such without authority; in contempt does not file a bond in an amount
6) Failure to obey a fixed by the court from which the appeal is taken.
subpoena duly served; This bond is conditioned upon his performance of
7) The rescue, or the judgment or final order if the appeal is
attempted rescue, of a decided against.
person or property in
the custody of an officer HOW CONTEMPT PROCEEDINGS ARE
by virtue of an order or COMMENCED
process of a court held
by him. Proceedings for indirect contempt may be
initiated motu proprio by the court against which
Failure by counsel to inform the contempt was committed by an order or any
the court of the death of his other formal charge requiring the respondent to
client constitutes indirect show cause why he should not be punished for
contempt within the contempt.
purview of Sec. 3, Rule 71,
since it constitutes an In all other cases, charges for indirect contempt
improper conduct tending shall be commenced by a verified petition with
to impede the supporting particulars and certified true copies of
administration of justice. documents or papers involved therein, and upon
full compliance with the requirements for filing
initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of
REMEDY AGAINST INDIRECT CONTEMPT; or are related to a principal action pending in the
PENALTY court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard
and decided separately, unless the court in its
 112

discretion orders the consolidation of the  The punishment is imposed for the benefit of
contempt charge and the principal action for joint a complainant or a party to a suit who has
hearing and decision. been injured aside from the need to compel
performance of the orders or decrees of the
WHEN IMPRISONMENT SHALL BE IMPOSED court, which the contemnor refuses to obey
although able to do so. In effect, it is within
 When the contempt consists in the refusal or the power of the person adjudged guilty of
omission to do an act which is yet in the contempt to set himself free.
power of the respondent to perform, he may
be imprisoned by order of the court concerned CONTEMPT AGAINST QUASI-JUDICIAL
until he performs it. BODIES
 Indefinite incarceration may be resorted to  The rules on contempt apply to contempt
where the attendant circumstances are such committed against persons or entities
that the non-compliance with the court order exercising quasi-judicial functions or in
is an utter disregard of the authority of the case there are rules for contempt adopted
court which has then no other recourse but to for such bodies or entities pursuant to law,
use its coercive power. Rule 71 shall apply suppletorily.
 Quasi-judicial bodies that have the power
 When a person or party is legally and validly to cite persons for indirect contempt can
required by a court to appear before it for a only do so by initiating them in the proper
certain purpose, and when that requirement is RTC. It is not within their jurisdiction and
disobeyed, the only remedy left for the court competence to decide the indirect
is to use force to bring the person or party contempt cases. The RTC of the place
before it. where contempt has been committed shall
have jurisdiction over the charges for
indirect contempt that may be filed.
CATCH AGED SHARC

PECIAL PROCEEDINGS (Rules 72 –

109)

Subject Matters of Special Proceedings:

1) Change of Name 9) (Voluntary) Dissolution of Corporation

2) Adoption 10) Settlement of Estate of Deceased Persons
3) Trustees 11) Habeas Corpus
4) Constitution of Family Home 12) (Judicial) Approval of Voluntary Recognition of
5) Hospitalization of Insane Persons Minor Natural Children
6) Absence and Death, Declaration of 13) Rescission and Revocation of Adoption
7) Guardianship and Custody of Children 14) Cancellation or Correction of Entries in the
8) Escheat Civil Registry

Special Proceedings is an application or WHICH COURT HAS JURISDICTION

proceeding to establish the status or right of a
party, or a particular fact, generally commenced If the decedent is an inhabitant of the Philippines
by application, petition or special form of at the time of his death, whether a citizen or an
pleading as may be provided for by the particular alien, his will shall be proved, or letters of
rule or law. administration granted, and his estate settled, in
the RTC in the province in which he resides at the
SETTLEMENT OF ESTATE OF DECEASED time of his death, and if he is an inhabitant of a
PERSONS (Rules 73 – 91) foreign country, the RTC of any province in which
he had his estate. The court first taking
cognizance of the settlement of the estate of a
SETTLEMENT OF ESTATE OF DECEASED decedent, shall exercise jurisdiction to the
PERSONS VENUE AND PROCESS (RULE 73) exclusion of all other courts.
 113

should be included in the inventory, which is

Under RA 7691, the law expanding the jurisdiction within the probate court’s competence.
of the inferior courts, MTC, MeTC and MCTC shall
exercise exclusive original jurisdiction over The determination is only provisional subject to a
probate proceedings, testate and intestate, where proper action in a separate action to resolve the
the value of the estate does not exceed title.
P300,000 (outside Metro Manila) or where such
estate does not exceed P400,000 (in Metro The jurisdiction of the probate court merely
Manila). relates to matters having to do with the
settlement of the estate and the probate of wills,
The jurisdiction of the RTC is limited to the the appointment and removal of administrators,
settlement and adjudication of properties of the executors, guardians and trustees. The question
deceased and cannot extend to collateral of ownership is, as a rule, an extraneous matter
matters. which the probate court cannot resolve with
finality.
VENUE IN JUDICIAL SETTLEMENT OF
ESTATE POWERS AND DUTIES OF PROBATE COURT

The residence of the decedent at the time of his The powers and duties of a probate court:
death is determinative of the venue of the 1) Distribute shares;
proceeding. 2) Determine the legal heirs;
3) Issue warrants and processes to secure
If he was a resident (inhabitant, whether citizen attendance of witnesses;
or alien) of the Philippines, venue is laid 4) Determine and rile upon issues relating to
exclusively in the province of his residence at the the settlement of the estate, such as
time of his death. Residence means his personal, administration, liquidation, and
actual, or physical habitation, his actual residence distribution of the estate; and
or place of abode. 5) Determine the following:
a) Heirs of the decedent;
It is only where the decedent was a nonresident b) Recognition of natural child;
of the Philippines at the time of his death that c) Validity of the disinheritance
venue lies in any province in which he had an effected by testator;
estate, The question of residence is determinative d) Status of a woman who claims
only of the venue and does not affect the to be the lawful wife of the
jurisdiction of the court. decedent;
e) Validity of waiver of hereditary
Venue is waivable. If instituted in two courts, the heirs;
court in which the proceeding was first filed has f) Status of each heir;
exclusive jurisdiction to resolve the issue. g) Whatever property in inventory
is conjugal or exclusive
EXTENT OF JURISDICTION OF PROBATE property of deceased spouse;
COURT and
h) Matters incidental or collateral
The main function of a probate court is to settle to the settlement and
and liquidate the estates of deceased person distribution of the estate.
either summarily or through the process of
administration. SUMMARY SETTLEMENT OF ESTATES (RULE
74)
The probate court exercises limited jurisdiction,
thus it has no power to take cognizance of and
determine the issue of title to property claimed Summary settlement of estate is a judicial
by a third person adversely to the decedent proceeding wherein, without the appointment of
unless the claimant and all other parties have executor or administrator, and without delay, the
legal interest in the property consent, expressly competent court summarily proceeds to value the
or impliedly, to the submission of the question to estate of the decedent; ascertain his debts and
the probate court. In that case, if the probate order payment thereof; allow his will if any;
court allows the introduction of evidence on declare his heirs, devisee and legatees; and
ownership it is for the sole purpose of distribute his net estate among his known heirs,
determining whether the subject properties devisees, and legatees, who shall thereupon be
 114

entitled to receive and enter into the possession

of the parts of the estate so awarded to them, TWO-YEAR PRESCRIPTIVE PERIOD
respectively.
It shall be presumed that the decedent left no
EXTRAJUDICIAL SETTLEMENT BY debts if no creditor files a petition for letters of
AGREEMENT BETWEEN HEIRS administration within two (2) years after the
WHEN ALLOWED death of the decedent.

If the decedent left no will and no debts and the If it shall appear at any time within two (2) years
heirs are all of age, or the minors are represented after the settlement and distribution of an estate
by their judicial or legal representatives duly in accordance with the provisions of either of the
authorized for the purpose, the parties may, first two sections of this rule, that an heir or other
without securing letters of administration, divide person has been unduly deprived of his lawful
the estate among themselves as they see fit by participation in the estate, such heir or such other
means of a public instrument filed in the office of person may compel the settlement of the estate
the register of deeds, and should they disagree, in the courts in the manner hereinafter provided
they may do so in an ordinary action of partition. for the purpose of satisfying such lawful
participation.
If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit And if within the same time of two (2) years, it
filed in the office of the register of deeds. shall appear that there are debts outstanding
against the estate which have not been paid, or
The parties to an extrajudicial settlement, that an heir or other person has been unduly
whether by public instrument or by stipulation in deprived of his lawful participation payable in
a pending action for partition, or the sole heir money, the court having jurisdiction of the estate
who adjudicates the entire estate to himself by may, by order for that purpose, after hearing,
means of an affidavit shall file, simultaneously settle the amount of such debts or lawful
with and as a condition precedent to the filing of participation and order how much and in what
the public instrument, or stipulation in the action manner each distributee shall contribute in the
for partition, or of the affidavit in the office of the payment thereof, and may issue execution, if
register of deeds, a bond with the said register of circumstances require, against the bond provided
deeds, in an amount equivalent to the value of in the preceding section or against the real estate
the personal property involved as certified to belonging to the deceased, or both. Such bond
under oath by the parties concerned and and such real estate shall remain charged with a
conditioned upon the payment of any just claim liability to creditors, heirs, or other persons for
that may be filed under section 4 of this rule. the full period of two (2) years after such
distribution, notwithstanding any transfers of real
The fact of the extrajudicial settlement or estate that may have been made.
administration shall be published in a newspaper
of general circulation in the manner provided in AFFIDAVIT OF SELF-ADJUDICATION
the next succeeding section; but no extrajudicial BY SOLE HEIR
settlement shall be binding upon any person who
has not participated therein or had no notice If there is only one heir, he may adjudicate to
thereof. himself the entire estate by means of an affidavit
filed in the office of the register of deeds.
Extrajudicial partition of the estate shall be valid
when the following conditions concur: SUMMARY SETTLEMENT OF ESTATES OF
1) The decedent left no will; SMALL VALUE; WHEN ALLOWED
2) The decedent left no debts, or if there
were debts left, all had been paid; Whenever the gross value of the estate of a
3) The heirs are all of age or if they are deceased person, whether he died testate or
minors, the latter are represented by their intestate, does not exceed ten thousand pesos,
judicial guardian or legal representative; and that fact is made to appear to the RTC having
4) The partition was made by means of a jurisdiction of the estate by the petition of an
public instrument or affidavit duly filed interested person and upon hearing, which shall
with the Register of Deeds; and be held not less than (1) month nor more than
5) The fact of the extrajudicial settlement or three (3) months from the date of the last
administration shall be published in a publication of a notice which shall be published
newspaper of general circulation. once a week for three (3) consecutive weeks in a
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newspaper of general circulation in the province, another proceeding, judicial or extrajudicial,

and after such other notice to interested persons without offending public policy.
as the court may direct, the court may proceed  It is mandatory as no will shall pass either real
summarily, without the appointment of an or personal property unless proved and
executor or administrator, and without delay, to allowed in accordance with the Rules.
grant, if proper, allowance of the will, if any there  It is imprescriptible, because it is required by
be, to determine who are the persons legally public policy and the state could not have
entitled to participate in the estate, and to intended to defeat the same by applying
apportion and divide it among them after the thereto the statute of limitation of actions.
payment of such debts of the estate as the court
shall then find to be due; and such persons, in WHO MAY PETITION FOR PROBATE;
their own right, if they are of lawful age and legal PERSONS ENTITLED TO NOTICE
capacity, or by their guardians or trustees legally
appointed and qualified, if otherwise, shall Any executor, devisee, or legatee named in a will,
thereupon be entitled to receive and enter into or any other person interested in the estate, may,
the possession of the portions of the estate so at any time after the death of the testator,
awarded to them respectively. The court shall petition the court having jurisdiction to have the
make such order as may be just respecting the will allowed, whether the same be in his
costs of the proceedings, and all orders and possession or not, or is lost or destroyed.
judgments made or rendered in the course  The testator himself may, during his
thereof shall be recorded in the office of the clerk, lifetime, petition the court for the
and the order of partition or award, if it involves allowance of his will.
real estate, shall be recorded in the proper
register's office. The court shall also cause copies of the notice of
the time and place fixed for proving the will to be
The court, before allowing a partition, may addressed to the designated or other known
require the distributees, if property other than heirs, legatees, and devisees of the testator
real is to be distributed, to file a bond in an resident in the Philippines at their places of
amount to be fixed by court, conditioned for the residence, and deposited in the post office with
payment of any just claim. the postage thereon prepaid at least twenty (20)
days before the hearing, if such places of
REMEDIES OF AGGRIEVED PARTIES AFTER residence be known.
EXTRA-JUDICIAL SETTLEMENT OF ESTATE
A copy of the notice must in like manner be
1) The creditor may ask for administration of mailed to the person named as executor, if he be
enough property of the estate sufficient to not be petitioner; also, to any person named as
pay the debt, but the heirs cannot prevent co-executor not petitioning, if their places of
such administration by paying the obligation. residence be known. Personal service of copies of
2) Where the estate has been summarily settled, the notice at least ten (10) days before the day of
the unpaid creditor may, within the two-year hearing shall be equivalent to mailing. If the
period, file a motion in the court wherein such testator asks for the allowance of his own will,
summary settlement was for the payment of notice shall be sent only to his compulsory heirs.
his credit. After the lapse of the two-year
period, an ordinary action may be instituted
against the distributees within the statute of ALLOWANCE OR DISALLOWANCE OF WILL
limitations, but not against the bond. (RULE 76)
3) The action to annul a deed of extrajudicial
settlement on the ground of fraud should be
filed within four years from the discovery of CONTENTS OF PETITION FOR ALLOWANCE
the fraud. OF WILL

A petition for the allowance of a will must show,

PRODUCTION AND PROBATE OF WILL so far as known to the petitioner:
(RULE 75) 1) The jurisdictional facts;
2) The names, ages, and residences of the
NATURE OF PROBATE PROCEEDING heirs, legatees, and devisees of the
testator or decedent;
 Probate of a will is a proceeding in rem. It 3) The probable value and character of the
cannot be dispensed with and substituted by property of the estate;
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4) The name of the person for whom letters according to such will, so far as such will may
are prayed; operate upon it; and the residue, if any, shall be
5) If the will has not been delivered to the disposed of as is provided by law in cases of
court, the name of the person having estates in the Philippines belonging to persons
custody of it. who are inhabitants of another state or country.

But no defect in the petition shall render void the If the court is satisfied, upon proof taken and
allowance of the will, or the issuance of letters filed, that the will was duly executed, and that
testamentary or of administration with the will the testator at the time of its execution was of
annexed. sound and disposing mind, and not acting under
duress, menace, and undue influence, or fraud, a
GROUNDS FOR DISALLOWING A WILL certificate of its allowance, signed by the judge,
and attested by the seal of the court shall be
The will shall be disallowed in any of the following attached to the will and the will and certificate
cases; filed and recorded by the clerk. Attested copies of
1) If not executed and attested as required the will devising real estate and of certificate of
by law; allowance thereof, shall be recorded in the
2) If the testator was insane, or otherwise register of deeds of the province in which the
mentally incapable to make a will, at the lands lie.
time of its execution;
3) If it was executed under duress, or the The general rule universally recognized is that
influence of fear, or threats; administration extends only to the assets of the
4) If it was procured by undue and improper decedent found within the state or country where
pressure and influence, on the part of the it was granted, so that an administrator
beneficiary, or of some other person for appointed in one state or country has no power
his benefit; over the property in another state or country.
5) If the signature of the testator was
procured by fraud or trick When a person dies intestate owning property in
6) If the testator acted by mistake or did not the country of his domicile as well as in foreign
intend that the instrument he signed country, administration shall be had in both
should be his will at the time of affixing his countries. That which is granted in the jurisdiction
signature thereto. of the decedent’s domicile is termed the principal
administration, while any other administration is
REPROBATE; REQUISITES BEFORE WILL termed ancillary administration. The ancillary
PROVED OUTSIDE ALLOWED IN THE administration is proper whenever a person dies
PHILIPPINES; EFFECTS OF PROBATE leaving in a country other than that of his
domicile, property to be administered in the
Will proved outside Philippines may be allowed nature of assets of the decedent, liable for his
here. Wills proved and allowed in a foreign individual debts or to be distributed among his
country, according to the laws of such country, heirs.
may be allowed, filed, and recorded by the proper
Court of First Instance in the Philippines. LETTERS TESTAMENTARY AND OF
ADMINISTRATION (RULE 78)
If it appears at the hearing that the will should be
allowed in the Philippines, the court shall so allow
it, and a certificate of its allowance, signed by the Letters testamentary is the appointment issued
judge, and attested by the seal of the court, to by a probate court, after the will has been
which shall be attached a copy of the will, shall admitted to probate, to the executor named in
be filed and recorded by the clerk, and the will the will to administer the estate of the deceased
shall have the same effect as if originally proved testator, provided the executor named in the will
and allowed in such court. is competent, accepts the trust and gives a bond.

When a will is thus allowed, the court shall grant WHEN AND TO WHOM LETTERS OF
letters testamentary or letters of administration ADMINISTRATION GRANTED
with the will annexed, and such letters
testamentary or of administration, shall extend to No person is competent to serve as executor or
all the estate of the testator in the Philippines. administrator who:
Such estate, after the payment of just debts and a) Is a minor;
expenses of administration, shall be disposed of b) Is not a resident of the Philippines; and
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c) Is in the opinion of the court unfit to 1) Surviving spouse, or next of kin, or both, or
execute the duties of the trust by reason person as such surviving spouse, or next of
of drunkenness, improvidence, or want of kin, requests;
understanding or integrity, or by reason of 2) One or more of the principal creditors – if such
conviction of an offense involving moral surviving spouse, or next of kin, or the person
turpitude. selected, be incompetent or unwilling, or if
they neglect for 30 days after the death of the
The executor of an executor shall not, as such, decedent to apply for administration or to
administer the estate of the first testator. request that administration be granted to
some other person, it may be granted to, if
A married woman may serve as executrix or competent and willing to serve;
administratrix, and the marriage of a single 3) Such other person as the court may select.
woman shall not affect her authority so to serve
under a previous appointment. OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY; SIMULTANEOUS FILING OF
When a will has been proved and allowed, the PETITION FOR ADMINISTRATION
court shall issue letters testamentary thereon to
the person named as executor therein, if he is Any person interested in a will may state in
competent, accepts the trust, and gives bond as writing the grounds why letters testamentary
required by these rules. should not issue to the persons named therein
executors, or any of them, and the court, after
When all of the executors named in a will cannot hearing upon notice, shall pass upon the
act because of incompetency, refusal to accept sufficiency of such grounds. A petition may, at
the trust, or failure to give bond, on the part of the same time, be filed for letters of
one or more of them, letters testamentary may administration with the will annexed.
issue to such of them as are competent, accept
and give bond, and they may perform the duties POWERS AND DUTIES OF EXECUTORS AND
and discharge the trust required by the will. ADMINISTRATORS; RESTRICTIONS ON THE
POWERS (RULE 84)
If no executor is named in the will, or the
executor or executors are incompetent, refuse An EXECUTOR is the person nominated by a
the trust, or fail to give bond, or a person dies testator to carry out the directions and requests
intestate, administration shall be granted: in his will and to dispose of his property according
a) To the surviving husband or wife, as the to his testamentary provisions after his death.
case may be, or next of kin, or both, in the
discretion of the court, or to such person An ADMINISTRATOR is person appointed by the
as such surviving husband or wife, or next court, in accordance with the governing statute,
of kin, requests to have appointed, if to administer and settle intestate estate and such
competent and willing to serve; testate estate as no competent executor was
b) If such surviving husband or wife, as the designated by the testator.
case may be, or next of kin, or the person
selected by them, be incompetent or The executor or administrator of the estate of a
unwilling, or if the husband or widow, or deceased partner shall at all times have access
next of kin, neglects for thirty (30) days to, and may examine and take copies of, books
after the death of the person to apply for and papers relating to the partnership business,
administration or to request that and may examine and make invoices of the
administration be granted to some other property belonging to such partnership; and the
person, it may be granted to one or more surviving partner or partners, on request, shall
of the principal creditors, if competent and exhibit to him all such books, papers, and
willing to serve; property in their hands or control. On the written
c) If there is no such creditor competent and application of such executor or administrator, the
willing to serve, it may be granted to such court having jurisdiction of the estate may order
other person as the court may select. any such surviving partner or partners to freely
permit the exercise of the rights, and to exhibit
ORDER OF PREFERENCE; PRIORITY IN the books, papers, and property, as in this section
SELECTING AN ADMINISTRATOR provided, and may punish any partner failing to
do so for contempt.
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An executor or administrator shall maintain in If an executor or administrator neglects to render

tenantable repair the houses and other structures his account and settle the estate according to
and fences belonging to the estate, and deliver law, or to perform an order or judgment of the
the same in such repair to the heirs or devisees court, or a duty expressly provided by these
when directed so to do by the court. rules, or absconds, or becomes insane, or
otherwise incapable or unsuitable to discharge
An executor or administrator shall have the right the trust, the court may remove him, or, in its
to the possession and management of the real as discretion, may permit him to resign. When an
well as the personal estate of the deceased so executor or administrator dies, resigns, or is
long as it is necessary for the payment of the removed the remaining executor or administrator
debts and the expenses of administration. may administer the trust alone, unless the court
grants letters to someone to act with him. If there
An administrator of an intestate cannot exercise is no remaining executor or administrator,
the right of legal redemption over a portion of the administration may be granted to any suitable
property owned in common sold by one of the person (Sec. 2, Rule 82).
other co-owners since this is not within the
powers of administration.
CLAIMS AGAINST THE ESTATE (RULE 86)
Where the estate of a deceased person is already
the subject of a testate or intestate proceeding, Administration is for the purpose of liquidation of
the administrator cannot enter into any the estate and distribution of the residue among
transaction involving it without any prior approval the heirs and legatees. Liquidation means the
of the Court. determination of all the assets of the estate and
payment of all debts and expenses.
The right of an executor or administrator to the
possession and management of the real and The purpose of presentation of claims against
personal properties of the deceased is not decedents of the estate in the probate court is to
absolute and can only be exercised so long as it is protect the estate of deceased persons. That
necessary for the payment of the debts and way, the executor or administrator will be able to
expenses of administration. examine each claim and determine whether it is a
proper one which should be allowed.
APPOINTMENT OF SPECIAL
ADMINISTRATOR Further, the primary object of the provisions
requiring presentation is to apprise the
When there is delay in granting letters administrator and the probate court of the
testamentary or of administration by any cause existence of the claim so that a proper and timely
including an appeal from the allowance or arrangement may be made for its payment in full
disallowance of a will, the court may appoint a or by pro rata portion in the due course of the
special administrator to take possession and administration, inasmuch as upon the death of a
charge of the estate of the deceased until the person, his entire estate is burdened with the
questions causing the delay are decided and payment of all his debts and no creditor shall
executors or administrators appointed. enjoy any preference or priority; all of them shall
share pro rata in the liquidation of the estate of
GROUNDS FOR REMOVAL OF the deceased.
ADMINISTRATOR
TIME WITHIN WHICH CLAIMS SHALL BE
Administration revoked if will discovered - If after FILED; EXCEPTIONS
letters of administration have been granted on
the estate of a decedent as if he had died The court shall state the time for the filing of
intestate, his will is proved and allowed by the claims against the estate, which shall not be
court, the letters of administration shall be more than twelve (12) nor less than six (6)
revoked and all powers thereunder cease, and months after the date of the first publication of
the administrator shall forthwith surrender the the notice. However, at any time before an order
letters to the court, and render his account within of distribution is entered, on application of a
such time as the court directs. Proceedings for creditor who has failed to file his claim within the
the issuance of letters testamentary or of time previously limited, the court may, for cause
administration under the will shall be as shown and on such terms as are equitable, allow
hereinbefore provided. such claim to be filed within a time not exceeding
one (1) month.
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STATUTE OF NON-CLAIMS If the estate is insolvent, the debts shall be paid

in the following manner:
A claim by a person against the estate of 1) The executor or administrator shall pay
deceased should be made in not less than 6 the debts in accordance with the
months nor more than 12 months since the first preference of credits established by the
publication of allowance of the will. If the said Civil Code (Sec. 7);
claims are not filed within the time limited in the 2) No creditor of any one class shall receive
notice, they are forever be barred. any payment until those of the preceding
class are paid (Sec. 8);
CLAIM OF EXECUTOR OR ADMINISTRATOR 3) If there are no assets sufficient to pay the
AGAINST THE ESTATE credits of any one class of creditors, each
creditor within such class shall be paid a
If the executor or administrator has a claim dividend in proportion to his claim (Sec.
against the estate he represents, he shall give 8);
notice thereof, in writing, to the court, and the 4) Where the deceased was a nonresident,
court shall appoint a special administrator, who his estate in the Philippines shall be
shall, in the adjustment of such claim, have the disposed of in such a way that creditors in
same power and be subject to the same liability the Philippines and elsewhere may receive
as the general administrator or executor in the an equal share in proportion to their
settlement of other claims. respective credits (Sec. 9);
5) Claims duly proved against the estate of
The court may order the executor or an insolvent resident of the Philippines,
administrator to pay to the special administrator the executor or administrator, having had
necessary funds to defend such claim. the opportunity to contest such claims,
shall e included in the certified list of
PAYMENT OF DEBTS (RULE 88) claims proved against the deceased. The
owner of such claims shall be entitled to a
If there are sufficient properties, the debts shall just distribution of the estate in
be paid, thus: accordance with the preceding rules if the
1) All debts shall be paid in full within the property of such deceased person in
time limited for the purpose (Sec. 1); another country is likewise equally
2) If the testator makes provision by his will, apportioned to the creditors residing in the
or designates the estate to be Philippines and other creditors, according
appropriated for the payment of debts to their respective claims (Sec. 10);
they shall be paid according to the 6) It must be noted that the payments of
provisions of the will, which must be debts of the decedent shall be made
respected (Sec. 2); pursuant to the order of the probate court
3) If the estate designated in the will is not (Sec. 11).
sufficient, such part of the estate as is not
disposed of by will shall be appropriated On granting letters testamentary or
for the purpose (Sec. 2); administration the court shall allow to the
4) The personal estate not disposed of by will executor or administrator a time for disposing of
shall be first chargeable with payment of the estate and paying the debts and legacies of
debts and expenses (Sec. 3); the deceased, which shall not, in the first
5) If the personal estate is not sufficient, or instance, exceed one (1) year; but the court may,
its sale would be detrimental to the on application of the executor or administrator
participants of the estate, the real estate and after hearing on such notice of the time and
not disposed of by will shall be sold or place therefor given to all persons interested as it
encumbered for that purpose (Sec. 3); shall direct, extend the time as the circumstances
6) Any deficiency shall be met by of the estate require not exceeding six (6) months
contributions from devisees, legatees and for a single extension nor so that the whole
heirs who have entered into possession of period allowed to the original executor or
portions of the estate before debts and administrator shall exceed two (2) years (Sec.
expenses have been paid (Sec. 6); 15).
7) The executor or administrator shall retain
sufficient estate to pay contingent claims ACTIONS BY AND AGAINST EXECUTORS AND
when the same becomes absolute (Sec. ADMINISTRATORS (RULE 87)
4).
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DECEASED
No action upon a claim for the recovery of money
or debts or interest thereon shall be commenced 1) There is a deficiency of assets in the hands of
against the executor or administrator. an executor or administrator for the payment
of debts and expenses of administration;
ACTIONS THAT MAY BE BROUGHT AGAINST 2) The deceased in his lifetime had made or
EXECUTORS AND ADMINISTRATORS attempted to make a fraudulent conveyance
of his real or personal property, or a right or
An action to recover real or personal property, or interest therein, or a debt or credit, with
an interest therein, from the estate, or to enforce intent to defraud his creditors or to avoid any
a lien thereon, and actions to recover damages right, debt or duty; or had so conveyed such
for an injury to person or property, real or property, right, debt, or credit that by law the
personal, may be commenced against the conveyance would be void as against his
executor or administrator. creditors;
3) The subject of the attempted conveyance
Whenever a party to a pending action dies, and would be liable to attachment by any of them
the claim is not thereby extinguished, it shall be in his lifetime;
the duty of his counsel to inform the court within 4) The executor or administrator has shown to
thirty (30) days after such death of the fact have no desire to file the action or failed to
thereof, and to give the name and address of his institute the same within a reasonable time;
legal representative or representatives. Failure of 5) Leave is granted by the court to the creditor
counsel to comply with this duty shall be a to file the action;
ground for disciplinary action. The heirs of the 6) A bond is filed by the creditor as prescribed in
deceased may be allowed to be substituted for the Rules;
the deceased, without requiring the appointment 7) The action by the creditor is in the name of
of an executor or administrator and the court the executor or administrator.
may appoint a guardian ad litem for the minor
heirs.
DISTRIBUTION AND PARTITION (RULE 90)
The court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty (30) days Before there could be a distribution of the estate,
from notice. If no legal representative is named the following two stages must be followed:
by the counsel for the deceased party, or if the 1) Payment of obligations (liquidation of
one so named shall fail to appear within the estate) – under the Rules, the
specified period, the court may order the distribution of a decedent‘s assets may
opposing party, within a specified time, to only be ordered under any of the
procure the appointment of an executor or following three circumstances:
administrator for the estate of the deceased and a. when the inheritance tax,
the latter shall immediately appear for and on among other is paid;
behalf of the deceased. The court charges in b. when a sufficient bond is given
procuring such appointment, if defrayed by the to meet the payment of the
opposing party, may be recovered as costs. inheritance tax and all other
obligations; and
When the action is for recovery of money arising c. when the payment of the said
from contract, express or implied, and the tax and all other obligations has
defendant dies before entry of final judgment in been provided for; and
the court in which the action was pending at the 2) Declaration of heirs – there must first
time of such death, it shall not be dismissed but be declaration of heirs to determine to
shall instead be allowed to continue until entry of whom the residue of the estate should
final judgment. A favorable judgment obtained by e distributed. A separate action for the
the plaintiff therein shall be enforced in the declaration of heirs is not proper.
manner especially provided in these Rules for
prosecuting claims against the estate of a And likewise after, not before the declaration of
deceased person. heirs is made may the residue be distributed and
delivered to the heirs. The settlement of a
REQUISITES BEFORE CREDITOR MAY BRING decedent‘s estate is a proceeding in rem which is
AN ACTION FOR RECOVERY OF PROPERTY binding against the whole world. All persons
FRAUDULENTLY CONVEYED BY THE having interest in the subject matter involved,
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whether they were notified or not, are equally

bound. PROJECT OF PARTITION

LIQUIDATION  Project of partition is a document prepared by

the executor or administrator setting forth the
When order for distribution of residue manner in which the estate of the deceased is
made. When the debts, funeral charges, and to be distributed among the heirs.
expenses of administration, the allowance to the  If the estate is a testate estate, the project of
widow, and inheritance tax, if any, chargeable to partition must conform to the terms of the
the estate in accordance with law, have been will; if intestate, the project of partition must
paid, the court, on the application of the executor be in accordance with the provisions of the
or administrator, or of a person interested in the Civil Code.
estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled REMEDY OF AN HEIR ENTITLED TO RESIDUE
to the same, naming them and the proportions, BUT NOT GIVEN HIS SHARE
or parts, to which each is entitled, and such
person may demand and recover their respective 1) If there is a controversy before the court as to
shares from the executor or administrator, or any who are the lawful heirs of the deceased
other person having the same in his possession. If person or as to the distributive shares to
there is a controversy before the court as to who which each person is entitled under the law,
are the lawful heirs of the deceased person or as the controversy shall be heard and decided as
to the distributive shares to which each person is in ordinary cases.
entitled under the law, the controversy shall be 2) The better practice for the heir who has not
heard and decided as in ordinary cases. received his share is to demand his share
through a proper motion in the same probate
No distribution shall be allowed until the payment or administration proceedings, or for
of the obligations above mentioned has been reopening of the probate or administrative
made or provided for, unless the distributees, or proceedings if it had already been closed, and
any of them, give a bond, in a sum to be fixed by not through an independent action, which
the court, conditioned for the payment of said would be tried by another court or judge.
obligations within such time as the court directs. 3) It has been held that an order which
determines the distributive share of the heirs
Questions as to advancement to be of a deceased person is appealable. If not
determined. Questions as to advancement appealed within the reglementary period, it
made, or alleged to have been made, by the becomes final.
deceased to any heir may be heard and 4) The Court allowed the continuation of a
determined by the court having jurisdiction of the separate action to annul the project of
estate proceedings; and the final order of the partition by a preterited heir, since the estate
court thereon shall be binding on the person proceedings have been closed and terminated
raising the questions and on the heir. for over three years, and on the ground of
lesion, preterition and fraud.
By whom expenses of partition paid. If at the
time of the distribution the executor or INSTANCES WHEN PROBATE COURT MAY
administrator has retained sufficient effects in his ISSUE WRIT OF EXECUTION
hands which may lawfully be applied for the
expenses of partition of the properties a) To satisfy the contributive shares of devisees,
distributed, such expenses of partition may be legatees and heirs in possession of the
paid by such executor or administrator when it decedent‘s assets;
appears equitable to the court and not b) To enforce payment of expenses of partition;
inconsistent with the intention of the testator; and
otherwise, they shall be paid by the parties in c) To satisfy the costs when a person is cited for
proportion to their respective shares or interest in examination in probate proceedings.
the premises, and the apportionment shall be
settled and allowed by the court, and, if any
person interested in the partition does not pay his GENERAL GUARDIANS AND GUARDIANSHIP
proportion or share, the court may issue an
execution in the name of the executor or
administrator against the party not paying for the TRUSTEES (RULE 98)
sum assessed.
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Requisites for existence of a valid trust: a) Insanity; a) Neglect to

1) Existence of a person competent to b) Incapability of render an
create; discharging trust or account and
2) Sufficient words to create it; evidently unsuitable settle the estate
3) A person capable of holding as trustee a therefor (Sec. 8, Rule according to
specified or ascertainable object; 98); law;
4) A definite trust res; and c) Neglect in the b) Neglect to
5) A declaration of the terms of the trust performance of his perform an
duties; order or
TRUSTEE EXECUTOR / d) Breach of trust judgment of the
ADMINISTRATOR displaying a want of court;
An instrument or agent An executor is the fidelity, not mere c) Neglect to
of the cestui que trust, person named in error in the perform a duty
who acquires no the will to administration of the expressly
beneficial interest in the administer the trust; provided by
estate; he merely took decedent‘s estate e) Abuse and these rules;
the legal estate only as and carry out the abandonment of the d) Absconds, or
the proper execution of provisions thereof. trust; becomes
the trust required; and, An administrator is f) Refusal to recognize insane, or
his estate ceases upon the person or administer the e) otherwise
the fulfilment of the appointed by the trust; incapable or
testator‘s wishes, in court to administer g) Failure or neglect or unsuitable to
which case, the same the estate where impropriety in discharge trust;
vest absolutely in the the decedent died investment of the f) (e) Fraud or
beneficiary. intestate, or where trust estate as to misrepresentati
the will was void give rise to waste of on
and not allowed to trust property;
probate, or where h) Failure to file
no executor was accounts, and failure
named in the will, of one co-trustee to
or the executor keep himself
named therein in informed of the
incompetent or conduct of the other
refuses to serve as in the administration
such. of the trust.
An association or An association or
corporation authorized corporation CONDITIONS OF THE BOND
to conduct the business authorized to
of a trust company in conduct the A trustee appointed by the court is required to
the Philippines may business of a trust furnish a bond and the terms of the trust or a
appointed as trustee of company in the statute may provide that a trustee appointed by a
an estate in the same Philippines may court shall be required to furnish a bond in order
manner as an individual appointed as to qualify him to administer the trust.
(Art. 1060, CC). executor or
administrator of an However, the court may until further order
estate in the same exempt a trustee under a will from giving a bond
manner as an when the testator has directed or requested such
individual (Art. exemption or when all persons beneficially
1060, CC). interested in the trust, being of full age, request
Duties are usually Duties are fixed the exemption. Such exemption may be cancelled
governed by the and/or limited by by the court at any time, and the trustee required
intention of the trustor law (Rule 84). to forthwith file a bond. If the trustee fails to
or the parties if furnish a bond as required by the court, he fails to
established by a qualify as such. Nonetheless the trust is not
contract. defeated by such a failure to give bond.
Duties may cover a
wider range. The following conditions shall be deemed to be a
Grounds for removal of Grounds for part of the bond whether written therein or not:
trustee: removal:
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a) That the trustee will make and return to court, a true account of the property in his
the court, at such time as it may order, a hands and of the management and
true inventory of all the real and personal disposition thereof, and will render such
estate belonging to him as trustee, which other accounts as the court may order.
at the time of the making of such
inventory shall have come to his That at the expiration of his trust he will settle his
possession or knowledge; accounts in court and pay over and deliver all the
b) That he will manage and dispose of all estate remaining in his hands, or due from him on
such estate, and faithfully discharge his such settlement, to the person or persons entitled
trust in relation thereto, according to law thereto. But when the trustee is appointed as a
and the will of the testator or the successor to a prior trustee, the court may
provisions of the instrument or order dispense with the making and return of an
under which he is appointed; inventory, if one has already been filed, and in
c) That he will render upon oath at least once such case the condition of the bond shall be
a year until his trust is fulfilled, unless he deemed to be altered accordingly.
is excused therefrom in any year by the
REQUISITES FOR THE REMOVAL AND constitutes of itself a breach of trust, and is a
RESIGNATION OF A TRUSTEE ground for removal.

A trustee may be removed upon petition to the EXTENT OF AUTHORITY OF TRUSTEE

proper RTC of the parties beneficially interested,
after due notice to the trustee and hearing, if it A trustee appointed by the RTC shall have the
appears essential in the interests of the same rights, powers, and duties as if he had been
petitioners. The court may also, after due notice appointed by the testator. No person succeeding
to all persons interested, remove a trustee who is to a trust as executor or administrator of a former
insane or otherwise incapable of discharging his trustee shall be required to accept such trust.
trust or evidently unsuitable therefor. A trustee,
whether appointed by the court or under a Such new trustee shall have and exercise the
written instrument, may resign his trust if it same powers, rights, and duties as if he had been
appears to the court proper to allow such originally appointed, and the trust estate shall
resignation. vest in him in like manner as it had vested or
would have vested, in the trustee in whose place
A trustee whose acts or omissions are such as to he is substituted; and the court may order such
show a want of reasonable fidelity will be conveyance to be made by the former trustee or
removed by the court and where trust funds are his representatives, or by the other remaining
to be invested by the trustee, neglect to invest trustees, as may be necessary or proper to vest
constitutes of itself a breach of trust, and is a the trust estate in the new trustee, either alone
ground for removal. or jointly with the others.

GROUNDS FOR REMOVAL AND

ESCHEAT (RULE 91)
RESIGNATION OF A TRUSTEE

The proper Regional Trial Court may, upon Escheat is a proceeding whereby the real and
petition of the parties beneficially interested and personal property of a deceased person in the
after due notice to the trustee and hearing; Philippines, become the property of the state
remove a trustee if such removal appears upon his death, without leaving any will or legal
essential in the interests of the petitioners. The heirs.
court may also, after due notice to all persons
interested, remove a trustee who is insane or WHEN TO FILE
otherwise incapable of discharging his trust or
evidently unsuitable therefor. A trustee, whether When a person dies intestate, seized of real or
appointed by the court or under a written personal property in the Philippines, leaving no
instrument, may resign his trust if it appears to heir or person by law entitled to the same, the
the court proper to allow such resignation. Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition
A trustee whose acts or omissions are such as to in the Court of First Instance of the province
show a want of reasonable fidelity will be where the deceased last resided or in which he
removed by the court and where trust funds are had estate, if he resided out of the Philippines,
to be invested by the trustee, neglect to invest
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setting forth the facts, and praying that the the person and of all the property of the
estate of the deceased be declared escheated. ward.

REQUISITES FOR FILING OF PETITION 2) According to constitution

a) Legal – those deemed as guardians
a) That a person died intestate; without need of a court appointment (Art.
b) That he left no heirs or person by law entitled 225, Family Court);
to the same; and b) Guardian ad litem – those appointed by
c) That the deceased left properties. courts of justice to prosecute or defend a
minor, insane or person declared to be
REMEDY OF RESPONDENT AGAINST incompetent, in an action in court; and
PETITION; PERIOD FOR FILING A CLAIM c) Judicial – those who are appointed by the
court in pursuance to law, as guardian for
If a devisee, legatee, heir, widow, widower or insane persons, prodigals, minor heirs or
other person entitled to such estate appears and deceased was veterans and other
files a claim thereto with the court within 5 years incompetent persons.
from the date of such judgment, such person
shall have possession of and title to the same, or GENERAL POWERS AND DUTIES OF
if sold, the municipality or city shall be GUARDIANS (RULE 96)
accountable to him for the proceeds, after
deducting reasonable charges for the care of the
estate; hence, claim not made within such time a) To have care and custody over the person of
limit shall forever be barred. his ward, and/or the management of his
estate (Sec. 1);
b) To pay the just debts of his ward out of the
GUARDIANSHIP (RULES 92 – 97) latter‘s estate (Sec. 2);
c) To bring or defend suits in behalf of the ward,
Guardianship is the power of protective authority and, with the approval of the court, compound
given by law and imposed on an individual who is for debts due the ward and give discharges to
free and in the enjoyment of his rights, over one the debtor (Sec. 3);
whose weakness on account of his age or other d) To manage the estate frugally and without
infirmity renders him unable to protect himself. waste, and apply the income and profits to
Guardianship may also describe the relation the comfortable and suitable maintenance of
subsisting between the guardian and the ward. It the ward and his family (Sec. 4);
involves the taking of possession of an e) To sell or encumber the real estate of the
management of, the estate of another unable to ward upon being authorized to do so (Sec. 4);
act for himself. f) To join in an assent to a partition of real or
personal estate held by the ward jointly or in
A guardian is a person lawfully invested with common with others (Sec. 5).
power and charged with the duty of taking care of
a person who for some peculiarity or status or CONDITIONS OF THE BOND OF THE
defect of age, understanding or self-control is GUARDIAN
considered incapable of administering his own
affairs. a) To file with the court complete inventory of
the estate of the ward within 3 months;
Kinds of guardians: b) To faithfully execute the duties of his trust to
1) According to scope or extent manage and dispose of the estate according
a) Guardian of the person – one who has to the Rules for the best interests of the ward,
been lawfully invested with the care of the and to provide for the proper use, custody,
person of minor whose father is dead. His and education of the ward;
authority is derived out of that of the c) To render a true account of all the estate, and
parent; of the management and disposition of the
b) Guardian of the property – that appointed same;
by the court to have the management of d) To settle his accounts with the court and
the estate of a minor or incompetent deliver over all the estate remaining in his
person; hands to the person entitled thereto;
c) General guardians – those appointed by e) To perform all orders of the court by him to be
the court to have the care and custody of performed (Sec. 1; Sec. 14, AM 03-02-05-SC).
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d) Any OTHER PERSON, who in the sound

RULE ON GUARDIANSHIP OVER MINORS
discretion of the court, would serve the
(AM 03-02-05-SC)
best interests of the minor.

The father and mother shall jointly exercise legal Factors to consider in determining custody:
guardianship over the person and property of a) Any extrajudicial agreement which the
their unemancipated common child without the parties may have bound themselves to
necessity of a court appointment. The Rule shall comply with respecting the rights of the
be suppletory to the provisions of the Family minor to maintain direct contact with the
Code on guardianship. non-custodial parent on a regular basis,
except when there is an existing threat or
On grounds authorized by law, any relative or danger of physical, mental, sexual or
other person on behalf of a minor, or the minor emotional violence which endangers the
himself if 14 years of age or over, may petition safety and best interests of the minor;
the Family Court for the appointment of a general b) The desire and ability of one parent to
guardian over the person or property, or both, of foster an open and loving relationship
such minor. The petition may also be filed by the between the minor and the other parent;
Secretary of DSWD and of the DOH in the case of c) The health, safety and welfare of the
an insane minor who needs to be hospitalized. minor;
d) Any history of child or spousal abuse by
Grounds of petition: the person seeking custody or who has
a) Death, continued absence, or incapacity of had any filial relationship with the minor,
his parents; including anyone courting the parent;
b) Suspension, deprivation or termination of e) The nature and frequency of contact with
parental authority; both parents;
c) Remarriage of his surviving parent, if the f) Habitual use of alcohol, dangerous drugs
latter is found unsuitable to exercise or regulated substances;
parental authority; or g) Marital misconduct;
d) When the best interest of the minor so h) The most suitable physical, emotional,
require. spiritual, psychological and educational
environment for the holistic development
Qualifications of guardians: and growth of the minor; and
a) Moral character; i) The preference of the minor over 7 years
b) Physical, mental and psychological of age and of sufficient discernment,
condition; unless the parent chosen is unfit (Sec. 14,
c) Financial status; AM No. 03-04-04-SC).
d) Relationship of trust with the minor;  The court shall order a social worker to
e) Availability to exercise the powers and conduct a case study of the minor and all
duties of a guardian for the full period of the prospective guardians and submit his
the guardianship; report and recommendation to the court
f) Lack of conflict of interest with the minor; for its guidance before the scheduled
and hearing.
g) Ability to manage the property of the
minor.
ADOPTION (RULES 99
100, SUPERSEDED BY AM 02-6-02-SC)
Order of preference in the appointment of
guardian or the person and/or property of minor:
a) The SURVIVING GRANDPARENT and in case  Adoption is a juridical act which creates
several grandparents survive, the court between two persons a relationship similar to
shall select any of them taking into that which results from legitimate paternity.
account all relevant considerations;  Adoption is a juridical act, a proceeding in
b) The OLDEST BROTHER OR SISTER of the rem, which creates between the two persons
minor over 21 years of age, unless unfit or a relationship similar to that which results
disqualified; from legitimate paternity and filiation.
c) The ACTUAL CUSTODIAN of the minor over  Adoption is not an adversarial proceeding. An
21 years of age, unless unfit or adversarial proceeding is one having opposing
disqualified; and parties, contested, as distinguished from an
ex parte application, one of which the party
seeking relief has given legal warning to the
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other party and afforded the latter an defendant to speak of since the proceeding
opportunity to contest it excludes an adoption involves the status of a person it being an
proceeding. In adoption, there is no particular action in rem.

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

Governed by RA 8552, the Domestic Governed by RA 8043, the Inter-Country Adoption
Adoption Act of 1998; procedure governed Act of 1995; procedure governed by the Amended
by AM No. 02-06-02-SC, Aug. 22, 2002. Implementing Rules and Regulations on ICAA.
Applies to domestic adoption of Filipino Applies to adoption of a Filipino child in a foreign
children, where the entire adoption process country, where the petition for adoption is filed, the
beginning from the filing of the petition up supervised trial custody is undertaken and the
to the issuance of the adoption decree decree of adoption is issued outside of the
takes place in the Philippines. Philippines.
Who may be adopted Who may be adopted
A child legally available for adoption. Only a legally free child may be adopted.
Requisites: Requisites:
a) Below 18 years of age; and a) Below 15 years of age; and
b) Judicially declared available for b) Has been voluntarily or involuntarily
adoption. committed to the DSWD in accordance with
c) Exceptions: PD 603.
d) Legitimate son/daughter of one
spouse by the other spouse;
e) Illegitimate son/daughter by a
qualified adopter;
f) Person of legal age if, prior to the
adoption said person has been
consistently considered and treated
by the adopter/s as his/her own
child since minority.
Who may adopt Who may adopt
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A. FILIPINO CITIZENS A. FILIPINO CITIZENS

1) Of legal age; 1) Permanent resident of a foreign country;

2) In possession of full civil capacity 2) Has the capacity to act and assume all rights
and legal rights; and responsibilities of parental authority
3) Of good moral character; under Philippine laws;
4) Has not been convicted of any 3) Has undergone the appropriate counseling
crime involving moral turpitude; from an accredited counselor in country of
5) Emotionally and psychologically domicile;
capable of caring for children; 4) Has not been convicted of a crime involving
6) In a position to support and care for moral turpitude;
his/her children in keeping with the 5) Eligible to adopt under Philippine laws;
means of the family; 6) In a position to provide the proper care and
7) At least 16 years older than the support and to give the necessary moral
adoptee but this latter requirement values and example to all his children,
may be waived if (a) the adopter is including the child to be adopted;
the biological parent of the 7) Agrees to uphold the basic rights of the child
adoptee; or (b) the adopter is the as embodied under Philippine laws, the UN
spouse of the adoptee‘s parent; and Convention on Rights of the Child, and to
8) Permanent resident of the abide by the rules and regulations issued to
Philippines. implement the provisions of the ICAA;
8) Residing in a country with whom the
B. ALIENS Philippines has diplomatic relations and
whose government maintains a similarly
1) Same qualifications as above, and authorized and accredited agency and that
in addition: adoption is allowed in that country;
2) His/her country has diplomatic 9) Possesses all the qualifications and none of
relations with the Republic of the the disqualifications provided in the ICAA and
Philippines; in other applicable Philippine laws;
3) His/her government allows the 10) At least 27 years of age at the time of the
adoptee to enter his/her country as application; and
his/her adopted son/daughter; 11) At least 16 years older than the child to be
4) Has been living in the Philippines adopted at the time of application, unless (a)
for at least 3 continuous years prior adopted is the parent by nature of the child to
to the filing of the application for be adopted; or (b) adopter is the spouse of
adoption and maintains such the parent by nature of the child to be
residence until the adoption decree adopted.
is entered; and
5) Has been certified by his/her B. ALIENS
diplomatic or consular office or any
appropriate government agency 1) At least 27 years of age at the time of the
that he/she has the legal capacity application;
to adopt in his/her country. This 2) At least 16 years older than the child to be
requirement may be waived if (a) a adopted at the time of application unless the
former Filipino citizens seeks to adopter is the parent by nature of the child to
adopt a relative within the 4th be adopted or the spouse of such parent;
degree of consanguinity or affinity; 3) Has the capacity to act and assume all rights
(b) one seeks to adopt the and responsibilities of parental authority
legitimate son/daughter of his/her under his national laws;
Filipino spouse; (c) one who is 4) Has undergone the appropriate counseling
married to a Filipino citizen and from an accredited counselor in his/her
seeks to adopt a relative within the country;
4th degree of consanguinity or 5) Has not been convicted of a crime involving
affinity of the Filipino spouse. moral turpitude;
6) Eligible to adopt under his/her national law;
7) In a position to provide the proper care and
support and to give the necessary moral
values and example to all his children,
including the child to be adopted;
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8) Agrees to uphold the basic rights of the child

as embodied under Philippine laws, the UN
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of the ICAA;
9) Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws; and
10) Possesses all the qualifications and none of
the disqualifications provided in the ICAA and
in other applicable Philippine laws.
Requirement of Joint Adoption by Requirement of Joint Adoption by
Spouses Spouses
General rule: husband and wife shall jointly Rule: if the adopter is married, his/her spouse must
adopt; otherwise, the adoption shall not be jointly file for the adoption.
allowed.
Exceptions:
1) If one spouse seeks to adopt the
legitimate son/daughter of the
other;
2) If one spouse seeks to adopt his/her
own illegitimate son/daughter but
the other spouse must give his/her
consent;
3) If the spouses are legally separated
from each other.
Procedure Procedure
Where to file application: In the Family Where to file application: Either in (a) Family Court
Court of the province or city where the having jurisdiction over the place where the child
prospective parents reside. resides or may be found, or (b) Inter-Country
Adoption Board (ICAB) through an intermediate
After filing: The petition shall not be set for agency, whether governmental or an authorized and
hearing without a case study report by a accredited agency, in the country of the prospective
licensed social worker. adoptive parents.

Supervised Trial Custody: After filing:

a) Temporary parental authority is a) if filed in the FC, court determines sufficiency
vested in prospective adopter; of petition in respect to form and substance,
b) Period is at least 6 months, but may after which, petition is transmitted to ICAB;
be reduced by the court motu b) if petition is already with ICAB, it conducts
propio or upon motion; matching of the applicant with an adoptive
c) If adopter is alien, the law child;
mandatorily requires completion of c) after matchmaking, the child is personally
the 6-month trial custody and may fetched by the applicant for the trial custody
not be reduced, except if: which takes place outside of the Philippines.
1) a former Filipino citizen seeks to
adopt a relative within 4th Supervised Trial Custody:
degree of consanguinity or a) This process takes place outside of the
affinity; country and under the supervision of the
2) one seeks to adopt the foreign adoption agency;
legitimate son/daughter of b) For a period of 6 months;
his/her Filipino spouse; c) If unsuccessful, ICAB shall look for another
3) one who is married to a Filipino prospective applicant. Repatriation of the
citizen and seeks to adopt child is to be resorted only as a last resort;
jointly with his/her spouse a d) If successful, ICAB transmits a written consent
relative within the 4th degree of for the adoption to be executed by the DSWD,
 129

consanguinity or affinity of the and the applicant then files a petition for
Filipino spouse. adoption in his/her country.

Decree of Adoption: Issued by Philippine Decree of Adoption: Issued by a foreign court.

Family Court. Consent Required:
Consent Required: Written consent of the 1) Written consent of biological or adopted
following to the adoption is required, in the children above 10 years of age, in the form of
form of affidavit: sworn statement is required to be attached to
the application to be filed with the FC or ICAB;
1) adoptee, if 10 years of age or over; 2) If a satisfactory pre-adoptive relationship is
2) biological parent/s of the child, if formed between the applicant and the child,
known, or the legal guardian, or the the written consent to the adoption executed
proper government instrumentality by the DSWD is required.
which has legal custody of the child;
3) legitimate and adopted sons or
daughters, 10 years of age or over, of
the adopter/s and adoptee, if any;
4) illegitimate sons/daughters, 10 years of
age of over, of the adopter if living with
said adopter and the latter‘s spouse, if
any;
5) spouse, if any, of the person adopting
or to be adopted.

amended certificate of birth shall be

DOMESTIC ADOPTION ACT
issued by the Civil Registry attesting to
(RA 8552; AM 02-06-02-SC)
the fact that the adoptee is the child of
the adopter(s) by being registered with
EFFECTS OF ADOPTION his/her surname;
b) The original certificate of birth shall be
Transfer of parental authority – except in stamped “cancelled” with the annotation
cases where the biological parent is the spouse of of the issuance of an amended birth
the adopter, the parental authority of the certificate in its place and shall be sealed
biological parents shall terminate and the same in the civil registry records. The new birth
shall be vested in the adopters. certificate to be issued to the adoptee
shall not bear any notation that it is an
Legitimacy – the adoptee shall be considered amended issue;
the legitimate son/daughter of the adopter(s) for c) All records, books, and papers relating to
all intents and purposes and as such is entitled to the adoption cases in the files of the court,
all the rights and obligations provided by law to the DSWD, or any other agency or
legitimate sons/daughters born to them without institution participating in the adoption
discrimination of any kind. proceedings shall be kept strictly
confidential and the court may order its
Successional rights release under the following conditions
a) In legal and intestate succession, the only: (1) the disclosure of the information
adopter(s) and the adoptee shall have to a third person is necessary for purposes
reciprocal rights of succession without connected with or arising out of the
distinction from legitimate filiation; adoption; (2) the disclosure will be for the
b) However, if the adoptee and his/her best interest of the adoptee; and (3) the
biological parent(s) had left a will, the law court may restrict the purposes for which
on testamentary succession shall govern; it may be used.
c) The adoptee remains an intestate heir of
his/her biological parent. INSTANCES WHEN ADOPTION MAY BE
RESCINDED
Issuance of new certificate and first name
and surname of adoptee Grounds for rescission:
a) The adoption decree shall state the name
by which the child is to be known. An
 130

a) Repeated physical and verbal governmental or an authorized and accredited

maltreatment by the adopter(s) despite agency, in the country of the prospective
having undergone counselling; adoptive parents, which application shall be in
b) Attempt on the life of the adoptee; accordance with the requirements as set forth in
c) Sexual assault or violence; or the implementing rules and regulations.
d) Abandonment and failure to comply with
parental obligations. “BEST INTEREST OF THE MINOR”
STANDARD
Prescriptive period:
a) If incapacitated – within five (5) years after In case of custody cases of minor children, the
he reaches the age of majority; court after hearing and bearing in mind the best
b) If incompetent at the time of the adoption interest of the minor, shall award the custody as
– within five (5) years after recovery from will be for the minor‘s best interests.
such incompetency.
“Best interests of the child” - means the
EFFECTS OF RESCISSION OF ADOPTION totality of the circumstances and conditions as
are most congenial to the survival, protection,
1) Parental authority of the adoptee‘s biological and feelings of security of the child and most
parent(s), if known, or the legal custody of the encouraging to his physical, psychological, and
DSWD shall be restored if the adoptee is still a emotional development. It also means the least
minor or incapacitated; detrimental available alternative for safeguarding
2) Reciprocal rights and obligations of the the growth and development of the child.
adopter(s) and the adoptee to each other
shall be extinguished;
3) Cancellation of the amended certificate of
WRIT OF HABEAS CORPUS (RULE 102)
birth of the adoptee and restoration of his/her
original birth certificate; and
4) Succession rights shall revert to its status Writ of habeas corpus is a writ which has been
prior to adoption, but only as of the date of esteemed to the best and only sufficient defense
judgment of judicial rescission. Vested rights of personal freedom having for its object the
acquired prior to judicial rescission shall be speedy release by judicial decree of persons who
respected. are illegally restrained of their liberty, or illegally
detained from the control of those who are
INTER-COUNTRY ADOPTION (RA 8043) entitled to their custody.

Inter-Country Adoption refers to the socio-legal The writ of habeas corpus shall extend to all
process of adopting a Filipino child by a foreigner cases of illegal confinement or detention by
or a Filipino citizen permanently residing abroad which any person is deprived of his liberty, or by
where the petition is filed, the supervised trial which the rightful custody of any person is
custody is undertaken, and the decree of withheld from the person entitled thereto. The
adoption is issued in the Philippines. function of the special proceeding of habeas
corpus is to inquire into the legality of one’s
WHEN ALLOWED detention.

 Inter-country adoptions are allowed when the In all petitions for habeas corpus, the court must
same shall prove beneficial to the child‘s best inquire into every phase and aspect of the
interests, and shall serve and protect his/her petitioner’s detention from the moment petitioner
fundamental rights. was taken into custody up to the moment the
 It is allowed when all the requirements and court passes upon the merits of the petition and
only after such scrutiny can the court satisfy itself
standards set forth under RA 8043 are
that the due process clause of the Constitution
complied with.
has been satisfied.
FUNCTIONS OF THE RTC However, once the person detained is duly
charged in court, he may no longer question his
An application to adopt a Filipino child shall be detention by a petition for the issuance of a writ
filed either with the Philippine Regional Trial Court of habeas corpus. His remedy then is the quashal
having jurisdiction over the child, or with the of the information and/or the warrant of arrest
Board, through an intermediate agency, whether duly issued. The reason for the issuance of the
 131

writ even becomes more unavailing when the 9) When a bond given by an accused entitled
person detained files a bond for his temporary thereto is not admitted or excessive bail is
release. required of him.
10) To determine the legality of an extradition.
Habeas corpus may not be used as a means of 11) To determine the legality of the action of a
obtaining evidence on the whereabouts of a legislative body in punishing a citizen for
person, or as a means of finding out who has contempt.
specifically abducted or caused the 12) To obtain freedom after serving minimum
disappearance of a certain person. sentence when the penalty under an old
law has been reduced by an amendatory
The writs of habeas corpus and certiorari may be law.
ancillary to each other where necessary to give
effect to the supervisory powers of the higher (Note: for CONTENTS OF THE PETITION and
courts. A writ of habeas corpus reaches the body CONTENTS OF THE RETURN of Habeas
and the jurisdictional matters, but not the record. Corpus, please see the table below)
A writ of certiorari reaches the record but not the
body. Hence, a writ of habeas corpus may be PEREMPTORY WRIT PRELIMINARY
used with the writ of certiorari for the purpose of CITATION
review. Unconditionally Requires the
commands the respondent to appear
The general rule is that the release, whether respondent to have and show cause why
permanent or temporary, of a detained person the body of the the peremptory writ
renders the petition for habeas corpus moot and detained person should not be granted
academic, unless there are restraints attached to before the court at a
his release which precludes freedom of action, in time and place therein
which case the Court can still inquire into the specified;
nature of his involuntary restraint. Petitioner’s
temporary release does not render the petition
for writ moot and academic. WHEN NOT PROPER/APPLICABLE

Some instances when the writ may issue: Instances when the writ of habeas corpus is not
1) To inquire into the legality of an order of proper are:
confinement by a court martial. a) For asserting or vindicating denial of right
2) To test the legality of an alien’s to bail;
confinement and proposed expulsion from b) For correcting errors in appreciation of
the Philippines. facts or appreciation of law – where the
3) To enable parents to regain custody of a trial court had no jurisdiction over the
minor child, even if the latter be in the cause, over the person of the accused,
custody of a third person of her own free and to impose the penalty provided for by
will. law, the mistake committed by the trial
4) To obtain freedom for an accused confined court, in the appreciation of the facts
for failure to post bail where the and/or in the appreciation of the law
prosecuting officer unreasonably delays cannot be corrected by habeas corpus;
trial by continued postponement. c) Once a person detained is duly charged in
5) To give retroactive effect to a penal court, he may no longer file a petition for
provision favorable to the accused when habeas corpus. His remedy would be to
the trial judge has lost jurisdiction by quash the information or warrant.
virtue of the finality of the judgment of
conviction. WHEN WRIT DISALLOWED/DISCHARGED
6) To determine the constitutionality of a
statute. If it appears that the person alleged to be
7) To permit an alien to land in the restrained of his liberty is in the custody of an
Philippines. officer under process issued by a court or judge
8) To put an end to an immoral situation, as or by virtue of a judgment or order of a court of
when a minor girl, although preferring to record, and that the court or judge had
stay with her employer, maintains illicit jurisdiction to issue the process, render the
relationship with him. judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged
 132

by reason of any informality or defect in the person charged with or convicted of an offense in
process, judgment, or order. Nor shall anything in the Philippines, or of a person suffering
this rule be held to authorize the discharge of a imprisonment under lawful judgment.

WRIT OF HABEAS WRIT OF AMPARO WRIT OF HABEAS DATA

CORPUS
A remedy available to any A remedy available to any A remedy available to any person
person, it covers cases of person whose right to life, whose right to privacy in life,
illegal confinement or liberty and security is liberty or security is violated or
detention by which any violated or threatened with threatened by an unlawful act or
person is deprived of his violation by an unlawful act or omission of a public official or
liberty, or by which the omission of a public official or employee, or of a private individual
rightful custody of any employee, or of a private or entity engaged in the gathering,
person is withheld from the individual or entity. The writ collecting or storing of data or
person entitled thereto. covers extrajudicial killings information regarding the person,
and enforced disappearances family, home and correspondence
or threats thereof. of the aggrieved party.
It is a form of constitutional
relief.
Who may file petition: Who may file (in order): Who may file (in order):
By the party for whose relief a) Any member of the a) Any member of the immediate
it is intended, or by some immediate family: spouse, family: spouse, children and
person on his behalf. children and parents of the parents of the aggrieved party;
aggrieved party; b) Any ascendant, descendant or
b) Any ascendant, collateral relative of aggrieved
descendant or collateral party within the 4th civil degree
relative of aggrieved party of consanguinity or affinity.
within the 4th civil degree
of consanguinity or affinity;
c) Any concerned citizen,
organization, association
or institution, if no known
member of immediate
family.
Filing by the aggrieved party
suspends the right of all other
authorized person to file such
petition.
Where to file: Where to file: Where to file:
RTC, enforceable within its RTC, Sandiganbayan, CA, SC; RTC, SC, CA, Sandiganbayan; Writ is
area of jurisdiction. CA or SC, Writ is enforceable anywhere also enforceable anywhere in the
enforceable anywhere in the in the Philippines. Philippines.
Philippines.
Where is the venue:
If filed in the RTC:
a) in the place where the petitioner
resides;
b) in the place where the
respondents reside;
c) in the place where the data or
information is gathered,
collected or stored.
– At the option of the petitioner
Petitioner is exempted to pay Indigent petitioner is exempted to
docket and other lawful fees. pay docket and other lawful fees.
When issued: When issued: When issued:
Forthwith when a petition Immediately if on its face it Immediately if on its face it ought to
therefor is presented and it ought to be issued; Served be issued; Served within 3 days
 133

appears that the writ ought immediately; Summary from issuance; Summary hearing
to issue, hearing set not later than set not later than ten (10) work
seven (7) days from date of days from date of issuance.
issuance.
Contents of verified petition: Contents of verified petition: Contents of verified petition:
a) That the person in whose a) Personal circumstances of a) Personal circumstances of
behalf the application is petitioner and of petitioner and respondent;
made is imprisoned or respondent responsible for b) The manner the right to privacy
restrained of his liberty; the threat, act or omission; is violated or threatened and
b) The officer or name of b) Violated or threatened how it affects the right to life,
the person by whom he right to life, liberty and liberty or security of aggrieved
is so imprisoned or security of aggrieved party;
restrained; or, if both are party, and how committed c) Actions and recourses taken by
unknown or uncertain, with attendance petitioner to secure the data or
such officer or person circumstances detailed in information;
may be described by an supporting affidavits; d) Location of files, registers or
assumed appellation, c) Investigation conducted, databases, government office,
and the person who is specifying names, personal and the person in charge, in
served with the writ shall circumstances and possession or in control of the
be deemed the person addresses of investigating data or information, if known;
intended; authority or individuals, as e) Reliefs prayed for, which may
c) The place where he is so well as manner and include the updating,
imprisoned or restrained, conduct of investigation rectification, suppression or
if known; together with any report; destruction of the database or
d) A copy of the d) Actions and recourses information or files kept by
commitment or cause of taken by petitioner to respondent;
detention of such person, determine the fate or f) In case of threats, relief may
if it can be procured whereabouts of aggrieved include a prayer for an order
without impairing the party and identity of enjoining the act complained of;
efficiency of the remedy; person responsible for the and
or, if the imprisonment or threat, act or omission; g) Such other reliefs as are just
restraint is without any and and equitable.
legal authority, such fact e) The relief prayed for.
shall appear f) May include general prayer
for other just and equitable
reliefs.
b) If he has the party in his Contents of return: Contents of return:
custody or power, or Within 72 hours after service a) Lawful defenses such as
under restraint, the of the writ, respondent shall national security, state secrets,
authority and the true file a verified written return privileged communications,
and whole cause thereof, together with the supporting confidentiality of source of
set forth at large, with a affidavits, which shall contain: information;
copy of the writ, order, a) Lawful defenses; b) Disclosure of data/info about
execution, or other b) Steps or actions taken to petitioner, nature of data/info,
process, if any, upon determine whereabouts of purpose of collection;
which the party is held; aggrieved party; c) Steps or actions taken by
c) If the party is in his c) All relevant information respondent to ensure security
custody or power or is pertaining to threat, act or and confidentiality of data or
restrained by him, and is omission against information;
not produced, aggrieved party; d) Currency and accuracy of data
particularly the nature d) If respondent is a public or information;
and gravity of the official or employee, e) Other allegations relevant to
sickness or infirmity of further state: resolution of the proceedings.
such party by reason of 1) verify the identity of
which he cannot, without aggrieved; * A general denial of the
danger, be brought 2) recover and preserve allegations in the petition is not
before the court or evidence related to allowed.
judge; death or disappearance
d) If he has had the party in of person identified in
 134

his custody or power, or petition;

under restraint, and has 3) identify witnesses and
transferred such custody their statements;
or restraint to another, 4) determine cause,
particularly to whom, at manner, location and
what time, for what time of death or
cause, and by what disappearance as well
authority such transfer as pattern or practice;
was made. 5) identify and apprehend
person/s involved in
the
death/disappearance;
6) bring suspected
offenders before a
competent court.
Effects of failure to file return: Effects of failure to file return:
The court, justice or judge The court, justice or judge shall
shall proceed to hear the proceed to hear the petition ex
petition ex parte. parte, granting the petitioner such
relief as the petition may warrant
unless the court in its discretion
requires petitioner to submit
evidence.
Procedure for hearing: Procedure for hearing:
The hearing on the petition The hearing on the petition shall be
shall be summary. However summary. However the court,
the court, justice or judge may justice or judge may call for a
call for a preliminary preliminary conference to simplify
conference to simplify the the issues and determine the
issues and determine the possibility of obtaining stipulations
possibility of obtaining and admissions from the parties.
stipulations and admissions
from the parties. The hearing
shall be from day to day until
completed and given the
same priority as petitions for
habeas corpus.
a) ) Temporary Protection (Not applicable)
Order – protected in a
government agency of by
an accredited person or
private institution capable
of keeping and securing
their safety;
b) Inspection Order – with a
lifetime of 5 days which
may be extended, may be
opposed on the ground of
national security or
privileged information,
allows entry into and
inspect, measure, survey
or photograph the
property;
c) Production Order – to
require respondents to
produce and permit
inspection, copying or
photographing of
 135

documents, papers, books,

accounts, letters,
photographs, objects or
tangible things that
contain evidence.
d) Witness Protection Order –
the court may refer the
witnessed to the DOJ
Effect of filing criminal action: Effect of filing criminal action:
A criminal action first filed A criminal action first filed excludes
excludes the filing of the writ; the filing of the writ; relief shall be
relief shall be by motion in the by motion in the criminal case; A
criminal case. A criminal case criminal case filed subsequently
filed subsequently shall be shall be consolidated with the
consolidated with the petition petition for the writ of habeas data.
for the writ of amparo.
Appeal: Appeal: Appeal:
To the SC under Rule 45, To the SC under Rule 45, Any party may appeal the decision
within 48 hours from notice within 5 days from notice of within 5 working days from the final
of judgment. A writ of adverse judgment, to be given judgment or order to the SC by way
habeas corpus does not lie the same priority as habeas of Petition for Review on Certiorari
where petitioner has the corpus cases. under Rule 45 on pure questions of
remedy of appeal or law and facts or both, to be given
certiorari because it will not the same priority as habeas corpus
be permitted to perform the and amparo cases.
functions of a writ of error or
appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court
having jurisdiction over the
person and the subject
matter.
Quantum of proof: Quantum of proof:
By substantial evidence. The court shall render judgment
Private respondent to prove within 10 days from the time the
ordinary diligence was petition is submitted for decision. If
observed in the performance the allegations are proven by
of duty. Public substantial evidence, the court shall
official/employee respondent enjoin the act complained of, or the
to prove extraordinary deletion, destruction, or rectification
diligence was observed, and of the erroneous data or information
cannot invoke the and grant other reliefs as may be
presumption that official duty just and equitable; otherwise the
has been regularly performed privilege shall be denied.
to evade responsibility or
liability.

with the duty of promulgating special rules or

RULES ON CUSTODY OF MINORS AND WRIT
procedure for the disposition of family cases with
OF HABEAS CORPUS IN RELATION TO
the best interests of the minor as primary
CUSTODY OF MINORS (AM NO. 03-04-04-SC)
consideration, taking into account the United
Nations Convention on the Rights of the Child. It
The Family Court has exclusive original should be clarified that the writ is issued by the
jurisdiction to hear petitions for custody of minors Family Court only in relation to custody of minors.
and the issuance of the writ of habeas corpus in An ordinary petition for habeas corpus should be
relation to custody of minors. The Court is tasked filed in the regular Court. The issue of child
 136

custody may be tackled by the Family Court justice or the judge witness he may
without need of a separate petition for custody may issue the writ in produce, and
being filed. his or her own hand, particularly describing
and may deputize the place to be
The Committee chose the phrase “any person any officer or person to searched and the
claiming custody” as it is broad enough to cover serve it. The writ shall things to be seized
the following: (a) the unlawful deprivation of the also set the date and which may be
custody of a minor; or (b) which parent shall have time for summary anywhere in the
the care and custody of a minor, when such hearing of the petition Philippines.
parent is in the midst of nullity, annulment or which shall not be later
legal separation proceedings. than seven (7) days
from the date of its
The hearings on custody of minors may, at the issuance.
discretion of the court, be closed to the public
and the records of the case shall not be released
to non-parties without its approval. OMNIBUS WAIVER RULE

A motion to dismiss the petition is not allowed Defenses Not Pleaded Deemed Waived — All
except on the ground of lack of jurisdiction over defenses shall be raised in the return, otherwise,
the subject matter or over the parties. Any other they shall be deemed waived.
ground that might warrant the dismissal of the
petition shall be raised as an affirmative defense
in the answer. WRIT OF HABEAS DATA (AM NO. 08-1-16-
SC)
Upon the filing of the verified answer of the
expiration of the period to file it, the court may Scope of writ; Availability of writ;
order a social worker to make a case study of the Distinguish from Habeas Corpus and
minor and the parties and to submit a report and Amparo; Who may file; Contents of the
recommendation to the court at least three days petition; Consolidation; Effect of filing of a
before the scheduled pre-trial. criminal action; Institution of separate
action (See table above)
Hold Departure Order – The minor child subject
of the petition shall not be brought out of the INSTANCES WHEN PETITION BE HEARD IN
country without prior order from the court while CHAMBERS
the petition is pending. The court motu propio or
upon application under oath may issue ex parte a A hearing in chambers may be conducted where
hold departure order addressed to the BID of the the respondent invokes the defense that the
DOJ a copy of the hold departure order within 24 release of the data or information in question
hours from its issuance and through the fastest shall compromise national security or state
available means of transmittal. secrets, or when the data or information cannot
be divulged to the public due to its nature or
WRIT OF AMPARO (AM NO. 07-9-12-SC) privileged character.
(See table above)
CHANGE OF NAME (RULE 103)
WRIT OF AMPARO SEARCH WARRANT
Issuance of the Writ. Requisites for issuing  A change of name is a special proceeding to
search warrant establish the status of a person involving his
Upon the filing of the relation with others, that is, his legal position
petition, the court, A search warrant shall in, or with regard to, the rest of the
justice or judge shall not issue except upon community. It is proceeding in rem and as
immediately order the probable cause in such, strict compliance with jurisdictional
issuance of the writ if connection with one requirements, particularly on publication, is
on its face it ought to specific offense to be essential in order to vest the court with
issue. The clerk of court determined personally jurisdiction therefor. For this purpose, the only
shall issue the writ by the judge after name that may be changed is the true or
under the seal of the examination under oath official name as recorded in the civil register.
court; or in case of or affirmation of the
urgent necessity, the complainant and the
 137

 A mere change of name would not cause in

one’s existing family relations, nor create new  A change of name granted by the court
family rights and duties where none exists affects only the petitioner. A separate petition
before. Neither would it affect a person’s legal for change of name must be filed by his wife
capacity, civil status or citizenship. and children.

RULE 103 (Change of Name) RA 9048 (Clerical Error RULE 108 (Cancellation
Act) or correction of entries in
the civil registry)
Petition should be filed in the RTC Petitions filed with the city or Verified petition filed in the
where the petitioner resides municipal civil registrar, or RTC where the corresponding
with consul general for Civil Registry is located
citizens living abroad
Civil Registrar is not a party. Civil Registrar is an
Solicitor General to be notified by indispensable party. If not
service of a copy of petition. made a party, proceedings
are null and void. Reason: he
is interested party in
protecting the integrity of
public documents. Solicitor
General must also be
notified by service of a copy
of the petition.
Petition is filed by the person Verified petition in the form of By a person interested in
desiring to change his name affidavit is filed by any any acts, event, order or
person having direct and decree
personal interest in the
correction
Involves change of name only Involves first name and All cancellation or correction
nickname of entries of: (see below
grounds or instances)
Involves substantial changes Involves clerical or Substantial and adversary if
typographical errors change affects the civil
status, citizenship or
nationality of a party;
Summary if involves mere
clerical errors.
 138

Grounds: Grounds: Grounds:

a) Name is ridiculous, dishonorable a) First name or nickname is Cancellation or correction of
or extremely difficult to write or found to be ridiculous, entries of: (a) births; (b)
pronounce; tainted with dishonor or marriages; (c) deaths; (d)
b) Change is a legal consequence extremely difficult to write legal separation; (e)
of legitimation or adoption; or pronounce; judgments or annulments of
c) Change will avoid confusion; b) The first name or marriage; (f) judgments
d) One has continuously used and nickname has been declaring marriages void
been known since childhood by habitually and continuous from the beginning; (g)
a Filipino name and was used by petitioner legitimations; (h) adoptions;
unaware of alien parentage; publicly known by that (i) acknowledgments of
e) Change is based on a sincere first name or nickname in natural children; (j)
desire to adopt a Filipino name the community; naturalizations; (k) election,
to erase signs of former c) Change will avoid loss or recovery of
alienage, all in good faith and confusion. citizenship; (l) civil
without prejudice to anybody; interdiction; (m) judicial
and determination of filiation; (n)
f) Surname causes voluntary emancipation of a
embarrassment and there is no minor; and (o) changes of
showing that the desired change name.
of name was for a fraudulent
purpose, or that the change of
name would prejudice public
interest.
Order for hearing to be published Petition shall be published at Order shall also be published
once a week for three consecutive least once a week for two once a week for three
weeks in a newspaper of general consecutive weeks in a consecutive weeks in a
circulation in the province. newspaper of general newspaper of general
circulation. Also to be posted circulation in the province,
in a conspicuous place for ten and court shall cause
consecutive days. reasonable notice to persons
named in the petition.
Entry is correct but petitioner Entry is incorrect. Cancellation or correction of
desires to change the entry correct or incorrect entries
An appropriate adversary An appropriate administrative An appropriate summary or
proceeding proceeding. adversary proceeding
depending on effects
Requires judicial order Does not require judicial Directed or changed by the
order. city or municipal civil
registrar or consul general
without judicial order
Service of judgment shall be upon Transmittal of decision to civil Service of judgment shall be
the civil register concerned registrar general upon the civil register
concerned
Appeal may be availed of if In case denied by the city or Appeal may be availed of if
judgment or final order rendered municipal civil registrar or the judgment or final order
affects substantial rights of person consul general, petitioner rendered affects substantial
appealing. may either appeal the rights of person appealing,
decision to the civil register to the RTC or to the CA.
general or file appropriate
petition with proper court by
petition for review under Rule
43.

GROUNDS FOR CHANGE OF NAME

ABSENTEES (RULE 107)
(please see table above)

Stages of absence:
 139

1) provisional absence  After the lapse of two (2) years from his
2) declaration of absence disappearance and without any news
3) presumption of death about the absentee or since the receipt of
the last news, or of five (5) years in case
PURPOSE OF THE RULE the absentee has left a person in charge of
the administration of his property, the
The purpose of the Rule is to allow the court to declaration of his absence and
appoint an administrator or representative to take appointment of a trustee or administrator
care of the property of the person who is sought may be applied for.
to be judicially declared absent. It also aims to  When a person disappears from his
have the court appoint the present spouse as domicile, his whereabouts being unknown,
administrator or administratrix of the absent and without having left an agent to
spouse‘s properties, or for the separation of administer his property, or the power
properties of the spouses. conferred upon the agent has expired, any
interested party, relative or friend, may
WHO MAY FILE; WHEN TO FILE petition the Court of First Instance of the
place where the absentee resided before
The following may file an application for the his disappearance for the appointment of
declaration of absence of a person: a person to represent him provisionally in
a) Spouse present; all that may be necessary.
b) Heirs instituted in a will, who may present
an authentic copy of the same; CANCELLATION OR CORRECTION OF
c) Relatives who would succeed by the law of ENTRIES IN THE CIVIL REGISTRY (RULE 108)
intestacy; and
d) Those who have over the property of the Entries subject to cancellation or correction
absentee some right subordinated to the under Rule 108, in relation to RA 9048
condition of his death.  Upon good and valid grounds, the
e) Those who have over the property of the following entries in the civil register may
absentee some right subordinated to the be cancelled or corrected:
condition of his death.
1) births; 9) acknowledgments of natural children;
2) marriages; 10) naturalization
3) deaths; 11) election, loss or recovery of citizenship
4) legal separations; 12) civil interdiction;
5) judgments of annulments of marriage; 13) judicial determination of filiation;
6) judgments declaring marriages void from 14) voluntary emancipation of a minor; and
the beginning; 15) changes of name.
7) legitimations;
8) adoptions;
109)
Correction may be effected in two ways. One is
without judicial authority or by administrative
proceeding, which is governed by RA 9048 on JUDGMENTS AND ORDERS FOR WHICH
matters relating to correction of mere clerical or APPEAL MAY BE TAKEN
typographical errors. The other is through judicial
or court proceedings, which is governed by Rule An interested person may appeal in special
108. proceedings from an order or judgment rendered
by a Court of First Instance or a Juvenile and
The petition for change of first names or Domestic Relations Court, where such order or
nicknames may be allowed when such names or judgment:
nicknames are ridiculous, tainted with dishonor or a) Allows or disallows a will;
extremely difficult to write or pronounce; or the b) Determines who are the lawful heirs of a
new name or nickname has been used habitually deceased person, or the distributive share
and continuously petitioner and has been publicly of the estate to which such person is
known by that first name or nickname in the entitled;
community; or the change will avoid confusion. c) Allows or disallows, in whole or in part,
any claim against the estate of a
APPEALS IN SPECIAL PROCEEDING (RULE deceased person, or any claim presented
 140

on behalf of the estate in offset to a claim 1) Ordinary appeal. The appeal to the CA in
against it; cases decided by the RTC in the exercise of its
d) Settles the account of an executor, original jurisdiction shall be taken by filing a
administrator, trustee or guardian; notice of appeal with the court which
e) Constitutes, in proceedings relating to the rendered the judgment or final order appealed
settlement of the estate of a deceased from and serving a copy thereof upon the
person, or the administration of a trustee adverse party. No record on appeal shall be
or guardian, a final determination in the required except in special proceedings and
lower court of the rights of the party other cases of multiple or separate appeals
appealing, except that no appeal shall be where the law or the Rules so require. In such
allowed from the appointment of a special cases, the record on appeal shall be filed and
administrator; and served in like manner.
f) Is the final order or judgment rendered in
the case, and affects the substantial rights 2) Petition for review. The appeal to the CA in
of the person appealing, unless it be an cases decided by the RTC in the exercise of its
order granting or denying a motion for a appellate jurisdiction shall be by petition for
new trial or for reconsideration. review in accordance with Rule 42.

3) Petition for review on certiorari. In all

WHEN TO APPEAL cases where only questions of law are raised
or involved, the appeal shall be to the SC by
Appeals in special proceedings necessitate a petition for review on certiorari in accordance
record on appeal as the original record should with Rule 45.
remain with the trial court; hence the
reglementary period of thirty (30) days is
provided for the perfection of appeals in special
proceedings. RULE ON ADVANCE DISTRIBUTION

MODES OF APPEAL Notwithstanding a pending controversy or appeal

in proceedings to settle the estate of a decedent,
 While under the concept in ordinary civil the court may, in its discretion and upon such
actions some of the orders stated in Sec. 1 terms as it may deem proper and just, permit
may be considered interlocutory, the nature that such part of the estate as may not be
of special proceedings declares them as affected by the controversy or appeal be
appealable orders, as exceptions to the distributed among the heirs or legatees, upon
provisions of Sec., Rule 41. Thus: compliance with the conditions set forth in Rule
90 of these rules.

RULES OF CRIMINAL PROCEDURE (Rules 110 – 127)

GENERAL MATTERS jurisdiction over the will be deemed to

subject matter may have waived it.
JURISDICTION JURISDICTION be made at any stage
OVER SUBJECT OVER PERSON OF of the proceeding,
MATTER THE ACCUSED and the right to make
Derived from the law. May be conferred by such objection is
Does not depend consent expressly or never waived.
upon the consent or impliedly given, or it Jurisdiction over the Jurisdiction over the
omission of the may, by objection, be subject matter is person of the
parties to the action prevented from determined upon the accused by voluntary
or any of them; attaching or being allegations made in appearance or
removed after it is the complaint, surrender of the
attached. irrespective of accused or by his
Objection that the If he fails to make his whether the plaintiff arrest.
court has no objections in time, he is entitled or not, to
 141

recover upon the

claim asserted 1) For offenses where a preliminary investigation
therein, a matter is required pursuant to section 1 of Rule 112,
resolved only after by filing the complaint with the proper officer
and as a result of the for the purpose of conducting the requisite
trial. preliminary investigation.
2) For all other offenses, by filing the complaint
or information directly with the Municipal Trial
REQUISITES FOR EXERCISE OF CRIMINAL Courts and Municipal Circuit Trial Courts, or
JURISDICTION the complaint with the office of the
prosecutor.
1) The offense if one which the court is by law 3) In Manila and other chartered cities, the
authorized to take cognizance of; complaint shall be filed with the office of the
2) The offense must have been committed within prosecutor, unless otherwise provided in their
its territorial jurisdiction; and charters.
3) The person charged with the offense must
have been brought into its forum for trial,  The institution of the criminal action shall
forcibly or by warrant of arrest or upon his interrupt the period of prescription of the
voluntary submission to the court. offense charged unless otherwise provided in
special laws.
JURISDICTION OF CRIMINAL COURTS (see
jurisdiction of courts in civil pro)  Preliminary investigation is required for
offenses punishable by at least 4 years, 2
WHEN INJUNCTION MAY BE ISSUED TO months, and 1 day, unless the accused was
RESTRAIN CRIMINAL PROSECUTION lawfully arrested without a warrant, in which
case, an inquest must have been conducted.
GENERAL RULE: Criminal prosecution may not be
restrained or stayed by injunction. WHO MAY FILE THE CRIMINAL ACTION

EXCEPTIONS: 1) Offended party

1) To afford adequate protection to the 2) Any peace officer; or
constitutional rights of the accused; 3) Other public officer charged with the
2) Then necessary for the orderly enforcement of the law violated.
administration of justice or to avoid
oppression or multiplicity of actions; All criminal actions commenced by complaint or
3) When there is a pre-judicial question information shall be prosecuted under the
which is sub judice; direction and control of the prosecutor.
4) When the acts of the officer are without or
in excess of authority; In the Municipal Trial Courts or Municipal Circuit
5) Where the prosecution is under an invalid Trial Courts when the prosecutor assigned thereto
law, ordinance or regulation; or to the case is not available, the offended party,
6) When double jeopardy is clearly apparent; any peace officer, or public officer charged with
7) Where the court has no jurisdiction over the enforcement of the law violated may
the offense; prosecute the case. This authority shall cease
8) Where it is a case of persecution rather upon actual intervention of the prosecutor or
than prosecution; upon elevation of the case to the Regional Trial
9) Where the charges are manifestly false Court.
and motivated by the lust for vengeance;
10) When there is clearly no prima facie case RIMES THAT CANNOT BE PROSECUTED DE
against the accused and a motion to OFICIO
quash on that ground has been denied;
and 1) Adultery and concubinage – to be
11) To prevent the threatened unlawful arrest prosecuted upon a complaint filed by the
of petitioners. offended spouse, impleading both guilty
parties, if both alive, unless he shall have
consented or pardoned the offenders;
PROSECUTION OF OFFENSES RULE 110) 2) Seduction, abduction, or acts or
lasciviousness – to be prosecuted upon a
CRIMINAL ACTIONS; HOW INSTITUTED complaint filed by the offended party or her
 142

parents, grandparents, or guardian, unless 3) The authority of the private prosecutor

expressly pardoned by the above named must be approved by the court;
persons (in such stated order); 4) The private prosecutor shall continue to
3) Defamation imputing a person any of the prosecute the case until the end of the
following crimes of concubinage, trial unless the authority is withdrawn or
adultery, seduction, abduction or otherwise revoked;
lasciviousness – can be prosecuted only by 5) In case of the withdrawal or revocation of
the party defamed. the authority of the private prosecutor, the
same must be approved by court.
The offended party, even if a minor, has the right
to initiate the prosecution of the offenses of SUFFICIENCY OF COMPLAINT OR
seduction, abduction and acts of lasciviousness INFORMATION
independently of her parents, grandparents or
guardian, unless she is incompetent or incapable A complaint or information is sufficient if it states:
of doing so. Where the offended party, who is a 1) The name of the accused;
minor, fails to file the complaint, her parents, 2) The designation of the offense given by
grandparents, or guardian may file the same. The the statute;
right to file the action granted to parents, 3) The acts or omissions complained of as
grandparents or guardian shall be exclusive of all constituting the offense;
other persons and shall be exercised successively 4) The name of the offended party;
in the order herein provided, except as stated in 5) The approximate date of the commission
the preceding paragraph. of the offense; and
6) The place wherein the offense was
CONTROL OF PROSECUTION committed.

Only the Solicitor General may represent the When an offense is committed by more than one
People of the Philippines on appeal. The private person, all of them shall be included in the
offended party or complainant may question such complaint or information. If the prosecutor
acquittal or dismissal or appeal therefrom only refuses to include one accused, the remedy is
insofar as the civil aspect is concerned, in the mandamus.
name of the petitioner or appellant and not in the
name of the People of the Philippines. The rule DESIGNATION OF OFFENSE
that the Solicitor General is the lawyer of the
People in appellate courts admits an exception, The complaint or information shall state the
“in all cases elevated to the Sandiganbayan and designation of the offense given by the statute,
from the Sandiganbayan to the Supreme Court, aver the acts or omissions constituting the
the Office of the Ombudsman, through its special offense, and specify its qualifying and
prosecutor, shall represent the People of the aggravating circumstances.
Philippines, except in cases filed pursuant to EO
1, 2, 14 and 14-A, issued in 1986.” If there is no designation of the offense, reference
shall be made to the section or subsection of the
The prosecution determines the charges to be statute punishing it.
filed and how the legal and factual elements in
the case shall be utilized as components of the CAUSE OF THE ACCUSATION
information. Whenever a criminal case is
prosecuted and the State is the offended party, The acts or omissions complained of as
the case must always be prosecuted under constituting the offense and the qualifying and
control and guidance of the State through the aggravating circumstances must be stated in
government prosecutors. ordinary and concise language and not
necessarily in the language used in the statute
The prosecution may however be allowed to a but in terms sufficient to enable a person of
private prosecutor upon compliance with the common understanding to know what offense is
following conditions: being charged as well as its qualifying and
1) The public prosecutor has a heavy work aggravating circumstances and for the court to
schedule or there is no public prosecutor pronounce judgment.
assigned in the city or province;
2) The private prosecutor is authorized in DUPLICITY OF THE OFFENSE; EXCEPTION
writing by the Chief of the Prosecutor
Office or the Regional State Prosecutor
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 A complaint or information must charge only 3) Where the amendment is only as to form,
one offense, EXCEPT when the law prescribes there is no need for another preliminary
a single punishment for various offenses (Sec. investigation and the retaking of the plea
13). of the accused; in substitution of
 Exception: The law prescribes a single information, another preliminary
punishment for various offenses, such as in investigation is entailed and the accused
continuing and complex crimes. has to plead anew to the new information;
and
AMENDMENT OR SUBSTITUTION OF 4) An amended information refers to the
COMPLAINT OR INFORMATION same offense charged in the original
information or to an offense which
A complaint or information may be amended, in necessarily includes or is necessarily
form or in substance, without leave of court, at included in the original charge; hence
any time before the accused enters his plea. substantial amendments to the
 After the plea and during the trial, a formal information after the plea has been taken
amendment may only be made with leave cannot be made over the objection of the
of court and when it can be done without accused, for if the original information
causing prejudice to the rights of the would be withdrawn, the accused could
accused. invoke double jeopardy. Substitution
requires or presupposes that the new
However, any amendment before plea, which information involves different offense
downgrades the nature of the offense charged in which does not include or is not
or excludes any accused from the complaint or necessarily included in the original charge;
information, can be made only upon motion by hence the accused cannot claim double
the prosecutor, with notice to the offended party jeopardy.
and with leave of court. The court shall state its
reasons in resolving the motion and copies of its VENUE OF CRIMINAL ACTIONS
order shall be furnished all parties, especially the
offended party. GENERAL RULE: The criminal action shall be
instituted and tried in the court of the
If it appears at any time before judgment that a municipality or territory where the offense was
mistake has been made in charging the proper committed or where any of its essential
offense, the court shall dismiss the original ingredients occurred.
complaint or information upon the filing of a new
one charging the proper offense in accordance EXCEPTIONS:
with Section 19, Rule 119, provided the accused 1) Where an offense is committed in a
would not be placed in double jeopardy. The court railroad train, aircraft, or other public
may require the witnesses to give bail for their or private vehicle in the course of its
appearance at the trial (Sec. 14). trip - the criminal action shall be
instituted and tried in the court of any
 Exception: When a fact supervenes which municipality or territory where said train,
changes the nature of the crime charged aircraft or other vehicle passed during its
in the information or upgrades it to a trip, including the place of its departure
higher crime, a substantial amendment and arrival.
may be made with a need for a re- 2) Where an offense is committed on
arraignment of the accused under the board a vessel in the course of its
amended information. voyage - the criminal action shall be
instituted and tried in the court of the first
AMENDMENT AND SUBSTITUTION port of entry or of any municipality or
DISTINGUISHED: territory where the vessel passed during
1) Amendment may involve either formal or such voyage, subject to the generally
substantial changes; substitution accepted principles of international law.
necessarily involves a substantial change 3) Felonies under Article 2 of the
from the original charge; Revised Penal Code - shall be cognizable
2) Amendment before plea has been entered by the court where the criminal action is
can be effected without leave of court; first filed.
substitution of information must be with 4) Piracy – the venue of piracy, unlike all
leave of court, as the original information other crimes, has no territorial limits. It
has to be dismissed; may be tried anywhere.
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5) Libel – the action may be instituted at the instituted after the criminal action has been filed
election of the offended or suing party in as the same has been included therein.
the province or city:
a) Where the libellous article is Another instance where no reservation shall be
printed and first published; allowed and where a civil action filed prior to the
b) If one of the offended parties is a criminal action has to be transferred to the
private individual, where said subsequently filed criminal action for joint
individual actually resides at the hearing is a claim arising from an offense which is
time of the commission of the cognizable by the Sandiganbayan.
offense;
c) If the offended party is a public WHEN SEPARATE CIVIL ACTION IS
official, where the latter holds SUSPENDED
office at the time of the
commission of the offense; a) If criminal action has been commenced earlier
6) In exceptional cases – to ensure a fair – separate civil action cannot be instituted
and impartial inquiry. The SC shall have until final judgment has been entered in the
the power to order a change of venue or criminal action.
place of trial to avoid the miscarriage of b) If the criminal action is filed after the separate
justice. civil action has already been instituted –
7) In cases filed under BP 22 – the a. Civil action suspended, in whatever
criminal action shall be filed in the place stage it may be found before judgment
where the check was issued and bounced. on the merits, until final judgment is
In case of crossed-check, in the place of rendered in the criminal action.
depository. b. Civil action may, upon motion of the
offended party, be consolidated with
INTERVENTION OF OFFENDED PARTY the criminal action in the court trying
the criminal action
Where the civil action for recovery of civil liability c. Evidence already adduced in the civil
is instituted in the criminal action pursuant to action shall be deemed automatically
Rule 111, the offended party may intervene by reproduced in the criminal action
counsel in the prosecution of the offense. d. Without prejudice to the right of the
prosecution to cross-examine the
witnesses presented by the offended
PROSECUTION OF CIVIL ACTION (RULE 111)
party in the criminal case and the
parties to present additional evidence.
RULE ON IMPLIED INSTITUTION OF CIVIL c) The consolidated criminal and civil actions
ACTION WITH CRIMINAL ACTION shall be tried and decided jointly.
d) During the pendency of the criminal action,
The GENERAL RULE is that the institution or filing the running of prescription of the civil action
of the criminal action includes the institution which cannot be instituted separately or
therein of the civil action for recovery of civil whose proceeding has been suspended shall
liability arising from the offense charged, EXCEPT be tolled.
in the following cases:
1) The offended party waives the civil action; The bar on the institution or suspension of the
2) He reserves his right to institute the civil separate civil actions has the following exception:
action separately; or  In the cases provided for in Articles 32,
3) He institutes the civil action prior to the 33, 34 and 2176 of the Civil Code, the
criminal action. independent civil action may be brought
by the offended party. It shall proceed
The exception to the reservation requirement is a independently of the criminal action and
claim arising out of a dishonored check under BP shall require only a preponderance of
22, where no reservation to file such civil action evidence. In no case, however, may the
separately shall be allowed, which means that the offended party recover damages twice for
filing of the criminal action for violation of BP 22 the same act or omission charged in the
shall be deemed to include the corresponding criminal action.
civil action and that unless a separate civil action
has been filed before the institution of the EFFECT OF THE DEATH OF ACCUSED OR
criminal action, no such civil action can be CONVICT ON CIVIL ACTION
 145

The death of the accused after arraignment and b) the resolution of such issue
during the pendency of the criminal action shall determines whether or not the
extinguish the civil liability arising from the delict. criminal action may proceed.
However, the independent civil action instituted
under section 3 of this Rule (Rule 111) or which TEST: It must appear not only that the civil case
thereafter is instituted to enforce liability arising involves the same facts upon which the criminal
from other sources of obligation may be prosecution is based, but also that the resolution
continued against the estate or legal of the issues in said civil action would be
representative of the accused after proper necessarily determinative of the guilt or
substitution or against said estate, as the case innocence of the accused.
may be. The heirs of the accused may be
substituted for the deceased without requiring A prejudicial question can be interposed at the
the appointment of an executor or administrator Office of the Prosecutor, but;
and the court may appoint a guardian ad litem for 1) The question can also be raised in court;
the minor heirs. 2) If raised, the court should merely suspend
the criminal case;
The court shall forthwith order said legal 3) The court must wait for a motion,
representative or representatives to appear and otherwise, that is a waiver;
be substituted within a period of thirty (30) days 4) The court cannot motu propio suspend the
from notice. criminal case.

A final judgment entered in favor of the offended RULE ON FILING FEES IN CIVIL ACTION
party shall be enforced against the estate of the DEEMED INSTITUTED WITH THE CRIMINAL
deceased. ACTION

If the accused dies before arraignment, the case When the offended party seeks to enforce civil
shall be dismissed without prejudice to any civil liability against the accused by way of moral,
action the offended party may file against the nominal, temperate or exemplary damages
estate of the deceased. without specifying the amount thereof in the
complaint or information, the filing fees therefor
PREJUDICIAL QUESTION shall constitute a first lien on the judgment
awarding such damages.
A petition for suspension of the criminal action
based upon the pendency of a prejudicial Where the amount of damages, other than actual,
question in a civil action may be filed in the office is specified in the complaint or information, the
of the prosecutor or the court conducting the corresponding filing fees shall be paid by the
preliminary investigation. When the criminal offended party upon filing thereof in court. Except
action has been filed in court for trial, the petition as otherwise provided in these Rules, no filing
to suspend shall be filed in the same criminal fees shall be required for actual damages.
action at any time before the prosecution rests.
With respect to criminal actions for violations of
GENERAL RULE: Criminal action takes precedence BP 22, the offended party shall pay in full the
of civil actions. filing fees based on the face value of the checks
as the actual damages.
EXCEPTIONS:
a) independent civil actions
PRELIMINARY INVESTIGATION (RULE 112)
b) prejudicial question

Prejudicial question which arises in a case the Preliminary investigation is an inquiry or

resolution of which is a logical antecedent of the proceeding for the purpose of determining
issues involved in said cases, and the cognizance whether there is sufficient ground to engender a
of which pertains to another tribunal. well-founded belief that a crime has been
committed and that the respondent is probably
The elements of a prejudicial question are: guilty thereof, and should be held for trial.
a) the previously instituted civil action
involves an issue similar or NATURE OF RIGHT
intimately related to the issue
raised in the subsequent criminal The right to preliminary investigation is not a
action, and constitutional grant; it is merely statutory and
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may be invoked only when specifically created by investigatory and prosecutorial powers of
statute. It is a component part of due process in prosecutors but upon practicality as well.
criminal justice.
OFFICERS AUTHORIZED TO CONDUCT
Preliminary investigation is a function that PRELIMINARY INVESTIGATION
belongs to the public prosecutor. It is an
executive function, although the prosecutor, in 1) Provincial or city prosecutors and their
the discharge of such function, is a quasi-judicial assistants;
authority tasked to determine whether or not a 2) National and Regional State Prosecutors; and
criminal case must be filed in court. 3) Other officers as may be authorized by law
(COMELEC, PCGG, Ombudsman)
The right to preliminary investigation may be
waived by the accused either expressly or Their authority to conduct preliminary
impliedly. The posting of a bond by the accused investigation shall include all crimes cognizable
constitutes such a waiver, such that even if the by the proper court in their respective territorial
warrant was irregularly issued, any infirmity jurisdictions.
attached to it is cured when the accused submits
himself to the jurisdiction of the court by applying RESOLUTION OF INVESTIGATION
for bail. It is also cured by submitting himself to PROSECUTOR
arraignment
If the investigating prosecutor finds cause to hold
PURPOSES OF PRELIMINARY the respondent for trial, he shall prepare the
INVESTIGATION resolution and information. He shall certify under
oath in the information that he, or as shown by
The basic purpose of preliminary investigation is the record, an authorized officer, has personally
to determine whether a crime has been examined the complainant and his witnesses;
committed and whether there is probable cause that there is reasonable ground to believe that a
to believe that the accused is guilty thereof. crime has been committed and that the accused
is probably guilty thereof; that the accused was
Generally, preliminary investigation has a three- informed of the complaint and of the evidence
fold purpose: submitted against him; and that he was given an
1) To inquire concerning the commission of opportunity to submit controverting evidence.
crime and the connection of accused with Otherwise, he shall recommend the dismissal of
it, in order that he may be informed of the the complaint.
nature and character of the crime charged
against him, and if there is probable cause Within five (5) days from his resolution, he shall
for believing him guilty, that the state may forward the record of the case to the provincial or
take the necessary steps to bring him to city prosecutor or chief state prosecutor, or to the
trial; Ombudsman or his deputy in cases of offenses
2) To preserve the evidence and keep the cognizable by the Sandiganbayan in the exercise
witnesses within the control of the state; of its original jurisdiction. They shall act on the
and resolution within ten (10) days from their receipt
3) To determine the amount of bail, if the thereof and shall immediately inform the parties
offense is bailable. of such action.

WHO MAY CONDUCT DETERMINATION OF No complaint or information may be filed or

EXISTENCE OF PROBABLE CAUSE dismissed by an investigating prosecutor without
the prior written authority or approval of the
On the basis of the evidence before him, the provincial or city prosecutor or chief state
investigating office must decide whether to prosecutor or the Ombudsman or his deputy.
dismiss the case or to file the information in Where such the recommendation of dismissal was
court. This involves the determination of probable disapproved on the ground that a probable cause
cause. exists, the chief prosecutor may file the
information against the respondent, or direct
The Court has maintained the policy of non- another assistant prosecutor or state prosecutor
interference in the determination of the existence to do so without conducting another preliminary
of probable cause, provided there is no grave investigation.
abuse in the exercise of such discretion. The rule
is based not only upon respect for the REVIEW
 147

information was filed pursuant to section 6

A preliminary investigation falls under the of this Rule.
authority of the state prosecutor who is given by  In case of doubt on the existence of
law the power to direct and control criminal probable cause, the judge may order the
actions. He is, however, subject to the prosecutor to present additional evidence
control/appeal to the Secretary of Justice, which within five (5) days from notice and the
the latter may exercise motu propio or upon issue must be resolved by the court within
petition of the proper party. thirty (30) days from the filing of the
complaint or information.
The Secretary of Justice exercises the power of
direct control and supervision over prosecutors, (b) By the Municipal Trial Court
and may thus affirm, nullify, reverse or modify  When required pursuant to the second
their rulings. In reviewing resolutions of state paragraph of section 1 of this Rule, the PI
prosecutors, the Secretary of Justice is not of cases falling under the original
precluded from considering errors, although jurisdiction of the MTCs shall be conducted
unassigned, for the purpose of determining by the prosecutor. The procedure for the
whether there is probable cause for filing cases in issuance of a warrant of arrest by the
court. judge shall be governed by paragraph (a)
of this section (Sec. 5, Rule112).
An aggrieved party may appeal by filing a verified
petition for review with the Secretary and by (c) When warrant of arrest not necessary
furnishing copies thereof to the adverse party A warrant of arrest shall not issue if the
and prosecution office issuing the appealed accused is already under detention
resolution. The appeal shall be taken within 15 pursuant to a warrant issued by the
days from receipt of the resolution or of the Municipal Trial Court in accordance with
denial of the motion for paragraph (b) of this section, or if the
reconsideration/reinvestigation if one has been complaint or information was filed
filed within 15v days from receipt of the assailed pursuant to section 6 of this Rule or is for
resolution. Only one motion for reconsideration an offense penalized by fine only. The
shall be allowed. Unless the Secretary directs court shall then proceed in the exercise of
otherwise, the appeal SHALL NOT STAY the filing its original jurisdiction (Sec. 5, as
of the corresponding information in court on the amended by AM 05-8-26-SC).
basis of the finding of probable cause in the
assailed decision. If the Secretary of Justice CASES NOT REQUIRING A PRELIMINARY
reverses or modifies the resolution of the INVESTIGATION
provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor 1) Cases in which the imposable penalty DOES
concerned either to file the corresponding NOT EXCEED four (4) years, two (2) months
information without conducting another and one (1) day
preliminary investigation, or to dismiss or move 2) When the accused has undergone inquest
for dismissal of the complaint or information with proceeding.
notice to the parties.
REMEDIES OF ACCUSED IF THERE WAS NO
WHEN WARRANT OF ARREST MAY ISSUE PRELIMINARY INVESTIGATION

(a) By the Regional Trial Court  Refuse to enter a plea upon arraignment and
 Within ten (10) days from the filing of the object to further proceedings upon such
complaint or information, the judge shall grounds
personally evaluate the resolution of the  To hold in abeyance the proceedings and
prosecutor and its supporting evidence. order/insist the prosecutor to hold preliminary
 He may immediately dismiss the case if investigation.
the evidence on record clearly fails to  Raised the lack of PI as an error in appeal
establish probable cause.
 If he finds probable cause, he shall issue a If the case has been conducted, the accused may
warrant of arrest, or a commitment order within 5 days from the time he learns of its filing
if the accused has already been arrested ask for a preliminary investigation. The five-day
pursuant to a warrant issued by the judge period to file the motion for preliminary
who conducted the preliminary investigation is mandatory, and an accused is
investigation or when the complaint or entitled to ask for preliminary investigation by
 148

filing the motion within the said period. The pending, or has escaped while being
failure to file the motion within the five-day transferred from one confinement to another.
period amounts to a waiver of the right to ask for 4) Where a person who has been lawfully
preliminary investigation. Apart from such waiver, arrested escape or is rescued;
posting bail without previously or simultaneously 5) When the bondsmen arrests a prisoner out on
demanding for a preliminary investigation bail for the purpose of bringing him to court;
justifies denial of the motion for investigation. 6) Where the accused attempts to leave the
country without the permission of the court.
INQUEST
METHOD OF ARREST
It is a summary investigation conducted by a
public prosecutor in criminal cases involving Method of arrest by officer by virtue of
persons arrested and detained without the warrant
benefit of a warrant of arrest issued by the court
for the purpose of determining whether or not The officer shall inform the person to be arrested
said persons should remain under custody and of the cause of the arrest and the fact that a
correspondingly be charged in court. Such warrant has been issued for his arrest, except
proceedings must terminate within the period when he flees or forcibly resists before the officer
prescribed under Art. 125 of the Revised Penal has opportunity to so inform him, or when the
Code. giving of such information will imperil the arrest.

Required where the crime is punishable by at The officer need not have the warrant in his
least 4 years, 2 months and 1 day. possession at the time of the arrest but after the
arrest, if the person arrested so requires, the
ARREST (RULE 113) warrant shall be shown to him as soon as
practicable.

Arrest is the taking of a person into custody in Method of arrest by officer without
order that he may be bound to answer for the warrant
commission of an offense.
The officer shall inform the person to be arrested
HOW AN ARREST MADE?
of his authority and the cause of the arrest,
unless the latter is either engaged in the
1) by an actual restraint of a person to be commission of an offense, is pursued immediately
arrested, OR after its commission, has escaped, flees or
2) by his submission to the custody of the forcibly resists before the officer has opportunity
person making the arrest. to so inform him, or when the giving of such
 No violence or unnecessary force shall he information will imperil the arrest.
used in making an arrest. The person
arrested shall not be subject to a greater
Method of arrest by private person
restraint than is necessary for his
detention.
A private person shall inform the person to be
ARREST WITHOUT WARRANT,WHEN arrested of the intention to arrest him and cause
LAWFUL of the arrest, unless the latter is either engaged
in the commission of an offense, is pursued
1) When, in his presence, the person to be immediately after its commission, or has
arrested has committed, is actually escaped, flees or forcibly resists before the
committing, or is attempting to commit an person making the arrest has opportunity to so
offense; inform him, or when the giving of such
2) When an offense has just been committed information will imperil the arrest.
and he has probable cause to believe based
on his personal knowledge of facts or REQUISITES OF A VALID WARRANT OF
circumstances that the person to be arrested ARREST
has committed the crime;
3) When the person to be arrested is a prisoner Requisites for arrest warrant issued by a
who has escaped from a penal establishment RTC judge under Sec. 5, Rule 112:
or place where he is serving final judgment or 1) Within 10 days from the filing of the
is temporarily confined while his case is complaint or information
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2) The judge shall personally evaluate the Probable cause to hold a person for trial refers to
resolution of the prosecutor and its the finding of the investigating prosecutor after
supporting evidence. the conduct of a preliminary investigation, that
3) If he finds probable cause, he shall issue a there is sufficient ground to hold a well-founded
warrant of arrest belief that a crime has been committed and that
4) In case of doubt on the existence of the respondent is probably guilty thereof and
probable cause should be held for trial. Based on such finding,
a. The judge may order the the investigating prosecutor files the
prosecutor to present additional corresponding complaint or information in the
evidence within 5 days from notice; competent court against the accused.
and
b. The issue must be resolved by the
BAIL (RULE 114)
court within 30 days from the filing
of the complaint of information.
NATURE
Requisites for issuing search warrant under
Sec. 4, Rule 126: All persons, except those charged with offenses
1) It must be issued upon probable cause in punishable by reclusion perpetua when evidence
connection with one specific offense; of guilt is strong, shall before conviction, be
2) The probable cause must be determined bailable by sufficient sureties, or be released on
by the judge himself and not by the recognizance as may be provided by law. The
applicant or any other person; right to bail shall not be impaired even when the
3) In the determination of probable cause, privilege of the writ of habeas corpus is
the judge must examine under oath or suspended. Excessive bail shall not be required
affirmation, the complainant and the (Sec. 13, Art. III, The Constitution).
witness he may produce; and
4) The warrant issued must particularly Bail is the security required by the court and
describe the person to be arrested in given by the accused to ensure that the accused
connection with a specific offense or appear before the proper court at the scheduled
crime. time and place to answer the charges brought
against him. It is awarded to the accused to
DETERMINATION OF PROBABLE CAUSE FOR honor the presumption of innocence until his guilt
ISSUANCE OF WARRANT OF ARREST is proven beyond reasonable doubt, and to
enable him to prepare his defense without being
It is the judge alone who determines the probable subject to punishment prior to conviction. Its
cause for the issuance of warrant of arrest. It is main purpose is to relieve an accused from the
not for the provincial fiscal or prosecutor to rigors of imprisonment until his conviction and
ascertain. secure his appearance at the trial.

DISTINGUISH PROBABLE CAUSE OF FISCAL The person seeking provisional release need not
FROM THAT OF A JUDGE wait for a formal complaint or information to be
filed against him as it is available to all persons
The determination by the prosecutor of probable where the offense is bailable, so long as the
cause is for the purpose of either filing an applicant is in the custody of the law.
information in court or dismissing the charges
against the respondent, which is an executive Kinds of bail:
function. a) Corporate bond — one issued by a
corporation licensed to provide bail
The determination by the judge of probable cause subscribed jointly by the accused and an
begins only after the prosecutor has filed the officer duly authorized by its board of
information in court and the latter’s directors.
determination of probable cause is for the b) Property bond — an undertaking
purpose of issuing an arrest warrant against the constituted as a lien on the real property
accused, which is judicial function. . A judge given as security for the amount of the
cannot be compelled to issue a warrant of arrest bond.
if he or she believes honestly that there is no c) Recognizance — an obligation of record
probable cause for doing so. entered into usually by the responsible
members of the community before some
court or magistrate duly authorized to
 150

take it, with the condition to do some the original record to the appellate court.
particular act, the most usual act being to However, if the decision of the trial court
assure the appearance of the accused for convicting the accused changed the nature of the
trial. offense from non-bailable to bailable, the
d) Cash deposit — the money deposited by application for bail can only be filed with and
the accused or any person acting on his resolved by the appellate court.
behalf, with the nearest collector of
internal revenue, or provincial, city or If the penalty imposed by the trial court is
municipal treasurer. Considered as bail, it imprisonment exceeding six (6) years, the
may be applied to the payment of any accused shall be denied bail, or his bail shall be
fees and costs, and the excess, if any, cancelled upon a showing by the prosecution,
shall be returned to the accused or to with notice to the accused, of the following or
whoever made the deposit. other similar circumstances:
a) That he is a recidivist, quasi-recidivist, or
WHEN A MATTER OF RIGHT; EXCEPTIONS habitual delinquent, or has committed the
crime aggravated by the circumstance of
All persons in custody shall be admitted to bail as reiteration;
a matter of right, with sufficient sureties, or b) That he has previously escaped from legal
released on recognizance: confinement, evaded sentence, or violated
a) before or after conviction by the MTC, and the conditions of his bail without valid
b) before conviction by the RTC of an offense justification;
NOT punishable by death, reclusion c) That he committed the offense while
perpetua, or life imprisonment and the under probation, parole, or under
evidence of guilt is strong. conditional pardon;
d) That the circumstances of his case
If bail can be granted in deportation cases and indicate the probability of flight if released
extradition cases; both are administrative on bail; or
proceedings where the innocence or guilt of the e) That there is undue risk that he may
person detained is not in issue. commit another crime during the
pendency of the appeal.
Bail is a matter of right before final conviction,
but the rule is not absolute. The exception is Where the grant of bail is a matter of discretion,
when a person is charged with a capital offense or the accused seeks to be released on
when the evidence of guilt is strong, or when the recognizance, the application may only be filed in
offense for which on is charged is punishable by the court where the case is pending, whether on
reclusion perpetua. The exception to this rule, preliminary investigation, trial, or on appeal.
however, is even if a person is charged with a
capital offense where the evidence of guilt is HEARING OF APPLICATION FOR BAIL IN
strong, if the accused has failing health, hence, CAPITAL OFFENSES
for humanitarian reasons, he may be admitted to
bail, but that is discretionary on the part of the
court. GUIDELINES IN FIXING AMOUNT OF BAIL

WHEN A MATTER OF DISCRETION A bail application in capital offense does not only
involve the right of the accused to temporary
1) Before conviction, in case of offenses liberty, but likewise the right of the State to
punishable by reclusion perpetua, life protect the people and the peace of the
imprisonment or death; community from dangerous elements. The
 If it is determined that it is NOT strong, prosecution must be given ample opportunity to
then bail is a matter of right. There is no show that the evidence of guilt is strong, because
more discretion of the court in denying the it is on the basis of such evidence that judicial
bail, the moment there is a determination discretion is exercised in determining whether the
that the evidence of guilt is not strong. evidence of guilt is strong is a matter of judicial
2) After conviction by the RTC of a non-capital discretion.
offense.
A hearing is absolutely indispensable. In receiving
The application for bail may be filed and acted evidence on bail, while a court is not required to
upon by the trial court despite the filing of a try the merits of the case, he must nevertheless
notice of appeal, provided it has not transmitted
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conduct a summary hearing to determine the on the belief that the accused will not flee during
weight of the evidence for purposes of the bail. the pendency of the case by reason of the fact
that he had even voluntarily surrendered.
A judge should not hear a petition for bail in Voluntary surrender is merely a mitigating
capital offenses on the same day that the petition circumstance in decreasing the penalty but is not
was filed. He should give the prosecution a a ground for granting bail to an accused charged
reasonable time within which to oppose the with a capital offense.
same. Neither is he supposed to grant bail solely
a) Financial ability of the accused to give g) Probability of the accused appearing at
bail; the trial;
b) Nature and circumstances of the offense; h) Forfeiture of other bail;
c) Penalty for the offense charged; i) The fact that the accused was a fugitive
d) Character and reputation of the accused; from justice when arrested; and
e) Age and health of the accused; j) Pendency of other cases where the
f) Weight of the evidence against the accused is on bail.
accused;
Excessive bail shall not be required. complaint or information, may, at any subsequent
stage of the proceedings whenever a strong
BAIL WHEN NOT REQUIRED showing of guilt appears to the court, be required
to give bail in the amount fixed, or in lieu thereof,
1) When the offense charged is a violation of an committed to custody.
ordinance, light felony or a criminal offense
the imposable penalty does not exceed 6 FORFEITURE AND CANCELLATION OF BAIL
months of imprisonment and/or fine of
P2,000.00 under RA 6036. When the presence of the accused is required, his
2) Where the accused has applied for probation bondsmen shall be notified to produce him on a
and before the same has been resolved but given date and time. If the accused fails to
no bail was filed or the accused is incapable appear, his bail shall be declared forfeited and
of filing one, in which case he may be the bondsmen given thirty (30) days within which
released on recognizance. to produce their principal and to show cause why
3) In case of youthful offender held for physical no judgment should be rendered against them for
or mental examination, trial or appeal, if the amount of their bail. Within the said period,
unable to furnish bail and under the the bondsmen must:
circumstances under PD 603, as amended. a) produce the body of their principal or give
4) When the law or these Rules so provide. the reason for his non-production; and
5) When a person has been in custody for a b) explain why the accused did not appear
period equal to or more than the possible before the court when first required to do
maximum imprisonment prescribed for the so.
offense charged, he shall be released
immediately, without prejudice to the Failing in these two requisites, a judgment shall
continuation of the trial or the proceedings on be rendered against the bondsmen, jointly and
appeal. severally, for the amount of the bail. The court
6) A person accused of an offense with a shall not reduce or otherwise mitigate the liability
maximum penalty of destierro, he shall be of the bondsmen, unless the accused has been
released after 30 days of preventive surrendered or is acquitted.
imprisonment.
Upon application of the bondsmen, with due
INCREASE OR REDUCTION OF BAIL notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or proof
After the accused is admitted to bail, the court of his death.
may, upon good cause, either increase or reduce
its amount. The bail shall be deemed automatically cancelled
upon acquittal of the accused, dismissal of the
When increased, the accused may be committed case, or execution of the judgment of conviction.
to custody if he does not give bail in the In all instances, the cancellation shall be without
increased amount within a reasonable period. prejudice to any liability on the bail.

An accused held to answer a criminal charge, who APPLICATION NOT A BAR TO OBJECTIONS
is released without bail upon filing of the IN ILLEGAL ARREST, LACK OF OR
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IRREGULAR PRELIMINARY INVESTIGATION agency, including commissions, task

forces or similar entities created by the
The posting of the bail does not constitute a office of the President, pursuant to Anti
waiver of any question on the irregularity –Trafficking in Persons Acts of 2003,
attending the arrest of person. He can still and/or in connection with any
question the same before arraignment, investigation being conducted by it, or in
otherwise, the right to question it is deemed the interest of national security, public
waived. safety of public health.

An application for or admission to bail shall not RIGHTS OF THE ACCUSED (RULE115)
bar the accused from challenging the validity of
his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or RIGHTS OF ACCUSED AT THE TRIAL
questioning the absence of a preliminary
investigation of the charge against him, provided 1) To be PRESUMED INNOCENT until the contrary
that he raises them before entering his plea. is proved beyond reasonable doubt.
2) To be INFORMED OF THE NATURE AND CAUSE
The arraignment of an accused is not a OF THE ACCUSATION against him.
prerequisite to the conduct of hearings on his 3) To be PRESENT AND DEFEND IN PERSON AND
petition for bail. A person is allowed to petition for BY COUNSEL AT EVERY STAGE OF THE
bail as soon as he is deprived of his liberty by PROCEEDINGS, from arraignment to
virtue of his arrest or voluntary surrender. Bail promulgation of the judgment.
should be granted before arraignment; otherwise 4) To TESTIFY AS A WITNESS IN HIS OWN BEHALF
the accused may be precluded from filing a but subject to cross-examination on matters
motion to quash. covered by direct examination. His silence
shall not in any manner prejudice him;
HOLD DEPARTURE ORDER & BUREAU OF 5) To be EXEMPT FROM BEING COMPELLED TO
IMMIGRATION WATCHLIST BE A WITNESS AGAINST HIMSELF.
6) To CONFRONT AND CROSS-EXAMINE THE
Supreme Court Cir. No. 39-97 dated June 19, WITNESSES against him at the trial.
1997 limits the authority to issue hold departure 7) To have COMPULSORY PROCESS issued to
orders to the RTCs in criminal cases within their secure the attendance of witnesses and
exclusive jurisdiction. Consequently, MTC judges production of other evidence in his behalf.
have no authority to issue hold-departure orders; 8) To have SPEEDY, IMPARTIAL AND PUBLIC
neither does it has authority to cancel one which TRIAL.
he issued. 9) To appeal in all cases allowed and in the
manner prescribed by law.
A court has the power to prohibit a person
admitted to bail from leaving the Philippines. This RIGHTS OF PERSONS UNDER CUSTODIAL
is necessary consequence of the nature and INVESTIGATION
function of a bail bond. Where it appears that the
accused had the propensity to evade or disobey 1) To be informed of his rights to remain silent
lawful orders, the issuance of a hold departure and to have competent and independent
order is warranted. counsel preferably of his own choice. If the
person cannot afford the services of counsel,
The secretary of justice may issue a he must be provided with one. These rights
watchlist order in the following cannot be waived except in writing and in the
circumstances: presence of counsel;
1) Against the accused, irrespective of 2) No torture, force, violence, intimidation or any
nationality, in criminal cases pending trial other means which vitiate the free will shall
before the RTC; be used against him. Secret detention places,
2) Against the respondent, irrespective of solitary, incommunicado, or other similar
nationality, in criminal cases pending forms of detention are prohibited;
preliminary investigation, petition for 3) Any confession or admission in violation of
review, or motion for reconsideration Self-Incrimination Clause shall be inadmissible
before DOJ or any of its provincial or city in evidence against him;
offices. 4) The law shall provide for penal and civil
3) Against any person, either motu proprio, sanctions as well as compensation to aid
or upon request of any government
 153

rehabilitation of victims of torture or similar b) The right to counsel — Example of those

practice, and their families. who are not impartial counsel are:
1) Special counsel, private or public
UNDER RA 7834 prosecutor, counsel of the police, or a
municipal attorney whose interest is
The following are the rights of persons arrested, adverse to that of the accused;
detained or under custodial investigation: 2) a mayor, unless the accused
1) To be assisted by counsel at all times; approaches him as counselor or
2) Shall be informed , in a language known to adviser;
and understood by him, of his right to 3) a barangay captain;
remain silent and to have competent and 4) any other whose interest may be
independent counsel, preferably of his adverse to that of the accused.
own choice, who shall at all times be
allowed to confer privately with him; c) The right to be informed of his rights —
3) The custodial investigation report shall be the right guaranteed here is more than what
read and adequately explained to him by is shown in television shows where the police
his counsel or by the assisting counsel in routinely reads out the rights from a note
the language or dialect known him; card; he must also explain their effects in
otherwise, such investigation report shall practical terms.
be null and void;
4) Any extrajudicial confession made by him CUSTODIAL INVESTIGATION
shall be in writing and signed in the
presence of his counsel or upon a valid The right to custodial investigation begins only
waiver, and in the presence of his any when the investigation is no longer a general
immediate family members, otherwise, inquiry into an unsolved crime but has begun to
such extrajudicial confession shall be focus on a particular suspect, the suspect has
inadmissible in any proceeding; been taken into police custody, the police carry
5) Any waiver under the provisions of Art. out a process of interrogations that lends itself to
125 of the RPC or under custodial eliciting incriminating statements.
investigation, shall be in writing signed by
such person in the presence of his It has extended to situations in which an
counsel; otherwise such waiver shall be individual has not been formally arrested but has
null and void and of no effect; merely been “invited” for questioning.
6) Shall be allowed visits by his or
conferences with any member of his
ARRAIGNMENT AND PLEA (RULE 116)
immediate family, or any medical doctor
or priest or religious minister chosen by
him or by his counsel, or by any national It is the mode of implementing the constitutional
NGO duly accredited by the Office of the right to be informed of the nature of the
President. accusation against him, and to fix the identity of
the accused.
THREE RIGHTS ARE MADE AVAILABLE
BY SEC. 12(1): SOME RULES ON ARRAIGNMENT:
a) Trial in absentia is allowed only after
a) The right to remain silent arraignment;
 Under the right against self- b) Judgment is generally void if the accused
incrimination in Sec. 17, only an has not been arraigned;
accused has the absolute right to c) There can be no arraignment in absentia;
remain silent. A person who is not an d) If the accused went to trial without
accused may assume the stance of arraignment, but his counsel had the
silence only when asked an opportunity to cross-examine the
incriminatory question. witnesses of the prosecution and after
 Under Sec. 12, however, a person prosecution, he was arraigned, the defect
under investigation has the right to was cured.
refuse to answer any question. His
silence, moreover, may not be used ARRAIGNMENT AND PLEA, HOW MADE
against him.
a) The accused must be arraigned before the
court where the complaint or information was
 154

filed or assigned for trial. The arraignment AFTER ARRAIGNMENT BUT BEFORE TRIAL, the
shall be made in open court by the judge or accused may still be allowed to plead guilty to
clerk by furnishing the accused with a copy of said lesser offense after withdrawing his plea of
the complaint or information, reading the not guilty. No amendment of the complaint or
same in the language or dialect known to him, information is necessary.
and asking him whether he pleads guilty or
not guilty. It has been held that the accused can still plead
b) When the accused is under preventive guilty to a lesser offense after the prosecution
detention, his case shall be raffled and its has rested.
records transmitted to the judge to whom the
case was raffled within three (3) days from If accused entered a plea to a lesser offense
the filing of the information or complaint. The without the consent of the offended party and the
accused shall be arraigned within ten (10) prosecutor and he was convicted, his subsequent
days from the date of the raffle. The pre-trial conviction in the crime charged would not place
conference of his case shall be held within ten him in double jeopardy.
(10) days after arraignment.
c) The private offended party shall be required ACCUSED PLEAD GUILTY TO CAPITAL
to appear at the arraignment for purposes of OFFENSE, WHAT THE COURT SHOULD DO
plea-bargaining, determination of civil liability,
and other matters requiring his presence. In The court should accomplish three (3) things;
case of failure of the offended party to appear 1) It should conduct searching inquiry into
despite due notice, the court may allow the the voluntariness and full comprehension
accused to enter a plea of guilty to a lesser of the consequences of the plea;
offense which is necessarily included in the 2) It should require the prosecution to prove
offense charged with the conformity of the the guilt of the accused and the precise
trial prosecutor alone. degree of culpability; and
d) The arraignment shall be held within thirty 3) It should inquire whether or not the
(30) days from the date the court acquires accused wishes to present evidence on his
jurisdiction over the person of the accused. behalf and allow him if he so desires.
The time of the pendency of a motion to
quash or for a bill of particulars or other SEARCHING INQUIRY
causes justifying suspension of the
arraignment shall be excluded in computing Searching question means more than informing
the period. cursorily the accused that he faces a jail term. It
also includes the exact lengthy of imprisonment
WHEN SHOULD PLEA OF NOT GUILTY BE under the law and the certainty that he will serve
ENTERED at the national penitentiary or a penal colony.

a) The accused so pleaded; It is intended to undermine the degree of

b) When he refuses to plead; culpability of the accused in order that the court
c) Where in admitting the act charged, he may be guided in determining the proper penalty.
sets up matters of defense or with a lawful
justification; IMPROVIDENT PLEA
d) When he enters a conditional plea of guilt;
e) Where, after a plea of guilt, he introduces  It is a plea without information as to all the
evidence of self-defense or other circumstances affecting it; based upon a
exculpatory circumstances ; and mistaken assumption or misleading
f) When the plea is indefinite or ambiguous. information or advise.
 Conviction based on an improvident plea of
WHEN MAY AN ACCUSED ENTER A PLEA OF guilty may set aside only when such plea is
GUILTY TO A LESSER OFFENSE the sole basis of the judgment.
 At any time before the judgment of conviction
AT ARRAIGNMENT, the accused, with the consent becomes final, the court may permit the
of the offended party and the prosecutor, may be withdrawal of an improvident plea of guilty, to
allowed by the trial court to plead guilty to a be substituted by a plea of not guilty, even
lesser offense which is necessarily included in the after judgment has been promulgated but
offense charged. before the same becomes final.
 A plea of not guilty can likewise be withdrawn
so that the accused may instead plead guilty
 155

to the same offense, but for obvious reasons,

this must be done before promulgation of GROUNDS
judgment.
 When the accused pleads guilty but presents 1) That the facts charged do not constitute an
exculpatory evidence, his plea shall be offense;
deemed withdrawn and a plea of not guilty 2) That the court trying the case has no
shall be entered for him. jurisdiction over the offense charged;
3) That the court trying the case has no
GROUNDS FOR SUSPENSION OF jurisdiction over the person of the accused;
ARRAIGNMENT 4) That the officer who filed the information had
no authority to do so;
Upon motion by the proper party, the 5) That it does not conform substantially to the
arraignment shall be suspended in the following prescribed form;
cases: 6) That more than one offense is charged except
1) The accused appears to be suffering from when a single punishment for various offenses
an unsound mental condition which is prescribed by law;
effectively renders him unable to fully 7) That the criminal action or liability has been
understand the charge against him and to extinguished -
plead intelligently thereto. In such case, a. By the death of the convict, as to the
the court shall order his mental personal penalties; as to pecuniary
examination and, if necessary, his penalties, liability therefor is
confinement for such purpose. extinguished only when the death of
2) There exists a prejudicial question; and the offender occurs before final
3) A petition for review of the resolution of judgment.
the prosecutor is pending at either the DOJ b. By service of the sentence;
or the Office of the President; provided c. By amnesty, which completely
that the period of suspension shall not extinguishes the penalty and all its
exceed sixty (60) days counted from the effects;
filing of the petition with the reviewing d. By absolute pardon;
office. e. By prescription of the crime;
f. By prescription of the penalty;
g. By the marriage of the offended
MOTION TO QUASH (RULE 117) woman in
i. Seduction
A motion to quash is a hypothetical admission of ii. abduction or
the facts alleged in the information, hence the iii. acts of lasciviousness (Art. 344
court in resolving the motion cannot consider RPC)
facts contrary to those alleged in the information 8) That it contains averments which, if true,
or which do not appear on the face of the would constitute a legal excuse or
information, except those admitted by the justification; and
prosecution. 9) That the accused has been previously
convicted or acquitted of the offense charged,
The motion to quash must be filed before the or the case against him was dismissed or
arraignment. Thereafter, no motion to quash can otherwise terminated without his express
be entertained by the court, the only exceptions consent.
being those in Sec. 9 which adopts the omnibus
motion rule, subject to said exceptions. Sec. 3 Grounds that are not waived even if not alleged:
has been amended to separately refer to lack to a) Failure to charge an offense;
jurisdiction over the offense, not over the person b) Lack of jurisdiction;
of the accused since, by filing a motion to quash c) Extinction of criminal action or liability;
on other grounds, the accused has submitted d) Double jeopardy.
himself to the jurisdiction of the court.

MOTION TO QUASH DEMURER TO EVIDENCE

Rule 117 Section 23, Rule 119
When filed At any time before accused enters plea After the prosecution rests its case
Grounds a) That the facts charged do not constitute
an offense;  Insufficiency of evidence
b) That the court trying the case has no
 156

jurisdiction over the offense charged;

c) That the court trying the case has no
jurisdiction over the person of the
accused;
d) That the officer who filed the information
had no authority to do so;
e) That it does not conform substantially to
the prescribed form;
f) That more than one offense is charged
except when a single punishment for
various offenses is prescribed by law;
g) That the criminal action or liability has
been extinguished;
h) That it contains averments which, if true,
would constitute a legal excuse or
justification; and
i) 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.
Effect if  If the motion to quash is sustained, the  If leave of court is granted,
granted court may order that another complaint or the accused shall file the
information be filed except as provided in demurrer to evidence within
section 6 of this rule. a non-extendible period of
 If the order is made, the accused, if in ten (10) days from notice.
custody, shall not be discharged  The prosecution may
unless admitted to bail. oppose the demurrer to
 If no order is made or if having been evidence within 10 days
made, no new information is filed from receipt of the motion.
within the time specified in the order
or within such further time as the
court may allow for good cause, the
accused, if in custody, shall be
discharged unless he is also in custody
of another charge.
 The remedy of prosecution is to amend
the information to correct the defects
thereof, except on the grounds of (g) and
(j); of the prosecution may appeal the
quashal of information or complaint
Effect if The usual course to take is for the accused to  An accused who files a
denied proceed with trial, and in case of conviction, demurrer to evidence with
to appeal therefrom and assign as error the leave of court does not lose the
denial of the motion to quash, right to present evidence in the
event his motion is denied.
 On the other hand, if he files
the demurrer without leave of
court and the same is denied,
he loses the right to present
evidence, in which event the
case will be deemed submitted
for decision.
Remedies if The order denying the motion to quash is The order denying the motion for
denied interlocutory and therefore not appealable, leave of court to file demurrer to
nor can it be the subject of a petition for evidence or to demur itself shall
certiorari. not be reviewable by appeal or
certiorari before judgment.
 157

A special civil action may lie against an order convicted, or acquitted of the offense
of denial of a motion to quash, as an charged.
exception to the general rule, in any of the 2) An order denying a motion to quash is
following instances: interlocutory and not appealable and
a) Where there is necessity to afford generally, such denial cannot be controlled by
protection to the constitutional rights certiorari; and the denial of a motion to quash
of the accused; grounded on double jeopardy is not
b) When necessary for the orderly controllable by mandamus
administration of justice or to avoid
oppression or multiplicity of actions; DOUBLE JEOPARDY
c) Where there is prejudicial question
which is sub judice; No person shall be twice put in jeopardy of
d) When the acts of the officer are punishment for the same offense. If an act is
without or in excess of authority; punished by a law and an ordinance, conviction
e) Where the prosecution is under an or acquittal under either shall constitute a bar to
invalid law, ordinance or regulation; another prosecution for the same act (Sec. 21,
f) When double jeopardy is clearly Art. III, Constitution).
apparent;
g) Where the court has no jurisdiction The requirements of double jeopardy are:
over the offense; a) Valid indictment;
h) Where it is a case of persecution rather b) Competent court;
than prosecution; c) Valid arraignment;
i) Where the charges are manifestly false d) Valid plea entered;
and motivated by the lust for e) Case is dismissed or terminated without
vengeance; the express consent of the accused.
j) When there is clearly no prima facie
case against the accused; and When an accused has been convicted or
k) To avoid multiplicity of actions. acquitted, or the case against him dismissed or
otherwise terminated WITHOUT HIS EXPRESS
EFFECTS OF SUSTAINING THE MOTION TO CONSENT by a court of competent jurisdiction,
QUASH upon a valid complaint or information or other
formal charge sufficient in form and substance to
If the motion to quash is sustained, the court may sustain a conviction and after the accused had
order that another complaint or information be pleaded to the charge, the conviction or acquittal
filed except as provided in section 6 of this rule. of the accused or the dismissal of the case shall
a) If the order is made, the accused, if in be a bar to another prosecution for the offense
custody, shall not be discharged unless charged, or for any attempt to commit the same
admitted to bail. or frustration thereof, or for any offense which
b) If no order is made or if having been necessarily includes or is necessarily included in
made, no new information is filed within the offense charged in the former complaint or
the time specified in the order or within information.
such further time as the court may allow
for good cause, the accused, if in custody, However, the conviction of the accused shall not
shall be discharged unless he is also in be a bar to another prosecution for an offense
custody of another charge. which necessarily includes the offense charged in
the former complaint or information under any of
EXCEPTION TO THE RULE THAT SUSTAINING the following instances:
THE MOTION IS NOT A BAR TO ANOTHER 1) the graver offense developed due to
PROSECUTION supervening facts arising from the same
act or omission constituting the former
1) An order sustaining the motion to quash is not charge;
a bar to another prosecution for the same 2) the facts constituting the graver charge
offense unless the motion was based on the became known or were discovered only
grounds specified in Sec. 3(g) and (i) – that after a plea was entered in the former
the criminal action or liability has been complaint or information; or
extinguished and that the accused has been 3) the plea of guilty to the lesser offense was
previously convicted or in jeopardy of being made without the consent of the
prosecutor and of the offended party
 158

except as provided in section 1(f) of Rule accused should be to a lesser offense necessarily
116. included in the offense charged.

PROVISIONAL DISMISSAL PRE-TRIAL AGREEMENT

1) A case shall not be provisionally dismissed All agreements or admissions made or entered
except with the express consent of the during the pre-trial conference shall be reduced in
accused and with notice to the offended party. writing and signed by the accused and counsel;
2) The provisional dismissal of offenses otherwise, they cannot be used against the
punishable by imprisonment not exceeding accused.
six (6) years or a fine of any amount, or both,
shall become permanent one (1) year after NON-APPEARANCE DURING PRE-TRIAL
issuance of the order without the case having
been revived. If the counsel for the accused or the prosecutor
3) With respect to offenses punishable by does not appear at the pre-trial conference and
imprisonment of more than six (6) years, their does not offer an acceptable excuse for his lack
provisional dismissal shall become permanent of cooperation, the court may impose proper
two (2) years after issuance of the order sanctions or penalties.
without the case having been revived.
4) The raison d‘etre for the requirement of the PRE-TRIAL ORDER
express consent of the accused to a
provisional dismissal of a criminal case is to After the pre-trial conference, the court shall
bar him from subsequently asserting that the issue an order reciting the actions taken, the
revival of the criminal case will place him in facts stipulated, and evidence marked. Such
double jeopardy for the same offense or for an order shall bind the parties, limit the trial to
offense necessarily included therein. matters not disposed of, and control the course of
the action during the trial, unless modified by the
PRE-TRIAL (RULE 118) court to prevent manifest injustice.

The court shall, after arraignment and within

thirty (30) days from the date the court acquires REFERRAL OF SOME CASES FOR COURT
jurisdiction over the person of the accused, ANNEXED AND MEDIATION AND JUDICIAL
unless a shorter period is, order a pre-trial DISPUTE RESOLUTION (AM 11-1-6-SC
conference. Its main objective is to achieve an PHILJA)
expeditious resolution of the case.
CONCEPT OF COURT DIVERSION OF
MATTERS TO BE CONSIDERED DURING PRE PENDING CASES
TRIAL
The diversion of pending court cases both to
1) plea bargaining; Court-Annexed Mediation (CAM) and to Judicial
2) stipulation of facts; Dispute Resolution (JDR) is plainly intended to put
3) marking for identification of evidence of an end to pending litigation through a
the parties; compromise agreement of the parties and
4) waiver of objections to admissibility of thereby help solve the ever-pressing problem of
evidence; court docket congestion.
5) modification of the order of trial if the
accused admits the charge but interposes Cases that may be referred:
a lawful defense; and 1) All civil cases and the civil liability of
6) such matters as will promote a fair and criminal cases covered by the Rule on
expeditious trial of the criminal and civil Summary Procedure, including the civil
aspects of the liability for violation of B.P. 22, except
those which by law may not be
WHAT THE COURT SHOULD DO WHEN compromised;
PROSECUTION AND OFFENDED PARTY 2) Special proceedings for the settlement of
AGREE TO THE PLEA OFFERED BY THE estates;
ACCUSED 3) All civil and criminal cases filed with a
certificate to file action issued by the
The agreements shall be approved by the court. Punong Barangay or the Pangkat ng
Provided that the agreement on the plea of the
 159

Tagapagkasundo under the Revised JDR Judge, shall preside over the first
Katarungang Pambarangay Law; stage. The judge, who shall be called the
4) The civil aspect of Quasi-Offenses under trial judge, shall preside over the second
Title 14 of the Revised Penal Code; stage.
5) The civil aspect of less grave felonies
punishable by correctional penalties not At the initial stage of the pre-trial conference, the
exceeding 6 years imprisonment, where JDR judge briefs the parties and counsels of the
the offended party is a private person; CAM and JDR processes. Thereafter, he issues an
6) The civil aspect of estafa, theft and libel; Order of Referral of the case to CAM and directs
7) All civil cases and probate proceedings, the parties and their counsels to proceed to the
testate and intestate, brought on appeal PMCU bringing with them a copy of the Order of
from the exclusive and original jurisdiction Referral. The JDR judge shall include in said
granted to the first level courts; Order, or in another Order, the pre-setting of the
8) All cases of forcible entry and unlawful case for JDR not earlier than forty-five (45) days
detainer brought on appeal from the from the time the parties first personally appear
exclusive and original jurisdiction granted at the PMCU so that JDR will be conducted
to the first level courts; immediately if the parties do not settle at CAM.
9) All civil cases involving title to or
possession of real property or an interest All incidents or motions filed during the first stage
therein brought on appeal from the shall be dealt with by the JDR judge. If JDR is not
exclusive and original jurisdiction granted conducted because of the failure of the parties to
to the first level courts; and appear, the JDR judge may impose the
10) All habeas corpus cases decided by the appropriate sanctions and shall continue with the
first level courts in the absence of the proceedings of the case.
Regional Trial Court judge, that are
brought up on appeal from the special If the parties do not settle their dispute at CAM,
jurisdiction granted to the first level the parties and their counsels shall appear at the
courts. preset date before the JDR judge, who will then
conduct the JDR process as mediator, neutral
The following CASES SHALL NOT BE REFERRED evaluator and/or conciliator in order to actively
TO CAM AND JDR: assist and facilitate negotiations among the
1) Civil cases which by law cannot be parties for them to settle their dispute. As
compromised; mediator and conciliator, the judge facilitates the
2) Other criminal cases not covered under settlement discussions between the parties and
paragraphs 3 to 6 above; tries to reconcile their differences. As a neutral
3) Habeas Corpus petitions; evaluator, the judge assesses the relative
4) All cases under Republic Act No. 9262 strengths and weaknesses of each party's case
(Violence against Women and Children); and makes a non-binding and impartial
and evaluation of the chances of each party's success
5) Cases with pending application for in the case. On the basis of such neutral
Restraining Orders/Preliminary Injunctions. evaluation, the judge persuades the parties to a
fair and mutually acceptable settlement of their
However, in cases covered under 1, 4 and 5 dispute.
where the parties inform the court that they have
agreed to undergo mediation on some aspects The JDR judge shall not preside over the trial of
thereof, e.g., custody of minor children, the case when the parties did not settle their
separation of property, or support pendente lite, dispute at JDR.
the court shall refer them to mediation.
CRIMINAL CASES
PROCEDURE
If settlement is reached on the civil aspect of the
Judicial proceedings shall be divided into two criminal case, the parties, assisted by their
stages: respective counsels, shall draft the compromise
1) From the filing of a complaint to the agreement which shall be submitted to the court
conduct of CAM and JDR during the pre- for appropriate action.
trial stage, and
2) pre-trial proper to trial and judgment. The Action on the criminal aspect of the case will be
judge to whom the case has been determined by the Public Prosecutor, subject to
originally raffled, who shall be called the the appropriate action of the court.
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c) That the witness can be had at the

If settlement is not reached by the parties on the time to which the trial has been
civil aspect of the criminal case, the JDR judge deferred; and
shall proceed to conduct the trial on the merits of d) That no similar evidence could be
the case should the parties file a joint written obtained.
motion for him to do so, despite confidential  The non-appearance of the prosecution at the
information that may have been divulged during trial, despite due notice, justifies a provisional
the JDR proceedings. Otherwise, the JDR Judge dismissal or an absolute dismissal, depending
shall turn over the case to a new judge by re- on the circumstances.
raffle in multiple sala courts or to the originating  Any period of delay resulting from the
court in single sala courts, for the conduct of absence or unavailability of an essential
pretrial proper and trial. witness shall be excluded in computing the
time within which trial must commence.
PRE-TRIAL PROPER
TRIAL IN ABSENTIA
Where no settlement or only a partial settlement
was reached, and there being no joint written The Constitution permits trial in absentia of an
motion submitted by the parties, as stated in the accused after his arraignment who unjustifiably
last preceding paragraphs, the JDR judge shall fails to appear during the trial notwithstanding
turn over the case to the trial judge, determined due notice. The purpose of trial in absentia is to
by re-raffle in multiple sala courts or to the speed up the disposition of criminal cases.
originating court in single sala courts, as the case
may be, to conduct pre-trial proper, as mandated The REQUISITES OF TRIAL IN ABSENTIA are:
by Rules 18 and 118 of the Rules of Court. a) The accused has been arraigned;
b) He has been duly notified of the trial; and
c) His failure to appear is justified.
TRIAL (RULE119)
The waiver of the accused of appearance or trial
Continuous trial is one where the courts are in absentia does not mean that the prosecution is
called upon to conduct the trial with utmost thereby deprived of its right to require the
dispatch, with judicial exercise of the court’s presence of the accused for purposes of
power to control the trial to avoid delay and for identification by the witnesses which is vital for
each party to complete the presentation of conviction of the accused, except where he
evidence with the trial dates assigned to him. unqualifiedly admits in open court after his
arraignment that he is the person named as
INSTANCES WHEN PRESENCE OF ACCUSED defendant in the case on trial. Such waiver does
IS REQUIRED BY LAW not mean a release of the accused from his
obligation under the bond to appear in court
The only instances when the presence of the whenever required.
accused is required by law and when the law may
forfeit the bond if he fails to appear are: He can still be subpoenaed to appear for
1) On arraignment; identification purposes, without violating his right
2) On promulgation of judgment except for against self-incrimination as he will not take the
light offenses; stand to testify but merely to be present in court,
3) For identification purposes; where the prosecution witness may, while in the
4) When the court with due notice requires witness stand, point to him as the accused.
so.
REMEDY WHEN ACCUSED IS NOT BROUGHT
REQUISITE BEFORE TRIAL CAN BE TO TRIAL WITHIN THE PRESCRIBED PERIOD
SUSPENDED ON ACCOUNT OF ABSENCE OF
WITNESS If the accused is not brought to trial within the
time limit, the information may be dismissed on
 To warrant postponement due to absence of a motion of the accused on the ground of denial of
witness, it must appear: his right to speedy trial. The dismissal shall be
a) That the witness is really material and subject to the rules on double jeopardy.
appears to the court to be so;
b) That the party who applies for Failure of the accused to move for dismissal prior
postponement has not been guilty of to trial shall constitute a waiver of the right to
neglect; dismiss under this section.
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DEMURRER TO EVIDENCE
REQUISITES FOR DISCHARGE OF ACCUSED
TO BECOME A STATE WITNESS  After the prosecution rests its case, the court
may dismiss the action on the ground of
When two or more persons are jointly charged insufficiency of evidence (1) on its own
with the commission of any offense, upon motion initiative after giving the prosecution the
of the prosecution before resting its case, the opportunity to be heard or (2) upon demurrer
court may direct one or more of the accused to to evidence filed by the accused with or
be discharged with their consent so that they without leave of court.
may be witnesses for the state when, after  If the court denies the demurrer to evidence
requiring the prosecution to present evidence and filed with leave of court, the accused may
the sworn statement of each proposed state adduce evidence in his defense.
witness at a hearing in support of the discharge,  When the demurrer to evidence is filed
the court is satisfied that: without leave of court, the accused waives
1) There is absolute necessity for the the right to present evidence and submits the
testimony of the accused whose discharge case for judgment on the basis of the
is requested; evidence for the prosecution.
2) There is no other direct evidence available  The motion for leave of court to file demurrer
for the proper prosecution of the offense to evidence shall specifically state its grounds
committed, except the testimony of said and shall be filed within a non-extendible
accused; period of five (5) days after the prosecution
3) The testimony of said accused can be rests its case. The prosecution may oppose
substantially corroborated in its material the motion within a non-extendible period of
points; five (5) days from its receipt.
4) Said accused does not appear to be the  If leave of court is granted, the accused shall
most guilty; and file the demurrer to evidence within a non-
5) Said accused has not at any time been extendible period of ten (10) days from
convicted of any offense involving moral notice. The prosecution may oppose the
turpitude. demurrer to evidence within a similar period
from its receipt.
Evidence adduced in support of the discharge  The order denying the motion for leave of
shall automatically form part of the trial. If the court to file demurrer to evidence or the
court denies the motion for discharge of the demurrer itself shall not be reviewable by
accused as state witness, his sworn statement appeal or by certiorari before judgment.
shall be inadmissible in evidence.

EFFECTS OF DISCHARGE OF ACCUSED AS JUDGMENT (RULE 120)

STATE WITNESS
Judgment means the adjudication by the court
The order shall amount to an acquittal of the that the accused is guilty or is not guilty of the
discharged accused and shall be a bar to future offense charged, and the imposition of the proper
prosecution for the same offense, unless: penalty and civil liability provided for by law on
a) The accused fails or refuses to testify the accused.
against his co-accused in accordance with
his sworn statement constituting the basis Memorandum decision is one in which the
for his discharge. appellate court may adopt by reference, the
b) If he was granted immunity and fails to findings of facts and conclusions of law contained
keep his part of the agreement, his in the decision appealed from.
confession of his participation in the
commission of the offense is admissible in REQUISITES OF A JUDGMENT
evidence against him.
It must be written in the official language,
The court shall order the discharge and exclusion personally and directly prepared by the judge and
of the said accused from the information. signed by him and shall contain clearly and
Admission into such Program shall entitle such distinctly a statement of the facts and the law
State Witness to immunity from criminal upon which it is based.
prosecution for the offense or offenses in which
his testimony will be given or used.
CONTENTS OF JUDGMENT
 162

If the judgment is of conviction, it shall state: accused was tried in absentia because he jumped
1) the legal qualification of the offense bail or escaped from prison, the notice to him
constituted by the acts committed by the shall be served at his last known address.
accused and the aggravating or mitigating
circumstances which attended its In case the accused fails to appear at the
commission; scheduled date of promulgation of judgment
2) the participation of the accused in the despite notice, the promulgation shall be made
offense, whether as principal, accomplice, by recording the judgment in the criminal docket
or accessory after the fact; and serving him a copy thereof at his last known
3) the penalty imposed upon the accused; address or thru his counsel.
and
4) the civil liability or damages caused by his If the judgment is for conviction and the failure of
wrongful act or omission to be recovered the accused to appear was without justifiable
from the accused by the offended party, if cause, he shall lose the remedies available in
there is any, unless the enforcement of these rules against the judgment and the court
the civil liability by a separate civil action shall order his arrest. Within fifteen (15) days
has been reserved or waived. from promulgation of judgment, however, the
accused may surrender and file a motion for
In case the judgment is of acquittal, it shall state leave of court to avail of these remedies. He shall
whether the evidence of the prosecution state the reasons for his absence at the
absolutely failed to prove the guilt of the accused scheduled promulgation and if he proves that his
or merely failed to prove his guilt beyond absence was for a justifiable cause, he shall be
reasonable doubt. In either case, the judgment allowed to avail of said remedies within fifteen
shall determine if the act or omission from which (15) days from notice.
the civil liability might arise did not exist.
WHEN DOES JUDGMENT BECOME FINAL
PROMULGATION OF JUDGMENT; INSTANCES (FOUR INSTANCES)
OF PROMULGATION OF JUDGMENT IN
ABSENTIA a) After the lapse of the period for perfecting
an appeal;
The judgment is promulgated by reading it in the b) When the sentence has been partially or
presence of the accused and any judge of the totally satisfied or served;
court in which it was rendered. However, if the c) When the accused has waived in writing
conviction is for a light offense, the judgment his right to appeal; or
may be pronounced in the presence of his d) Has applied for probation.
counsel or representative. When the judge is
absent or outside the province or city, the MNT OR MR IN MNT OR MR IN
judgment may be promulgated by the clerk of CRIMINAL CASES CIVIL CASES
court. Either on motion of Must be upon motion
accused, or the court of a party, can’t be
If the accused is confined or detained in another motu proprio with motu proprio
province or city, the judgment may be consent of the
promulgated by the executive judge of the accused
Regional Trial Court having jurisdiction over the Grounds for MNT – Grounds for MNT –
place of confinement or detention upon request errors of law or FAME, or newly
of the court which rendered the judgment. The irregularities discovered evidence
court promulgating the judgment shall have committed during the
authority to accept the notice of appeal and to trial, or newly
approve the bail bond pending appeal; provided, discovered evidence
that if the decision of the trial court convicting Ground for MR – error Grounds for MR –
the accused changed the nature of the offense of law or fact Excessive damages,
from non-bailable to bailable, the application for insufficient evidence,
bail can only be filed and resolved by the or decision is contrary
appellate court. to law
Filed any time before Filed within the
The proper clerk of court shall give notice to the judgment of conviction period for taking an
accused personally or through his bondsman or becomes final appeal
warden and counsel, requiring him to be present Should include all the
at the promulgation of the decision. If the grounds then
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available and those c) IN ALL CASES, when the court grants new trial
not so included shall or reconsideration, the original judgment shall
be deemed waived. be set aside or vacated and a new judgment
When granted, the There may be partial rendered accordingly.
original judgment is grant
always set aside or APPLICATION OF NEYPES DOCTRINE IN
vacated and a new CRIMINAL CASES
judgment rendered
This rule was adopted TO STANDARDIZE THE
APPEAL PERIODS provided in the Rules to afford
GROUNDS FOR NEW TRIAL fair opportunity to review the case and, in the
process, minimize errors of judgment. Obviously,
a) That errors of law or irregularities prejudicial the new 15 day period may be availed of only if
to the substantial rights of the accused have either motion is filed and was denied; otherwise,
been committed during the trial; the decision becomes final and executory after
b) That new and material evidence has been the lapse of the original appeal period provided in
discovered which the accused could not with Rule 41
reasonable diligence have discovered and
produced at the trial and which if introduced If the motion is denied, the movants has a fresh
and admitted would probably change the period of 15 days from receipt or notice of the
judgment. order denying or dismissing the motion for
reconsideration within which to file a notice to
GROUNDS FOR RECONSIDERATION appeal.

The court shall grant reconsideration on the This fresh period rule applies only to Rule 41
ground of errors of law or fact in the judgment, governing appeals from the RTC but also to Rule
which requires no further proceedings. 40 governing appeals from MTC to RTC, Rule 42
on petitions for review from the RTC to the CA,
REQUISITES BEFORE A NEW TRIAL MAY BE Rule 43 on appeal from quasi-judicial agencies to
GRANTED ON GROUND OF NEWLY the CA, and Rule 45 governing appeals by
DISCOVERED EVIDENCE certiorari to the SC.

a) The evidence was discovered after trial; Neypes ruling shall not be applied where no
b) The evidence could not have been discovered motion for new trial or motion for reconsideration
and produced at the trial even with exercise has been filed in which case the 15-day period
of reasonable diligence; shall run from notice of the judgment.
c) The evidence is material, not merely
cumulative, corroborative or impeaching; The fresh period rule does not refer to the period
d) It must go to the merits as it would produce a within which to appeal from the order denying the
different result if admitted. motion for new trial because the order is not
appealable.
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION In the case of Judith Yu vs. Judge Samson, Feb. 9,
2011, the SC held that the Neypes doctrine is
a) When a new trial is granted on the ground of applicable in criminal cases.
errors of law or irregularities committed
during the trial, all the proceedings and APPEAL (RULE 122)
evidence affected thereby shall be set aside
and taken anew. The court may, in the
interest of justice, allow the introduction of An appeal opens the whole case for review and
additional evidence. this includes the review of the penalty, indemnity
b) When a new trial is granted on the ground of and the damages involved.
newly-discovered evidence, the evidence
already adduced shall stand and the newly- EFFECT OF AN APPEAL
discovered and such other evidence as the
court may, in the interest of justice, allow to Upon perfection of the appeal, the execution of
be introduced shall be taken and considered the judgment or order appealed from is stayed as
together with the evidence already in the to the appealing party. The civil appeal of the
record.
 164

offended party does not affect the criminal aspect EFFECT OF APPEAL BY ANY OF SEVERAL
of the judgment or order appealed from. ACCUSED

The trial court loses jurisdiction over the, except: a) An appeal taken by one or more of several
1) To issue orders for the protection and accused shall not affect those who did not
preservation of the rights of the parties appeal, except insofar as the judgment of the
which do not involve any matter litigated appellate court is favorable and applicable to
by the appeal; the latter.
2) To approve compromises offered by the b) The appeal of the offended party from the
parties prior to the transmission of the civil aspect shall not affect the criminal aspect
records on appeal to the appellate court. of the judgment or order appealed from.

WHERE TO APPEAL GROUNDS FOR DISMISSAL OF APPEAL

a) To the Regional Trial Court, in cases decided a) Failure on the part of the appellant to file brief
by the MTCs; within the reglementary period, except when
b) To the Court of Appeals or to the Supreme he is repsented by counsel de officio;
Court in the proper cases provided by law, in b) Escape f the appellant from prison or
cases decided by the RTC; and confinement;
c) To the Supreme Court, in cases decided by the c) When the appellant jumps bail;
Court of Appeals. d) Flight of the appellant for a foreign country
during the pendency of the appeal;
HOW APPEAL TAKEN e) Patently without merit;
f) Prosecuted manifestly for delay; or
a) The appeal to the RTC, or to the CA in cases g) The questions raised therein are too
decided by the RTC in the exercise of its unsubstantial to require consideration.
original jurisdiction, shall be taken by filing a
NOTICE OF APPEAL with the court which
SEARCH AND SEIZURE (RULE 126)
rendered the judgment or final order appealed
from and by serving a copy thereof upon the
adverse party. NATURE OF SEARCH WARRANT
b) The appeal to the CA in cases decided by the
RTC in the exercise of its appellate jurisdiction The constitutional right against unreasonable
shall be by PETITION FOR REVIEW under Rule search and seizure refers to the immunity of
42. one’s person, whether a citizen or alien, from
c) The appeal to the SC in cases where the interference by government, included in whish is
penalty imposed by the RTC is reclusion his residence, his papers and other possession.
perpetua, or life imprisonment, or where a
lesser penalty is imposed but for offenses The overriding function of the constitutional
committed on the same occasion or which guarantee is to protect personal privacy and
arose out of the same occurrence that gave human dignity against unwarranted intrusion by
rise to the more serious offense for which the the State.
penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by filing a The right of the people to be secure in their
NOTICE OF APPEAL. persons, houses, papers, and effects against
d) No notice of appeal is necessary in cases unreasonable searches and seizures of whatever
where the death penalty is imposed by the nature and for any purpose shall be inviolable,
RTC. The same shall be automatically and no search warrant or warrant of arrest shall
reviewed by the SC. issue except upon probable cause to be
 Except as provided in the last paragraph determined personally by the judge after
of section 13, Rule 124, all other appeals examination under oath or affirmation of the
to the Supreme Court shall be by PETITION complainant and the witnesses he may produce,
FOR REVIEW ON CERTIORARI under Rule and particularly describing the place to be
45. searched and the persons or things to be seized
(Sec. 2, Art. III, Constitution).

SEARCH WARRANT (RULE 126) WARRANT OF ARREST (RULE 113)

A search warrant is an order in writing issued in Arrest is the taking of a person into custody in
the name of the People of the Philippines, order that he may be bound to answer for the
 165

signed by a judge and directed to a peace commission of an offense (Sec. 1, Rule 113).
officer, commanding him to search for personal
property described therein and bring it before
the court (Sec. 1, Rule 126).
Requisites: Requisites for arrest warrant issued by RTC
A search warrant shall not issue except upon judge under Sec. 5, Rule 112:
probable cause in connection with one specific a) Within 10 days from the filing of the
offense to be determined personally by the complaint or information
judge after examination under oath or b) The judge shall personally evaluate the
affirmation of the complainant and the witness resolution of the prosecutor and its
he may produce, and particularly describing the supporting evidence.
place to be searched and the things to be seized c) If he finds probable cause, he shall issue a
which may be anywhere in the Philippines (Sec. warrant of arrest
4, Rule 126). 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
Search or seizure without warrant, when lawful: Arrest without warrant, when lawful:
1) Consented search; a) When, in his presence, the person to be
2) As an incident to a lawful arrest; arrested has committed, is actually
3) Searches of vessels and aircrafts for violation committing, or is attempting to commit an
of immigration, customs and drug laws; offense;
4) Searches of moving vehicles; b) When an offense has just been committed
5) Searches of automobiles at borders or and he has probable cause to believe
constructive borders; based on personal knowledge of facts or
6) Where the prohibited articles are in plain circumstances that the person to be
view; arrested has committed it; and
7) Searches of buildings and premises to c) When the person to be arrested is a
enforce fire, sanitary and building prisoner who has escaped from a penal
regulations; establishment or place where he is serving
8) “Stop and frisk” operations; final judgment or is temporarily confined
9) Exigent and emergency circumstances (in while his case is pending, or has escaped
times of war and within the area of military while being transferred from one
operation) confinement to another (Sec. 5, Rule 113).

APPLICATION FOR SEARCH WARRANT, Probable cause is defined as such facts and
WHERE FILED circumstances which could lead a reasonably
discreet and prudent man to believe that an
An application for search warrant shall be filed offense has been committed and that the objects
with the following: sought in connection with the offense are in the
a) Any court within whose territorial place sought to be searched.
jurisdiction a crime was committed.
b) For compelling reasons stated in the Requisites for issuing search warrant – A
application, any court within the judicial search warrant shall not issue except upon
region where the crime was committed if probable cause in connection with one specific
the place of the commission of the crime offense to be determined personally by the judge
is known, or any court within the judicial after examination under oath or affirmation of the
region where the warrant shall be complainant and the witness he may produce,
enforced. and particularly describing the place to be
However, if the criminal action has already been searched and the things to be seized which may
filed, the application shall only be made in the be anywhere in the Philippines.
court where the criminal action is pending.
Issuance and form of search warrant – If the
PROBABLE CAUSE judge is satisfied of the existence of facts upon
which the application is based or that there is
 166

probable cause to believe that they exist, he shall been used or constitute proof in the commission
issue the warrant, which must be substantially in of an offense without a search warrant.
the form prescribed by these Rules.
The law requires that there first be a lawful arrest
PERSONAL EXAMINATION BY JUDGE OF THE before a search can be made. The process cannot
APPLICANT AND WITNESSES be reversed. Thus, in a buy-bust operation
conducted to entrap a drug pusher, the law
The judge must, before issuing the warrant, enforcement agents may seize the marked
personally examine in the form of searching money found on the person of the pusher
questions and answers, in writing and under oath, immediately after the arrest even without arrest
the complainant and the witnesses he may and search warrants.
produce on facts personally known to them and
attach to the record their sworn statements, This is absolutely limit a warrantless search of a
together with the affidavits submitted. person who is lawfully arrested to his or her
person at the time of and incident to his or her
PARTICULARITY OF PLACE TO BE arrest and to dangerous weapons or anything
SEARCHED AND THINGS TO BE SEIZED which may be used as proof of the commission of
the offense. Such warrantless search obviously
The warrant must particularly describe the place cannot be made in any other than the place of
to be searched and the persons or things to be arrest.
seized.
2. CONSENTED SEARCH
The rule is that a description of the place to be
searched is sufficient if the officer with the
warrant can, with reasonable effort, ascertain and Rights may be waived, unless the waiver is
identify the place intended to be searched. Where contrary to law, public order, morals, or good
there are several apartments in the place to be customs, or prejudicial to a third person with a
searched, a description of the specific place can right recognized by law.
be determined by reference to the affidavits
supporting the warrant that the apartment to be To constitute a valid waiver of a constitutional
searched is the one occupied by the accused. The right, it must appear:
searching party cannot go from one apartment to a) that the right exists,
the other as the warrant will then become a b) the person involved had knowledge either
general warrant. actual or constructive, of the existence of
such right, and
PERSONAL PROPERTY TO BE SEIZED c) said person has an actual intention to
relinquish the right.
A search warrant may be issued for the search As the constitutional guarantee is not dependent
and seizure of personal property: upon any affirmative act of the citizen, the courts
a) Subject of the offense; do not place the citizen in the position of either
b) Stolen or embezzled and other proceeds, contesting an officer’s authority by force, or
or fruits of the offense; or waiving his constitutional rights, but instead they
c) Used or intended to be used as the means hold that a peaceful submission and silence of
of committing an offense. the accused in a search or seizure is not a
 It is not necessary that the property to consent or an invitation thereto, but is merely a
be searched or seized should be demonstration of regard to the supremacy of the
owned by the person against whom law.
the search is issued; it is sufficient that
the property is under his control or 3. SEARCH OF MOVING VEHICLE
possession.

EXCEPTIONS TO SEARCH WARRANT In carrying out warrantless searches of moving

REQUIREMENT vehicles, peace officers are limited to routine
checks, that is, the vehicles are neither really
searched nor their occupants subjected to
1. SEARCH INCIDENTAL TO LAWFUL ARREST physical or body searches, the examination of the
vehicles being limited to visual inspection.
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
 167

Warrantless search for moving vehicle is justified 1) prior valid intrusion based on the valid
on the ground that it is not practicable to secure warrantless arrest in which the police are
a warrant because the vehicle can be quickly legally present in the pursuit of their
moved out of the locality or jurisdiction in which official duties;
the warrant must be sought. 2) the evidence was inadvertently discovered
by the police who had the right to be
where they are;
4. CHECK POINTS; BODY CHECKS IN 3) the evidence must be immediately
AIRPORT apparent; and
4) “plain view” justified mere seizure of
A warrantless search conducted at police or evidence without further search.
military checkpoints has been upheld for as long
as the vehicle is neither searched nor its 6. STOP AND FRISK SITUATION
occupants subjected to body search, and the
inspection of the vehicle is merely limited to
visual search. A person who was carrying a bag and acting
suspiciously could be searched by police officers
Routine inspections are not regarded as violative and the unlicensed firearm seized inside the bag
of an individual’s right against unreasonable is admissible in evidence, being an incident of a
search. lawful arrest.

The search is limited to the following instances: A person roaming around in a place where drug
1) where the officer merely draws aside the addicts usually are found, whose eyes were red
curtain of a vacant vehicle which is parked and who was wobbling like a drunk, could be
on the public fair grounds; legally searched of his person and the illegal drug
2) simply looks into a vehicle; seized from him is admissible in evidence against
3) flashes a light therein without opening the him.
car’s doors;
4) where the occupants are not subjected to A stop and frisk serves a two-fold interest:
a physical or body search; a) the general interest of effective criminal
5) where the inspection of the vehicles is protection and detection which underlie
limited to a visual search or visual the recognition that a police officer may,
inspection; and under appropriate circumstances and in
6) where the routine check is conducted in a an appropriate manner, approach a person
fixed area. for purposes of investigating possible
criminal behavior even without probable
cause; and
5. PLAIN VIEW SITUATION b) the more pressing interest of safety and
self-preservation which permit the police
It recognizes that objects inadvertently falling in officer to take steps to assure himself that
plain view of an officer who has the right to be in the person with whom he deals is not
the position to have that view, are subject to armed with a deadly weapon that could
seizure without warrant. unexpectedly and fatally be used against
him.
It is usually applied where a police officer is not
searching for evidence against the accused, but 7. ENFORCEMENT OF CUSTOM LAWS
nonetheless inadvertently comes across an
incriminating object.
The intention is to prevent smuggling and to
It is also been suggested that even if an object is secure the collection of the legal duties, taxes
observed in plain view, the seizure of the subject and other charges.
will not be justified where the incriminating
nature of the object is not apparent; it must be Under the Tariff and Customs Code, Customs
immediately apparent to the police that the items officers are authorized to make arrest, search and
that they observe may be evidence of a crime, seizure of any vessel, aircraft, cargo, articles,
contraband or otherwise subject to seizure. animals or other movable property when the
same is subject to forfeiture or liable for any fine
The elements of “plain view”seizure are: under the customs and tariff laws, rules and
regulations and may at any time enter, pass
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through or search any land or inclosure or any NATURE

warehouse, store or other building without being
a dwelling house. The provisional remedies in civil actions, insofar
as they are applicable, may be availed of in
A dwelling house may be entered or searched connection with the civil action deemed instituted
only upon warrants issued by judge upon sworn with the criminal action.
application showing probable cause and
particularly describing the placed to be searched An application for recovery of damages on the
and person or things to be searched. bond posted for purposes of said provisional
remedies shall be made in the same action and,
generally, cannot be the subject of a separate
8. SEARCHES OF AUTOMOBILES AT
action.
BORDERS OR CONSTRUCTIVE BORDERS
The provisional remedies are proper only where
the civil action for the recovery of civil liability ex
9. SEARCHES OF BUILDINGS AND PREMISES delicto has not been expressly waived or the right
TO ENFORCE FIRE, SANITARY AND to institute such civil action separately is not
BUILDING REGULATIONS reserved, in those cases where such reservation
may be made.

10. EXIGENT AND EMERGENCY KINDS OF PROVISIONAL REMEDIES

CIRCUMSTANCES
ATTACHMENT

11. IN TERMS OF WAR WITHIN THE AREA OF When the civil action is properly instituted in the
MILITARY OPERATION criminal action as provided in Rule 111, the
offended party may have the property of the
accused attached as security for the satisfaction
of any judgment that may be recovered from the
REMEDIES FROM UNLAWFUL SEARCH AND
accused in the following cases:
SEIZURE
1) When the accused is about to abscond
from the Philippines;
A motion to quash a search warrant and/or to
2) When the criminal action is based on a
suppress evidence obtained thereby may be filed
claim for money or property embezzled or
in and acted upon only by the court where the
fraudulently misapplied or converted to
action has been instituted. If no criminal action
the use of the accused who is a public
has been instituted, the motion may be filed in
officer, officer of a corporation, attorney,
and resolved by the court that issued search
factor, broker, agent or clerk, in the course
warrant. However, if such court failed to resolve
of his employment as such, or by any
the motion and a criminal case is subsequently
other person in a fiduciary capacity, or for
filed in another court, the motion shall be
a willful violation of duty;
resolved by the latter court.
3) When the accused has concealed,
removed, or disposed of his property, or is
Alternative remedies of the accused adversely
about to do so; and
affected by a search warrant are the following:
4) When the accused resides outside the
1) Motion to quash the search warrant with
Philippines.
the issuing court; or
2) Motion suppress evidence with the court
 Rule 57 on preliminary attachment applies on
trying the criminal case.
the procedure to secure an attachment in the
cases authorized under Rule 127.
The remedies are alternative, not cumulative. If
the motion to quash is denied, a motion to  At the commencement of the action or at any
suppress cannot be availed of subsequently. time before entry of judgment, a plaintiff or
Replevin may also be proper if the objects are any proper party may have the property of
legally possessed. the adverse party attached as security for the
satisfaction of any judgment that may be
recovered in the following cases:
PROVISIONAL REMEDIES (RULE 127) 1) In an action for the recovery of a
specified amount of money or
damages, other than moral and
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exemplary, on a cause of action arising of to prevent its being found or taken

from law, contract, quasi-contract, by the applicant or an authorized
delict or quasi-delict against a party person;
who is about to depart from the 4) In an action against a party who has
Philippines with intent to defraud his been guilty of a fraud in contracting
creditors; the debt or incurring the obligation
upon which the action is brought, or in
the performance thereof;
5) In an action against a party who has
removed or disposed of his property,
2) In an action for money or property or is about to do so, with intent to
embezzled or fraudulently misapplied defraud his creditors; or
or converted to his own use by a public 6) In an action against a party who does
officer, or an officer or a corporation, not reside and is not found in the
or an attorney, factor, broker, agent, or Philippines, or on whom summons may
clerk, in the course of his employment be served by publication.
as such, or by any other person in a
fiduciary capacity, or for a willful
violation of duty;
3) In an action to recover the possession
of property unjustly or fraudulently
taken, detained or converted, when
the property, or any part thereof, has
been concealed, removed, or disposed

EVIDENCE (Rules 128 – 134)

CONCEPT OF EVIDENCE A matter may also be proved by means of

affidavit, such as in motions based on facts not
Evidence is the means, sanctioned by the Rules appearing on record, in cases covered by the
of Court, of ascertaining in a judicial proceeding Rules on Summary Procedure, and those filed in
the truth respecting a matter of fact. It is only a administrative or quasi-judicial bodies.
means of ascertaining the truth. This truth should SCOPE OF THE RULES OF EVIDENCE
depend upon the evidence submitted in a court in
accordance with the rules. The rules of evidence are guided by the principle
of uniformity. As a general policy, the rules of
Generally, the manner of proving factual evidence shall be the same in all courts and in all
allegations is through witnesses who are placed trials and hearings.
in the witness stand to testify on what they
personally know or to identify relevant EVIDENCE IN CIVIL EVIDENCE IN
documents. They are presented voluntarily or CASES CRIMINAL CASES
through the coercive process of subpoena duces The party having the The guilt of the
tecum. burden of proof must accused has to be
prove his claim by a proven beyond
preponderance of reasonable doubt.
Evidence is also secured by resorting to modes of evidence.
discoveries, such as: An offer of compromise Except in cases of
a) Taking of depositions of any person, oral or is not an admission of criminal negligence or
written (Rule 23); any liability, and is not those allowed by law
b) Serving of interrogatories to parties (Rule admissible in evidence to be compromised,
25); against the offeror. an offer of
c) Serving of requests for admission by the compromise by the
adverse party (Rule 25); accused may be
d) Production and inspection of documents received in evidence
(Rule 27); and as an implied
e) Examination of physical and mental admission of guilt.
conditions of persons (Rule 28). Generally, there is no The accused enjoys
 170
presumption for or the presumption of a) Prospectant collateral matters – those
against a party, except innocence. preceding of the fact in issue but pointing
in some civil cases forward to it, like moral character, motive,
such as in a conspiracy;
contractual suit b) Concomitant collateral matters – those
against the carrier, accompanying the fact in issue and
there exists a pointing to it, like alibi, or opportunity and
presumption against incompatibility;
the defendant. c) Retrospectant collateral matters – those
succeeding the fact in issue but pointing
backward to it, like flight and
EVIDENCE PROOF concealment, behavior of the accused
Medium of proof / Effect and result of upon being arrested, fingerprints or
Means to the end evidence / End result. footprints, articles left at the scene of the
FACTUM FACTUM PROBANS crime which may identify the culprit.
PROBANDUM
Proposition to be Material evidencing MULTIPLE ADMISSIBILITY
established the proposition
There are times when proffered evidence is
admissible for two or more purposes. Sometimes
ADMISSIBILITY OF EVIDENCE it is admissible for one purpose but inadmissible
for another or vice versa. It may also be
Two axioms of admissibility: admissible against one party but not against
a) None but facts having rational probative another. This kind of evidence is to b received
value are admissible (relevance). provided it meets the relevancy and competency
b) All facts having rational probative value tests for which it is offered.
are admissible unless some specific rules
forbid (competence). CONDITIONAL ADMISSIBILITY

ADMISSIBILITY OF WEIGHT OF Evidence which appears to be immaterial is

EVIDENCE EVIDENCE admitted by the court and the proponent may ask
Pertains to the ability of Pertains to the effect that the evidence be conditionally admitted in the
the evidence to be of evidence meantime subject to the condition that he is
allowed and accepted admitted going to establish its relevancy and competency
subject to its relevancy at a later time. If a promise thus made is not
and competence fulfilled, the court may strike out the evidence
thus conditionally admitted, if a motion is made
by the opposite party.
REQUISITES FOR ADMISSIBILITY OF
EVIDENCE CURATIVE ADMISSIBILITY

a) That it is relevant to the issue; and It refers to a situation where incompetent

b) That it is competent, that is, that it does not evidence was erroneously received by the court
belong to that class of evidence which is despite objection from the other party. It will not
excluded by the law or the rules. apply where the evidence was admitted without
objection because of a waiver of the admissibility
RELEVANCE OF EVIDENCE AND of the evidence. So, where the objection was
COLLATERAL MATTERS incorrectly overruled, the court must allow the
other party to introduce evidence to contradict
the evidence improperly admitted. This is reasons
Relevance - evidence must have such a relation
of fairness.
to the fact in issue as to induce belief in its
existence or non-existence.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Collateral matters - evidence on collateral
matters shall not be allowed, except when it DIRECT EVIDENCE is that which proves the fact
tends in any reasonable degree to establish the in dispute without the aid of any inference or
probability or improbability of the fact in issue or presumption. Evidence which if believed proves
to corroborate or supplement facts established the existence of a fact in issue without
previously by direct evidence. interference or presumption.
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CIRCUMSTANTIAL EVIDENCE is the proof of given proposition or issue the evidence to meet
facts from which, taken collectively, the existence by such quantum of the prima facie case
of the particular fact in dispute may be inferred evidence as the law created against him
as a necessary or probable consequence. demands in the case in
which the issue arises.
In a criminal case, circumstantial evidence is It remains with the party It shifts from side to
sufficient for conviction provided the following alleging facts and never side as the trial of
requisites concur: shifts to the other party. the case progresses
1) There is more than one circumstances; He who alleges the
2) The facts from which the inferences are affirmative of the issue
derived are proven; and has the burden of proof,
3) The combination of all the circumstances and the same never
is such as to produce a conviction beyond parts.
reasonable doubt.

POSITIVE AND NEGATIVE EVIDENCE PRESUMPTIONS

 Testimony is positive when the witness affirms A presumption is an assumption of fact resulting
that a fact did or did not exist and is entitled from a rule of law which requires such fact to be
to greater weight. assumed from another fact or group of facts
 It is negative when he says that he did not found or otherwise established in the action. It is
see or know of the factual occurrence. It is not evidence in itself but it is an assumption
considered to be a very weak defense and can resulting from the evidence. They merely affect
never overcome an affirmative or positive the burden of offering evidence. In a sense, it is
testimony particularly when it comes from the an inference which is mandatory unless rebutted.
mouth of a credible witness.
A. CONCLUSIVE PRESUMPTIONS
COMPETENT AND CREDIBLE EVIDENCE (JURIS ET DE JURE)

Competent evidence is one that is not excluded It is conclusive when the presumption becomes
by law or the rules. If the test of relevance is logic irrebuttable upon the presentation of the
and common sense, the test of competence is the evidence tending to rebut the presumption is not
law or the rules. Competence, in relation to admissible. This presumption is in reality a rule of
evidence in general, refers to eligibility of an substantive law. Examples:
evidence to be received as such.
Whenever a party has, by his own declaration,
A witness may be competent, and yet give act, or omission, intentionally and deliberately led
incredible testimony; he may be incompetent, another to believe a particular thing true, and to
and yet his evidence, if received, be perfectly act upon such belief, he cannot, in any litigation
credible. arising out of such declaration, act or omission,
be permitted to falsify it:
COMPETENT CREDIBLE EVIDENCE
EVIDENCE The tenant is not permitted to deny the title of his
Competency is a Credibility concerns landlord at the time of the commencement of the
question which arises the degree of credit to relation of landlord and tenant between them.
before considering the be given to his
evidence given by the testimony;
witness;
Denotes the personal Denotes the veracity of
qualification of the the testimony B. DISPUTABLE PRESUMPTIONS
witness (JURIS TANTUM)

It is disputable or rebuttable or it may be

contradicted or overcome by other evidence.
BURDEN OF PROOF BURDEN OF When evidence that rebuts the presumption is
EVIDENCE introduced, the force of the presumption
Denotes the duty of Means the necessity disappears.
establishing the truth of a of going forward with
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a) That a person is innocent of crime or enforcers have regularly performed their

wrong; duties requires that proof of frame-up; an
b) That an unlawful act was done with an accused who invokes self-defense).
unlawful intent;
c) That a person intends the ordinary This standard should be lower than proof beyond
consequences of his voluntary act; reasonable doubt but higher than preponderance
d) That a person takes ordinary care of his of evidence.
concerns;
e) That evidence willfully suppressed would C. PREPONDERANCE OF EVIDENCE
be adverse if produced (Rule 131, Sec 3).
 required in civil cases
LIBERAL CONSTRUCTION OF THE RULES OF  that which is of greater weight or more
EVIDENCE convincing than that which is offered in
opposition to it; synonymous with the terms
The rules of evidence must be liberally construed. “greater weight of evidence” or “greater
Rules of procedure are mere tools intended to weight of credible evidence.” It means
facilitate rather than to frustrate the attainment probably the truth. It is evidence which is
of justice. A strict and rigid application of the more convincing to the court as worthy of
rules must always be eschewed if it would belief than that which is offered in opposition
subvert their primary objective of enhancing thereto.
substantial justice. It means that the words
should receive a fair and reasonable D. SUBSTANTIAL EVIDENCE
interpretation, so as to secure a just, speedy and
inexpensive disposition of every action or
 required in administrative proceedings or
proceeding.
quasi-judicial bodies
 such relevant evidence as a reasonable mind
QUANTUM OF EVIDENCE (WEIGHT AND might accept as adequate to support a
SUFFICIENCY OF EVIDENCE [RULE 133]) conclusion
 more than a scintilla but may be somewhat
A. PROOF BEYOND REASONABLE DOUBT less than preponderance, even if other
reasonable minds might conceivably opine
otherwise. (SC said that in administrative
 required for conviction of an accused in cases against judges/sherrifs are highly penal
criminal case in nature and requires proof beyond
 the logical and inevitable result of the reasonable doubt).
evidence on record, exclusive of any other
consideration, of the moral certainty of the
guilt of the accused or that degree of proof JUDICIAL NOTICE AND JUDICIAL
which produces conviction in an unprejudiced ADMISSIONS
mind. It does not mean such degree of proof
as, excluding possibility of error, produces MATTERS OF JUDICIAL NOTICE
absolute certainty. Moral certainty only is
required. There are matters which must be admitted
without need for evidence. All these matters
B. CLEAR AND CONVINCING EVIDENCE which the court may take cognizance of without
evidence are called matters of “judicial notice”.
 that measure or degree of proof which will
produce in the mind of the trier of facts a firm The function of judicial notice is to abbreviate
belief or conviction as to the allegations litigation by the admission of matters that need
sought to be established. no evidence. It takes the place of proof and is of
 it is more than preponderance but not to the equal force. It displaces evidence and fulfils the
extent of such moral certainty as is required purpose for which the evidence is designed to
beyond reasonable doubt as in criminal cases. fulfil.
It is often said that to overcome a disputable
presumption of law, clear and convincing a. MANDATORY – when the matter is subject to
evidence is required (use to contradict the a mandatory judicial notice, no motion of hearing
presumption of validity and regularity in favor is necessary for the court to take judicial notice of
of a notarial or public document; the law a fact. These are:
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a) the existence and territorial extent of

states; An admission, verbal or written, made by a party
b) the political history, forms of government in the course of the proceedings in the same
and symbols of nationality of states; case, does not require proof. Under Sec. 4, Rule
c) the law of nations; 129, the following are the effects of judicial
d) the admiralty and maritime courts of the admissions:
world and their seals; 1) They do not require proof; and
e) the political constitution and history of the 2) They cannot be contradicted because they
Philippines; are conclusive upon the party making it.
f) the official acts of the legislative,
executive and judicial departments of the HOW JUDICIAL ADMISSIONS MAY BE
Philippines; CONTRADICTED
g) the laws of nature;
h) the measure of time; and Judicial admissions can be contradicted:
i) the geographical divisions. 1) That it was made through palpable
mistake; or
b. DISCRETIONARY - A court may take judicial 2) No such admission was in fact made.
notice of matters: These exceptions may negate the
a) which are of public knowledge; or admission. But before the court may allow
b) capable of unquestionable demonstration; a party to relieve him of the effects of
or admissions or to withdraw therefrom, he
c) ought to be known to judges because of has to show, by proper motion, justifiable
their judicial functions. reason or palpable mistake.

The principles of discretionary judicial notice will JUDICIAL NOTICE OF FOREIGN LAWS, LAW
apply here the following requisites are met: OF NATIONS AND MUNICIPAL ORDINANCE
a) The matter must be of common
knowledge; Foreign laws may not be taken judicial notice of
b) The matter must be settled beyond and have to be proven like any other fact by an
reasonable doubt (if there is nay official publication or by a duly attested and
uncertainty about the matter, then authenticated copy thereof. It must be alleged
evidence must be adduced); and and proved. The provisions of the foreign law
c) The knowledge must exist within the may also be the subject of judicial admission
jurisdiction of the court. under Sec. 4, Rule 129. Absent any of the
foregoing evidence or admission, the foreign law
JUDICIAL ADMISSIONS is presumed to the same as that in the
Philippines, under the so-called doctrine of
Judicial admissions are conclusive upon the party processual presumption.
making them, while extrajudicial admissions or
other admissions are, as a rule, and where the However, the court may take judicial notice of the
elements of estoppels are not present, disputable treatise containing the foreign law.
and needs to be formally offered in evidence.
Law of nations is subject to mandatory judicial
Declaration of a party favorable to himself are not notice under Sec. 1, Rule 129. Under the
admissible as proof of the facts asserted. Philippine Constitution, the Philippines adopts the
generally accepted principles of international law
They may be express or implied, implied as part of the law of the land. They are therefore
admissions by a defendant of material facts technically in the nature of local laws and hence,
alleged in a complaint include are subject to a mandatory judicial notice.
1) keeping silent on such material facts,
2) denying such material facts without MTCs must take judicial notice of municipal
setting forth the matters upon which he ordinances in force in the municipality in which
relies to support his denial, and they sit.
3) asserting lack of knowledge or information
of the truth of the material allegations RTCs should also take judicial notice of municipal
when the same is plainly and necessarily ordinances in force in the municipalities within
within the knowledge of defendant. their jurisdiction but only when so required by
law. (i.e. the charter of City of Manila requires all
EFFECT OF JUDICIAL ADMISSIONS courts sitting therein to take judicial notice of all
 174

ordinances passed by the city council.) Such b) Objects Made Unique - Objects that are
court must take judicial notice also of municipal made readily identifiable (like a typical
ordinances on appeal to it from the inferior court knife, witness may identify by placing
in which the latter took judicial. marks on it); and
c) Non-Unique Objects - Objects with no
The CA may take judicial notice of municipal identifying marks and cannot be marked
ordinances because nothing in the Rules prohibits (like drop of blood, oil, and drugs, the
it from taking cognizance of an ordinance which is proponent must establish a chain of
capable of unquestionable demonstration. custody).

DEMONSTRATIVE EVIDENCE
RULES OF ADMISSIBILITY (RULE 130)
Demonstrative evidence is tangible evidence that
OBJECT (REAL) EVIDENCE; NATURE OF merely illustrates a matter of importance in the
OBJECT EVIDENCE litigation. Common types of demonstrative
evidence include photographs, motion pictures
 Objects as evidence are those addressed to and recordings, x-ray pictures, scientific tests,
the senses of the court. When an object is demonstrations and experiments, maps,
relevant to the fact in issue, it may be diagrams, models, summaries, and other
exhibited to, examined or viewed by the materials created especially for the litigation.
court.
 Real evidence is also called autoptic In contrast to demonstrative evidence, object
preference, which is inspection by the court of evidence is a tangible object that played some
a thing itself and its conditions, to enable the actual role in the matter that gave rise to the
court to effectively exercise its judicial power litigation. For instance, the knife used in the
of receiving and weighing the evidence. It is altercation that forms the basis for the lawsuit.
knowledge acquired by the court from
inspection or by direct self-perception or The foundation for demonstrative evidence does
autopsy of the evidence. not involve showing that the object was the one
 Physical evidence is evidence of the highest used in the underlying event. Rather, the
order. It speaks more eloquently than a foundation generally involves showing that the
hundred witnesses. demonstrative object fairly represents or
illustrates what it is alleged to illustrate.
REQUISITES FOR ADMISSIBILITY OF (REAL)
EVIDENCE VIEW OF AN OBJECT OR SCENE

a) The object must be relevant to the fact in The inspection may be made inside or outside the
issue (to be relevant, the evidence must courtroom. An inspection or view outside the
have a relationship to the fact in issue); courtroom should be made in the presence of the
b) The object must be competent (must not parties or at least with previous notice to them. It
be excluded by the rules); is error for the judge for example, to go alone to
c) The object must be authenticated before it the land in question, or to the place where the
is admitted (it must be shown that it is the crime was committed and take a view without the
very thing which is the subject matter of previous knowledge of the parties. Such
the suit); inspection or view is part of the trial since
d) The authentication must be made by a evidence is thereby being received.
competent witness; and
e) The object must be formally offered in CHAIN OF CUSTODY IN RELATION TO
evidence. SECTION 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002
CATEGORIES OF OBJECT EVIDENCE
The purpose of chain of custody is to guaranty
For purposes of authentication of an object or for the integrity of the physical evidence and to
laying the foundation for the exhibit, object prevent the introduction of evidence which is not
evidence may be classified into the following: authentic.
a) Unique Objects - Object that have readily
identifiable marks (like serial number of a The PDEA shall take charge and have custody of
calibre 45 pistol); all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential
 175

chemicals, as well as instruments/paraphernalia 7) After the promulgation and judgment in

and/or laboratory equipment so confiscated, the criminal case wherein the
seized and/or surrendered, for proper disposition representative sample/s was presented as
in the following manner: evidence in court, the trial prosecutor shall
1) The apprehending team having initial inform the Board of the final termination of
custody and control of the drugs shall, the case and, in turn, shall request the
immediately after seizure and court for leave to turn over the said
confiscation, physically inventory and representative sample/s to the PDEA for
photograph the same in the presence of proper disposition and destruction within
the accused and any elected public official 24 hours from receipt of the same.
who shall be required to sign the copies of
the inventory and be given a copy thereof;
2) Within 24 hours upon confiscation/seizure,
RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-
the same shall be submitted to the PDEA
SC)
Forensic Laboratory for a qualitative and
quantitative examination;
3) A certification of the forensic laboratory Notes:
examination results, which shall be done  DNA report is a documentary evidence
under oath by the forensic laboratory  DNA testing order is executory, unless
examiner, shall be issued within 24 hours there is an injunction
after the receipt of the subject item/s;  The Rule on DNA Evidence is the primary
4) After the filing of the criminal case, the rule to be applied whenever DNA evidence
Court shall, within 72 hours, conduct an is offered, used or proposed to be offered
ocular inspection of the confiscated, or used as evidence in criminal and civil
seized and/or surrendered dangerous actions and special proceedings.
drugs, plant sources of dangerous drugs,
and controlled precursors and essential MEANING OF DNA
chemicals, including the instruments/
paraphernalia and/or laboratory
DNA means deoxyribonucleic acid, which is the
equipment, and through the PDEA shall
chain of molecules found in every nucleated cell
within 24 hours thereafter proceed with
of the body. The totality of an individual’s DNA is
the destruction or burning of the same, in
unique for the individual, except identical twins.
the presence of the accused or the
person/s from whom such items were
DNA evidence constitutes the totality of the DNA
confiscated and/or seized, or his/her
profiles, results and other genetic information
representative or counsel, a
directly generated from DNA testing of biological
representative from the media and the
samples.
DOJ, civil society groups and any elected
public official.
DNA profile means genetic information derived
5) The Board shall then issue a sworn
from DNA testing of a biological sample obtained
certification as to the fact of destruction or
from a person, which biological sample is clearly
burning of the subject item/s which,
identifiable as originating from that person;
together with the representative sample/s
in the custody of the PDEA, shall be
DNA testing means verified and credible
submitted to the court having jurisdiction
scientific methods which include the extraction of
over the case; and
DNA from biological samples, the generation of
6) The alleged offender or his/her
DNA profiles and the comparison of the
representative or counsel shall be allowed
information obtained from the DNA testing of
to personally observe all of the above
biological samples for the purpose of
proceedings and his/her presence shall not
determining, with reasonable certainty, whether
constitute an admission of guilt. In case
or not the DNA obtained from two or more
the said offender or accused refuses or
distinct biological samples originates from the
fails to appoint a representative after due
same person (direct identification) of if the
notice in writing to the accused or his/her
biological samples originate from related persons
counsel within 71 hours before the actual
(kinship analysis).
burning or destruction or the evidence in
question, the SOJ shall appoint a member
of the PAO to represent the former; APPLICATION FOR DNA TESTING ORDER
 176

The appropriate court may, at any time, either The following are the guidelines to be used in
motu propio or on application of any person who assessing the probative value of the DNA
has a legal interest in the matter in litigation, evidence:
order a DNA testing. Such order shall issue after a) How the samples were collected;
due hearing and notice to the parties upon a b) How they were handled;
showing of the following: c) The possibility of contamination of the
a) A biological sample exists that is relevant samples;
to the case; d) The procedure followed in analyzing the
b) The biological sample: samples;
1) Was not previously subjected to the e) Whether the proper standards and
type of DNA testing now requested; procedures were followed in conducting
or the tests; and
2) Was previously subjected to DNA f) The qualification of the analyst who
testing but the results may require conducted the test.
confirmation for good reasons;
c) The DNA testing uses a scientifically valid The determination of the probative value of the
technique; DNA evidence rests upon the sound judicial
d) The DNA testing has the scientific assessment taking into considerations the
potential to produce new information that following matters:
is relevant to the proper resolution of the a) The chair of custody, including how the
case; and biological samples were collected, how
e) The existence of other factors, if any, they were handled, and the possibility of
which the court may consider as contamination of the samples;
potentially affecting the accuracy of b) The DNA testing methodology, including
integrity of the DNA testing. the procedure followed in analyzing the
samples, the advantages and
This rule shall not preclude a DNA testing, without disadvantages of the procedure, and
need of prior court order, at the behest of any compliance with the scientifically valid
party, including law enforcement agencies, before standards in conducting the tests;
a suit or proceeding is commenced. c) The forensic DNA laboratory, including
accreditation by any reputable standards-
POST-CONVICTION DNA TESTING; REMEDY setting institution and the qualification of
the analyst who conducted the tests. If the
Post-conviction DNA testing may be available, laboratory is not accredited, the relevant
without need of prior court order, to the experience of the laboratory in forensic
prosecution or any person convicted by final and casework and credibility shall be properly
executory judgment provided that established; and
a) a biological sample exists, d) The reliability of the testing result, as
b) such sample is relevant to the case, herein after provided.
and
c) the testing would probably result in the The provisions of the Rules of Court concerning
reversal or modification of the the appreciation of evidence shall apply
judgment of conviction. suppletorily.

Remedy - The convict or the prosecution may file RULES ON EVALUATION OF RELIABILITY OF
for a writ of habeas corpus in the court of origin if THE DNA TESTING METHODOLOGY
he results of the post-conviction DNA testing are
favorable to the convict. In case the court, after In evaluating whether the DNA testing
due hearing finds the petition to be meritorious, it methodology is reliable, the court shall consider
shall reverse or modify the judgment of the following:
conviction and order the release of the convict, a) The falsifiability of the principles or
unless continued detention is justified for a lawful methods used, that is, whether the theory
cause. or technique can be and has been tested;
b) The subjection to peer review and
ASSESSMENT OF PROBATIVE VALUE OF publication of the principles or methods;
DNA EVIDENCE AND ADMISSIBILITY c) The general acceptance of the principles
or methods by the relevant scientific
community;
 177

d) The existence and maintenance of existence and accessible. The underlying purpose
standards and controls to ensure the is the prevention of fraud.
correctness of data generated;
e) The existence of an appropriate reference WHEN APPLICABLE
population database; and
f) The general degree of confidence When the subject of inquiry is the contents of a
attributed to mathematical calculations document, no evidence shall be admissible other
used in comparing DNA profiles and the than the original document itself, except in the
significance and limitation of statistical following cases:
calculations used in comparing DNA a) When the original has been lost or
profiles. destroyed, or cannot be produced in court,
without bad faith on the part of the
DOCUMENTARY EVIDENCE offeror;
b) When the original is in the custody or
Documentary evidence is evidence supplied by under the control of the party against
written instruments, or derived from conventional whom the evidence is offered, and the
symbols, such as letters, by which ideas are latter fails to produce it after reasonable
represented on material substances; documents notice;
produced for the inspection of the court or judge. c) When the original consists of numerous
It includes books, papers accounts and the like. accounts or other documents which
cannot be examined in court without great
Documents as evidence consist of writing or any loss of time and the fact sought to be
material (not only writing) containing letters, established from them is only the general
words, numbers, figures, symbols or other modes result of the whole; and
of written expressions offered as proof of their d) When the original is a public record in the
contents. custody of a public officer or is recorded in
a public office.
REQUISITES FOR ADMISSIBILITY  It applies only to documentary evidence.

a) The document must be relevant to the fact MEANING OF ORIGINAL

in issue
b) The document must be competent The original does not necessarily mean the one
c) The document must be authenticated first written; its meaning is relative only to the
before it is admitted particular issue. The original is the document
d) The authentication must be made by a whose contents are to be proved.
competent witness; and
e) The document must be formally offered in Sec. 4, Rule 130 has clarified what constitutes the
evidence. original of a document:
a) The original of a document is one the
BEST EVIDENCE RULE contents of which are the subject of
inquiry;
MEANING OF THE RULE b) When a document is in two or more copies
executed at or about the same time, with
It requires the highest grade of evidence identical contents, all such copies are
obtainable to prove a disputed fact. It cannot be equally regarded as originals; and
invoked unless the contents of writing is the c) When an entry is repeated in the regular
subject of judicial inquiry , in which case the course of business, one being copied from
best evidence is the original writing itself. another at or near the time of the
transaction, all the entries are likewise
The best evidence refers to that which the law or equally regarded as originals.
the rules consider as the best evidence to prove
the fact in dispute. The best evidence is the REQUISITES FOR INTRODUCTION OF
evidence which the case in its nature is SECONDARY EVIDENCE
susceptible and which is within the power of the
party to produce. Evidence cannot be received The offeror must satisfy first the requirements for
which indicates on its face that it is secondary, laying the basis for the presentation of secondary
that is, merely substitutionary in its nature, and evidence. Laying the basis involves explaining to
that the original source of information is in the satisfaction of the court the reason for the
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inability to offer the original of the document, in  Electronic data message refers to information
the following: generated, sent, received or stored by
1) The execution or existence of the original; electronic, optical or similar means.
2) The loss and destruction of the original or  Electronic documents as functional equivalent
its nonproduction in court; of paper-based documents. Whenever a rule
3) Unavailability of the original is not due to of evidence to the term of writing, document,
bad faith on the part of the offeror. record, instrument, memorandum or any
other form of writing, such term shall be
If the offeror has successfully laid the basis for deemed to include an electronic document.
the presentation of the secondary evidence, then
the original need not be presented. However, one Electronic document refers to information or
must observe the order in which the secondary the representation of information, data, figures,
evidence is to be offered. This is because not symbols or other modes of written expression,
every secondary evidence can be offered. The described or however represented, by which a
following order must therefore, be observed: right is established or an obligation extinguished,
a) A copy of the original; or by which a fact may be proved and affirmed,
b) If there is no copy, then a recital of its which is received, recorded, transmitted, stored,
contents in some authentic document; processed, retrieved or produced electronically. It
c) In default of hereof, by the testimony of includes digitally signed documents and any
witnesses in the order stated. print-out or output, readable by sight or other
means, which accurately reflects the electronic
When original document is unavailable - data message or electronic document.
When the original document has been lost or  The term “electronic document” may be
destroyed, or cannot be produced in court, the used interchangeably with electronic data
offeror, upon proof of its execution or existence message.
and the cause of its unavailability without bad
faith on his part, may prove its contents by a PROBATIVE VALUE OF ELECTRONIC
copy, or by a recital of its contents in some DOCUMENTS OR EVIDENTIARY WEIGHT;
authentic document, or by the testimony of METHOD OF PROOF
witnesses in the order stated.
An electronic document is admissible in evidence
When original document is in adverse if it complies with the rules on admissibility
party's custody or control - If the document is prescribed by the Rules and related laws and is
in the custody or under the control of the adverse authenticated in the manner prescribed by the
party, he must have reasonable notice to produce Rules on Electronic Evidence.
it. If after such notice and after satisfactory proof
of its existence, he fails to produce the document, In assessing the evidentiary weight of an
secondary evidence may be presented as in the electronic document, the following factors may be
case of its loss. considered:
a) The reliability of the manner or method in
Evidence admissible when original which it was generated, stored or
document is a public record - When the communicated, including but not limited
original of a document is in the custody of a to input and output procedures, controls,
public officer or is recorded in a public office, its tests and checks for accuracy and
contents may be proved by a certified copy reliability of the electronic data message
issued by the public officer in custody thereof. or document, in the light of all the
circumstances as well as any relevant
agreement;
RULES ON ELECTRONIC EVIDENCE b) The reliability of the manner in which its
A.M. NO. 01-7-01-SC) originator was identified;
c) The integrity of the information and
communication system in which it is
recorded or stored, including but not
MEANING OF ELECTRONIC EVIDENCE; limited to the hardware and computer
ELECTRONIC DATA MASSAGE programs or software used as well as
programming errors;
 Electronic evidence is that which use of d) The familiarity of the witness or the
electronic data message as evidence. person who made the entry with the
communication and information system;
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e) The nature and quality of the information functional equivalent of the signature or a person
which went into the communication and on a written document.
information system upon which the
electronic data message or electronic An electronic signature may be authenticated in
document was based; or any of the following manners:
f) Other factors which the court may a) By evidence that a method or process was
consider as affecting the accuracy or utilized to establish a digital signature and
integrity of the electronic document or verify the same;
electronic data message. b) By any other means provided by law; or
c) By any other means satisfactory to the
METHOD OF PROOF: affidavit of evidence - judge as establishing the genuineness of
All matters relating to the admissibility and the electronic signature.
evidentiary weight of an electronic document
may be established by an affidavit stating facts of Upon the authentication of an electronic
direct personal knowledge of the affiant or based signature, it shall be presumed that:
on authentic records. The affidavit must a) The electronic signature is that of the
affirmatively show the competence of the affiant person to whom it correlates;
to testify on the matters contained therein. b) The electronic signature was affixed by
that person with the intention of
METHOD OF PROOF: cross-examination of authenticating or approving the electronic
deponent - The affiant shall be made to affirm document to which it is related or to
the contents of the affidavit in open court and indicate such person‘s consent to the
may be cross-examined as a matter of right by transaction embodied therein; and
the adverse party. c) The methods or processes utilized to affix
or verify the electronic signature without
AUTHENTICATION OF ELECTRONIC error or fault.
DOCUMENTS AND ELECTRONIC
SIGNATURES Upon the authentication of a digital signature,
it shall be presumed, in addition to those
The person seeking to introduce an electronic mentioned in the immediately preceding
document in any legal proceeding has the burden section, that:
of proving its authenticity. a) The information contained in a
certificate is correct;
Before any private electronic document offered as b) The digital signature was created
authentic is received in evidence, its authenticity during the operational period of a
must be proved by any of the following means: certificate;
a) By evidence that it had been digitally c) The message associated with a digital
signed by the person purported to have signature has not been altered from
signed the same; the time it was signed; and
b) By evidence that other appropriate d) A certificate had been issued by the
security procedures or devices as may be certification authority indicated
authorized by the Supreme Court or by therein.
law for authentication of electronic
documents were applied to the document; ELECTRONIC DOCUMENTS AND THE
or HEARSAY RULE
c) By other evidence showing its integrity
and reliability to the satisfaction of the An electronic document shall be regarded as the
judge. equivalent of an original document under the
Best Evidence Rule if it is a printout or output
A document electronically notarized in readable by sight or other means, shown to
accordance with the rules promulgated by the reflect the data accurately.
Supreme Court shall be considered as a public
document and proved as a notarial document When a document is in two or more copies
under the Rules of Court. executed at or about the same time with identical
contents, or is a counterpart produced by the
An electronic signature or a digital signature same impression as the original, or from the
authenticated in the manner prescribed same matrix, or by mechanical or electronic re-
hereunder is inadmissible in evidence as the recording, or by chemical reproduction, or by
other equivalent techniques which accurately
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reproduces the original, such copies or duplicates communication the evidence of which is not
shall be regarded as the equivalent of the recorded or retained.
original.

Notwithstanding the foregoing, copies or

PAROL EVIDENCE RULE (RULE 130)
duplicates shall not be admissible to the same
extent as the original if:
a) A genuine question is raised as to the APPLICATION OF THE PAROL EVIDENCE
authenticity of the original; or RULE
b) In the circumstances it would be unjust or
inequitable to admit a copy in lieu of the When the terms of an agreement have been
original. reduced to writing, it is considered as containing
all the terms agreed upon, and there can be
A memorandum, report, record or data between the parties and their successors in
compilation of acts, events, conditions, opinions, interest, no evidence of such terms other than
or diagnoses, made by electronic, optical or other the contents of the written agreement.
similar means at or near the time of or from
transmission or supply of regular course of It seeks to preserve what the parties have
conduct of a business activity, and such was the reduced in writing and prohibits evidence alliunde
regular practice to make the memorandum, or oral testimonial evidence from being presented
report, record, or data compilation by electronic, to vary the terms of, or add stipulations to, the
optical or similar means, all of which are shown written agreement. In other words, any oral
by the testimony of the custodian or other evidence of an agreement should be excluded
qualified witnesses, is excepted from the rule on when the existing agreement is already in writing.
hearsay evidence.
Oral testimony cannot prevail over a written
The presumption may be overcome by evidence agreement of the parties, the purpose being to
of the untrustworthiness of the source of give stability to written agreements and to
information of the method or circumstances of remove the temptation and possibility of perjury,
the preparation, transmission or storage thereof. which would be afforded if parol evidence were
admissible.
AUDIO, PHOTOGRAPHIC, VIDEO AND
EPHEMERAL EVIDENCE The rule is based on the presumption that the
parties have made the written instrument the
Audio, photographic and video evidence of only repository and memorial of the truth and
events, acts or transactions shall be admissible whatever is not found in the instrument must
provided it shall be shown, presented or have been waived and abandoned by the parties.
displayed to the court and shall be identified, Hence, parol evidence cannot serve the purpose
explained or authenticated by the person who of incorporation into the contract additional
made the recording or by some other person contemporaneous conditions which are not
competent to testify on the accuracy thereof. mentioned at all in the writing, unless the case
falls under any of the exceptions to the rule.
Ephemeral electronic communications shall be
proven by the testimony of a person who was a WHEN PAROLE EVIDENCE CAN BE
party to the same or has personal knowledge INTRODUCED
thereof. In the absence or unavailability of such
witnesses, other competent evidence may be Introducing parol evidence means offering
admitted. extrinsic or extraneous evidence that would
modify, explain or add to the terms of the written
If the foregoing communications are recorded or agreement. Parol evidence can be introduced as
embodied in an electronic document, then the long as the pleader puts in issue in the pleading
provisions of Rule 5 (authentication of electronic any of the matters set forth in the rule such as:
documents) shall apply. a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
Ephemeral electronic communication refers to b) The failure of the written agreement to
telephone conversations, text messages, express the true intent and agreement of
chatroom sessions, streaming audio, streaming the parties thereto;
video, and other electronic forms of c) The validity of the written agreement; or
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d) The existence of other terms agreed to by a) The written official acts, or records of the
the parties or their successors in interest official acts of the sovereign authority,
after the execution of the written official bodies and tribunals, and public
agreement. officers, whether of the Philippines, or of a
 The terms "agreement" includes wills. foreign country;
b) Documents acknowledge before a notary
BEST EVIDENCE PAROL EVIDENCE public except last wills and testaments;
RULE RULE and
The issue is contents There is no issue as to c) Public records, kept in the Philippines, of
of a writing. contents of a writing. private documents required by law to the
Secondary evidence The purpose for the offer entered therein.
is offered to prove of parol evidence is to All other writings are private. (20a)
the contents of a change, vary, modify,
writing, which is not qualify, or contradict the WHEN A PRIVATE WRITING REQUIRES
allowed unless the terms of a complete AUTHENTICATION; PROOF OF A PRIVATE
case falls under any written agreement, WRITING
of the exceptions. which is not allowed
unless the case falls A private writing is not self-authenticating. It
under any of the requires proof of their due execution and
exceptions. authentication before they can be received in
Establishes Not concerned with the evidence. The due execution and authenticity
preference for the primacy of evidence but must be proved either:
original document presupposes that the a) By anyone who saw the document
over a secondary original is available. executed or written; or
evidence thereof. b) By evidence of the genuineness of the
Precludes the Precludes the admission signature or handwriting of the maker
admission of of other evidence to
secondary evidence prove the terms of a Any other private document need only be
if the original document other than the identified as that which it is claimed to be.
document is contents of the
available. document itself. WHEN EVIDENCE OF AUTHENTICITY OF A
Can be invoked by Can be invoked only be PRIVATE WRITING IS NOT REQUIRED
any litigant to an the parties to the (ANCIENT DOCUMENTS)
action whether or document and their
not said litigant is a successors in interest. 1) When the genuineness and due execution
party to the of the document is admitted by the
document involved. adverse party;
Applies to all forms Applies to written 2) When such genuineness and due
of writing. agreements (contracts) execution are immaterial to the issue;
and wills. 3) When the document is an ancient
document.

REQUISITE OF AN ANCIENT DOCUMENT

AUTHENTICATION AND PROOF OF
DOCUMENTS (RULE 132)
1) More than thirty (30) years old;
2) Found in the proper custody;
MEANING OF AUTHENTICATION - 3) Unblemished by any alteration or by any
Authentication is the process of evidencing the circumstance of suspicion; and
due execution and genuineness of a document. 4) It must on its face appear to be genuine.
Evidence when presented in court is not
presumed authentic. The general rule therefore is HOW TO PROVE GENUINENESS OF A
to prove its authenticity unless it is self- HANDWRITING
authenticating.
The handwriting of a person may be proved by:
PUBLIC VERSUS PRIVATE DOCUMENTS
a) any witness who believes it to be the
handwriting of such person because he
For the purpose of their presentation evidence, has seen the person write, or
documents are either public or private. Public
documents are:
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b) has seen writing purporting to be his upon certificate that such officer has the
which the witness has acted or been custody.
charged, and has thus acquired knowledge
of the handwriting of such person. If the office in which the record is kept is in a
foreign country, the certificate may be made by a
Evidence respecting the handwriting may also be secretary of the embassy or legation, consul
given by a comparison, made by the witness or general, consul, vice consul, or consular agent or
the court, with writings admitted or treated as by any officer in the foreign service of the
genuine by the party against whom the evidence Philippines stationed in the foreign country in
is offered, or proved to be genuine to the which the record is kept, and authenticated by
satisfaction of the judge. the seal of his office.

 Note: The identification of handwriting should ATTESTATION OF A COPY

not rest, therefore, on the apparent similarity
or dissimilarity of one feature but should be Whenever a copy of a document or record is
based on the examination of all the basic attested for the purpose of evidence, the
characteristics of the handwriting under study. attestation must state, in substance, that the
copy is a correct copy of the original, or a specific
PUBLIC DOCUMENTS AS EVIDENCE part thereof, as the case may be. The attestation
must be under the official seal of the attesting
Public documents are: officer, if there be any, or if he be the clerk of a
a) The written official acts, or records of the court having a seal, under the seal of such court.
official acts of the sovereign authority,
official bodies and tribunals, and public PUBLIC RECORD OF A PRIVATE DOCUMENT
officers, whether of the Philippines, or of a
foreign country; An authorized public record of a private
b) Documents acknowledged before a notary document may be proved by the original record,
public except last wills and testaments; or by a copy thereof, attested by the legal
and custodian of the record, with an appropriate
c) Public records, kept in the Philippines, of certificate that such officer has the custody.
private documents required by law to be
entered therein. PROOF OF LACK OF RECORD

Public documents are of two classes: A written statement signed by an officer having
a) Those issued by competent public officials the custody of an official record or by his deputy
by reason of their office, and that after diligent search no record or entry of a
b) Those executed by private individuals specified tenor is found to exist in the records of
which are authenticated by notaries his office, accompanied by a certificate as above
public. provided, is admissible as evidence that the
records of his office contain no such record or
Documents consisting of entries in public records entry.
made in the performance of a duty by a public
officer are prima facie evidence of the facts HOW A JUDICIAL RECORD IS IMPEACHED
therein stated. All other public documents are
evidence, even against a third person, of the fact Any judicial record may be impeached by
which gave rise to their execution and of the date evidence of:
of the latter. a) want of jurisdiction in the court or judicial
officer,
PROOF OF OFFICIAL RECORD b) collusion between the parties, or
c) fraud in the party offering the record, in
The record of public documents (official acts), respect to the proceedings
when admissible for any purpose, may be  which must be clear, convincing and more
evidenced than merely preponderant, in order to
a) by an official publication thereof or overcome the presumption of regularity in the
b) by a copy attested by the officer having performance of official duties and the
the legal custody of the record, or by his presumption of regularity of judicial
deputy, and accompanied, if the record is proceedings, and the burden of proof lies on
not kept in the Philippines, with a the part of the party who challenges the
validity of judicial records.
 183

PROOF OF NOTARIAL DOCUMENTS  Loss of the perceptive sense after the

occurrence of the fact does not affect the
A document acknowledged before a notary public admissibility of the testimony.
becomes a public instrument and renders it
admissible in court without further proof of its  A blind man can testify to what he saw prior
authenticity. to his blindness or a deaf man, to what he
heard prior to his deafness. But a person
HOW TO EXPLAIN ALTERATIONS IN A incapable of perception is pro tanto incapable
DOCUMENT of testifying.

The party producing a document as genuine  A witness may have been capable of
which has been altered and appears to have been perceiving, yet incapable of narration. He may
altered after its execution, in a part material to have no powers of speech, and have no
the question in dispute, must account for the means of expressing himself by signs. He may
alteration. have become insane since the occurrence he
is called upon to relate. A person incapable of
He may show that the alteration was made by narration is pro tanto incapable of testifying.
another, without his concurrence, or was made
with the consent of the parties affected by it, or COMPETENCY VERSUS CREDIBILITY
was otherwise properly or innocently made, or OF A WITNESS
that the alteration did not change the meaning or
language of the instrument. If he fails to do that Competency of a witness refers to the basic
the document shall not be admissible in qualifications of a witness as his capacity to
evidence. perceive and to communicate the same to others.
It also includes the absence of any of the
DOCUMENTARY EVIDENCE IN AN disqualifications imposed upon a witness.
UNOFFICIAL LANGUAGE
Credibility of the witness refers to the
Documents written in an unofficial language shall believability of the witness and has nothing to do
not be admitted as evidence, unless with the law or the rules. It refers to the weight
accompanied with a translation into English or and the trustworthiness or reliability of the
Filipino. To avoid interruption of proceedings, testimony.
parties or their attorneys are directed to have
such translation prepared before trial. DISQUALIFICATIONS OF WITNESSES

ABSOLUTE DISQUALIFICATION
TESTIMONIAL EVIDENCE
a) Those who cannot perceive.
QUALIFICATIONS OF A WITNESS b) Those who can perceive but cannot make
their perception known.
A prospective witness must show that he has the c) Mentally incapacity – Those whose
following abilities: mental condition, at the time of their
1) To Observe – the testimonial quality of production for examination, is such that
perception they are incapable of intelligently making
2) To Remember – the testimonial quality of known their perception to others.
memory d) Mentally immaturity – Children whose
3) To Relate – the testimonial quality of mental maturity is such as to render them
narration incapable of perceiving the facts
4) To Recognize a duty to tell the truth – the respecting which they are examined and
testimonial quality of sincerity. of relating them truthfully.
e) Marital disqualification – During their
 All persons who can perceive, and perceiving, marriage, neither the husband nor the
can make known their perception to others, wife may testify for or against the other
may be witnesses. Religious or political belief, without the consent of the affected
interest in the outcome of the case, or spouse, except in a civil case by one
conviction of a crime unless otherwise against the other, or in a criminal case for
provided by law, shall not be a ground for a crime committed by one against the
disqualification.
 184

other or the latter's direct descendants or enable him to act in that capacity,
ascendants. and which would blacken the
f) Parental and filial privilege -- No person reputation of the patient;
may be compelled to testify against his 4. A minister or priest cannot, without
parents, other direct ascendants, children the consent of the person making
or other direct descendants. the confession, be examined as to
any confession made to or any
RELATIVE DISQUALIFICATION advice given by him in his
professional character in the
(a) DEAD MAN’S STATUTE – Parties or course of discipline enjoined by the
assignors of parties to a case, or persons church to which the minister or
in whose behalf a case is prosecuted, priest belongs;
against an executor or administrator or 5. A public officer cannot be
other representative of a deceased examined during his term of office
person, or against a person of unsound or afterwards, as to
mind, upon a claim or demand against the communications made to him in
estate of such deceased person or against official confidence, when the court
such person of unsound mind, cannot finds that the public interest would
testify as to any matter of fact occurring suffer by the disclosure.
before the death of such deceased person
or before such person became of unsound (c) NEWSMAN’S PRIVILEGE -- Without
mind. prejudice to his liability under the civil and
criminal laws, the publisher, editor,
(b) DISQUALIFICATION BY REASON OF columnist or duly accredited reporter of
PRIVILEGED COMMUNICATION any newspaper, magazine or periodical of
1. The husband or the wife, during or general circulation cannot be compelled to
after the marriage, cannot be reveal the source of any news-report or
examined without the consent of information appearing in said publication
the other as to any communication which was related in confidence to such
received in confidence by one from publisher, editor or reporter unless the
the other during the marriage court or a House or committee of
except in a civil case by one Congress finds that such revelation is
against the other, or in a criminal demanded by the security of the State (RA
case for a crime committed by one 1477);
against the other or the latter's
direct descendants or ascendants; (d) BANK DEPOSITS -- All deposits of
2. An attorney cannot, without the whatever nature with banks or banking
consent of his client, be examined institutions in the Philippines including
as to any communication made by investments in bonds issued by the
the client to him, or his advice Government of the Philippines, its political
given thereon in the course of, or subdivisions and its instrumentalities, are
with a view to, professional hereby considered as of an absolutely
employment, nor can an attorney's confidential nature and may not be
secretary, stenographer, or clerk examined, inquired or looked into by any
be examined, without the consent person, government official, bureau or
of the client and his employer, office, except upon written permission of
concerning any fact the knowledge the depositor, or in cases of impeachment,
of which has been acquired in such or upon order of a competent court in
capacity; cases of bribery or dereliction of duty of
3. A person authorized to practice public officials, or in cases where the
medicine, surgery or obstetrics money deposited or invested is the
cannot in a civil case, without the subject matter of the litigation (RA 1405).
consent of the patient, be
examined as to any advice or (e) SANCTITY OF THE BALLOT – voters
treatment given by him or any may not be compelled to disclose for
information which he may have whom they voted.
acquired in attending such patient
in a professional capacity, which (f) TRADE SECRETS
information was necessary to
 185

(g) INFORMATION CONTAINED IN TAX 2) In a civil case by one spouse against the
RETURNS (RA 2070, as amended by RA other; or
2212). 3) In a criminal case for a crime committed
by one spouse against the other or the
DISQUALIFICATION BY REASON OF MENTAL latter’s direct descendant or ascendants.
CAPACITY OR IMMATURITY
DISQUALIFICATION BY REASON OF DEATH
The following persons cannot be witnesses: OR INSANITY OF ADVERSE PARTY
a) Those whose mental condition, at the time (SURVIVORSHIP OR DEAD MAN‘S STATUTE)
of their production for examination, is
such that they are incapable of This rule applies only to a civil case or a special
intelligently making known their proceeding. The following are the elements for
perception to others; the application of the rule:
b) Children whose mental maturity is such as a) The plaintiff is the person who has a claim
to render them incapable of perceiving the against the estate of the decedent or
facts respecting which they are examined person of unsound mind;
and of relating them truthfully. b) The defendant in the case is the executor
or administrator or a representative of the
Regardless of the nature or cause of mental deceased or the person of unsound mind;
disability, the test of competency to testify is as c) The suit is upon a claim by the plaintiff
to whether the individual has sufficient against the estate of said deceased or
understanding to appreciate the nature and person of unsound mind;
obligation of an oath and sufficient capacity to d) The witness is the plaintiff, or an assignor
observe and describe correctly the facts in regard of that party, or a person in whose behalf
to which he is called to testify. the case is prosecuted; and
e) The subject of the testimony is as to any
Basic requirements of a child’s competency as a matter of fact occurring before the death
witness: (ante litem motam) of such deceased
a) Capacity of observation; person or before such person became of
b) Capacity of recollection; unsound mind.
c) Capacity of communication.

In ascertaining whether a child is of sufficient DISQUALIFICATION BY REASON OF

intelligence according to the foregoing PRIVILEGED COMMUNICATIONS
requirements, it is settled rule that the trial
court is called upon to make such
determination. BETWEEN HUSBAND AND WIFE

DISQUALIFICATION BY REASON OF
MARRIAGE (SPOUSAL IMMUNITY) The application of the rule requires the presence
of the following elements:
1) There must be a valid marriage between
As a general rule, during their marriage, neither
the husband and the wife;
the husband nor the wife may testify for or
2) The privilege is invoked with respect to a
against the other without the consent of the
confidential communication between the
affected spouse. The requisites of this rule are
spouses during said marriage; and
the following:
3) The spouse against whom such evidence
1) That the spouse for or against whom the
is being offered has not given his or her
testimony is offered is a party to the case;
consent to such testimony.
2) That the spouses are legally married (valid
until annulled);
3) Testimony is offered during the existence MARITAL MARITAL PRIVILEGE
of marriage; DISQUALIFICATION (SEC. 24)
4) The case is not one of the exceptions (SEC. 22)
provided in the rule. Can be invoked only if Can be claimed
one of the spouses is a whether or not the
The exceptions are the following: party to the action; spouse is a party to
1) Where the testimony was made outside the action;
the marriage; Applies only if the Can be claimed even
marriage is existing at after the marriage has
 186

the time the testimony been dissolved; d) The privilege is invoked in a civil case,
is offered; whether the patient is a party thereto or
Ceases upon the death Continues even after not.
or either spouse; the termination of the
marriage; The privilege does not apply where:
Constitutes a total Applies only to a) The communication was not given in
prohibition against any confidential confidence;
testimony for or against communications b) The communication is irrelevant to the
the spouse of the between the spouses. professional employment;
witness; c) The communication was made for an
The prohibition is a The prohibition is the unlawful purpose, as when it is intended
testimony for or against examination of a for the commission or concealment of a
the other. spouse as to matters crime;
related in confidence d) The information was intended to be made
to the other spouse. public; or
e) There was a waiver of the privilege either
by the provisions of contract or law.
BETWEEN ATTORNEY AND CLIENT  The privilege survives the death of the
patient.
For the rule to apply, it is required that:
1) There is an attorney and client relation; BETWEEN PRIEST AND PENITENT
2) The privilege is invoked with respect to a
confidential communication between them
in the course of or with a view to  A minister or priest cannot, without the
professional employment; and consent of the person making the confession,
3) The client has not given his consent to the be examined as to any confession made to or
attorney‘s testimony thereon; or any advice given by him in his professional
If the attorney’s secretary, stenographer character in the course of discipline enjoined
or clerk is sought to be examined, that by the church to which the minister or priest
both the client and the attorney have not belongs.
given their consent thereto.  The communication must be made pursuant
to confessions of sin. Where the penitent
The rule applies when the attorney has been discussed business arrangements with the
consulted in his professional capacity, even if no priest, the privilege does not apply.
fee has been paid therefor. Preliminary
communications made for the purpose of creating
the attorney-client relationship are within the INVOLVING PUBLIC OFFICERS
privilege. However, if the communications were
not made for the purpose of creating that
The disqualification because of privileged
relationship, they will not be covered by the
communications to public officers requires that:
privilege even if thereafter the lawyer becomes
a) It was made to the public officer in official
the counsel of the party in a case involving said
confidence; and
statements.
b) Public interest would suffer by the
disclosure of such communications, as in
BETWEEN PHYSICIAN AND PATIENT the case of State secrets. Where no public
interest would be prejudiced, this rule
does not apply.
For the disqualification to apply, it is necessary
that: Exceptions to the rule:
a) The physician is authorized to practice a) What is asked is useful evidence to
medicine, surgery or obstetrics; vindicate the innocence of an accused
b) The information was acquired or the person;
advice or treatment was given by him in b) Disclosure would lessen the risk of false
his professional capacity for the purpose testimony;
of treating and curing the patient; c) Disclosure is essential to the proper
c) The information, advice or treatment, if disposition of the case;
revealed, would blacken the reputation of d) The benefit to be gained by a correct
the patient; and disposition of the litigation was greater
 187

than any injury which could inure to the deemed prima facie a correct statement of such
relation by a disclosure of the information. proceedings.

RIGHTS AND OBLIGATIONS OF A WITNESS

PARENTAL AND FILIAL TESTIMONIAL
PRIVILEGE RULE A witness must answer questions, although his
answer may tend to establish a claim against
him. However, it is the right of a witness:
No person may be compelled to testify against his
1) To be protected from irrelevant, improper,
parents, other direct ascendants, children or
or insulting questions, and from harsh or
other direct descendants.
insulting demeanor;
2) Not to be detained longer than the
Under Art. 215 of the Family Code, the
interests of justice require;
descendant may be compelled to testify against
3) Not to be examined except only as to
his parents and grandparents if such testimony is
matters pertinent to the issue;
indispensable in prosecuting a crime against the
4) Not to give an answer which will tend to
descendant or by one parent against the other.
subject him to a penalty for an offense
unless otherwise provided by law; or
5) Not to give an answer which will tend to
EXAMINATION OF A WITNESS (RULE 132) degrade his reputation, unless it be to the
very fact at issue or to a fact from which
the fact in issue would be presumed. But a
The examination of witnesses presented in a trial witness must answer to the fact of his
or hearing shall be done in open court, and under previous final conviction for an offense.
oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a
ORDER IN THE EXAMINATION OF AN
different mode of answer, the answers of the
INDIVIDUAL WITNESS
witness shall be given orally.
The order in which an individual witness may be
The entire proceedings shall be recorded by
examined is as follows:
means of shorthand or stenotype or by other
1) Direct examination by the proponent;
means of recording found suitable by the court. A
2) Cross-examination by the opponent;
transcript of the record of the proceedings made
3) Re-direct examination by the
by the official stenographer, stenotypist or
proponent;
recorder and certified as correct by him shall be
4) Re-cross-examination by the opponent.
5) Recalling the witness

DIRECT Direct examination is the examination- Purpose is to build up the theory of the
EXAMINATION in-chief of a witness by the party case by eliciting facts about the client‘s
presenting him on the facts relevant to cause of action or defense.
the issue.
CROSS Upon the termination of the direct Cross-examination aims to:
EXAMINATION examination, the witness may be a) Test the accuracy and truthfulness
cross-examined by the adverse party of the witness and his freedom from
as to any matters stated in the direct interest or bias or the reverse; and
examination, or connected therewith, b) Elicit all important facts bearing
with sufficient fullness and freedom to upon the issue, not only of those
test his accuracy and truthfulness and covered in the direct examination
freedom from interest or bias, or the but also on all other matters
reverse, and to elicit all important relevant to the issue/s pleaded.
facts bearing upon the issue.
 188

RE-DIRECT After the cross-examination of the Principal objects are:

EXAMINATION witness has been concluded, he may a) to prevent injustice to the witness
be re-examined by the party calling and the party who has called him
him, to explain or supplement his by affording an opportunity to the
answers given during the cross- witness to explain the testimony
examination. On re-direct given on cross-examination,
examination, questions on matters not b) to explain any apparent
dealt with during the cross- contradiction or inconsistency in his
examination, may be allowed by the statements, and
court in its discretion. c) complete the answer of a witness,
or add a new matter which has
been omitted, or correct a possible
misinterpretation of testimony.
RE-CROSS Upon the conclusion of the re-direct A witness cannot be recalled without
EXAMINATION examination, the adverse party may leave of court, which may be granted
re-cross-examine the witness on only upon showing of concrete,
matters stated in his re-direct substantial grounds.
examination, and also on such other
matters as may be allowed by the
court in its discretion.
RECALLING THE After the examination of a witness by Aims to correct or explain his prior
WITNESS both sides has been concluded, the testimony; or lay the proper foundation
witness cannot be recalled without for his impeachment, but this is
leave of the court. The court will grant permitted only with the discretion of
or withhold leave in its discretion, as the court.
the interests of justice may require.

A misleading question is one which

Cross-examination of a witness is the absolute assumes as true a fact not yet testified to by
right, not a mere privilege, of the party against the witness, or contrary to that which he has
whom he is called; and with regard to the previously stated. It is not allowed (Sec. 10).
accused, it is a right granted by the Constitution. The adverse party should object thereto or
Sec. 14(2), Art. III thereof provides that the ask the court to expunge the answer from the
accused shall enjoy the right to meet the records, if he has already given his answer.
witnesses face to face.
METHODS OF IMPEACHMENT OF ADVERSE
LEADING AND MISLEADING QUESTIONS PARTY’S WITNESS
(SEC. 10, RULE 132)
To impeach means to call into question the
A question which suggests to the witness the veracity of the witness’s testimony by means of
answer which the examining party desires is a evidence offered for that purpose, or by showing
leading question. It is not allowed, except: that the witness is unworthy of belief.
1) On cross examination; Impeachment is an allegation, supported by
2) On Preliminary matters; proof, that a witness who has been examined is
3) When there is difficulty in getting direct unworthy of credit.
and intelligible answers from a witness
who is ignorant, or a child of tender years, A witness be impeached by the party against
or is of feeble mind, or a deaf-mute; whom he was called:
4) Of an unwilling or hostile witness; or a) By contradictory evidence;
5) Of a witness who is an adverse party or an b) By evidence that his general reputation for
officer, director, or managing agent of a truth, honesty, or integrity is bad; or
public or private corporation or of a c) By evidence that he has made at other
partnership or association which is an times statements inconsistent with his
adverse party. present testimony;
6) In all stages of examination of a child if d) But not by evidence of particular wrongful
the same will further the interests of acts, except that it may be shown by the
justice (Sec. 20, AM 004-07-SC). examination of the witness, or the record
of the judgment, that he has been
convicted of an offense.
 189

witness a change to reconcile his conflicting

Other modes of impeachment aside from those declaration.
provided by the Rules are:
a) By producing the record of his conviction Where no predicate is laid during the trial proof of
of an offense; alleged inconsistent statements of the witness,
b) By showing improbability or whether verbal or written, cannot be admitted on
unreasonableness of testimony; objection of the adverse party, or be pointed out
c) By showing bias, prejudice or hostility; on appeal for the purpose of destroying the
d) By prior acts or conduct inconsistent with credibility of the witness.
his testimony;
e) By showing social connections, occupation An exception to the rule requiring the laying of
and manner of living. foundation for the admissibility of evidence of
f) By showing interest. inconsistent statements has been allowed in the
g) By showing intent and motive. case of dying declarations.

The party producing a witness is not allowed to EVIDENCE OF THE GOOD CHARACTER OF A
impeach his credibility. WITNESS

A witness may be considered as unwilling or Evidence of the good character of a witness is not
hostile only if so declared by the court upon admissible until such character has been
adequate showing of his adverse interest, impeached. The law presumes every person to be
unjustified reluctance to testify, or his having reputedly truthful until evidence shall have been
misled the party into calling him to the witness produced to the contrary.
stand. The unwilling or hostile witness so
declared, or the witness who is an adverse party, Character evidence not generally
may be impeached by the party presenting him in admissible; exceptions. –
all respects as if he had been called by the
adverse party, except by evidence of his bad a) In Criminal Cases:
character. He may also be impeached and cross- 1) The accused may prove his good moral
examined by the adverse party, but such cross character which is pertinent to the
examination must only be on the subject matter moral trait involved in the offense
of his examination-in-chief. charged.
2) Unless in rebuttal, the prosecution may
HOW THE WITNESS IS IMPEACHED BY not prove his bad moral character
EVIDENCE OF INCONSISTENT STATEMENTS which is pertinent it to the moral trait
(LAYING THE PREDICATE) involved in the offense charged.

Before a witness can be impeached by evidence  Note that in criminal cases, the
that he has made at other times statements prosecution goes first. Hence, it cannot
inconsistent with his present testimony: present evidence on the bad moral
a) the statements must be related to him, character of the accused on its
with the circumstances of the times and evidence in chief.
places and the persons present, and  The good or bad moral character of the
b) he must be asked whether he made such offended party may be proved if it
statements, and if so, allowed to explain tends to establish in any reasonable
them. If the statements be in writing they degree the probability or improbability
must be shown to the witness before any of the offense charged.
question is put to him concerning them.
b) In Civil Cases:
A witness cannot be impeached by evidence of  Evidence of the moral character of a
contradictory or prior inconsistent statements party in a civil case is admissible only
until the proper foundation or predicate has been when pertinent to the issue of
laid by the party against whom said witness was character involved in the case.
called.
ADMISSION CONFESSION
Laying the predicate means that it is the duty of a
An act, declaration The declaration of an
party trying to impugn the testimony of a witness
or omission of a accused acknowledging
by means of prior or subsequent inconsistent
party as to a his guilt of the offense
statements, whether oral or in writing, to give the
relevant fact. charged, or of any
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offense necessarily The act, declaration or omission of a party as to a

included therein. relevant fact may be given in evidence against
It is a voluntary It is a statement by the him.
acknowledgment accused that he
made by a party of engaged in conduct ADMISSION BY A THIRD PARTY
the existence of the which constitutes a The rights of a party cannot be prejudiced by an
truth of certain facts crime. act, declaration, or omission of another, except
which are as hereinafter provided.
inconsistent with his
claims in an action. ADMISSION BY A CO-PARTNER OR AGENT
Broader than Specific type of The act or declaration of a partner or agent of the
confession. admission which refers party within the scope of his authority and during
only to an the existence of the partnership or agency, may
acknowledgment of be given in evidence against such party after the
guilt partnership or agency is shown by evidence other
May be implied like Cannot be implied, but than such act or declaration. The same rule
admission by should be a direct and applies to the act or declaration of a joint owner,
silence. positive joint debtor, or other person jointly interested
acknowledgment of with the party.
guilt.
May be judicial or May be judicial or For the admission of a co-partner or agent to be
extrajudicial. extrajudicial. admissible, the following requisites must concur:
May be adoptive, a) The declaration or act of the partner and
which occurs when a agent must have been made or done
person manifests his within the scope of his authority;
assent to the b) The declaration or act of the partner and
statements of agent must have been made or done
another person. during the existence of the partnership or
agency, and the person making the
declaration still a partner or an agent; and
RES INTER ALIOS ACTA RULE c) The existence of the partnership or
agency is proven by evidence other than
Res inter alios acta alteri nocere debt means that the declaration or act of the partner and
"things done to strangers ought not to injure agent.
those who are not parties to them” It has two
branches, namely: ADMISSION BY A CONSPIRATOR
a) The rule that the rights of a party cannot Conspiracy exists when two or more persons
be prejudiced by an act, declaration, or come to an agreement concerning the
omission of another; and commission of a felony and decide to commit it.
b) The rule that evidence of previous conduct Once conspiracy is proven, the act of one is the
or similar acts at one time is not act of all. The statement therefore of one may be
admissible to prove that one did or did not admitted against the other co-conspirators as an
do the same act at another time. exception to the rule of res inter alios acta.

The rule has reference to extrajudicial For the exception to apply, the following
declarations. Hence, statements made in open requisites must concur:
court by a witness implicating persons aside from 1) The declaration or act be made or done
his own judicial admissions are admissible as during the existence of the conspiracy;
declarations from one who has personal 2) The declaration or act must relate to the
knowledge of the facts testified to. conspiracy; and
3) The conspiracy must be shown by
Exceptions to the first branch of the rule: evidence other than the declaration or act.
a) Admission by a co-partner or agent (Sec.
29, Rule 130); ADMISSION BY PRIVIES
b) Admission by a co-conspirator (Sec. 30,
Rule 130); and Privity means mutual succession of relationship to
c) Admission by privies (Sec. 31, Rule 130). the same rights of property. Privies are those who
have mutual or successive relationship to the
ADMISSION BY A PARTY same right of property or subject matter, such as
 191

personal representatives, heirs, devisees, in evidence against him (Sec. 12, Art. III,
legatees, assigns, voluntary grantees or Constitution).
judgment creditors or purchasers from them with
notice of the facts. Confession is an acknowledgment in express
words, by the accused in a criminal case, of the
Three exceptions are recognized to the rule that truth of the offense charged, or of some essential
declarations of the transferor, made subsequent parts thereof. To be valid, confessions must be
to the transfer, are inadmissible: voluntarily and freely made.
1) Where the declarations are made in the
presence of the transferee, and he Exceptions to the rule that confessions of an
acquiesces in the statements, or asserts accused may be given in evidence against him
no rights where he ought to speak; and incompetent against his co-accused:
2) Where there has been a prima facie case a) When several accused are tried together,
of fraud established, as where the thing confession made by one of them during
after the sale or transfer, remains with the the trial implicating the others is evidence
seller or transferor; against the latter.
3) Where the evidence establishes a b) When one of the defendants is discharged
continuing conspiracy to defraud, which from the information and testifies as a
conspiracy exists between the vendor and witness for the prosecution, the confession
the vendee. made in the course of his testimony is
admissible against his co-defendants, if
ADMISSION BY SILENCE corroborated by indisputable proof.
An act or declaration made in the presence and c) If a defendant after having been apprised
within the hearing or observation of a party who of the confession of his co-defendant
does or says nothing when the act or declaration ratifies or confirms said confession, the
is such as naturally to call for action or comment same is admissible against him.
if not true, and when proper and possible for him d) Interlocking confessions -- Where several
to do so, may be given in evidence against him. extra-judicial confession had been made
by several persons charged with an
The common sense of mankind is expressed in offense and there could have been no
the popular phrase, silence gives consent which collusion with reference to said several
is but another form of expressing the maxim of confessions, the facts that the statements
the law, qui tacet cosentire videtur. therein are in all material respects
identical, is confirmatory of the confession
Before the silence of a party can be taken as an of the co-defendant, and is admissible
admission of what is said, the following requisites against his other co-defendants.
must concur: e) A statement made by one defendant after
a) Hearing and understanding of the his arrest, in the presence of this co-
statement by the party; defendant, confessing his guilt and
b) Opportunity and necessity of denying the implicating his co-defendant who failed to
statements; contradict or deny it, is admissible against
c) Statement must refer to a matter affecting his co-defendant.
his right; f) When the confession is of a conspirator
d) Facts were within the knowledge of the and made after conspiracy in furtherance
party; and of its object, the same is admissible
e) Facts admitted or the inference to be against his co-conspirator; and
drawn from his silence would be material g) The confession of one conspirator made
to the issue. after the termination of a conspiracy is
admissible against his co-conspirator if
CONFESSIONS made in his presence and assented to by
him, or admitted its truth or failed to
The declaration of an accused acknowledging his contradict or deny it.
guilt of the offense charged, or of any offense
necessarily included therein, may be given in SIMILAR ACTS AS EVIDENCE
evidence against him.
Evidence that one did or did not do a certain
Any confession or admission obtained in violation thing at one time is not admissible to prove that
of this or Section 17 hereof shall be inadmissible he did or did not do the same or a similar thing at
another time; but it may be received to prove a
 192

specific intent or knowledge, identity, plan, that he heard the statement without reference to
system, scheme, habit, custom or usage, and the its truth or falsity, his testimony is not hearsay.
like. Evidence of collateral offenses must not be
received as substantive evidence of the offenses If what he heard is relevant to an issue in the
on trial. case, it will fall under the category of
independent relevant statements which means
HEARSAY RULE statements which are relevant as to their tenor or
to the fact that they were uttered and not as to
A witness can testify only to those facts which he whether they are true or false.
knows of his personal knowledge; that is, which
are derived from his own perception, except as MEANING OF HEARSAY
otherwise provided in these rules.
It also means the evidence not of what the
Generally, hearsay evidence is inadmissible witness himself knows but of what he has heard
because the person who testifies does so based from others.
on matters not of his personal knowledge but
based on the knowledge of another who is not in REASON FOR EXCLUSION OF HEARSAY
court and cannot therefore, b cross-examined. EVIDENCE
The one in courts is the person who merely
repeats matters witnessed personally by another. Hearsay evidence is inadmissible according to the
This type o evidence is inadmissible because of general rule. The real basis for the exclusion is
its inherent unreliability. the fact that hearsay testimony is not subject to
the tests which can ordinarily be applied for the
Hearsay evidence may be in writing. For instance, ascertainment of the truth of testimony, since the
an affidavit is hearsay unless the affiant affirms declarant is not present and available for cross-
the same in court and is subject to cross- examination.
examination.
In criminal cases the admission of hearsay
A hearsay testimony involves an outside- evidence would be a violation of the
declarant and an in-court witness. It is the outside constitutional provision that the accused shall
declarant who says something based on what he enjoy the right of being confronted with the
has perceived. His statement is heard by witnesses testifying against him and to cross-
someone who is the one testifies in court as to examine them. Moreover, the court is without the
what he heard. opportunity to test the credibility of hearsay
statements by observing the demeanor of the
If the witness offers the statement of the outside person who made them.
declarant to prove the truth of such statement
(the one which he heard) the testimony of the EXCEPTIONS TO THE HEARSAY RULE
witness is hearsay. If it’s offered merely to prove (DEVFLECT‘D WI-CAP)
1) Dying declaration; 9) Declaration against interest;
2) Entries in the course of business; 10) Waiver;
3) Verbal acts; 11) Independently relevant evidence;
4) Family reputation or tradition regarding 12) Commercial lists and the like;
pedigree; 13) Act or declaration about pedigree; and
5) Learned treatises; 14) Part of res gestae.
6) Entries in official records;
7) Common reputation;
8) Testimony or deposition at a former
proceeding;
b) showing his physical condition, as illness
The statements from which the facts in issue may and the like;
be inferred may be testified to by witnesses c) from which an inference may be made as
without violating the hearsay rule. Of this kind to the state of mind of another, that is,
are: knowledge, belief, motive, good or bad
faith, etc. of the latter;
Statements of a person: d) which may identify the date, place, and
a) showing his state of mind, that is his person in question; and
mental condition, knowledge, belief, e) showing the lack of credibility of a witness.
intention, ill-will and other emotion;
 193

DYING DECLARATION c) That at the time he made said declaration

the declarant was aware that the same
was contrary to his aforesaid interest; and
The declaration of a dying person, made under d) That the declarant had no motive to falsify
the consciousness of an impending death, may and believed such declaration to be true.
be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and ADMISSION BY DECLARATION
surrounding circumstances of such death. PRIVIES AGAINST INTEREST
One of 3 exceptions Exception to hearsay
REQUISITES: to res inter alios acta
1) That death is imminent and the declarant Evidence against the Evidence against even
is conscious of that fact; successor in interest the declarant, his
2) That the declaration refers to the cause of the admitter successor in interest,
and surrounding circumstances of such or 3rd persons
death; Admitter need not Declarant is dead or
3) That the declaration relates to facts which be dead or unable to unable to testify
the victim is competent to testify to; and testify
4) That the declaration is offered in a case
Relates to title to Relates to any interest
wherein the declarant’s death is the
property
subject of the inquiry.
Admission need not Declaration must be
be against the against the interest of
The most significant element is that the
admitter‘s interest the declarant
declaration must have been conscious of his
impending death. It is this consciousness which is
assumed to be the compelling motive to tell the
truth. Any statement he makes not related to the ACT OR DECLARATION ABOUT PEDIGREE
circumstances of his death is inadmissible as a
dying declaration.
The word "pedigree" includes relationship, family
The dying declaration is admissible in ANY CASE genealogy, birth, marriage, death, the dates
provided the subject of inquiry in that case is the when and the places where these facts occurred,
death of the declarant. and the names of the relatives. It embraces also
facts of family history intimately connected with
It is required that the declarant should die. If he pedigree.
lives, he may testify personally based on his
personal knowledge. If he is unable to testify, his Pedigree is the history of family descent which is
declaration could be admitted as a statement transmitted from one generation to another by
made by a person immediately subsequent to a both oral and written declarations and by
startling occurrence (could be considered part of traditions.
res gestae).
Requisites for applicability:
a) Declarant is dead or unable to testify;
DECLARATION AGAINST INTEREST b) Necessity that pedigree be in issue;
c) Declarant must be a relative of the person
The declaration made by a person deceased, or whose pedigree is in question;
unable to testify, against the interest of the d) Declaration must be made before the
declarant, if the fact asserted in the declaration controversy occurred; and
was at the time it was made so far contrary to e) The relationship between the declarant
declarant's own interest, that a reasonable man and the person whose pedigree is in
in his position would not have made the question must be shown by evidence
declaration unless he believed it to be true, may other than such act or declaration.
be received in evidence against himself or his
successors in interest and against third persons. FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
Requisites for the exception to apply:
a) That the declarant is dead or unable to
testify; Entries in family bibles or other family books or
b) That it relates to a fact against the interest charts, engravings on rings, family portraits and
of the declarant; the like, may be received as evidence of
pedigree.
 194

Statements made by a person while a startling

Requisites for the exception to apply: occurrence is taking place or immediately prior or
a) There is a controversy in respect to the subsequent thereto with respect to the
pedigree of any members of a family; circumstances thereof, may be given in evidence
b) The reputation or tradition of the pedigree as part of the res gestae. So, also, statements
of the person concerned existed ante litem accompanying an equivocal act material to the
motam or pervious to the controversy; and issue, and giving it a legal significance, may be
c) The witness testifying to the reputation or received as part of the res gestae.
tradition regarding the pedigree of the
person concerned must be a member of Res gestae is from the Latin meaning “things
the family of said person, either by done”. As applied to a crime, res gestae means
consanguinity or affinity. the complete criminal transaction from its
beginning or starting point in the act of the
COMMON REPUTATION accused until the end is reached.

The general classes of declarations to which the

Requisites for the admissibility of the term res gestae is usually applied are (a)
exception: spontaneous statements, and (b) verbal acts.
a) The facts must be of public or general
interest and more than thirty years old; SPONTANEOUS VERBAL ACTS
b) The common reputation must have been STATEMENTS
ancient (more than 30 years old or one Statement or Utterances which
generation old); exclamation made accompany some
c) The reputation must have been one immediately after act or conduct to
formed among the class of persons who some exciting which it is desired to
were in a position to have some sources of occasion by a give a legal effect.
information and to contribute intelligently participant or When such act has
to the formation of the opinion; and spectator and intrinsically no
asserting the definite legal
The common reputation must have been existing circumstances of that significance, or only
previous to the controversy. occasion as it is an ambiguous one,
observed by him. its legal purport or
Requisites for the admissibility of common tenor may be
reputation respecting marriage: ascertained by
a) The common reputation must have been considering the
formed previous to the controversy; and words accompanying
b) The common reputation must have been it, and these
formed in the community or among the utterances thus
class of persons who are in a position to enter merely as
have sources of information and to verbal part of the
contribute intelligently to the formation of act.
the opinion. The res gestae is the The res gestae is the
Requisites for the admissibility of common startling occurrence equivocal act
reputation respecting moral character: Spontaneous Verbal act must be
a) That it is the reputation in the place where exclamation may be contemporaneous
the person in question is best known; prior to, simultaneous with or must
b) That it was formed ante litem motam. with, or subsequent accompany the
to the startling equivocal act to be
Character refers to the inherent qualities of the occurrence. admissible.
person, rather than to any opinion that may be
Reason for Reason for
formed or expressed of him by others. Reputation
admissibility: admissibility:
applies to the opinion which others may have
Trustworthiness and The motive,
formed and expressed of his character.
necessity—because character and object
statements are made of an act are
Monuments and inscriptions in public places may
instinctively, and frequently indicated
be received as evidence of common reputation.
because said natural by what was said by
and spontaneous the person engaged
PART OF THE RES GESTAE utterances are more in the act.
convincing than the
 195

testimony of the
same person on the LEARNED TREATIES
stand.
Requisites for Requisites for
admissibility: admissibility: A published treatise, periodical or pamphlet on a
a) There must be a a) Act or occurrence subject of history, law, science or art is
startling characterized admissible as tending to prove the truth of a
occurrence; must be matter stated therein if the court takes judicial
b) The statement equivocal; notice, or a witness expert in the subject testifies
must relate to the b) Verbal acts must that the writer of the statement in the treatise,
circumstances of characterize or periodical or pamphlet is recognized in his
the startling explain the profession or calling as expert in the subject.
occurrence; equivocal act;
c) The statement c) Equivocal act TESTIMONY OR DEPOSITION AT A FORMER
must be must be relevant TRIAL
spontaneous. to the issue;
d) Verbal acts must The testimony or deposition of a witness
be deceased or unable to testify, given in a former
contemporaneou case or proceeding, judicial or administrative,
s with equivocal involving the same parties and subject matter,
act. may be given in evidence against the adverse
party who had the opportunity to cross-examine
him.

ENTRIES IN THE COURSE OF BUSINESS If the witness has been subjected to cross-
examination in a former trial, the rule is satisfied,
Requisites for admissibility: and the former testimony may now be used.
a) Entries must have been made at or near
the time of the transaction to which they OPINION RULE
refer;
b) Entrant must have been in a position to GENERAL RULE: the opinion of a witness is not
know the facts stated in the entries; admissible. The witness must testify to facts
c) Entries must have been made by entrant within their knowledge and may not state their
in his professional capacity or in the opinion, even on their cross-examination.
performance of his duty;
d) Entries were made in the ordinary or EXCEPTIONS:
regular course of business of duties; 1) OPINION OF EXPERT WITNESS - On a
e) Entrant must be deceased or unable to matter requiring special knowledge, skill,
testify. experience or training which he possesses,
that is, when he is an expert thereon may
be received in evidence. Expert testimony
ENTRIES IN OFFICIAL RECORDS
is not admissible as to a matter not in
issue.
Entries in official records made in the 2) OPINION OF ORDINARY WITNESSES:
performance of his duty by a public officer of the a) The identity of a person about
Philippines, or by a person in the performance of whom he has adequate knowledge;
a duty specially enjoined by law, are prima facie b) A handwriting of a person with
evidence of the facts therein stated. which he has sufficient familiarity;
c) The mental sanity or a person with
COMMERCIAL LISTS AND THE LIKE whom he is sufficiently acquainted;
and
d) The witness’ impression of the
Evidence of statements of matters of interest, to emotion, behavior, condition or
persons engaged in an occupation contained in a appearance of a person.
list, register, periodical, or other published  Reason: it is for the court to form an opinion
compilation is admissible as tending to prove the concerning the facts in proof of which
truth of any relevant matter so stated if that evidence is offered.
compilation is published for use by persons
engaged in that occupation and is generally used OPINION OF EXPERT WITNESS
and relied upon by them therein.
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b) With respect to the offended person, it is

It is sufficient that the following factors are sufficient that such character evidence
present: may establish in any reasonable degree
a) Training and education; the probability or improbability of the
b) Particular, first-hand familiarity with the offense charged, as in prosecutions for
facts of the case; and rape or consented abduction wherein the
c) Presentation of the authorities or victim‘s chastity may be questioned, and
standards upon which his opinion is based. in prosecution for homicide wherein the
pugnacious, quarrelsome or trouble-
Before one may be allowed to testify as an expert seeking character of the victim is a proper
witness, his qualification must first be established subject of inquiry; and
by the party presenting him, i.e., he must be c) With respect to witnesses, such character
shown to possess the special skill or knowledge evidence must refer to his general
relevant to the question to which he is to express reputation for truth, honesty or integrity,
an opinion. Common subjects of expert that is, as affecting his credibility.
testimony: handwriting, typewritten documents,
fingerprints, ballistics, medicine, value of
RULE ON EXAMINATION OF A CHILD
properties and services.
WITNESS (A.M. NO. 004-07-SC)
CHARACTER EVIDENCE
APPLICABILITY OF THE RULE
Character evidence, as a general rule, is not
admissible in evidence because the evidence of a Unless otherwise provided, this Rule shall govern
person’s character does not prove that such the examination of child witnesses who are
person acted conformity with such character or victims of crime, accused of a crime, and
trait in a particular occasion. Exceptions: witnesses to crime. It shall apply in all criminal
a) In criminal cases, the prosecution may not proceedings and non-criminal proceedings
at the outset prove the bad moral involving child witnesses.
character of the accused which is
pertinent to the moral trait involved in the MEANING OF “CHILD WITNESS”
offense charged. If the accused, however,
in his defense attempts to prove his good Any person who at the time of giving testimony is
moral character then the prosecution can below the age of 18 years. In child abuse cases, a
introduce evidence of such bad moral child includes one over 18 years but is found by
character at the rebuttal stage. the court as unable to fully take care of himself or
b) Also in criminal case, the good or bad protect himself from abuse, neglect, cruelty,
moral character of the offended party may exploitation, or discrimination because of a
always be proved by either party as long physical or mental disability or condition.
as such evidence tends to establish the
probability or improbability of the offense COMPETENCY OF A CHILD WITNESS
charged.
c) In civil cases, the moral character of either
Every child is presumed qualified to be a witness.
party thereto cannot be proved unless it is
However, the court shall conduct a competency
pertinent to the issue of character
examination of a child (only by the judge, or
involved in the case.
court) , motu propio or on motion of a party,
d) In both civil and criminal cases, the bad
when it finds that substantial doubt exists
moral character of a witness may always
regarding the stability of the child to perceive,
be proved by either party but not evidence
remember, communicate, distinguish truth from
of his good character, unless it has been
falsehood, or appreciate the duty to tell the truth
impeached.
in court. The court has the duty of continuously
assessing the competence of the child throughout
With respect to the nature or substance of the
his testimony.
character evidence which may be admissible, the
rules require that:
EXAMINATION OF A CHILD WITNESS
a) With respect to the accused, such
character evidence must be pertinent to
The examination of a child witness presented in a
the moral trait involved in the offense
hearing or any proceeding shall be done in open
charged;
court. Unless the witness is incapacitated to
speak, or the question calls for a different mode
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of answer, the answers of the witness shall be CASES

given orally. The party who presents a child
witness or the guardian ad litem of such child A statement made by a child describing any act
witness may, however, move the court to allow or attempted act of child abuse, not otherwise
him to testify in the manner provided in this Rule. admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
LIVE-LINK TV TESTIMONY OF A CHILD criminal proceeding subject to the following rules:
WITNESS (SEC. 25) a) Before such hearsay statement may be
admitted, its proponent shall make known
The prosecutor, counsel or the guardian ad litem to the adverse party the intention to offer
may apply for an order that the testimony of the such statement and its particulars to
child be taken in a room outside the courtroom provide him a fair opportunity to object. If
and be televised to the courtroom by live-link the child is available, the court shall, upon
television. motion of the adverse party, require the
child to be present at the presentation of
The court may order that the testimony of the the hearsay statement for cross-
child be taken by live-link television if there is a examination by the adverse party. When
substantial likelihood that the child would suffer the child is unavailable, the fact of such
trauma from testifying in the presence of the circumstance must be proved by the
accused, his counsel or the prosecutor as the proponent.
case may be. The trauma must be of a kind which b) In ruling on the admissibility of such
would impair the completeness or truthfulness of hearsay statement, the court shall
the testimony of the child. The child shall consider the time, content and
therefore testify in a room separate from the circumstances thereof which provide
courtroom. sufficient indicia of reliability.

VIDEOTAPED DEPOSITION OF A CHILD The child witness shall be considered unavailable

WITNESS under the following situations:
a) Is deceased, suffers from physical
The prosecutor, counsel, or guardian ad litem infirmity, lack of memory, mental illness,
may apply for an order that a deposition be taken or will be exposed to sever psychological
of the testimony of the child and that it be injury; or
recorded and preserved on videotape. The judge b) Is absent from the hearing and the
shall preside at the videotaped deposition of a proponent of his statement has been
child. Objections to deposition testimony or unable to procure his attendance by
evidence and the grounds for the objection shall process or other reasonable mean.
be stated and shall rule upon at the time of the
taking of the deposition. When the child witness is unavailable, his
hearsay testimony shall be admitted only if
The videotaped deposition shall be preserved and corroborated by other admissible evidence.
stenographically recorded. The videotape and the
stenographic notes shall be transmitted to the SEXUAL ABUSE SHIELD RULE
clerk of the court where the case is pending for
safekeeping and shall be made a part of the
record. The videotaped deposition and a) The following evidence is NOT ADMISSIBLE in
stenographic notes shall be subject to a any criminal proceeding involving alleged
protective order. child sexual abuse:
a. Evidence offered to prove that the
If, at the time of trial, the court finds that the alleged victim engaged in other sexual
child is unable to testify, the court may admit into behavior; and
evidence the videotaped deposition of the child in b. Evidence offered to prove the sexual
lieu of his testimony at the trial. pre-disposition of the alleged victim.
b) EXCEPTION: Evidence of specific instances of
After the original videotaping but before or during sexual behavior by the alleged victim to prove
trial, any party may file any motion for additional that a person other than the accused was the
videotaping on the ground of newly discovered source of semen, injury, or other physical
evidence. evidence shall be admissible.

HEARSAY EXCEPTION IN CHILD ABUSE PROTECTIVE ORDERS

 198

Protection of privacy and safety - Any videotape RULING

or audiotape of a child that is part of the court
record shall be under a protective order. The The ruling of the court must be given
court may, motu propio or on motion of any immediately after the objection is made, unless
party, the child, his parents, legal guardian, or the court desires to take a reasonable time to
the guardian ad litem, issue additional orders to inform itself on the question presented; but the
protect the privacy of the child. 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.
OFFER AND OBJECTION (RULE 132)
OFFER OF EVIDENCE
STRIKING OUT OF AN ANSWER

Should a witness answer the question before the

The court shall consider no evidence which has adverse party had the opportunity to voice fully
not been formally offered. The purpose for which its objection to the same, and such objection is
the evidence is offered must be specified. found to be meritorious, the court shall sustain
the objection and order the answer given to be
WHEN TO MAKE AN OFFER stricken off the record. On proper motion, the
court may also order the striking out of answers
 testimony of a witness - the offer must be which are incompetent, irrelevant, or otherwise
made at the time the witness is called to improper.
testify.
 Documentary and object evidence shall be
TENDER OF EXCLUDED EVIDENCE
offered after the presentation of a party's
testimonial evidence. Such offer shall be done  If documents or things offered in evidence are
orally unless allowed by the court to be done excluded by the court, the offeror may have
in writing. the same attached to or made part of the
record.
OBJECTION  If the evidence excluded is oral, the offeror
may state for the record the name and other
 Objection to evidence offered orally must be personal circumstances of the witness and the
made immediately after the offer is made. substance of the proposed testimony.
 Objection to a question propounded in the
course of the oral examination of a witness Note: Supreme Court Rulings as of
shall be made as soon as the grounds therefor December 2010 – included
shall become reasonably apparent.
 An offer of evidence in writing shall be
objected to within three (3) days after notice REVISED RULES ON SUMMARY PROCEDURE
of the offer unless a different period is allowed
by the court. In any case, the grounds for the
(MeTC, MTC and MCTC)
objections must be specified.
 Grounds for objection: Hearsay;
CASES COVERED BY THE RULE
Argumentative; Leading; Misleading;
Incompetent; Irrelevant; Best evidence rule; 1) CIVIL CASES
Parole evidence rule; Question has no basis a. All cases of forcible entry and unlawful
detainer irrespective of the amount of
REPETITION OF AN OBJECTION damages or unpaid rentals sought to
be recovered.
When it becomes reasonably apparent in the b. All other cases, except probate
course of the examination of a witness that the proceedings where the total amount of
questions being propounded are of the same the plaintiff‘s claim does not exceed
class as those to which objection has been made, P100,000 outside, or P200,000 in
whether such objection was sustained or Metro Manila, exclusive of interest and
overruled, it shall not be necessary to repeat the costs.
objection, it being sufficient for the adverse party
to record his continuing objection to such class of 2) CRIMINAL CASES
questions.
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a. Violation of Bouncing Checks Law (BP  If a sole defendant shall fail to appear, the
22); plaintiff shall be entitled to judgment as
b. Violation of traffic laws, rules and warranted by the allegations in the
regulations; complaint and limited to the reliefs prayed
c. Violations of rental laws; for therein. The Rule shall not apply where
d. All other criminal cases where the one of two or more defendants sued under
penalty prescribed by law for the a common cause of action who had
offense charged is imprisonment not pleaded a common defenses shall appear
exceeding 6 months or a fine not at the preliminary conference.
exceeding P1,000 or both, irrespective
of other imposable penalties,
accessory or otherwise, or of the civil
liability arising therefrom; and in
KATARUNGANG PAMBARANGAY (Secs. 399
offenses involving damages to
422, LGC)
property through criminal negligence,
where the imposable fine does not
exceed P1,000.
e. In offenses involving damage to SUBJECT MATTER FOR AMICABLE
property through criminal negligence, SETTLEMENT
where the imposable fine does not
exceed P10,000.00 The lupon of each barangay shall have authority
to bring together the parties actually residing in
 Note: The Rule shall not apply in a civil case the same municipality or city for amicable
where the cause of action is pleaded with settlement of all disputes
another cause of action subject to the
ordinary procedure, nor to criminal case EXCEPT:
where the offense charged is necessary 1) Where one party is the government or any
related to another criminal case subject to the subdivision or instrumentality thereof;
ordinary procedure. 2) Where one party is a public officer or
employee, and the dispute relates to the
EFFECT OF FAILURE TO ANSWER performance of his official functions;
 Should the defendant fail to answer the 3) Offenses punishable by imprisonment
complaint within 10 days from service of exceeding one (1) year or a fine exceeding
summons, the court shall MOTU PROPIO or P5,000;
ON MOTION of the plaintiff, shall render 4) Offenses where there is no private
judgment as may be warranted by the offended party;
facts alleged in the complaint and limited 5) Where the dispute involves real properties
to what is prayed for therein. located in different cities or municipalities
unless the parties thereto agree to submit
 This is without prejudice to the their differences to amicable settlement
applicability of Sec. 4, Rule 18 if there are by an appropriate lupon;
two or more defendants. 6) Disputes involving parties who actually
reside in barangays of different cities or
PRELIMINARY CONFERENCE AND municipalities, except where such
APPEARANCES OF PARTIES barangay units adjoin each other and the
parties thereto agree to submit their
 a preliminary conference shall be held not differences to amicable settlement by an
later than 30 days after the last answer is appropriate lupon;
filed. The rules on pre-trial in ordinary 7) Such other classes of disputes which the
cases shall be applicable to the President may determine in the interest of
preliminary conference unless inconsistent justice or upon the recommendation of the
with the provisions of the Rule. Secretary of Justice;
 The failure of the plaintiff to appear in the 8) Any complaint by or against corporations,
preliminary conference shall be cause for partnerships, or juridical entities. The
the dismissal of his complaint. The reason is that only individuals shall be
defendant who appears in the absence of parties to barangay conciliation
the plaintiff shall be entitled to judgment proceedings either as complainants or
on his counterclaim. All cross-claims shall respondents;
be dismissed.
 200

9) Disputes where urgent legal action is

necessary to prevent injustice from being 1) Where the accused is under detention;
committed or further continued, specially 2) Where a person has otherwise been
the following: deprived or personal liberty calling for
a) A criminal case where the accused habeas corpus proceedings;
is under police custody or 3) Where actions are coupled with provisional
detention; remedies such as preliminary injunction,
b) A petition for habeas corpus by a attachment, delivery of personal property,
person illegally detained or and support pendente lite; and
deprived of his liberty or one acting 4) Where the action may otherwise be barred
in his behalf; by the statute of limitations.
c) Actions coupled with provisional
remedies, such as preliminary EXECUTION
injunction, attachment, replevin
and support pendente litem; The amicable settlement or arbitration award
d) Where the action may be barred by may be enforced by execution by the lupon within
the statute of limitations; six (6) months from the date of the settlement.
10) Labor disputes or controversies arising After the lapse of such time, the settlement may
from employer-employee relationship. be enforced by action in the appropriate city or
11) Where the dispute arises from the municipal court.
Comprehensive Agrarian Reform Law;
12) Actions to annul judgment upon a REPUDIATION
compromise which can be filed directly in
court. Any party to the dispute may, within ten (10)
days from the date of the settlement, repudiate
The court in which non-criminal cases not falling the same by filing with the lupon chairman a
within the authority of the lupon under the Code statement to that effect sworn to before him,
are filed may, at any time before trial, motu where the consent is vitiated by fraud, violence,
propio refer the case to the lupon concerned for or intimidation. Such repudiation shall be
amicable settlement. sufficient basis for the issuance of the
certification for filing a complaint before the
VENUE court.

1) Disputes between persons actually residing in

the same barangay;
2) Those involving actual residents of different
RULE OF PROCEDURE FOR SMALL CLAIMS
barangays within the same city or
CASES (AM No. 08-8-7-SC, as amended)
municipality;
3) All disputes involving real property or any
interest therein where the real property or the
larger portion thereof is situated; SCOPE AND APPLICABILITY OF THE RULE
4) Those arising at the workplace where the
contending parties are employed or at the This Rule shall govern the procedure in actions
institution where such parties are enrolled for before the:
study, where such workplace or institution is a) Metropolitan Trial Courts;
located. b) Municipal Trial Courts in Cities;
 Objections to venue shall be raised in the c) Municipal Trial Courts; and
mediation proceedings before the punong d) Municipal Circuit Trial Courts
barangay; otherwise, the same shall be
deemed waived. Any legal question which  for payment of money where the value of the
may confront the punong barangay in claim DOES NOT EXCEED P100,000.00
resolving objections to venue herein exclusive of interest and costs.
referred to may be submitted to the
Secretary of Justice, or his duly designated The MTCs shall apply this Rule in all actions which
representative, whose ruling thereon shall are:
be binding. a) purely civil in nature where the claim or
relief prayed for by the plaintiff is solely
WHEN PARTIES MAY DIRECTLY GO TO for payment or reimbursement of sum of
COURT money; and
 201

b) the civil aspect of criminal actions, either  No evidence shall be allowed during the
filed before the institution of the criminal hearing which was not attached to or
action, or reserved upon the filing of the submitted together with the Claim, unless
criminal action in court, pursuant to Rule good cause is shown for the admission of
111 of the Revised Rules of Criminal additional evidence. No formal pleading,
Procedure. other than the Statement of Claim is
necessary to initiate a small claims action.
These claims or demands may be:
RESPONSE
a) For money owed under any of the
following: The defendant shall file with the court and serve
1. Contract of Lease; on the plaintiff a duly accomplished and verified
2. Contract of Loan; Response within a non-extendible period of ten
3. Contract of Services; (10) days from receipt of summons. The response
4. Contract of Sale; or shall be accompanied by certified photocopies of
5. Contract of Mortgage; documents, as well as affidavits of witnesses and
b) For damages arising from any of the other evidence in support thereof. No evidence
following: shall be allowed during the hearing which was not
1. Fault or negligence; attached to or submitted together with the
2. Quasi-contract; or Response, unless good cause is shown for the
3. Contract; admission of additional evidence. The grounds for
c) The enforcement of a barangay the dismissal of the claim, under Rule 16 of the
amicable settlement or an arbitration Rules of Court, should be pleaded.
award involving a money claim
covered by this Rule pursuant to Sec. EFFECT OF FAILURE TO FILE RESPONSE
417 of RA 7160.
Should the defendant fail to file his Response
COMMENCEMENT OF SMALL CLAIMS within the required period, and likewise fail to
ACTION appear at the date set for hearing, the court shall
render judgment on the same day, as may be
A small claims action is commenced by filing with warranted by the facts.
the court an:
1) accomplished and verified Statement of Should the defendant fail to file his Response
Claim in duplicate; within the required period but appears at the date
2) a Certification of Non-forum Shopping; set for hearing, the court shall ascertain what
3) two (2) duly certified photocopies of the defense he has to offer and proceed to hear,
actionable document/s subject of the mediate or adjudicate the case on the same day
claim; as if a Response has been filed.
4) the affidavits of witnesses and other
evidence to support the claim. PROHIBITED PLEADINGS AND MOTIONS

a) Motion to dismiss the complaint; g) Petition for certiorari, mandamus, or

b) Motion for a bill of particulars; prohibition against any interlocutory order
c) Motion for new trial, or for reconsideration issued by the court;
of a judgment, or for reopening of trial; h) Motion to declare the defendant in default;
d) Petition for relief from judgment; i) Dilatory motions for postponement;
e) Motion for extension of time to file j) Reply;
pleadings, affidavits, or any other paper; k) Third-party complaints; and
f) Memoranda; l) Interventions.

1) not be a lawyer; and

APPEARANCES 2) must be related to or next-of-kin of the
individual-party.
The parties shall appear at the designated date of  Juridical entities shall not be represented by a
hearing PERSONALLY. Appearance through a lawyer in any capacity.
representative must be for a valid cause. The The representative must be authorized under a
representative of an individual-party must: Special Power of Attorney to enter into an
 202

amicable settlement of the dispute and to enter SC)

into stipulations or admissions of facts and of
documentary exhibits.

EFFECT OF FAILURE TO APPEAR

SCOPE AND APPLICABILITY OF THE RULE
Failure of the plaintiff to appear shall be cause for
the dismissal of the claim without prejudice. The These Rules shall govern the procedure in civil,
defendant who appears shall be entitled to criminal and special civil actions before the RTCs
judgment on a permissive counterclaim. and MTCs involving enforcement or violations of
environmental and other related laws, rules and
Failure of the defendant to appear shall have the regulations.
same effect as failure to file a Response. This rule
shall not apply where one of two or more CIVIL PROCEDURE
defendants sued on a common cause of action
appear.
PROHIBITION AGAINST TEMPORARY
Failure of both parties to appear shall cause the RESTRAINING ORDER AND PRELIMINARY
dismissal with prejudice of both the claim and INJUNCTION
counterclaim.
Except the Supreme Court, no court can issue a
HEARING; DUTY OF THE JUDGE TRO or writ of preliminary injunction against
lawful actions of government agencies that
enforce environmental laws or prevent violations
At the beginning, the judge shall read aloud a
thereof except the Supreme Court.
short statement explaining the nature, purpose
and the rule of procedure of small claims cases
and shall exert efforts to bring the parties to an PRE-TRIAL CONFERENCE; CONSENT DECREE
amicable settlement of their dispute. (SEC. 5, RULE 3)

Any settlement or resolution of the dispute shall  The judge shall put the parties and their
be reduced into writing, signed by the parties and counsels under oath, and they shall remain
submitted to the court for approval. under oath in all pre-trial conferences.
 The judge shall exert best efforts to persuade
Settlement discussions shall be strictly the parties to arrive at a settlement of the
confidential and any reference to any settlement dispute. The judge may issue a consent
made in the course of such discussions shall be decree approving the agreement between the
punishable by contempt. parties in accordance with law, morals, public
order and public policy to protect the right of
FINALITY OF JUDGMENT the people to a balanced and healthful
ecology.
After the hearing, the court shall render its  Evidence not presented during the pre-trial,
decision on the same day and the same shall be except newly discovered evidence, shall be
final and unappealable and if it is in favor of the deemed waived.
plaintiff, the judgment shall be executed upon his  CONSENT DECREE refers to a judicially-
motion. approved settlement between concerned
parties based on public interest aspect in
environmental cases and encourages the
parties to expedite the resolution of litigation.
RULES OF PROCEDURE FOR
PROHIBITED PLEADINGS AND MOTIONS
ENVIRONMENTAL CASES (AM No. 09-6-8-
(SEC. 2, RULE 2)
d) Motion to declare the defendant in default;
a) Motion to dismiss the complaint; e) Reply and rejoinder; and
b) Motion for a bill of particulars; f) Third party complaint.
c) Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed fifteen (15) days;
Motion for postponement, motion for new trial
and petition for relief from judgment shall only be
 203

allowed in certain conditions of highly meritorious Any judgment directing the performance of acts
cases or to prevent a manifest miscarriage of for the protection, preservation or rehabilitation
justice. The satisfaction of these conditions is of the environment shall be executory pending
required since these motions are prone abuse appeal UNLESS restrained by the appellate court.
during litigation.
It may not be stayed by the posting of a bond and
Motion for intervention is permitted in order to the sole remedy lies with the appellate court. The
allow the public to participate in the filing and appellate court can issue a TRO to restrain the
prosecution of environmental cases, which are execution of the judgment and should the
imbued with public interest. appellate court act with grave abuse of discretion
in refusing to act on the application for a TRO, a
Petitions for certiorari are likewise permitted petition for certiorari under Rule 65 can be
since these raise fundamentally questions of brought before the Supreme Court.
jurisdiction.
RELIEFS IN A CITIZEN’S SUIT
TEMPORARY ENVIRONMENTAL PROTECTION
ORDER (TEPO) Any Filipino citizen in representation of others,
including minors or generations yet unborn, may
Temporary Environmental Protection Order file an action to enforce rights or obligations
(TEPO) - refers to an order issued by the court under environmental laws.
directing or enjoining any person or government
agency to perform or desist from performing an If warranted, the court may grant to the plaintiff
act in order to protect, preserve or rehabilitate proper reliefs which shall include the protection,
the environment. preservation or rehabilitation of the environment
and the payment of attorney‘s fees, costs of suit
The TEPO shall be issued it appears from the and other litigation expenses. It may also require
verified complaint with a prayer for the issuance the violator to submit a program of rehabilitation
of an Environmental Protection Order (EPO) that or restoration of the environment, the costs of
the matter is of extreme urgency and the which shall be borne by the violator, or to
applicant will suffer grave injustice and contribute to a special trust fund for that purpose
irreparable injury. The applicant shall be subject to the control of the court.
exempted from the posting of a bond for the
issuance of a TEPO. PERMANENT ENVIRONMENTAL
PROTECTION ORDER
The executive judge of the multiple sala court
before raffle or the presiding judge of a single- The court may convert the TEPO to a permanent
sala court as the case may be, may issue ex EPO or issue a writ of continuing mandamus
parte a TEPO effective for only seventy-two (72) directing the performance of acts which shall be
hours from date of the receipt of the TEPO by the effective until the judgment is fully satisfied.
party or person enjoined. Within said period, the
court where the case is assigned, shall conduct a The court may, by itself or through the
summary hearing to determine whether the TEPO appropriate government agency, monitor the
may be extended until the termination of the execution of the judgment and require the party
case. concerned to submit written reports on a
quarterly basis or sooner as may be necessary,
The court handling the case shall periodically detailing the progress of the execution and
monitor the existence of acts that are the subject satisfaction of the judgment. The other party
matter of the TEPO and may lift the same at any may, at its option, submit its comments or
time as circumstances may warrant. observations on the execution of the judgment.

An applicant is exempt from the posting of a

WRIT OF CONTINUING MANDAMUS
bond. While the TEPO may be issued ex parte,
this is more of the exception. The general rule on
the conduct of a hearing pursuant to due process CONTINUING MANDAMUS is a writ issued by a
remains. court in an environmental case directing any
agency or instrumentality of the government or
JUDGMENT AND EXECUTION (RULE 5) officer thereof to perform an act or series of acts
decreed by final judgment which shall remain
effective until judgment is fully satisfied.
 204

court dismisses the action, the court may award

The concept of continuing mandamus was damages, attorney‘s fees and costs of suit under
originally enunciated in the case of Concerned a counterclaim if such has been filed. The
Residents of Manila Bay vs. MMDA, GR 171947- dismissal shall be with prejudice. If the court
98, Dec. 18, 2008. The Rules now codify the Writ rejects the defense of a SLAPP, the evidence
of Continuing Mandamus as one of the principal adduced during the summary hearing shall be
remedies which may be availed of in treated as evidence of the parties on the merits
environmental cases. of the case. Since a motion to dismiss is a
prohibited pleading, SLAPP as an affirmative
STRATEGIC LAWSUIT AGAINST PUBLIC defense should be raised in an answer along with
PARTICIPATION other defenses that may be raised in the case
alleged to be a SLAPP.
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION (SLAPP) refers to an action SPECIAL PROCEDURE / PROCEEDING
whether civil, criminal or administrative, brought
against any person, institution or any government
agency or local government unit or its officials WRIT OF KALIKASAN (WOK)
and employees, with the intent to harass, vex,
exert undue pressure or stifle any legal recourse The writ is a extraordinary remedy available to a
that such person, institution or government natural or juridical person, entity authorized by
agency has taken or may take in the enforcement law, people’s organization, non-governmental
of environmental laws, protection of the organization, or any public interest group
environment or assertion of environmental rights. accredited by or registered with any government
agency, on behalf of persons whose constitutional
A legal action filed to harass, vex, exert undue right to a balanced and healthful ecology is
pressure or stifle any legal recourse that any violated, or threatened with violation by an
person, institution or the government has taken unlawful act or omission of a public official or
or may take in the enforcement of environmental employee, or private individual or entity,
laws, protection of the environment or assertion involving environmental damage of such
of environmental rights shall be treated as a magnitude as to prejudice the life, health or
SLAPP. property of inhabitants in two or more cities or
provinces.
In a case is a SLAPP the defendant may file an
answer interposing as a defense that the case is Those who may file for this remedy must
a SLAPP. The hearing on the defense of a SLAPP represent the inhabitants prejudiced by the
shall be summary in nature. The party filing the environmental damage subject of the writ to be
action assailed as a SLAPP shall prove by filed with the SC or CA. The applicant is exempted
preponderance of evidence that the action is not from payment of docket fees.
a SLAPP and is a valid claim.
PROHIBITED PLEADINGS AND MOTIONS
The defense of a SLAPP shall be resolved within
thirty (30) days after the summary hearing. If the
f) Third-party complaint;
a) Motion to dismiss; g) Reply; and
b) Motion for extension of time to file return; h) Motion to declare respondent in default.
c) Motion for postponement;
d) Motion for a bill of particulars;
e) Counterclaim or cross-claim;
property or any relevant object or
DISCOVERY MEASURES operation thereon.
b) Production or inspection of documents
A party may file a verified motion for the or things - the court may order any
following reliefs: person in possession, custody or
a) Ocular Inspection - the court may order control of any designated documents,
any person in possession or control of papers, books, accounts, letters,
a designated land or other property to photographs, objects or tangible
permit entry for the purpose of things, or objects in digitized or
inspecting or photographing the electronic form, which constitute or
contain evidence relevant to the
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petition or the return, to produce and respondent. Upon full satisfaction of the
permit their inspection, copying or judgment, a final return of the writ shall be made
photographing by or on behalf of the to the court by the respondent. If the court finds
movant. that the judgment has been fully implemented,
the satisfaction of judgment shall be entered in
WRIT OF CONTINUING MANDAMUS the court docket.

A writ issued by a court in an environmental case The issuance of a TEPO is made available as an
directing any agency or instrumentality of the auxillary remedy prior to the issuance of the writ
government or officer thereof to perform an act itself. As a special civil action, the WoCMa may be
or series of acts decreed by final judgment which availed of to compel the performance of an act
shall remain effective until judgment is fully specifically enjoined by law. Its availability as a
satisfied. The petition shall contain a sworn special civil action likewise complements its role
certification of non-forum shopping. as a final relief in environmental civil cases and in
the WOK, where continuing mandamus may
1) GROUNDS FOR CONTINUING MANDAMUS likewise be issued should the facts merit such
a) When any agency or instrumentality of relief.
the government or officer thereof
unlawfully neglects the performance of
an act which the law specifically enjoins WRIT OF CONTINUING MANDAMUS VS.
as a duty resulting from an office, trust WRIT OF KALIKASAN
or station in connection with the
enforcement or violation of an Subject matter. WoCMa is directed against the
environmental law rule or regulation or unlawful neglect in the performance of an act
a right therein; which the law specifically enjoins as a duty
b) When any agency or instrumentality of resulting from an office, trust or station in
the government or officer thereof connection with the enforcement or violation of
unlawfully excludes another from the an environmental law rule or regulation or a right
use or enjoyment of such right. therein; or (a) the unlawful exclusion of another
from the use or enjoyment of such right and in
2) REQUISITES CONTINUING MANDAMUS both instances, there is no other plain, speedy
a) There must be a clear legal right or and adequate remedy in the ordinary course of
duty; law. A writ of kalikasan is available against
b) The act to be performed must be unlawful act or omission of a public official or
practical; employee, or private individual or entity,
c) Respondent must be exercising a involving environmental damage of such
ministerial duty; magnitude as to prejudice the life, health or
d) The duty or act to be performed must property of inhabitants in two or more cities or
be in connection with the enforcement provinces. In addition, magnitude of
or violation of an environmental law, environmental damage is a condition sine qua
rule or regulation or a right; and non in a petition for the issuance of a writ of
e) There is no other plain, speedy, and kalikasan and must be contained in the verified
adequate remedy in the ordinary petition.
course of law.
Who may file. A writ of continuing mandamus
is available to a broad range of persons such as
The petition shall be filed with the Regional Trial natural or juridical person, entity authorized by
Court exercising jurisdiction over the territory law, people‘s organization, NGO, or any public
where the actionable neglect or omission interest group accredited by or registered with
occurred or with the Court of Appeals or the any government agency, on behalf of persons
Supreme Court. The petitioner shall be exempt whose right to a balanced and healthful ecology
from the payment of docket fees. is violated or threatened to be violated.

If warranted, the court shall grant the privilege of Respondent. The respondent in a petition for
the writ of continuing mandamus requiring continuing mandamus is only the government or
respondent to perform an act or series of acts its officers, unlike in a petition for writ of
until the judgment is fully satisfied and to grant kalikasan, where the respondent may be a private
such other reliefs as may be warranted resulting individual or entity.
from the wrongful or illegal acts of the
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Exemption from docket fees. The application the right to institute separately the civil action
for either petition is exempted from the payment shall be made during arraignment.
of docket fees.
ARREST WITHOUT WARRANT; WHEN VALID
Venue. A petition for the issuance of a writ of (SEC. 1, RULE 11)
continuing mandamus may be filed in the
following: (a) the RTC exercising jurisdiction over A peace officer or an individual deputized by the
the territory where the actionable neglect or proper government agency may, without a
omission occurred; (b) the CA; or (c) the SC. warrant, arrest a person:
Given the magnitude of the damage, the a) When, in his presence, the person to be
application for the issuance of a writ of kalikasan arrested has committed, is actually
can only be filed with the SC or any station of the committing or is attempting to commit an
CA. offense; or
b) When an offense has just been committed,
Discovery measures. The Rule on the WCM and he has probable cause to believe
does not contain any provision for discovery based on personal knowledge of facts or
measures, unlike the Rule on WOK which circumstances that the person to be
incorporates the procedural environmental right arrested has committed it.
of access to information through the use of c) Individuals deputized by the proper
discovery measures such as ocular inspection government agency who are enforcing
order and production order. environmental laws shall enjoy the
PRESUMPTION OF REGULARITY under
Damages for personal injury. The WCM allows Section 3(m), Rule 131 of the Rules of
damages for the malicious neglect of the Court when effecting arrests for violations
performance of the legal duty of the respondent, of environmental laws.
identical Rule 65. In contrast, no damages may
be awarded in a petition for the issuance of a PROCEDURE IN THE CUSTODY AND
WOK consistent with the public interest character DISPOSITION OF SEIZED ITEMS
of the petition. A party who avails of this petition
but who also wishes to be indemnified for injuries Custody and disposition of seized items shall be
suffered may file another suit for the recovery of in accordance with the applicable laws or rules
damages since the Rule on WOK allows for the promulgated by the concerned government
institution of separate actions. agency.

CRIMINAL PROCEDURE In the absence of applicable laws or rules

promulgated by the concerned government
agency, the following procedure shall be
WHO MAY FILE observed:
a) The apprehending officer having initial
Any offended party, peace officer or any public custody and control of the seized items,
officer charged with the enforcement of an equipment, paraphernalia, conveyances
environmental law. and instruments shall physically inventory
and whenever practicable, photograph the
INSTITUTION OF CRIMINAL AND CIVIL same in the presence of the person from
ACTION whom such items were seized.
b) Thereafter, the apprehending officer shall
When a criminal action is instituted, the civil submit to the issuing court the return of
action for the recovery of civil liability arising the search warrant within five (5) days
from the offense charged, shall be deemed from date of seizure or in case of
instituted with the criminal action UNLESS the warrantless arrest, submit within five (5)
complainant days from date of seizure, the inventory
a) waives the civil action report, compliance report, photographs,
b) reserves the right to institute it separately representative samples and other
c) institutes the civil action prior to the pertinent documents to the public
criminal action. prosecutor for appropriate action.
c) Upon motion by any interested party, the
 Unless the civil action has been instituted court may direct the auction sale of seized
prior to the criminal action, the reservation of items, equipment, paraphernalia, tools or
instruments of the crime. The court shall,
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after hearing, fix the minimum bid price and despite due notice, the trial may
based on the recommendation of the proceed in absentia.
concerned government agency. The sheriff
shall conduct the auction. ARRAIGNMENT
d) The auction sale shall be with notice to the
accused, the person from whom the items The court shall set the arraignment of the
were seized, or the owner thereof and the accused within fifteen (15) days from the time it
concerned government agency. acquires jurisdiction over the accused, with notice
e) The notice of auction shall be posted in to the public prosecutor and offended party or
three conspicuous places in the city or concerned government agency that it will
municipality where the items, equipment, entertain plea-bargaining on the date of the
paraphernalia, tools or instruments of the arraignment.
crime were seized.
f) The proceeds shall be held in trust and PLEA-BARGAINING
deposited with the government depository
bank for disposition according to the On the scheduled date of arraignment, the court
judgment. shall consider plea-bargaining arrangements.
Where the prosecution and offended party or
BAIL concerned government agency agree to the plea
offered by the accused, the court shall:
WHERE TO FILE 1) Issue an order which contains the plea-
 Bail may be filed with the court where the bargaining arrived at;
case is pending, or in the absence or 2) Proceed to receive evidence on the
unavailability of the judge thereof, with civil aspect of the case, if any; and
any regional trial judge, metropolitan trial 3) Render and promulgate judgment of
judge, municipal trial judge or municipal conviction, including the civil liability
circuit trial judge in the province, city or for damages.
municipality.
 If the accused is arrested in a province,  Plea-bargaining is considered at arraignment
city or municipality other than where the in order to avoid the situation where an initial
case is pending, bail may also be filed with plea is changed in the course of the trial in
any Regional Trial Court of said place, or if view of a successful plea bargain.
no judge thereof is available, with any
metropolitan trial judge, municipal trial PRE-TRIAL
judge or municipal circuit trial judge
therein. After the arraignment, the court shall set the PRE-
 If the court grants bail, the court may TRIAL CONFERENCE within thirty (30) days. It
issue a hold-departure order in may refer the case to the branch clerk of court, if
appropriate cases. warranted, for a preliminary conference to be set
at least three (3) days prior to the pre-trial.
DUTIES OF THE COURT
Before granting the application for bail, the judge DUTY OF THE JUDGE
must read the information in a language known to 1) Place the parties and their counsels under
and understood by the accused and require the oath;
accused to sign a written undertaking, as follows: 2) Adopt the minutes of the preliminary
a) To appear before the court that issued the conference as part of the pre-trial
warrant of arrest for arraignment purposes proceedings, confirm markings of exhibits
on the date scheduled, and if the accused or substituted photocopies and admissions
fails to appear without justification on the on the genuineness and due execution of
date of arraignment, accused waives the documents, and list object and testimonial
reading of the information and authorizes evidence;
the court to enter a plea of not guilty on 3) Scrutinize the information and the
behalf of the accused and to set the case statements in the affidavits and other
for trial; documents which form part of the record
b) To appear whenever required by the court of the preliminary investigation together
where the case is pending; and with other documents identified and
c) To waive the right of the accused to be marked as exhibits to determine further
present at the trial, and upon failure of the admissions of facts as to:
accused to appear without justification
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a. The court‘s territorial jurisdiction motion to dismiss on the ground that the criminal
relative to the offense(s) charged; action is a SLAPP.
b. Qualification of expert witnesses;
and The hearing on the defense of a SLAPP shall be
c. Amount of damages; summary in nature. The party seeking the
4) Define factual and legal issues; dismissal of the case must prove by substantial
5) Ask parties to agree on the specific trial evidence that his acts for the enforcement of
dates and adhere to the flow chart environmental law are a legitimate action for the
determined by the court which shall protection, preservation and rehabilitation of the
contain the time frames for the different environment. The party filing the action assailed
stages of the proceeding up to as a SLAPP shall prove by preponderance of
promulgation of decision; evidence that the action is not a SLAPP.
6) Require the parties to submit to the
branch clerk of court the names, The court shall grant the motion if the accused
addresses and contact numbers of establishes in the summary hearing that the
witnesses that need to be summoned by criminal case has been filed with intent to harass,
subpoena; and vex, exert undue pressure or stifle any legal
7) Consider modification of order of trial if recourse that any person, institution or the
the accused admits the charge but government has taken or may take in the
interposes a lawful defense. enforcement of environmental laws, protection of
the environment or assertion of environmental
AGREEMENTS OR ADMISSIONS - All rights. If the court denies the motion, the court
agreements or admissions made or entered shall immediately proceed with the arraignment
during the pre-trial conference shall be reduced in of the accused.
writing and signed by the accused and counsel;
otherwise, they cannot be used against the EVIDENCE
accused. The agreements covering the matters
referred to in Section 1, Rule 118 of the Rules of PRECAUTIONARY PRINCIPLE
Court shall be approved by the court.
Precautionary principle states that when
Record of proceedings. All proceedings during
human activities may lead to threats of serious
the pre-trial shall be recorded, the transcripts
and irreversible damage to the environment that
prepared and the minutes signed by the parties
is scientifically plausible but uncertain, actions
or their counsels.
shall be taken to avoid or diminish that threat.
PRE-TRIAL ORDER - The court shall issue a pre-
When there is a lack of full scientific certainty in
trial order within ten (10) days after the
establishing a casual link between human activity
termination of the pre-trial, setting forth the
and environmental effect, the court shall apply
actions taken during the pre-trial conference, the
the precautionary principle in resolving the case
facts stipulated, the admissions made, evidence
before it. The constitutional right of the people to
marked, the number of witnesses to be presented
a balanced and healthful ecology shall be given
and the schedule of trial. The order shall bind the
the benefit of the doubt.
parties and control the course of action during
the trial.
In applying the precautionary principle, the
following factors, among others, may be
SUBSIDIARY LIABILITY
considered:
In case of conviction of the accused and
a) threats to human life or health;
subsidiary liability is allowed by law, the court
b) inequity to present or future generations;
may, by motion of the person entitled to recover
or
under judgment, enforce such subsidiary liability
c) prejudice to the environment without legal
against a person or corporation subsidiarily liable
consideration of the environmental rights
under Article 102 and Article 103 of the Revised
of those affected.
Penal Code.
DOCUMENTARY EVIDENCE
SLAPP IN CRIMINAL CASES
Photographic, video and similar evidence of
Upon the filing of an information in court and
events, acts, transaction of wildlife, wildlife by-
before arraignment, the accused may file a
products or derivatives, forest products or
mineral resources subject of a case shall be
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admissible when authenticated by the person

who took the same, by some other person
present when said evidence was taken, or by any
other person competent to testify on the
accuracy thereof.

Entries in official records made in the

performance of his duty by a public officer of the
Philippines, or by a person in performance of a
duty especially enjoined by law, are prima facie
evidence of the facts therein stated.