Remedial Law Review Lecture and Recitation Notes

Glenn Tuazon, 4-A  What is the definition of jurisdiction?

Atty. Tranquil Salvador o The power of the court to hear, try, or decide the case
SY 2010-11 o As conferred by law
 How will the court know that it has jurisdiction?
o From the allegations of the complaint.
Table of contents  Where do you take jurisdiction over the case?
1. CIVIL PROCEDURE o Conferred by law as well.
2. CRIMINAL PROCEDURE o Study BP 129, amended by RA 7691.
3. EVIDENCE  Do not assume that RA 7691 tells all. There are other
4. SPECIAL PROCEEDINGS laws too.
 What is the jurisdiction of the RTC?
o 1. Right/title/interest over real property, where value is: Value
PART I: CIVIL PROCEDURE is > 20K (OMM), > 50K (MM)
 Claim for ejectment due to unpaid rentals of over
400K. Which has jurisdiction?
Jurisdiction  MTC. Ejectment is always under MTC,
regardless of the claim over unpaid rentals.
Stuff to take note of in jurisdiction:  Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
 What is the definition of jurisdiction?
value of the property is 80,000. Property is
 Jurisdiction over the case or the subject matter? (Subject matter
located in MM. Which has jurisdiction?
jurisdiction)
 RTC, based on assessed value (not FMV)
 Jurisdiction over the person or the defendant?
which is over 50K. “Recovery of possession”
 Know the rules on filing fees. does not necessarily mean ejectment (ex.
Accion publiciana).
N.B. vis-à-vis for criminal cases:
 Value is determined by assessed value if it
 Definition – the same, as conferred by law, except you have to add that involves right, title, or interest
venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in  Ouano case?
civil cases, where parties can agree on venue or it can be subject to  There was discussion whether FMV or
waiver. assessed value dictates. Assessed value
 Jurisdiction over the offense. This is essentially the same as wins.
jurisdiction over subject matter. o 2. Amount incapable of pecuniary estimation
 Jurisdiction over the person. This is jurisdiction over the person of  Examples: rescission, reformation of contract, specific
performance
the accused.
 Is expropriation capable of pecuniary estimation?
 Filing fees are not necessary.
 Expropriation is always filed with the RTC.
Though the subject matter is capable of
 pecuniary estimation, the action is  Note that the MTC has a number of procedures.
exclusively instituted in the RTC. There are ordinary proceedings and summary
 What about declaratory relief? proceedings, and now, small claims.
 RTC always has jurisdiction, and the SC  So the “not exceeding 100K (OMM) and not
does not except when there is an issue of exceeding 200K (MM)” only applies for
constitutionality. summary proceedings. But it explicitly
 There is no such thing as determination of excluded probate proceedings.
value; just a determination of validity.  What is the jurisdiction of the MTC over small
 What about support? claims?
 Even if its amount can be determined, the  Not exceeding 100K.
law confers it to the Family Courts. o 7. Admiralty cases – same amounts
 Foreclosure of mortgage?  In determining the 300K/400K, can you include damages, interest,
 Two views: one says that it‟s always with the attorney’s fees, litigation costs, etc?
RTC, because it only covers the security of o NO. Only limit the amount to the demand or the claim.
the property. The original action is always o But remember that there can be a principal action for
for recovery of money. damages, in which the amount of damages claimed
 The other view is that it must be governed by determines the amount. This is not covered by RA 7691, this
the value of the security. is covered by 95-9-94.
o 3. Family cases/marriage  Small claims
 Includes support, annulment, nullity, etc. o What is the amount?
o 4. Juvenile/agrarian case  Not exceeding 100K.
o 5. Other claims, where claim exceeds 300K (OMM) or 400K o Is there a distinction between OMM and MM in small
(MM) claims?
 The original text gives lower values. When was it  No.
adjusted? o What should be included in the 100K?
 Original costs took effect March 25, 1994  The claim itself.
 1999 – adjusted OMM from 100K to 200K  Exclusive of damages
 2004 – adjusted both MM and OMM to 400K  What if the principal action is for damages?
and 300K respectively  Does not apply. Actions for damages are
 Always take note of the word “exceeding” so the exact not covered by small claims actions,
amount is for the lower court. because these have to be ascertained.
o 6. Probate of will, determination of inheritance – same amounts These are not akin to sum-of-money cases.
 Considering that the MTC has jurisdiction over o Does it cover quasi-delicts?
probate cases, at times, what if the value of the  Yes. (Covers: fault/negligence, quasi-contract, or
estate is 100K? Can the probate of a will be contract)
subject to summary procedure? o What if it arises from commission of an offense?
 No. The rules on summary procedure  Yes – for the civil aspect of such (fault/negligence).
explicitly exclude probate proceedings.  Just remember that when you file a criminal case, the
civil aspect is likewise filed (unless reserved, waived,
 or filed ahead). So it cannot be the subject of small  actions against ambassadors, public ministers,
claims. consuls, etc.;
o Do you need a lawyer to file the complaint? Do you need  constitutionality of treaties, laws, proclamations, etc.;
to prepare a regular complaint.  declaratory relief only when there is a question of
 No need for a lawyer. There is also a standard form constitutionality
provided. o Appellate:
o How will you address the problem where the claim is for  decision of CA, decision of CTA en banc, decision of
sum of money not exceeding 100K, and it is outside MM? SB, decision of RTC on pure questions of law;
There is an overlap here between summary procedure and  REMEMBER this motherhood statement: the only
small claims procedure. Which is preferred? way to go up to the SC is for petition for review on
 This is still open for discussion, and is not yet clear. certiorari (RULE 45). This applies to civil and criminal
 Sir suggests that the option is upon the complainant, cases, except if the penalty in a criminal case is
since there is concurrent jurisdiction of both small death, RP, of life imprisonment.
claims court or court of summary procedure.  Jurisdiction over the person of the defendant:
 N.B. Sec. 21 of BP 129, as amended, provides that the RTC has o 1. Voluntary appearance
concurrent original jurisdiction for:  By submitting to the jurisdiction of the court; ex.
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas Appearing in court or filing an answer or filing motion
corpus, injunction, enforceable within respective regions for extension of time without disputing the court‟s
o 2. Actions affecting ambassadors, other public ministers, and jurisdiction
consuls o 2. Proper service of summons
 What is the MTC jurisdiction?  Rule 14
o Just the opposite of everything in RTC  Filing fees:
o Then just add ejectment/unlawful detainer o Rule #1: payment of filing fees is jurisdictional in civil cases
 What is the jurisdiction of the CA? o Rule #2: how does the court determine filing fees?
o It has both original and appellate jurisdiction.  You include interest, damages, attorney‟s fees etc. –
o Original: habeas corpus, habeas data, certiorari, prohibition, pay everything that you allege for court fees
mandamus, quo warranto, writ of amparo, annulment of  But for jurisdictional purposes, just the principal claim
judgment o Rule #3:
 N.B. Its original jurisdiction is exclusive as regards  Sun Insurance
annulment of judgment of RTC  Filing fees must be paid within prescriptive period or
o Appellate: ordinary appeal (notice of appeal), petition for reglementary period (for appeals or compulsory
review, over quasi-judicial bodies counterclaims), or else it is deemed prescribed
 What is the jurisdiction of the SC? o Rule #4:
o Also both original and appellate jurisdiction.  Alday v. FGU Insurance
o Original: habeas corpus, habeas data, certiorari, prohibition,  Permissive counterclaims require docket fees
mandamus, quo warranto, writ of amparo, disciplinary actions  The claim does not arise from the principal
over PLUS – action, but involves the same parties. This
 Actions against members of the Bar [concurrent with could easily have been filed separately.
IBP];  Compulsory counterclaims do not require docket fees
  BUT read Korean Technologies case of 2009 – this  Jurisdiction is not automatically lost. Clerk of court
is how you answer the question whether compulsory makes a deficiency assessment.
counterclaims require filing fees  There must be no intention to defraud.
 From nowhere, this case required that even  Thornton:
compulsory counterclaims have docket fees o Husband filed for habeas corpus in RTC Makati to recover
paid. Korean Technologies cited Rule 141. child from wife
 But in practice, based on an SC Resolution, o What are the two kinds of habeas corpus?
the collection of filing fees on compulsory  N.B.: there are two kinds of habeas corpus – custody
counterclaims is suspended. This has not of minors and regular habeas corpus in the Rules of
been lifted yet. Court
 Alday: Payment of filing fees for compulsory o RTC Makati dismissed the case because the child was
counterclaims is not required. But you have allegedly in Basilan.
to take note of Korean Technologies now o What is the effectivity of writs of habeas corpus?
o Lien on the judgment?  N.B.: Effectivity of writ issued by regular court only
 If there are damages granted to the complainant, but enforceable in the territorial jurisdiction. But CA and
there has been lack of payment of filing fees. The SC – everywhere.
payment of docket fees is a lien on the damages. o Filed with the CA, but was denied because the RTC (Family
 What if the claim has already ripened upon the Courts) have original jurisdiction over custody of minor Habeas
filing of the complaint, but by omission, but you Corpus cases.
were not able to allege it. Can this be a basis for a o HELD: Can file with CA. It has jurisdiction. SC has
lien on the judgment? jurisdiction, too. The CA and SC have concurrent jurisdiction
 Proton Pilipinas v. Banque Nacional over habeas corpus cases.
 There was a claim that has ripened but was o But always remember that when you talk about concurrent
not included, and there were interests that jurisdiction, you still have to follow hierarchy of courts.
would ripen once the action is pending.  Herrera v. Bollas
 SC said that a claim ripened during the o Ejectment case (1 year period). Filed within the proper period,
pendency of the case, it can be a lien on the but the complaint was amended to add additional defendants
judgment. beyond the 1 year period. Does the court still have
 But if you did not allege it, the court cannot jurisdiction?
grant an award because you did not pay o After the lapse of the year period for ejectment, has the
docket fees. claim prescribed?
o What is the rule on deficient or insufficient payment of  No. N.B. One year period is not prescriptive period.
filing fees? You just file action pubiciana with the appropriate
 Rivera v. Del Rosario court (RTC or MTC, depending on the assessed
 You have to pay full filing fees. The deficiency must value), not the MTC by default (for ejectment).
not be based on the fault of complainant. But if the o HELD: MTC still had jurisdiction for ejectment (based on
fault lay on the wrong assessment of the clerk of original complaint.)
court, there is a chance to pay the deficiency.  Oca:
 o Repetition of Tijam v. Sibonghanoy – estoppel by laches. After  Zamboanga Barter Goods:
active participation in a case, you cannot question the court‟s o N.B. Rule 65 is not an appeal. It is a special civil action.
jurisdiction anymore. o Being one, RTC, CA, and SC have concurrent jurisdiction.
o Went up to the SC through Rule 43 (appeal to CA from a QJA) When you discuss concurrent jurisdiction, you cannot avoid
 Usually decisions of QJA go up to the CA under Rule 43. What are discussing hierarchy.
the exceptions? o But when you talk about appeals, no need to consider
o 1. HLURB decisions, as provided in charter, appealable to the hierarchy. The law already makes a decision for you.
Office of the President
o 2. CTA decisions, under amended rules, appealable to the Actions
CTA en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the  What are the kinds of actions?
CA although not under Rule 43, but Rule 65 (GADALEJ). o Civil
o 4. OMB decisions – go to the CA, under Rule 43, for  Protection or enforcement of a right, or prevention or
administrative cases. But if there is GADALAEJ, go to the SC, redress of a wrong
under Rule 65.  Two types?
 Mijares:  Ordinary
o Which court has jurisdiction over enforcement of foreign  Special
judgments? o Criminal
 RTC, because enforcement of foreign judgments are  Once the information is in court, only then does it
incapable of pecuniary estimation. become a criminal action, that has already been
 ALWAYS, regardless of amount of judgment, since it prosecuted by the State through the prosecutor.
is not based on the amount of the claim. o Special proceedings
 In this type of action, you don‟t need to prove the facts  Establishes a right, status, or condition
again, etc.  Are civil actions always based on a cause of action?
o Marcos’s group that docket fees must be based on the o No.
value/amount of the claim, which is up to the Billions. Is  Distinguish ordinary civil action from special civil action?
this correct? o There is Cause of Action in ordinary civil action.
 This rule applies to money claims against an estate, o Ex. Special Civil Action – like declaratory relief does not need
but without judgment yet. Here, there already was a cause of action
judgment in DC of Hawaii.  Requisites of cause of action?
o How do you impugn a judgment? o 1. Right of one party
 Lack of notice o 2. Obligation of the other to respect
 Lack of jurisdiction o 3. Breach – MOST IMPT!
 Collusion  Is splitting cause of action a ground for MTD?
 Fraud o No it is Res Judicata and Litis Pendentia
o What is the rule on Arbitral awards?  Can there be joinder of cause of action?
 These must be should be enforced or recognized o Yes.
 An arbitral award is not a foreign judgment (Under o BUT it is not mandatory.
ADR Rules)  Does there have to be just one breach or numerous violations?
 o Numerous. o Note: sum of money is determined by amount (personal).
o For every cause of action, there is one breach. Recovery of property is determined by location of the property
o For as many breaches as there are, there are as many causes (real).
of action. o N.B. as well that venue is not jurisdictional in civil cases, unlike
 If there is a claim for sum of money, and several claims for criminal cases. Note as well that venue is waivable.
damages (moral, exemplary, etc.) – are there multiple causes of o Answer: Theoretically, you can join. But the other party is
action? expected to file a motion to dismiss on the ground of improper
o No. Just one, because claims for damages are incidents of the venue. FOLLOW THE GENERAL RULE: The higher court
one breach (failure to pay). absorbs the claim (RTC > MTC).
 There are three promissory notes, with amounts of 50K, 100K, and  What is the rule on jurisdiction over counterclaims?
200K, and there is just one loan. There was failure to pay. How o In the RTC, there is no limit to the counterclaim. In the MTC,
many causes of action do you have? the counterclaim is limited to the jurisdiction of the inferior
o Three PNs, three causes of action. court.
 Can there be joinder of alternative causes of action? o What happens to the balance?
o Yes. Example is shipping of goods. First cause of action is  It‟s lost. So it‟s better to file a separate action in this
based on breach of shipping contract. In case it is void, the scenario.
alternative is to sue based on quasi-delict.  Is misjoinder of cause of action a ground for its dismissal?
 If you join cause of action should it arise from the same series of o No, it will NOT cause dismissal of the principal action.
transactions, or can it be totally unrelated?  It is severed and these proceed with separately.
o Scenario 1: X versus Y (just two parties). Can join as many  Although there can only be separate proceeding when
causes of action, even if totally unrelated. there is separate filing.
o Scenario 2: X versus ABCD (multiple defendants). Can only o The court is not duty-bound to proceed with it, especially when
join the causes of action if it complies with the rule on it appears that it has no jurisdiction.
PERMISSIVE JOINDER (series of actions arising from the  What is a special civil action?
same facts or law – Rule 3 Section 6) o Covered by special rules.
 Can you join ordinary civil actions with special civil actions?
o No. Parties
 Can you join two special civil actions?
 Who can be parties to an action?
o No. Because they have their own special rules.
o Natural persons
 Can you join recovery of sum of money and ejectment?
o Juridical persons
o No. Ejectment is summary proceeding, so it has its own rules.
o Those authorized by law
 What is the totality rule?
 What is the general rule?
o When all of the claims are claims for sums of money, even if
o All those with capacity can be a party.
one claim falls under the jurisdiction of the MTC but the rest
o For natural persons, that is the age of majority.
may fall under the RTC, what controls is the sum of all claims.
 Can a six year old boy be a party?
o But you cannot do this when not all are for sums of money.
o Yes, but with assistance of parent, guardian, or guardian-ad-
 There is a sum of money claim and recovery of property in Cavite.
litem.
Can you join the action in Cavite?
o A minor can sue, a minor can be sued if assisted.
 What is the rule on married parties? o No separate juridical existence.
o Sue and sued jointly. o They can be parties, as defendants, and named as such
o What are the exceptions? (under the name under which they are generally and
 Judicial separation of property commonly known).
 Abandonment o They CANNOT institute an action as a non-juridical entity.
 Exclusive property of spouses They have to institute it individually.
 Involving practice of profession  How do you serve summons to a non-juridical entity?
 What if the natural person is incapacitated? o To anyone or person in charge of the office.
o Can sue and be sued, but must be assisted.  Who are those authorized by law? Give examples.
o What if the person becomes incapacitated (supervening o Political parties
incapacity), will the case be dismissed? o Labor unions
 No. Sec. 18 provides that the court will provide o Archdiocese
assistance. o Estate
 When can we say that a juridical person has capacity?  How do you serve summons?
o Duly incorporated and registered with the SEC. o Depending on the entity – they have different rules.
 [Mild segue into summons] If the defendant is a natural person, how  Can you serve summons to a natural person in prison?
do you serve summons? o Yes. Serve it to the warden.
o Priority is personal service. It must be served to the persons,  For public corporations?
wherever he may be found. (Ex. The “James Yap” rule – they o Province – executive head (governor)
tried serving it to him in Araneta) o City – city mayor
o If he cannot be found, substituted service to a a) person of o Municipality – municipality mayor
sufficient age and discretion and b) residing therein. Either  Who is a real party in interest?
residence or office. o A party who stands to be benefitted or prejudiced by the
 What is “sufficient age and discretion”? Recent judgment.
ruling says age of majority.  Does the concept extend even to defendants and third party
 Should not be a transient. Must reside therein. plaintiffs/defendants? What about an intervener?
 Can a foreign corporation sue and be sued? o The law does not limit it to plaintiffs only – it uses “party” as a
o If it‟s an isolated transaction, a foreign corporation can sue and generic term, so it can encompass any party impleaded, if he
be sued. will benefit or be injured.
o If it‟s doing business but not licensed, it CANNOT sue, but can  Does this concept of real party in interest apply to all cases?
be sued. o No. The concept of real party in interest will only apply to
o If it‟s doing business and is licensed, it can sue and be sued. private suits.
 Service of summons to a domestic corporation? o Does it apply to a taxpayer suit?
o Rule 14, Sec 11  No. Locus standi applies here.
 How do you serve summons to a foreign corporation? o Does it apply to criminal cases?
o Resident agent – one named to receive summons  [Not answered, but I think not]
o Representatives and officers found in the Philippines (if it has a o What is the difference from legal standing/locus standi?
branch, for instance)
 What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
  This is from public suit filed by a private party. There  There is an action for recovery of title AND possession. X holds
is a broader policy concern here, even if there can be title; Y has possession of the property. The action is just for
benefit or injury as well. recovery of title. Can you sue X?
o A Congressman does not believe in the act of the o Yes, because X is the proper party.
President, so he questions it as part of his legislative  Same facts. Can you sue Y for recovery of title, without suing X?
prerogative. Is he a RPII? o No. Y is a mere possessor. The court cannot render judgment
 No. Locus standi applies as well. without impleading X. X is an indispensable party in this case.
 Thus, differentiate RPII from locus standi:  What is the failure of failure to implead?
o Locus standi pertains to acts of government. By reason of this o If it is a necessary party, the general rule is that failure to
act, you suffered injury. implead is non-prejudicial. There is no waiver of right to
o You do NOT use legal standing in private suits. Only in public implead. There is no waiver UNLESS there is an order to
suits. implead from the court.
 Who is a necessary party? o If it is an indispensable party, the court should order that the
o A) They are not indispensable, B) but ought to be joined if one indispensable party be impleaded (Domingo). If despite this
needs complete determination of the case. order to implead, the plaintiff did not comply, the case should
 Who is an indispensable party? be dismissed.
o If not impleaded, there can be no final determination. o What if the court did not notice non-joinder, and thus did
o N.B. The codal does not use the word “complete.” So they are not order to implead the indispensable party, and renders
compulsorily joined. a decision?
 What if there is a suit against joint debtors?  The judgment is null and void.
o The other parties not sued are necessary parties.  When is there substitution of parties in a civil case? There are
o Can you sue one of them only? three.
 Yes. The court can issue a valid judgment, although o 1. Death
not complete.  Who should die?
o Can you then proceed against the other one, though not  Any party. The law does not distinguish.
impleaded at first?  This is the most common.
 Yes. o 2. Change of holder of public position (death, resignation,
 What if there is a solidary obligation, not joint? Ex. X and Y removal, cease to hold position)
solidarily owe Z PHP 100,000. Z sues.  This is a very limited application, since it just applies
o [Neither necessary nor indispensable (?)] to public officers.
o Can you sue X only? o 3. Transfer of interest
 Yes.  What are the requisites of substitution by death?
o Can there be judgment? o 1. A party dies
 Yes, because the obligation is joint and several o 2. The pending action is not extinguished by reason of death
(solidary). (IMPT)
o Can you sue Y later on, having recovered from X? o Why does the law need to say this?
 No, because you recovered already.  Because there are actions that are extinguished by
o Can you sue at the same time? death. Examples are actions that are purely personal
 Yes. The case can proceed against either, or both. to the party
  Give examples. o [Non-recitation question – what is the effect if E is
 Ex. Contract for Michael Jackson to sing in a necessary? If E is indispensable?]
party.  Relate the provisions above. If necessary, you can
 Ex. Receipt of a widow of support. When subsequently file a suit against E‟s heirs to complete
she dies, the support from widower‟s estate the judgment. If indispensable, the judgment is null
is gone. and void, even against C and D.
 What is the duty of the counsel after death?  What are the requisites for substitution of public officer?
o 1. Give notice of death of the party within 30 days. o 1. Removal/death of public officer and appointment of
 When is the 30 day period counted? successor within 30 days unless otherwise provided
 From the FACT of death, and not from the o 2. Successor adopts, continues, or threatens to continue the
knowledge thereof. action sued against
o 2. Give names and addresses of the legal representatives o 3. There is substantial need to continue the action
 Who should be legal representatives?  Substitution is no automatic. What are needed to be done to
 Legal heirs, administrator, or executor substitute the new public officer?
 N.B. The law provides for legal heirs, o 1. Give notice to the new public officer
because there is procedure to be done o 2. Opportunity to be heard for the new officer
before appointment of administrator or  Mere fact that he is inclined to continue the action of
executor (ex. probate of the will for the the predecessor is not enough
latter).  Give an example of transfer of interest.
o 3. Court orders substitution and for the substitute to appear o A sues B for judgment for sum of money based on contract. B
 There is action of A and B against C, D, and E. What if E dies? assigns the contract to C and C accepts.
o The counsel of E names a substitute. The court will then act o Can the case continue against B despite the transfer of
accordingly. interest?
 Same facts. However, there was no successful substitution (i.e.  Yes.
the duties were not complied with). What happens? o Can the court order that C be impleaded?
o There can be a valid judgment, but only against C and D.  Yes. But there is no substitution here. C is just
o There can be no valid judgment against E. joined.
 Same facts. No substitution of E either. But C and D are o How then can there be substitution?
incidentally, heirs of E. Can there be a valid judgment as to C and  The court has to order a substitution, not mere
D? Is there a need for substitution? impleading. BOTTOM LINE: there has to be a court
o There is still a need for substitution, even if C and D are order.
already parties. That C and D are incidentally E‟s heirs as well  In case of death of a defendant in a sum of money case, will there
does not change the result. be substitution? (VERY IMPORTANT)
o This is the Brioso case. There is valid judgment only against o Section 20. It will NOT go to the heirs, but it will continue
C and D. It is wrong to say that C and D automatically against the estate. (Remember Succession!)
substitute for E. There are other heirs who are affected by this o This is the special rule against sum of money cases.
improper “automatic” substitution. o Ratio for this?
 Because you ultimately deal with the executor or
administrator anyway.
  But it‟s wrong to say there is substitution, because the the requirement of appellate docket fees. The 1997 Rules
law does not mandate it. must not apply retroactively.
o This position is further supported by Rules 86 and 87.  Atlantic Erectors:
o What are the requisites for this rule to apply? o Collection for sum of money over construction project over
 1. The DEFENDANT must die property. The plaintiff attempted to make an annotation of lis
 2. It must be a sum of money case based on contract pendens on the title of the property. HELD: You cannot do
o What if the plaintiff dies? this. This is an action in personam, not in rem, as regards the
 The general rule will apply, even if it‟s a sum of property.
money case. o A notice of lis pendens will only lie if it is a right, title, or interest
 Indigents – Algura v. Local Government of Naga: Resolves the over real property. Outside of this, you cannot avail of a notice
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19. of lis pendens.
o If the indigent fits within the parameters set by Rule 141, Sec.  Diaz:
19, then the court must declare him to be an indigent. o Rule 43, up to the CA. Attached duplicate of decision, but not
 What is the Rule 141 requirement? pleadings. This is enough for CA to give due course to the
 Gross income + family income does not petition.
exceed twice of monthly minimum wage  PDIC:
 And owns real property whose FMV is less o The main case is for declaratory relief (SCA). The question is
or equal to PHP 300K whether there can be execution of such (yes). There can also
o If he doesn‟t, he falls under Rule 3, Sec. 21 and must apply for be a counterclaim, even if declaratory relief is an SCA and the
indigent status. (“Indigency test”) Here, the court exercises counterclaim is an ordinary action.
discretion as to whether you are an indigent or not.  Tolentino v. Natanauan:
o So can a person owning real property with FMV of PHP o There is no res judicata between recovery of possession and
300,001 be declared an indigent? nullity of deed of sale.
 Yes, but under the indigency test. o Requisites of res judicata?
 If you are declared an indigent, you do not pay filing fees. But  A) Former judgment final
what happens when there is a judgment?  B) Court had jurisdiction
o There is a lien, as regards filing fees.  C) judgment on merits
 What is the rule on stenographic notes?  D) Identity of parties, subject matter, causes of action
o It is free. There is no lien on the judgment.
 What happens when the court finds out you are not an indigent? Venue
o The court can require you to pay.
o What if you refuse to pay?  Do not make the mistake of confusing venue and jurisdiction in civil
 The court can order execution. procedure. Jurisdiction is the power given by law to hear, try, and
o What if you fail to pay or ignore the execution? decide cases. Knowing what court is one thing, but knowing where to
 The court can dismiss the case, for failure to comply file it is different.
with an order of the court.  There was an agreement to development of a piece of land in
Tanay, Rizal to become a memorial park. The duty of the owner
 Planters v. Fertiphil:
(living in Quezon City) of the piece of land is to provide property.
o Planters did not pay appellate docket fees. But this was in
The duty of the developer (located in Pasig) is to dig up the land,
1992, prior to the 1997 Rules on Civil Procedure, which began
 put drainages, etc. The owner of the land died, and the heirs are o RTC where the plaintiff resides, where the defendant resides,
now substituting for their father. They want to rescind the or where their conjugal home is located (special rule in Family
agreement to develop. Where do they file? Courts issuance)
o There are two steps in venue problems. First, determine: is it  What should be your first consideration? What is the general rule?
a real action or a personal action? o Rule 4 (rules of venue) applies in general, UNLESS a specific
 It‟s a personal action. It involves rights and law provides otherwise.
obligations of parties, although the subject matter  On specific venues, as provided by law –
involves land. o Give an example.
o Where do you file it?  Actions for Quo warranto – if the Solicitor general
 At the option of the plaintiffs. Either in their principal commences it, in can be in the SC, CA, or RTC of
residence (Quezon City) or the defendant‟s (Pasig) Manila
o Which court has jurisdiction? o What if you want to file an action for perpetuation of
 RTC, because it is an action incapable of pecuniary testimony?
estimation (rescission)  This is covered by Rule 24 (deposition before action
 Aileen Marcos case: or pending appeal).
o In cases where there are several plaintiffs and defendants, the  Special rule: Place of residence of any expected
codal provides the word “principal” before plaintiff and adverse party or defendant
defendant, so that the plaintiffs will not file the case before far- o What about adoption?
flung or inconvenient areas.  Where the prospective adoptive parents reside
o In this case, Aileen Marcos is filing a case to enforce a trust, o What about probate?
and some nominees live in Batac, Ilocos. Marcos lives in  Where the deceased last resided at his time of death
Makati. She filed in Batac. o Writ of habeas corpus on residence of minors?
o HELD: Should have filed in Makati, because she is the  General rule: RTC where the minor is supposed to be
principal plaintiff. found
 Where do you file an action for extra-judicial foreclosure?  Thornton: But if unknown or cannot be found, in the
o Extrajudicial foreclosure of mortgage is NOT a judicial action. CA or SC
It‟s not covered by the Rules of Court, but Act 2135. For  Can the parties stipulate on venue?
purposes of EJ foreclosure, it should be filed where the o Yes, they can.
property is located. o In an ejectment case, the property is located in Cebu.
o But the mere filing and payment of fees (for multiple properties Plaintiff resides in Makati, defendant in QC. Where do you
in various areas) can be paid in one office, as long as it can be file it?
established that it covers all areas. But the actual sale will only  In the MTC of Cebu. Residence in general does not
be done in the place where the properties are located. matter.
 What about judicial foreclosure? o What if I file it in Makati?
o Rule 68 does not provide for venue for this SCA. But it is filed  Yes.
where the property is located.  But what will you expect?
o But if it is for collection of a sum of money, file it as a personal  Motion to dismiss on the ground of wrong
action. venue, coming from the defendant.
 Where do you file an action for nullity of marriage?
  But what if there was no motion to dismiss, and in  A) Dismiss the case outright
the answer, there was no allegation of improper  B) Issue summons
venue? o What is the responsive pleading?
 There is waiver on the rules of venue.  Answer.
 Remember Rule 9, Section 1. This is the general rule on waivers and  Can you file a MTD?
objections on grounds not raised in an answer or MTD. Failure to raise  In general, no. It is a prohibited pleading.
these grounds in MTD or answer is a waiver. Exceptions:  When do you file the answer?
o 1. Lack of jurisdiction over the subject matter  10 days, not the usual 15.
o 2. Litis pendentia o Can the plaintiff file a reply?
o 3. Res judicata  No. It‟s also a prohibited pleading.
o 4. Statute of limitations o What if there is no answer?
 What is the distinction that you have to make as to stipulations?  The plaintiff can file a motion for the court to render
o If there are no words of exclusivity, then it is only an additional judgment.
venue.  A motion to declare the defendant in default is a
o If there are words of exclusivity (ex. “can only be filed in Cebu, prohibited pleading. Just ask the court to render
waiving all other venues”), then you can only file it there. judgment.
o (PBCom v. Lim is an example of a case with restrictive words) o After the filing of the last pleading, move on to next stage.
 In this case, the stipulation on venue in the principal  2. Preliminary conference.
agreement (PN) applies to the accessory contract, o Take note, in SP, it is NOT pre-trial but preliminary conference.
which is the surety agreement – which cannot exist o When does the court set this?
without the prior agreement.  Period of 30 days.
 What if there was no Motion to Dismiss and no answer filed? o What happens here?
Apparently, the defendant did not notice the improper venue, or he  The parties can compromise, identify issues, etc.
decided to waive it. Can the judge later motu propio dismiss the o Can the court render a judgment based on what was
case after noticing that the venue is wrong? presented in the preliminary conference?
o No, he cannot motu propio dismiss the case on the ground of  Yes, the court can, if it is convinced at this point in
improper venue. (Gumabon) time.
 Distinguish between wrong venue and lack of jurisdiction (ex. wrongly o Assuming there is no judgment in steps 1 and 2, move to the
filing an ejectment case in the MTC.) Here, while the rules on summary next step…
procedure include MTD as a prohibited pleading, an exception is lack of  3. Submission of judicial affidavits or position papers
jurisdiction (contra. wrong venue). o Is there a hearing in summary proceeding or trial?
 What is the local version of forum non conveniens?  No hearing, no trial.
o Prohibited forum shopping (Read Bank of America) o Within how many days do you submit affidavits?
 Within 10 days
Summary procedure o Can the court render judgment?
 General rule: 30 days from the filing of the last
 1. Filing of the complaint pleading
o In summary procedure, after filing the complaint, what can  NOT submission for resolution, but
the court do? submission of the last pleading
  Exception: 15 days, if the court asks for further o The defendant filed a Motion to Strike Out instead of an
clarificatory documents answer, which was, in reality, a motion to dismiss. The judge
 What are the prohibited pleadings? should not have granted this.
o 1. MTD  Boy v. CA:
 Except lack of jurisdiction over subject matter o May the MTC pass upon questions of ownership in an
 Or failure to refer to lupon ejectment case?
o 2. Reply  YES, only provisionally and for the purpose of
o 3. Bill of particulars resolving forcible entry/unlawful detainer cases. This
o 4. MR or MNT is a power granted by BP 129.
o 5. Petition for relief from judgment  Macasaet v. Macasaet:
o 6. Motion to declare in default o In the preliminary conference, representatives appeared on
o 7. Third party complaint behalf of the original parties (as attorneys-in-fact). This special
o 8. Memoranda authorization is a valid cause for someone else to appear in
o 9. Dilatory motions for postponement the plaintiff‟s or defendant‟s behalf.
 Does this cover motion for cancellation of o What happens when the plaintiff is absent in preliminary
hearing? conference?
 If is not dilatory. But be careful with this,  Case is dismissed
because the judge has to determine first if it o What happens when the defendant does not appear?
is dilatory.  As if he didn‟t file an answer. The court can render
o 10. Motion for extension of time judgment.
o 11. Petition for certiorari, mandamus, prohibition against o What is the stopgap?
interlocutory orders of the court  Have an explanation OR send a representative
o 12. Interventions o Where does this rule come from?
 Jalique v. Dandan:  Provision on authorization does not appear in the
o This is a case where the respondents filed a joint counter rules on summary procedure. But the SC applied to
affidavit in an ejectment case, rather than a response. The Rule 70 suppletorily, the rules of Rule 18 on pretrial
MTC decided in favor of plaintiff. RTC affirmed. CA moved to and appearance by representative.
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on Small claims
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was  What should a plaintiff file?
challenge of the material allegations of fact in the complaint. o 1. Statement of claim
So the MTC should have considered it. o 2. Together with certificate of non forum shopping
 Bonifacio v. Bellosillo o 3. Authentic copies of document from which the action stems
o The judge was sanctioned here, because there was no from (actionable documents)
answer, and instead of promulgating judgment, he still called  Who signs the statement of claim?
for a preliminary conference. o The claimant. No need for the lawyer.
 Pascual v. Jovellanos
 o [Atty. Salvador: maybe this special rule is for bar flunkers to o Except in MTD, only lack of jurisdiction over the SM is the
practice, because the claimant still needs to file certain exception. Failure to refer to the lupon is not an exception.
documents he may not know how to execute]  Can it be appealed?
 What happens after? o No. By express provision, it is final and executory.
o Court files notice for defendant to submit response o What then, is the remedy?
o Defendant has 10 days to file a response  Rule 65 (petition for certiorari) – because there is no
o What are the formal requirements? plain, adequate, speedy remedy
 There is already a form provided for the plaintiff and
defendant to fill in. Pleadings
 They just need to attach documents.
o Can there be a counterclaim in a small claim action?  What must be in the complaint?
 Yes. As long as within jurisdiction of the court, and o Claims a cause of action
arising from the same transaction, and does not o Must contain allegations – brief and concise statement of
require joinder of third parties. ultimate facts, devoid of evidentiary matters
 And then? [review/cross-check these rules]  You can also allege as to fraud, mistake, malice,
o The parties can decide for amicable settlement or judicial illegality, condition of the mind, etc.
dispute resolution (JDR)  As to matters of fraud, how must it be alleged?
o Can a claimant apply as an indigent litigant? o With particularity
 Yes. (Aldura)  As for mistake, how must it be alleged?
o Will there be presentation of evidence? o With particularity
 Yes, but it is not a strict and formal trial. You can only  If it’s a condition of the mind (malice, intent, knowledge, etc.)?
present the evidence attached to the claims. o Generally
o Is there a preliminary conference?  You can also base your claim on an actionable document. How to
 None mentioned. do you allege it?
o Do the parties have to appear? o 1. You can attach or append the document
 Yes, or at least their representatives. Failure for the  To show the court that this is where your cause of
plaintiff to appear leads to dismissal without prejudice action arises
of the claim. Failure for the defendant to appear has o 2. You can reproduce the contents of the document in the
the same effect as not filing a response. pleading en toto
 What happens after JDR?  (But in practice, just always append anyway)
o In a multi-sala court, the executive judge refers to the pairing  How do you deny an allegation under an actionable document?
judge for hearing and decision within 5 working days from o Specifically denied, under oath
referral o What is the exception to the oath requirement?
o In a single sala court: Pairing judge hears and decides the  1) When the adverse party is not a party to the
case in the court of origin within 5 working days from referral instrument
by JDR judge  2) When there is an order for inspection and it is
 Are there prohibited pleadings? refused
o Same as summary procedure  What is the effect of failure to specifically deny under oath an
actionable document?
 o It is an admission ONLY as to the genuineness and due  What is the period to answer a counterclaim?
execution of the actionable document o 10 days
 But what about the rights and obligations of the parties arising o (In practice, you only answer a permissive counterclaim. In
from that document? practice, a compulsory counterclaim is not answered.)
o It is up to the court to determine it.  What is a cross claim?
o Made against a person/party on the same side.
 What is the period to file an answer?  Can there be a counterclaim defendant cross claim?
o 15 days after service of summons o Yes. The counterclaim defendant is the original plaintiff. He
o Could it be 30 days after receipt of summons? can file a cross claim against a co-party.
 For foreign corporation and service is done to  Is there a period to answer a cross claim?
government official designated by law o 10 days
 What are the defenses available in answer?  Do you need leave of court to file a counter or cross claim?
o 1) Affirmative defense o No, whether it be a permissive/compulsory counterclaim or a
 If you only hypothetically admit, without raising cross claim, no.
any defense, what happens?  For a third party complaint, do you need leave of court?
 In this case, there is no more issue. This will o Yes. You cannot just file a third party complaint.
lead to a judgment on the pleadings (Rule o Who is usually the third party plaintiff?
34)  The defendant in the main case, who feels that he
 This occurs when the answer does not should file a complaint against someone that court
tender an issue or admits the material has yet to acquire jurisdiction from.
allegations  This is the reason why there is need for leave of
o 2) Negative defense court. You need to have the third party impleaded.
 Specific denial of facts alleged essential to the cause  Why would you want a third party complaint?
of action.  To contribute or indemnify
 What are the kinds of specific denial? o Classic case: car crash  a hit b hit
 1) general denial c. C sued B. B sued A for
 2) specific denial indemnification.
 3) disavowal of knowledge (lack of  Subrogation
knowledge and belief to form a specific  Any other similar ground
denial) o What is the period to answer a third party complaint?
 15 days, because it is treated as an entirely new
 Is the counterclaim or cross-claim in a separate pleading? complaint
o No.
 What is a compulsory counterclaim?  Is the reply a mandatory pleading?
o Arises out of the transaction constituting subject matter of the o No.
action  What is the period to file a reply?
 What is a permissive counterclaim? o 10 days.
o Arising from an event unrelated.  What do you do in a reply?
 o To controvert the new matters raised in the answer o No. Failure to attach is not fatal.
 What is the effect of failure to file a reply? o But why do the SC and CA dismiss cases for failure to
o All new matters stated in the answer are deemed controverted attach verification?
o What is the reason for this?  Although it can be cured, the court may dismiss a
 [Didn‟t answer] pleading for failure to comply with procedural
 What happens after answer, etc? requirements.
o Pre-trial  Who signs the verification?
o The party filing the pleading.
 Three important things:  Can the lawyer sign it?
o Signature, verification, and CNFS o General rule, no. Unless there is some compelling reason.
 What is the effect of a lawyer affixing his signature in a pleading? o For example, the party‟s father is to be buried on the day of
o Indicates that he has read the pleading, and to the best of his filing of the petition – the court allowed it.
knowledge, the information is correct o Also, the distance of the petition from the counsel (ex. the
o And that the filing of the same is not for the purposes of delay petitioner is in the USA and the counsel is in Manila, and there
 There are some pleadings that are left unsigned. What happens? are only 15 days to file.)
o It has no legal effect at all.  Can a minor sign?
o Is there a way to cure it? o Must be assisted.
 If counsel can show it is due to mere inadvertence  Can a married person sign by himself or herself?
and not for delay o One spouse is enough, but only if there is common interest.
o Will the court just give effect to the pleading or will it still (N.B. but see note below)
require actual signing?  For co-owners or those in the same residence?
 [Didn‟t answer] o Signature of one is enough if there is common interest. (N.B.
 If a lawyer changes his address, what is his duty? but see note below)
o Inform the court. Failure to do so may lead to disciplinary  TAKE NOTE: The key when it comes to multiple parties, all of them
action. have to sign. However, if there is a common interest among the parties,
 What are the contents of the verification? a signature of a number of them may be enough.
o That the affiant has read the pleading and the allegations are o BUT in practice, do not take chances.
true. (Based on “personal knowledge,” not “information and  CNFS:
belief” or “knowledge, information and belief”)  When is a CNFS required?
 Must it be under oath? o For a complaint for other initiatory pleading
o Yes. o So a compulsory counterclaim does not require a CNFS
 Is it mandatory?  What about a juridical entity? Who can sign?
o No. Only when the law requires you to verify. o [Anyone, as long as authorized by a board resolution]
o Give examples:  What are the contents of the form?
 Rule 45 (Petition for review on certiorari) o Plaintiff/principal party shall certify under oath that he has not
 Rule 65 (Petition for certiorari) filed a similar complaint involving the same issues in another
 Rules 57-61 (Provisional remedies) court, tribunal, QJ agency
 Is it jurisdictional? o If there is any other pending claim, provide status
 o If he learns about similar action, report fact within 5 days to the o BUT as a general rule, the lawyer cannot sign.
court  Young v. Seng
 Why does the law require that it is the party that signs? o There was no forum shopping, because the first case was
o Because it is only the party, and not even the lawyer, that dismissed due to lack of cause of action. When a case is
knows whether there is another action. dismissed because of that, it is without prejudice, and that
 For those with no separate juridical existence, who signs? party can file the same case again.
o All the parties, since there is no juridical personality. o Failure to disclose this fact is not a violation of the CNFS.
 What is the effect of absence of CNFS? (Note: non-compliance is  OSM Shipping
different from absence) o Requires a duplicate original or CTC for the decision being
o It will be dismissed. It can be re-filed because it is without appealed (here, NLRC decision) and not the prior one (Labor
prejudice. Arbiter in this case)
 Can it be amended to cure?  Tan v. Kaakbay
o No, the defect cannot be cured by an amendment. Just re-file. o No need for a CNFS for a compulsory counterclaim
 What is the effect of non-compliance? (Note: this occurs when there  New Sampaguita
is a CNFS, but you did not respect your commitment under the CNFS) o There was no forum shopping here, because the first case
o Indirect contempt (Failure to comply with order or process of questioned whether there can be a writ of execution when the
court) parties agreed to compromise in the first place, when the court
o Administrative and criminal cases (since you lied under oath) dismissed the initial case. The second case was whether the
o Dismissal of the case court approved the compromise agreement in the first place.
 What if there is willful and deliberate forum shopping? These are different.
o (Meaning, it‟s not only false, but you also deliberately disregard  Solar
it) o Is the rule on personal service mandatory?
o Dismiss the case with prejudice  Yes. The rule is priority is by personal service. If you
 What kind of dismissal? cannot do it by personal service, you can do it by
 Summary dismissal – cannot contest registered mail, but you have to make an explanation.
o Placed in direct contempt without opportunity o In this case, it was made by registered mail and there was no
 BPI v. CA explanation. For this reason, the decision of the court to allow
o There was a CNFS filed in the first place. What was not it was based on its reasonable discretion. BUT this is not the
attached was the board resolution showing the authority of the rule.
Vice President to sign the CNFS on behalf of the company.  Musa
This authorization was submitted on the MR. o What are the material dates here?
o NOTE: There was a valid CNFS. There was liberal  Period only commences to run from date of receipt of
interpretation of this provision for these reasons. the decision
 Donato  Date of filing of the MR
o Here, the lawyer signed the verification, not the party. This  Date of receipt of denial of the MR
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day Amendments and supplements
period. There was physical impossibility.
 There is amendment for civil cases and there is amendment for criminal  Can you amend a complaint when it originally has no cause of
cases. action?
 For civil cases, amendment may either be: o If in the first place there is no cause of action, no amendment
o 1) As a matter of right will cure such an absence.
o 2) With leave of court o Can the court order an amendment even if there is no
 When is it a matter right? application to amend?
o Before an answer or within 10 days of service of reply  1. Yes, if it is a mere formal (typo) amendment
o What do you need to file?  2. For bill of particulars, the court can either order
 NOTICE to amend compliance OR an amendment
 When do you need leave of court?  3. Motion to dismiss – the court can either grant,
o After an answer has been made deny, or order an amendment
o What do you need to file?  There was an amendment of an original complaint, which was the
 Motion to amend basis for the issuance of summons. If the original complaint is
 For criminal cases, the reference point is not an answer. Instead, it is amended and that is granted by the court, is there a need for
plea. issuance of new summons?
 Before plea, can you amend? o No, if you already lawfully obtained jurisdiction over the
o Yes, whether as to matter of form or substance defendant through summons or voluntary appearance.
 After plea, can you still amend? o It is a question of jurisdiction over the person, not a question of
o Yes, but only as to matters of form, for as long as it will not amendment.
prejudice the rights of the accused o HOWEVER, if there are additional defendants, new summons
 Don‟t forget that last bit! must be served to them.
o What is the test when it will prejudice the rights of the  What is a supplemental pleading?
accused, even if it’s a matter of form? o A pleading filed in addition to a prior one that has been filed,
 If the original defense of the accused will not change. pursuant to new transactions, occurrences, or events that have
 What is “amendment to conform to evidence”? arisen.
o This is section 5 of Rule 10 o Can there be a supplemental complaint?
o Allegations are found in the body of the complaint/answer.  Yes
What is alleged must be proven. o Can there be a supplemental answer?
o If the evidence you presented went beyond the allegations, you  Yes
may file a motion to amend the pleading to conform to o Can there be a supplemental reply?
evidence  Yes
 There are two kinds of amendments to conform to evidence. What o Can there be a supplemental petition?
are these?  Yes
o First kind – no objection on the part of the other party. For this  So what is the general rule?
reason, it will be allowed even after judgment. o You can file a supplemental pleading as long as there are new
o Second kind – if the other party objects, the amendment is left transactions, occurrences, or events that occur after the filing
to the sound discretion of the court. of the first pleading.
o What is the exception?
  Usually you cannot do this to the Supreme Court,  There are no defendants, so notice is made to the
because you cannot file something to it unless it public that all oppositors have to come forward and
asked for it. You would be asked to explain why you object. Otherwise, forever barred.
are submitting such. o 2. Failure to attend during pre-trial
 What is the difference between amendments and supplements?  Called “as in default” in the 1964 Rules of Court
o Amendments pertain to events, transactions, or occurrences  If the defendant fails to attend, the plaintiff can
that exist during the filing of the original pleading, but were not present evidence ex parte
placed in the pleading. There was just an omission.  When do you know when a party is in default?
 May be filed without leave of court (before responsive o 1. Did not file responsive pleading
pleading) o 2. There is proof of such failure
o For supplements, the events, transactions, or occurrence only  You have to show the return
arose after the filing of the original pleading.  How can you set aside an order of default?
 Always with leave of court o 1) File a motion on any of these grounds:
 1. Fraud
Default  2. Accident
 3. Mistake
 N.B. 1: What is the rule on objections?  4. Excusable negligence
o General rule: all objections on grounds not raised in an answer o 2) It has to be under oath
or motion to dismiss are deemed waived. o 3) State that you have a meritorious defense, without
o What are the exceptions? necessarily giving an answer
 1. Lack of jurisdiction over SM o What kind of fraud is needed?
 2. Res judicata  Extrinsic fraud.
 3. Litis pendentia o Is the fraud needed here the same fraud needed for motion
 4. Prescription for new trial, petition for relief from judgment, and motion
o What is the fifth exception provided by jurisprudence? for annulment of judgment?
 5. Lack or absence of cause of action  YES. For all of these, you need extrinsic fraud.
 This is different from Rule 16 (that the  How do you set aside an order of “as in default” [or allowance for
pleading states no cause of action) plaintiff to present evidence ex parte for the plaintiff]?
 N.B. 2: What is the rule on failure to allege a counterclaim? o Saguid: Remedy is to file an MR or relief from order of default
o Any compulsory counterclaim or cross claim not set-up: barred also on the ground of FAME
forever o Do you have to add that you have a meritorious defense?
o In special proceedings – a claim against the estate must  No need. You‟re already in pre-trial.
be made in the period provided for in the notice.  Can there be partial default?
Otherwise it will be forever barred. What is the exception? o Yes.
 If there was a suit started by the estate against you, o In a case where you file a case against A, B, C, D, and E. E
the claim can be raised as a counterclaim. did not file an answer, while A to D did. Will A to D be
 N.B. 3: How many kinds of default do we have? allowed to present evidence?
o 1. In actions in rem, there is a general order of default.  Yes.
o Will E be allowed to present evidence?
  No. He is in default.  After the reglementary period (i.e. when there is entry
o Can A to D’s evidence be used against E or in favor of E? of judgment)  Petition for relief from judgment
 Yes. In fact, E can still win the case along with the  6 months from entry of judgment AND within
others. 60 days from knowledge
 Can the court render a judgment after an order of default, without  If there is GADALEJ, Rule 65 certiorari
presentation of evidence ex parte?  Remington Steel:
o Yes. This is a new provision introduced only in the 1997 Rules o When there are multiple defendants, even if one has already
of Civil Procedure. answered, you may amend the complaint as a matter of right
o This has not been asked in the Bar examination yet. So be as to the other – since there is no defense yet that would be
careful. affected or altered by the amendment.
 Where can there be no order of default?  Philippine Export and Foreign Loans:
o 1. Nullification/annulment/legal separation o When it is a dismissal without prejudice, appeal is not a
o Can there be default in Summary Procedure? remedy. Your remedy is to re-file a case or file for a petition for
 No. When there is failure to file answer, there can be certiorari.
judgment rendered by court. o Amendment to conform to evidence – What if it was not
o 2. Certiorari, Prohibition, etc.  Some SCAs require a allowed, but the evidence was proven, can there be a valid
comment, so there can be no declaration of default judgment based on that evidence?
 Are there SCAs where there can be declaration of  Yes. It is valid, even if it is not consistent with what
default? was alleged.
 Yes, like interpleader where the special rules
are deficient so there is suppletory Bill of particulars
application of the ROC
 Cerezo v. Tuazon:  Can there be Bill of Particulars in criminal cases?
o Order of default – failure to submit an answer, so the o Yes. Rule 116, Sec. 9.
defendant is declared in default  Only four things to remember in BOP:
o Judgment by default – after the defendant is given notice of the o 1. What is the definition of BOP?
court processes, the court renders a decision without hearing o 2. What is the period to file a BOP?
defendant‟s defense, which he lost o 3. What is the action taken by the court in BOP?
o Remedy for an order of default? o 4. What is the consequence of failure to comply with order to
 Motion to set aside or lift an order of default based on file a BOP?
FAME (under oath, and you have to show you have a  When you file for a BOP, what do you want to achieve?
good defense) o A more definite statement of facts that appear in the complaint
 SSS v. Chavez: This must be accompanied by a that are not averred with sufficient particularity
verification (under oath), affidavit of merit (that you o You are to identify the defects and the details desired.
have a good defense), and notice of hearing. If this is  Can you file a motion for BOP after an answer has been filed?
missing, the motion is lost. o No more, because issues have already been joined.
o Remedy for a judgment by default?  What is the effect of filing a motion for BOP on the period?
 MR or MNT (FAME)  within period for filing an o The period is interrupted upon filing, but you always have at
appeal least five days to file the answer after.
 Deadline to file an answer is in 15 days. You received the Service
complaint December 1. You filed a motion on December 5. How
many days do you have?  What are the modes of service?
o TWELVE, not eleven. You don’t count the day causing the o 1. Personal
interruption. [VERY IMPT] o 2. Registered mail
o This is the same way you count a motion to dismiss. o 3. Ordinary mail
 [Same facts] If you filed a motion for bill of particulars on  What does rule 14 cover?
December 14, the motion is interrupted. How many days do you o 1. Covers party serving to another party,
have? o 2. party serving to court,
o You still have Five days. o 3. and the court itself serving notices (section 9)
 What action can the court take on a BOP if you fail to comply?  If the person to whom you are serving is not available, then how do
o 1. Motion to strike out you file substituted service?
o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3: o Delivery to the clerk of court with proof of failure of both
non-compliance with court order personal service and service by mail.
 What if the person fails to file an answer in the time left? o There should be proof of both failure of personal service and
o Will be declared in default service by mail.
o [This is different from substituted service of summons]
Service and summons  How do you prove service by ordinary mail?
o Affidavit
Filing  What is completeness of personal service?
o Actual delivery
 What are the modes of filing?  What is completeness of registered mail?
o 1. Personal o Actual receipt or 5 days after notice of postmaster
o 2. Registered mail o whichever comes first
 Can there be filing by ordinary mail?  What about ordinary mail?
o None. Because here there is no way the court can find out o 10 days after mailing
when you filed it.
 What are the proofs of personal service?
o But there can be service by ordinary mail.
o Written acknowledgement
 What are the requirements for personal and registered mail?
o Affidavit of the person serving
o PERSONAL: Stamped, dated, and signed by the clerk of court. o Official return of server
o REGISTERED MAIL: Pay for registry receipt and you have to  This refers to service by the court
accomplish a return card
 What are the proofs of registered mail?
 What is the proof that you personally filed?
o Registry receipt
o Primary: if the pleading is found in the records of the court. o Return card
o If it does not appear, you can present the received copy
 What are the proofs of ordinary mail?
 What is your proof of registered mail filing?
o Affidavit of person serving
o Registry receipt
 What if I used registered mail, but I got back the return card
o Affidavit of the person mailing
ALONG WITH the document itself (showing it is unclaimed). What
o Return card
do you do to prove delivery?
 o You have to file the return card plus the unclaimed document, o Priority of service is ALWAYS personal. If you cannot do it
plus before you file, secure a certification from the post office. personally, you give an explanation
 Take note that a return card is required by law to be filed, but in o Same as filing – priority is personal. Otherwise, you give an
practice, we do not. explanation.
 What is the priority of service?  United Pulp:
o Personal service is always preferred o Hypothetical – There is a principal who is out of the
o What is the effect of filing by registered mail? Philippines, and he designates X as his attorney-in-fact.
 Put an explanation why you did not serve it through Can X sign the certification against non-forum shopping?
personal service  In general, he cannot. But in this special case, he
o What if you don’t comply? can, because the principal is out of the country.
 As if the pleading was not filed. o What is the test?
 Service of pleadings should be made to whom?  Mere representation is not enough. There must be a
o To the counsel, if the party is represented by counsel. specific authorization and clear authority given in the
 What if service was made to a security guard on the ground floor SPA that he can sign the CNFS.
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel. Summons
 What is Lis Pendens?
 Can personal service and substituted service work
o In an action involving right, title, or interest over a property, you
simultaneously?
annotate it on the title of the property.
o No. Personal service first, and this is the priority. You cannot
 I file a case in the bureau of lands to declare null and void a title.
have these simultaneously.
Can this be subject to a notice of Lis Pendens?
 Where?
o No. This is a quasi-judicial action. Notice of lis pendens only
o WHEREVER HE IS FOUND. Always remember the James
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Yap rule.
 Atlantic Erectors: You can only apply for Lis Pendens if the property is
 What are the requirements for substituted service? Under what
the subject of the action.
circumstances?
o Can you put a notice of lis pendens in a partition case?
o Only if personal service is IMPOSSIBLE.
 Yes.
o Proof of this: defendant cannot be served summons after all
 Do you need court approval to effect a notice of Lis Pendens?
efforts have been exhausted.
o Not at all. Just send a memorandum to the ROD, even without
 Is there a set of standards given by law on how
court involvement.
many times you have to try to serve?
 When do you need court approval?
 A case says that it must be at least three
o When you intend to cancel the notice.
times on two different days.
o Grounds:
o There has to be an explanation.
 1) purpose is to molest other party
o Where will the explanation appear?
 2) no need for the notice to protect the rights of the
 In the sheriff‟s return
parties who caused it
 Summons must be served within reasonable time. What do you
 Payongayong:
mean by this?
 o For the sheriff, 15-30 days according to jurisprudence. After o No. None as a general rule. You cannot do substituted
th
the 30 day, the court will require the sheriff to submit the service to a non-resident.
return. o [Sec. 15 does not talk about this situation. Sec. 15 talks about
o Why is this important? non-resident and cannot be found.]
 If you file a complaint and you don‟t see to it that the o Is there an exception?
summons is served, your complaint can be dismissed  Yes, but it‟s very narrow. But there must a a) resident
for failure to prosecute. spouse b) who was previously appointed as attorney-
 What is alias summons? in-fact.
o If the original summons has been lost or the original summons  In Secs. 14, 15, and 16: how can summons be done?
was returned to court, unserved. o By publication.
o Then you can apply for alias summons.  Distinguish.
 When do you talk about suitable age or discretion, to what kind of o Section 14: Defendant is unknown or his whereabouts are
substituted service does this apply? unknown.
o To service at the residence.  How do you do this?
 When you talk about suitable age or discretion for substituted  Just publish.
service, what do you mean?  Do you even have to try personal service?
o There is nothing in the law that says there must be age of  No need for personal service (since you
majority but from Manotoc to Pascual, there is consistent don‟t know him or where he is).
jurisprudence that it must be age of majority.  In what kind of case?
 Who must it be? Could it be a house helper?  Whatever kind of action, whether in rem or in
o She or he must reside therein. This must concur with “suitable personam – you can do it by publication, as
age or discretion.” So these are two elements. clarified by the SC.
o A visitor or a transient cannot receive summons. But a house  Not just in rem or quasi in rem anymore.
helper can.  How does publication in 14 differ from 15 and 16?
 For offices, to whom must it be served?  In 14, ONLY publication is needed. It does
o To a a) competent person b) in charge. not require service by registered mail in the
o Can a middle manager the same rank as Mr. X receive last known address.
summons for Mr. X? o Section 15: Extra-territorial service
 He must be in charge of receiving summons in the  Against who?
office.  Against a defendant that does not reside in
o What does “in charge” mean? the Philippines and is not found in the
 In charge of the office. President or manager. Philippines.
 For corporations, what is the special rule?  In what subject matter?
o President, General Manager, Managing Partner, Corporate  1. Involving personal status of the defendant
Secretary, Corporate Treasurer, In-house Counsel  2. Property of non-resident defendant
o Memorize this. It is a closed list.  3. Property is attached
 But for personal cases of an individual, will the office receive it for  4. Where defendant has actual or contingent
you? interest over property
 Can substituted service be served on non-residents?
  What are the modes of service?  Samarino v. Ralu:
 1. Personal service outside the Philippines o Here, the sheriff did not prove that facts and circumstances
 2. Publication AND service by registered that would allow substituted service (repeated failure to
mail in his last known address personally serve, etc.) – it must be shown in the sheriff‟s return
o N.B. Both must concur. Take note  Ancheta:
of this. o There are only a few remedies when the judgment is already
 3. Other modes deemed applicable by the final and executory. Here, the petitioner filed a petition to
court annul the judgment based on lack of jurisdiction over the
o Section 16: Temporarily absent person (because “lack of jurisdiction” is used, it can cover both
 Can he be a resident of the Philippines? lack of jurisdiction over both SM and the person).
 Yes. But he‟s just temporarily absent.  Gomez v. CA:
 What is the length of time needed here? o Does it mean that if you are talking about an in rem action you
 None provided can venture on trying to serve it personally?
 How do you do serve summons?  You can still do personal service, in case you find him
 Any of those in Sec. 15. somewhere in the Philippines by chance.
 Add: Substituted service, if there is o Section 14 before limits itself to in rem or quasi in rem. It now
impossibility and there are earnest efforts to extends likewise to actions in personam.
serve.
Motions
 What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
 What is a motion?
the person.
o It seeks relief, but not a pleading.
 What is the proof of service of summons?
o It does not raise a claim, nor does it raise defenses in an
o Sheriff‟s return.
answer.
 Note the rules on: o Does a motion to dismiss take the nature of an answer?
o Provinces
 No, because it will not lead to a joinder of issues
o Prisons
 What does EVERY motion need to have?
 What is the rule on voluntary appearance?
o A notice of hearing.
o It is not equivalent to summons, but if there is voluntary o Directed to whom?
appearance, summons can be dispensed with.  To parties.
 What is the rule on Motions to Dismiss?  But also give notice to the clerk of court (even if the
o If you file a Motion to Dismiss, even if you join other grounds provision does not say it), because he schedules the
other than lack of jurisdiction, you are not deemed to have hearings.
submitted to the jurisdiction of the court. o Absence of a notice of hearing has what effect?
o Old rule: you have to separate the MTD based on lack of  The motion becomes a mere scrap of paper.
jurisdiction.  When must notice be given?
 Maximo v. Montalban: o The motion must be filed in court and served to the other party
o In this case, his residence is known and he is just temporarily at least three days before the date of hearing. (Three day
absent. So substituted service is not proper. notice rule)
 What is the ten day rule?  Look again into proper service of summons
o The hearing itself must be scheduled no later than 10 days  Or voluntary appearance
from the filing of the motion o 3. Improper venue
 Ex. you file it December 6. The last date you can set  Fall back to Rule 4, or special rule under law
the hearing for is December 16. o 4. No legal capacity to sue
o Understand this along with the three day rule.  Minor – age of majority
 What is the Omnibus Motion rule?  Corporation – must be duly registered with SEC
o Include all grounds available; or else, it is deemed waived.  Attorney in fact – look into scope of authority
o What are these exceptions? o 5. Pleading Asserting the Claim States no COA (PACS-COA)
 1. Lack of subject matter jurisdiction  Does not go into the falsity or truthfulness of the claim
 2. Res judicata  The pleading does not appear to state a COA
 3. Litis pendentia o 6. Res judicata
 4. Statute of limitations  What are the elements?
 What is motion day?  1. Final judgment
o Friday afternoon.  2. J over SM and person
o If it is a holiday, set it on the next working day  3. Judgment on merits
o Is this mandatory?  4. Identity of parties, SM, cause of action
 Yes. But some judges apply the rule liberally. o 7. Litis pendentia
 But since 2008, this rule has been applied strictly.  Same as RJ, but without
o 8. Prescription
Motion to dismiss o 9. Failure to comply with condition precedent
 Ex. Failure to refer to Katarungang pambarangay
 What are the kinds of dismissal in Civil Procedure?  Is this waivable?
o 1. There is a motion to dismiss in Rule 16, prompted by o YES. Because it is not
defendant. – MOST COMMON jurisdictional.
o 2. But there is also a motion to dismiss in Rule 17, filed by the  Ex. Earnest efforts to compromise
very same plaintiff who filed.  Ex. Exhaustion of administrative remedies
 Rule 17 also covers failure to prosecute, which is
 Does this fall under this ground?
another form of motion to dismiss.
o Some commentators say yes. But
o 3. Demurrer to evidence
some say failure to exhaust must
 What are the grounds in Rule 16?
fall under PACS-COA
o 1. Lack of J over the SM o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
 How do you determine subject matter
o 8. Unenforceable under Statute of Frauds
jurisdiction?
 Of all these grounds, if the court dismisses, can it be re-filed?
 It is the law that confers the right to hear, try, o ALL
and decide a case o Except – [F,H,I]
 The most common source is RA 7691  1. Prescription
amending BP 129  2. Unenforceable under Statute of Frauds
o 2. Lack of J over the defendant  3. Res judicata
  4. Extinguish of claim or demand (PWEA) o The Eternal Gardens rule, which has been repeatedly abused,
 When can you file a MTD? invoking judicial courtesy here, does not apply anymore.
o Within the reglementary period. Fifteen days. o Can the Court of Appeals dismiss the case if it feels the
 How do you count a period? RTC committed GADALEJ? Or should it only remand?
o Just remember the rule on interruption. [Read up Bill of  The court, subject to its discretion, can either dismiss
Particulars portion.] or remand it. There is no hard and fast rule.
 There was MTD filed on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or Dismissal of Actions
ordering amendment of the complaint, filed alias summons. Is this
 What are the ways by which a plaintiff can dismiss a case?
grave abuse of discretion?
o Filing a notice of dismissal any time before the answer is
o There was none. Instead of dismissing the case and waiting
served. Dismissal is a matter of right.
for re-filing, the court issued alias summons which will produce
o What happens to the counterclaim?
the same effect.
 There is no counterclaim yet, because there is no
 Preliminary hearing of the affirmative defenses. What is this?
answer.
o You can file an answer, and the court has discretion to hold
o Can this case be re-filed?
preliminary hearing of your affirmative defenses and use it to
 Yes.
dismiss the complaint. Thus, an answer can be treated as a
 What is the exception?
MTD.
 Dismissed a second time under this section.
 This is a new feature of the 1997 Rules of Court. This
 What if there is already an answer? – See Pingga case
has never been asked in the Bar.
o What is the reason for this new rule? o File a motion for dismissal.
o What happens to the counterclaim, if there is?
 Note: a MTD is not a prohibited pleading, but when it
 It does not get dismissed. Pingga limits the dismissal
issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative to the complaint, not the counterclaim. This
abandoned BA Finance rule.
defense.
o Why is such court attitude?  Does this rule cover both permissive and
compulsory counterclaim?
 Because issues will be joined, and pre-trial sets in
where parties can compromise.  Yes.
o What is the difference between filing a MTD and an  This is why the provision says that within 15
answer? days, the party would have to manifest its
 There is no preliminary hearing of defenses in a MTD. willingness to prosecute it in the same
 If the court mistakenly denies your MTD, what is your remedy? action; otherwise it will be prosecuted in a
o Petition for certiorari on Rule 65 based on GADALEJ. separate action.
o Does this petition for certiorari suspend the main
Pre-trial
proceedings?
 No. Even if there is a pending petition for certiorari,
 When is pre-trial conducted?
the main proceedings will not be suspended unless
you obtain a TRO.
 o Rule 18 Sec 1 does not say, it just says that the ex parte  What do you need to submit at pre-trial?
motion by the plaintiff to move the case for pre-trial must be o Pre-trial brief.
done “promptly” o What if you fail to submit a PTB?
o BUT the 2004 guidelines say it must be within 5 days after the  Same effect as if you didn‟t appear at pre-trial.
last pleading has been filed  Request for admissions: Rule 129 Section 4 – Judicial Notice:
 What if the plaintiff fails to move for pre-trial? o No need for introduction of evidence
o The 1997 rules are silent. Before, dismissal was the o You want an admission to abbreviate the proceedings
consequence, for failure to comply with Rules of Court. But o You are submitting just proposals. If accepted by the other
this is not the consequence anymore, because of the 2004 party, it becomes an admission.
rules, which gives a specific outcome.  Issues – to be submitted for resolution
o 2004 rules: DUTY OF THE CLERK OF COURT to move for  Documentary and testimonial evidence to be presented:
pre-trial. o “One day examination of witness rule” – if you can direct,
 Before actual pre-trial, a few days before, what happens? cross, re-direct, and re-cross a witness in one day, do so.
o Preliminary conference before the clerk of court. It will be (This is in the guidelines, not in the Rules of Court.)
recorded and will form part of the pre-trial record. o Submit the most important evidence first.
o They explore possibility of compromise, etc. o Evidence will be pre-marked.
o This is almost like a mini pre-trial.  What is the effect of failure to pre-mark?
 Expect two dates in one notice –  You can no longer present the evidence if
o One setting the preliminary conference you failed to pre-mark it.
o One setting the pre-trial itself  Unless the court allows you in the interest of
 On the first day of pre-trial – what is the order of the day? justice, or if newly discovered.
o The court issues an order referring the case to a court- o What if you fail to name the witness in court?
annexed mediator. Forward the records to him.  You cannot present the witness anymore.
o You have to pay fees for a mediator.  What are the other contents of the brief that you may put?
o For the time-being, the pre-trial proceedings are suspended. o Referral to Commissioners
o What is the period for suspension? o Explore possibility of compromise
 30-60 days. o Possibility of judgment on pleadings or summary judgment
 But in the same order, the court will say that if within o Avail of deposition/modes of discovery
this period, there is no compromise, there will be  How do you avoid consequences of absence?
resumption of pre-trial on a later day. o According to the provision, if there is a good excuse for
 What if there is inability to compromise? absence, the consequence will not vest. You can also
o Records returned to court. The court will resume pre-trial. authorize someone to appear on his behalf in pre-trial.
o The Judge with all “tact, patience, and impartiality,” endeavor  What happens next?
to arrive at a settlement of the dispute o Pre-trial order is issued by the court.
 Confers with each party as to what is acceptable as a  DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
compromise at the present stage o What if it is a criminal case and the prosecution is absent.
 Judge talks to parties and their counsel separately What happens?
 Judge talks to only parties  It will be re-scheduled.
 [stepped out]
 o What if the accused is absent? o There is nothing in the rules talking about intervention in the
 The prosecution CANNOT present evidence ex-parte Appellate Court. But the court can exercise discretion to allow
because it will violate the accused person‟s right to intervention in the Appellate Courts.
confront witnesses.  After judgment, can there still be intervention?
o RULE 118. TAKE NOTE OF THIS. THIS IS THE o As a rule, no.
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL. o But if the rule is an indispensable party, the court will allow
o For an admission of the accused to take effect against intervention even after judgment.
him, what must be done?  Can there be a complaint intervention or answer in intervention, or
 It must be in writing and signed, by both the counsel a complaint against either/all of the original parties?
and accused. o Yes, for all.
 No such requirement in civil admissions in pre-trial.  Nordic:
 Judicial Dispute Resolution o There was a mortgage over a vessel to secure a loan. There
o In the past, the JDR process only applies in Makati. Now it was a default in the payment. For this reason, there was an
also applies in QC and Manila. Extra-judicial foreclosure. While the petition was there, there
o The judge here is both a mediator and a conciliator and an was a subsequent case filed.
independent evaluator. o There was a complaint filed by the crew members of the vessel
o Unless the parties consent to continue with the JDR judge, it is against the vessel in RTC Manila (sum of money case).
mandatory that there will be a new raffle – and the new judge o The mortgagee sought to intervene in the sum of money case,
who will hear, try, and decide the case is the trial judge because it held a Preferred Ship Mortgage.
o This step happens when the Clerk of Court receives the o HELD: No legal interest, no cause of action. There must be a
Mediator’s Report of a “not settled mediation” personal cause of action in order to intervene. Here, the
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
Intervention foreclosure case.

 What is the concept of intervention? Subpoena

o A third party takes part in a case between other parties
o Because he has a legal interest in the subject matter of the  Types of subpoena?
case or he will be adversely affected by distribution/disposition o Ad testificandum: appear and testify
of property in custody of the court o Duces tecum: appear and bring with him the documents or
 What does the court look at? things
o Legal interest of the intervener  N.B. Must appear too. Cannot just mail or send.
o 1) Such intervention will not unduly delay or prejudice the  Who can issue a subpoena?
proceedings of the parties o 1. Court where witness must attend
o 2) Or if the right of the intervener can be protected in a o 2. Court where deposition is taken
separate action o 3. Officer/body conducting investigation
 When can you intervene? o 4. Any justice of CA/SC in any case/investigation pending
o You can intervene any time before rendition of judgment in the  Can the OMB issue a subpoena?
trial court o Yes.
 Can the office of the prosecutor issue?  Can the clerk of court issue a subpoena in the absence of a judicial
o Yes. action? (Note, this is not referring to investigation by a quasi-judicial
 Is the receipt of a subpoena by a respondent in a case filed before body.)
the office of the prosecutor necessary for the office to acquire o No.
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the Depositions (Rule 23)
Office of the Prosecutor is a statutory right, not constitutional
right. You can altogether dispense with it, or waive it. It is not  What can be subject of deposition?
essential for DP. o Any matter, as long as not privileged
o There is an express provision in Rule 112(D) that says failure o AND relevant
to receive the subpoena will not bar the prosecutor from o What do you mean by not privileged?
issuing a resolution. It is not imperative.  When the witness is disqualified (e.g. attorney-client,
 Can a regular court judge subpoena a convict? physician-patient, penitent-priest, husband-wife,
o The judge examines if it is for a valid purpose public office in related to State)
o For those under death/RP/Life and confined: must be  Ayala Land applied section one (see Modes notes). It explained how to
authorized by the SC to appear under subpoena commence depositions.
o Can a judge before whom the action is pending take
 Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena as testificandum? depositions?
 1. Witness is not bound thereby  Yes. (Ayala Land)
o Before whom should deposition be taken?
 What is an example of this?
 If in the Philippines, 1. Judge, 2. Notary public, 3. Any
o If the witness is not qualified. Ex
party authorized to administer oath, 4. The parties by
the witness is the spouse of the
agreement/stipulation
person he/she is testifying against
 In foreign country, 1. Embassy, legation, consular
 2. Witness fees and kilometrage allowed by the Rules
officer/agent 2. One authorized by commission or
were not tendered
letters rogatory, 3. Stipulation of parties
 Witness must live within 100 KM of the place
o Dulay v. Dulay – A brother duped his brother; both are
where hearing is conducted
Filipinos. One brother is a naturalized American, and applied
 You can also be arrested to compel you
for the latter‟s naturalization. The US government approved it.
o How do you quash a subpoena duces tecum?
The later, once there, was made the trustee of the deposits of
 1. Unreasonable and oppressive
the former. He spent the money. Filed case in Philippines.
 2. Relevancy of the books, documents, etc. does not
Took deposition of bank manager in US. The local court
appear
communicated the request with foreign authority (letters
 3. Failure to tender the costs of production
rogatory – communication by one judicial authority to another –
 4. Kilometrage/witness fees  Not in the duces
to follow the rules of the latter). This is distinguished by
tecum part but you need the witness to appear too
commission – where a person is appointed commissioner; the
 5. Failure to describe with particularity  N.B. not in
deposition is governed by Philippine rules.
the rules
 o In this case, the court of Boston ignored the letters rogatory, so o 3. Used in place of oral testimony if the deponent:
they applied for deposition before a notary public. The local  A) Lives more than 100 KM from the place of trial
court refused to accept, requiring a consular certification. except if the absence was procured by the party, or
o The court here allowed because the letters were ignored and out of the Philippines
there was no consular office in Boston, so they allowed  B) Is dead
deposition before NY notary.  C) Unable to attend to due age, sickness,
 When is there need for leave of court? imprisonment, etc.
o Whether an answer has been filed or not. When there is an  D) Cannot compel attendance of witness through
answer, you do not need leave of court, just notice. When subpoena
there is no answer yet, you need leave of court.  E) Exceptional circumstances
o Contrast with amendments: You need leave of court after  Can a subpoena be issued by reason of deposition taking to make
answer; before answer, you just need notice. sure the deponent comes?
 What is the process to take deposition? o Yes. Rule 21, Sec. 5
o Rule 23, Sections 19-21.  Can a deposition of a deceased person be presented in court? Is
o Who does the recording? this not hearsay?
 A stenographer, clerk, secretary – under the direction o It can be presented, as long as it was subjected to cross
and supervision of the officer examine. It is hearsay, but it can be submitted.
o Then? o Is cross examination a necessity?
 The deponent examines it and signs it  Yes. This is necessary to exempt it from the hearsay
 Can signing be waived? rule.
 Yes.  If you take a deposition, are you compelled to present it in court?
o After the signature, what next? o No.
 The officer certifies it first  If you use a part of a deposition, can the rest be presented?
 Then files it in court with indication that it is authentic o Yes.
and complete  Always distinguish between “take” and “use.”
 If the procedure is not followed, what will happen? What is the  Who are disqualified to be deposition officers? [Memorize; this has
consequence? not yet been asked]
o A party can file a motion to suppress deposition because the o 1. Sixth degree of consanguinity from party/employees
procedure was not followed o 2. Sixth degree of consanguinity counsel of parties/employees
o What is the Ayala doctrine? o 2. Financially interested in the action
 The rules can be relaxed because the deposition was  Re: irregularities on taking of deposition. What is the general rule
taken before the judge in the main case. The judge on errors/irregularities on taking depositions?
knows it‟s authentic and complete by personal o General rule is that it is waivable
knowledge. o What is the exception?
 What are the uses of deposition?  Relevance or competency of evidence  failure to
o 1. Impeach testimony of witness object is not a waiver
 [For prior inconsistent statements]  Unless a timely objection could have obviated the
o 2. Against other party (or officer of corporation that is another defect
party) – for any purpose  When is the period to object?
 o The same as the period to file the responsive pleading.  What is perpetuation of testimony?
o So to question direct: 10 days (period to file cross) o See below
o To question cross: 5 days (period to file re-direct)  If there is no pending case can you take a deposition?
o To question re-direct: 3 days (period to file re-cross) o No. You file a case for the perpetuation of a testimony
 Can you take deposition even after pre-trial? o So you file a case for the purpose of perpetuating a testimony
o Yes.  What is the special rule on venue here?
o Do you need to reserve? o Place where the expected adverse party resides
 No need, even if you do not reserve it during pre-trial.  When could you apply for deposition pending appeal?
Jonathan Landoil o Before judgment becomes final
 If you take a deposition of a person, do you still have to present o There is a pending case for certiorari, can you take a
the person as a witness? deposition pending appeal?
o You still have to present him in court, in general. Depositions  No, certiorari is not an appeal
cannot take the place of actual physical testimony in court.
o If you fail to cross examine the witness in the deposition, Interrogatories to parties
can you still cross-examine him in court?
 Yes, you definitely can! Sabio  Distinguish Rules 23 and 25:
 What are the consequences for non-compliance with order for o Rule 23 – Party or a witness, or any person for that matter
deposition? o Rule 25 – Interrogatories to PARTIES. Always to parties.
o Can it be dismissed?  How must the questions be answered?
 Yes, the court can dismiss. There can even be a o Rule 23 – there is direct, cross, re-direct, and re-cross
judgment by default o Rule 25 – Just one set of questions to be answered by the
 However, in the old case of Arellano, the court other party
dismissed the case due to refusal to be subjected to  Re: time to answer
deposition. But the SC said it was wrong. In this o Rule 23 – no fixed time to answer, because what dictates the
case though, the matter subject to deposition is an period is the officer (since they have to appear before the
incidental matter only, not the main issue of the case. officer)
 Bottom line: it IS a possible result, but fall back on o Rule 25 – 15 days from service thereof
materiality of the matter  Are the uses of the depositions the same?
 Can the court regulate the deposition? (Ex. excluding certain o Between Rule 23 and 25, the same
matters)  What is the effect of failure to serve written interrogatories to
o Yes. parties?
 Can the other party oppose the taking of a deposition? o You cannot compel the adverse party to testify if you did not
o Yes. serve written interrogatories
o Under what grounds? o Can you call the adverse party to the witness stand?
 “Annoy, embarrass, oppress”  memorize these  YES! In general, YES. The answer is in Rule 132,
words Sec. 12
 It is irrelevant  It is different if you call on the witness the accused
himself (in a criminal case)
Depositions before action or pending appeal
Request for admission  Is production of documents the same as subpoena duces tecum?
o No.
 What is a request for admission?  Is production required for presentation of secondary evidence?
o 1. Requesting to the other party that he admit the genuineness o Yes, apart from a mode of discovery, it can be a preparatory
of any material/relevant document act to present secondary evidence. If you require production
 What else do you need to do? and the other party refuses or says it is lost, then you can
 Attach the document so it can be examined produce secondary evidence.
 Does an admission cover the contents of the o But there is need for request to produce
document? o So if you get a request to produce but it is targeted to a specific
 No, just the genuineness – so you do not document, most likely it is for secondary evidence
have to prove it exists and it is genuine  You applied for production of books/papers/documents, and you
 The contents can be up for contentions are allowed to examine. Are you bound to present it as your
 Case: There was a pre-trial. One party submitted a evidence?
list of equipment, and wanted the other party to o No, you‟re not required. It is a mode of discovery – a way of
accept it. The other party said it was incomplete, and discovering evidence. If you like what you see, you still have
asked that the first party prepare a new list to submit to go through the process of presenting it in court.
to the court within X days. Instead of submitting it to
court, the first party submitted a request for admission  N.B. Under 2004 guidelines, it is the duty of the judge to issue an
to the other party. Instead of answering, the second order to the parties to avail of Modes of Discovery under Rules 23, 25-
party kept quiet. HELD: It was an implied admission. 27
o 2. Or truth of any material and relevant matter
 The admission must be directed to whom? Physical and mental examination
o The adverse party (Not the counsel – it must be served to the
other party) (Duque)  So limited in its use that even the 2004 guidelines do not include it
o But the party‟s counsel may answer (Larada)  When can you apply for this?
 What if the other party fails to respond? o Mental or physical condition is in controversy
o Considered an implied admission  This is the only mode of discovery where the court can motu propio
 Who will suffer the cost? issue it. The other modes, you have to apply for.
o The other party who refused to admit, if it is eventually proven  What is required?
to be genuine or true o 1. Also upon motion
o But in the meantime, advanced by the party requesting o 2. And with good cause shown
 When can it be done?
Producing or inspection of things/documents o When the physical or mental condition of a party is in
controversy
 What do you apply for? o Ex. Guardianship, Physical Injuries,
o Request that a party produce and permit inspection of  What does “in controversy” mean?
documents, papers, objects, other tangible things o It has to be one of the main issues of the case, not just a side
o OR to allow entrance into a place under control of the latter matter.
and allow inspections, etc. o It does not have to be the only issue, but it has to be in issue.
 What is the consequence if the copy of the examination is given to o Special proceedings do not provide for an answer. But the
the party examined? general principle of suppletory application (Rule 72, Sec. 2).
o There is a waiver of the privilege  Is there criminal deposition?
o That requesting party can now also ask for previous or o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
subsequent examination on the same matters of the requested about a pending criminal action, but it is not yet trial.
party o You can call witnesses even before trial and obtain their
o It must refer to the same condition. So if the examination was testimony.
on the other party‟s head for mental examination, she can only o But there is distinction between conditional examination of
ask for similar reports on the mental condition of that party. witnesses for the prosecution and condition examination for
 What if the requested party refuses? accused.
o The court may make an order for delivery of the report  For prosecution – examination before trial can only be
o If by chance, that other party‟s physicians were allowed to done in the court where the action is pending because
testify, their testimonies can be excluded. the law wants it to be harder for prosecution.
 What is the effect of the requested party requesting for a copy of  For the accused, it should be made before either any
the report made or taking the deposition of the examining judge, before any member of the Bar (good standing,
physician? etc.), any inferior court designated or appointed by a
 He waives any privilege in that action or another action involving the superior court.
same controversy, as regards testimony of other examining persons, o But the law does not say it‟s deposition. But it‟s akin to such,
whether before or after according to Supreme Court decision.
 N.B. Privilege of doctor-patient only applies to civil case, not criminal  Does physical and mental examination as a mode of discovery
case apply in criminal trial?
o It‟s inherent.
Consequences of non-compliance
Trial
 If there is refusal to answer, what are the consequences?
o 1. The case can be dismissed if he is plaintiff  Both civil and criminal procedures will not provide for conduct in
o 2. If the defendant, judgment by default examination of a witness. Where is it found? Evidence.
o 3. Pleadings can be stricken out  What is the order of presentation of evidence?
o 4. Held in contempt o 1. Plaintiff, to support complaint
 He can be arrested o 2. Defendant, present defense
 When does arrest as a consequence not apply? o 3. Third party, and so on
 Request for physical or mental examination o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
 Segue: deposition in other proceedings  Can it be reversed?
 Can you use modes of discovery in criminal actions? o Yes, it can, if there is an affirmative defense.
o Yes. o Plaintiff in the usual and ordinary course of things presents
 Can you use modes of discovery in special proceedings? before the defendant.
o Yes. o [Check for midterms: can there be reverse order if it is a civil
case?]
 Can there be judgment without trial?  Who is a commissioner?
o When parties agree on facts o Person authorized by the court to
o [spaced out] o Ex. auditor, referee, examiner
 What are the grounds for cancellation of hearing (actually,  Any matter can be referred to the commissioner, when?
postponement)? o If the parties consent. ANY MATTER.
o 1. His presence is indispensable and illness is excusable  But if the parties do not agree, what can be referred to the
 N.B. it does not say the party must be indispensable; commissioner?
just his presence o 1. Requires examination of long account
o 2. Absence of evidence, and the evidence is material and o 2. Taking of account necessary for court‟s information for court
cannot be procured despite due diligence to render judgment/execute it
 Who can receive evidence? o 3. Question of fact arising from motion
o Generally, the judge  Can a commissioner issue a subpoena?
o Exception: to the clerk of court – delegated authority to receive o Yes.
evidence o Can he issue a subpoena duces tecum?
 1. There are default proceedings  Yes, as long as within the order of reference (his
 2. Ex parte authority)
 Examples of ex parte proceedings?  Can he resolve objections?
o Default o Yes.
o Application of indigent o N.B. this distinguishes him from a clerk of court
o “As in” default [did not appear  When are commissioners mandatory?
during PT] o Expropriation  mandatory in second stage
 3. Parties agree in writing o Partition  only optional
 Can an adoption case proceeding be delegated to the clerk of  If the parties stipulate how the property will be
court for reception of evidence? partitioned, there is no need to go to the second stage
o No. where commissioners are required
o Always with the judge  Report of a commissioner is not a judgment. It only aids the court.
 Can a clerk of court issue a subpoena? What are the options of the court?
o Yes, if it is a subpoena ad testificandum. If it is a subpoena o It may adopt, modify, or reject the report
duces tecum, there must be order by court.  What is the rule on objections?
 Can the clerk of court resolve objections raised in an ex parte o 10 days from filing of report, parties can object to the findings
proceeding? of the report
o No. o BUT, must make it before the commissioner during
o Just note the objections, and forward to the judge. proceedings, if these can be made by then – otherwise, will not
o The other party is not there – who will object? be considered by the court
 Well, the clerk of court just has to note it down if  Who shoulders the cost?
clearly objectionable. o The losing party, in general. But the court may apportion
 Can the commissioner punish non-compliance with contempt?
Cf Trial by commissioner
 o No. It‟s the court that appointed the commissioner that can do  Yes, you can file. As long as there is an order, you
that. can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
Consolidation o If the MR is denied, what can you do?
 File certiorari
 What is the difference between consolidation and joinder?  But in criminal demurrer, can you file for certiorari after denial of
o In consolidation, the cases are already pending; in joinder, the the MR?
cases are just being filed o You cannot appeal a denial or file for certiorari until final
 There was a case where the court allowed for the consolidation of cases disposition of the case.
in two different judicial regions – even when it was not even an issue in  Dayap: Criminal demurrer. What is the effect of dismissal in a
the case! criminal case?
o It amounts to an acquittal. This is not a dismissal without
Demurrer to evidence
prejudice. You cannot re-file.
o But is it reviewable by appeal?
 When do you apply for demurrer?
 No. It is an acquittal. Double jeopardy has set in.
o In civil, when plaintiff has completed presentation of evidence
o But is it reviewable by another mode?
o In criminal, when the prosecution rests its case
 Petition for Certiorari (Rule 65)
o When is this exactly?
 After formal offer of evidence  Salazar: Demurrer to evidence takes the nature of a motion to dismiss.
If he files it without leave of court, he waives his right to present
 Do you need leave of court?
evidence and he submits the case for submission purely on the
o In civil cases, no need for leave of court.
evidence presented by prosecution.
o But if you file leave, is it okay?
o If the demurrer is granted and the accused is acquitted,
 Nothing really wrong, but you‟re just delaying your
can the accused adduce evidence on the civil aspect of
case.
the case?
o In criminal cases, can you file demurrer without leave of
 Despite the acquittal, the court can still hear the case
court?
as to the civil aspect, unless there is a declaration that
 Yes, but if it is denied, the consequences are serious.
the fact from which the civil liability would arise does
 If there is no leave, and demurrer is denied 
not exist.
accused waives the right to present evidence
 So if the accused was not able to present evidence in
 If there is leave of court, and demurrer is denied 
the civil aspect, it is a void judgment.
accused can still present evidence
 Radio Wealth: Civil demurrer. What is the consequence of a
 What is your remedy of the losing party defendant if the demurrer
reversal by the higher court, after the initial granting of a
is granted? (civil)
demurrer?
o Can still appeal, because demurrer is a final disposition of a
o The defendant cannot adduce evidence anymore. The court
case.
will render judgment on the available evidence.
 If your demurrer is denied, what do you do? (civil)
o This effect does not apply to criminal cases
o You can submit evidence, and continue until judgment.
 P v. Cachola: N.B. In a bar exam, demurrer was once coined as
o Can you file for an MR of the denial?
“motion to dismiss on the ground of insufficiency of evidence.” This
case used the very same terms.
Judgment on the pleadings  What is summary judgment?
o There is no genuine issue as to a material fact. Memorize this
 When is there judgment on the pleadings? phrase.
o 1. The answer fails to tender an issue  What is the difference between this and “the answer does not
o 2. Or the answer admits the material allegations of the adverse tender an issue”?
party‟s pleading o There is no issue as to a material fact (note: not on the issues)
 What do the “material allegations” mean in the second ground?  But can you have a summary judgment based on a tort?
o It means the cause of action o No. Because damages here are unliquidated, and the court
o See the next section on Summary Judgment as to what the has to hear the case.
difference is with that concept  When can there be summary judgment?
 Who files a motion for judgment on the pleadings? o Declaratory relief
o The plaintiff, always o Liquidated sum of money or action to recover a debt
 Can there be partial judgment on the pleadings on this ground?  The court could rely on documents, papers, affidavits, depositions.
o No. It‟s ALWAYS a full judgment on the pleadings. o Ex. X wants to make it appear that he does not owe Y
o N.B. This is different from summary judgment, where there can anything, but there is a document where he admits the
be partial or complete summary judgments. obligation. Y must file motion for summary judgment and
 Can the defendant file a motion for judgment on the pleadings? attach the document.
o Based on a counterclaim.  Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
 If you’re the plaintiff, when can you file a motion for judgment on there could be an issue, but it is ostensibly sham or fictitious. In JOP,
the pleadings? the answer does not tender an issue, or it admits the material
o After the defendant files an answer. allegations on the claim. There is no dispute.
o Can it be during pre-trial?  Promissory note with no date when it is due and demandable. X
 Yes under Rule 18, Section 2g. owes Y 500K. Y sues X. X claims “it’s not yet due!” Is this
 But as a rule of strategy, file it upon first chance to do something that would lead to summary judgment or judgment on
so. the pleadings?
o Can you file a motion for judgment on the pleadings after o Summary judgment; although there appears to be an issue (X
pre-trial? made an issue out of nothing). It is ostensible, but it‟s actually
 Yes. But this is really belated. sham or fictitious.
 If you’re the defendant, when can you file? o Cannot lead to judgment on the pleadings, because there was
o Anytime. no admission of material claims.
 Can the court motu propio render a judgment on the pleadings
without motion of the parties? Judgments
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the  What is immutability of judgments?
parties during pre-trial to have judgment on the pleadings (Rule o General rule: judgments are immutable; they cannot be
18). But it‟s still, ultimately with the parties‟ consent. So in the modified once final and executory
end, the judge still cannot grant it on his own.  What are the exceptions?
o 1. Nunc pro tunc 
Summary judgment
  antedated judgment, when delay or error is due to the o 15 days
court‟s fault o Can it be extended?
o 2. Clerical or typographical errors  Cannot be extended
o 3. Void judgments  This rule has never been changed. You cannot file an
o 4. But some judgments cannot really obtain finality – like extension on an MR
support o So what’s the remedy?
 Is the judge required to take notes during course of hearing in  Some lawyers suggest filing a supplement. But
order to be able to render valid judgment? actually, there must be a new event or fact that arises
o No. to do this. So this is dangerous.
 Is it required that the judge who heard the case is the same who  How long must an MR be resolved?
renders the decision? o Within 30 days
o No. But the judge must personally review it. He must have  Can there be a partial MR?
authority [missed this] o Yes, when the court finds that the MR affects only a part of the
 Is filing of memoranda by the parties (after the trial, after judgment (ex. just one of the issues).
submission of evidence) required/mandatory?  Distinguish an MR from an MNT.
o It is not mandatory. It is not essential. o The grounds are different. In MNT, the grounds are FAME and
o Non-submission is not fatal. newly discovered evidence.
 What is a separate judgment?  What fraud is needed here?
o If there are many claims, the court can render judgment on  Extrinsic fraud.
one, and the action proceeds with regard to other claims  What is mistake?
o Ex. In expropriation – there are two judgments:  Mistake of fact in good faith
 1. Authority to expropriate  If there‟s a mistake of law, the remedy is an
 2. Just compensation MR, not MNT
o Ex. Summary judgment (one case has several judgments –  What is newly discovered evidence?
summary as to the one with no genuine issue, and trial over  1. It must be material
the ones with genuine issue)  2. It was not available during trial despite
 What is the difference between a separate judgment from a several exercise of due diligence
judgment?  3. If considered by the court, it could
o Several refers to parties, separate refers to claims later/change the result
 Can the court render a judgment to a non-juridical entity? o What are the grounds for MR?
o Judgment will be against the members, not the entity itself  1. Evidence not sufficient to support the judgment
 2. Excessive damages
Motion for reconsideration  3. Decision contrary to law
 What is the fresh period rule?
 Is an MR a prerequisite to appeal?
o Neypes: After denial of an MR, the period returns to 15 days
o No.
 Does the Neypes ruling apply to other kinds of appeal?
 In a case involving summary procedure, is MR allowed?
o Rules 40 and 41 (ordinary appeal) – covered by Neypes ruling
o No, it is a prohibited pleading
 How many days to file?
 o Rule 42 (petition for review) – no need for Neypes ruling, o From judgment: before the court that rendered judgment, not
because the provision itself provides for it before the appellate court
o Rule 43 (review of QJA) – no need as well o From denial of appeal:
o Rule 45 (petition for review on certiorari) – 15 day period for  A lawyer forgot to file an appeal on time. He filed late, and it was
MR is counted already in the period to file an appeal denied. What do you apply for?
o N.B. So the Neypes ruling is only targeted to Rules 40 and 41 o Cannot use petition for relief from denial of appeal, because
(ordinary appeal) there is no ground
 How many times can you file an MR? o You file an MR.
o Just once o Why?
 How many times for a MNT?  You file a petition for relief from denial of appeal if you
o Can be multiple, as long as on grounds not existing when the were prevented from filing it. Here, he was not.
first MNT was filed  What is the time period for filing petition for relief?
 What is the effect of granting an MNT? o Within 60 days from knowledge from the judgment of order
o There will be a trial de novo. (count from entry of judgment)
o The evidence so far presented may be used in the new trial o BUT NOT more than 6 months after entry of judgment/order
without retaking o N.B. both periods must apply
 Can there be MNT in the appellate court?  The sixty days can only move around the six months.
o Yes, but with different rules and only to the Court of Appeals If you found out the day before six months expire, you
(not all appellate courts). are left with one day, not 60 days.
o Rule 53 covers MNT in the CA. So that MNT is different from  Can you file a petition for relief from judgment when there is still
the MNT here. The MNT in the Court of Appeals only has one an available remedy of MR, MNT, or appeal?
ground: newly discovered evidence. o No. As long as there are still available reliefs, you cannot
o There are different periods as well – resort to petition for relief from judgment. Take note, that there
 In the MNT in trial court: 15 days from judgment must be entry of judgment, which means if there is no final
 In the CA: for as long as it‟s an active case (no need judgment yet, you can still do an MR/MNT/appeal.
to wait for a judgment in the CA)  Where else does FAME apply?
 Is there a MNT in the SC? o 1. MNT
o Rule 56 – o 2. Petition for relief from judgment/denial of appeal
o As a rule, an MNT cannot be entertained in the SC. o 3. Motion to reconsider order of court in pre-trial declaring that
o But it is left with the sound discretion of the court if it feels that the plaintiff can present evidence ex parte due to failure of the
it should do it in the interest of justice. defendant to appear in pre-trial
o 4. Motion to lift order of default
Petition for relief  What are the grounds for annulment of judgment (Rule 47)?
o 1. Extrinsic fraud
 How many kinds of petition for relief do we have?  Prescribes 4 years from time of discovery
o 1. From judgment o 2. Lack of jurisdiction (covers both SM and person)
o 2. From denial of appeal  N.B. This is the only provision that uses lack of
 Where do you file it? jurisdiction both ways
 Mr. X died, leaving an estate. Juan claims to be the sole heir. The  In the interest of justice, you can apply to the
estate court adjudicated the entire estate in favor of Juan. appellate court. But the general rule is that it is still
Judgment became final and executory. After 2 months, the rest of the court that rendered the decision.
the heirs who learned of the judgment came forward and filed a o Can the CA issue a writ of execution, other than in this
motion to set aside the judgment. Court denied the motion to set instance?
aside the judgment. So they went to the CA on an annulment of  When it exercises original jurisdiction.
judgment. (N.B. a petition for annulment of judgment is an original  Where do you file a motion for execution?
action; it is not an appeal. You file this for a decision of the MTC, to the o File it in the court that rendered the judgment.
RTC and for a decision of the RTC, to the CA.) Did they use the o Can it be filed with the appellate court?
proper remedy for filing petition for annulment of judgment in the  Same with above.
CA and not petition for relief to the court that issued the judgment?  Do you need to file a bond to apply for discretionary execution?
(Alaban v. CA) o The obligor need to file a supersedeas bond to stay
o Petition for relief. discretionary execution; but the obligee does not need to file a
o 1. Although section one states that only a party may file a supersedeas bond to apply for discretionary execution.
petition for relief from judgment, it is an action in rem. It o What does the obligee need to present then?
requires publication, so the heirs have been notified and  Proof showing good reason
deemed as parties. o What are examples when discretionary execution vest?
o 2. The learned of the judgment 2 months (60 days) from  1. Perishable goods
learning of the judgment. So the proper remedy is petition for  2. Old age + sickness [?]
relief, since it falls within the period.  Intramuros: Discusses when the judgment becomes final and
executory. A final judgment or order is one that finally disposes of a
Execution case. This is the only thing that could be subject to execution.
 What is the difference between discretionary execution and
 When is execution a matter of right?
execution pending appeal?
o Judgment is final and executory  USUAL CASE
o They are the same. And both require good reasons.
 Ex. period appeal has already lapsed
 Should the writ of execution conform to the dispositive portion?
 When is execution a matter of discretion?
o Execution must conform to the dispositive portion. What is
o For good reasons, when t is not yet final and executory
reproduced in the writ is the dispositive portion of the
o Execution of several, separate, or partial judgment
judgment. (Intramuros)
 Which court issues the writ of execution?
 Is a full blown trial required for a motion for execution?
o Court that rendered judgment
o No.
o RTC issued a decision, it was appealed to the CA, then to
 Can execution pending appeal be applied for to the TC after the
the SC. Who issues the writ of execution?
appeal has been perfected?
 The RTC – the court of original jurisdiction
o For as long as the TC has jurisdiction over the case.
o Are there instances wherein the writ will be issued by an
o See Rule 41. [This includes execution pending appeal,
appellate court, or a court other than that of original
provisional remedies, etc.]
jurisdiction?
 Do you need a bond to stay a writ of execution that was issued as
a matter of right?
 o No. You cannot stay it anymore – even with a bond. It‟s a  Death after judgment:
matter of right. o If the judgment oblige dies, then the executor/administrator
o What is the exception? applies for execution
 Get an injunction or TRO, claiming GADALEJ. o If the judgment obligor dies, and judgment is for recovery of
 What are the judgments not stayed by appeal? real/personal property – there is a lien over his property
o Injunction, receivership, accounting, support, other judgments o What if levy has already been effected?
saying it‟s immediately executory  Proceed to sale of the property to satisfy the
 Can an MR stay a motion for execution? judgment.
o The provision only says “an appeal” can stay a judgment… o What if the judgment is for money, not property?
theoretically, jurisdiction is still with the court of original  File a claim against the estate
jurisdiction.  Section 8: Contents.
o But there is no clear answer. o Do the contents have to always be there?
 In an ejectment case, which court issues the order of demolition?  No. Only to the extent applicable.
o The court of original jurisdiction, i.e. the MTC  Money judgments
o What is the exception? o Payment must be in what form?
 Mina: Discretionary execution can be entertained by  In cash.
the RTC. o Payment must be made to whom?
 Who has to make reports?  To the judgment obligee, if available
o The sheriff, on any matter of execution, esp. the conduct of  What if he is not available?
such.  To his representative
 Is a motion for execution indispensable before the court can  What if he is not available?
execute?  To the sheriff
o Yes, even for those immediately executory in nature. o Can payment be effected not by cash (Ex. check or PN)?
o Cagayan de Oro: A lawful levy for execution is needed before  Certified bank check is allowed
there can be a sale can be effected.  Or any other form of payment acceptable to the latter
o Can the court motu propio issue a writ of execution? o What if there is no cash?
 OCA v. Corpuz: Court on its own, cannot issue a writ  Go to 
of execution without motion of another party  Levy on real or personal property
 What is revival of judgment by an independent action? o What will be disposed first?
o If you went beyond 5 years from entry of judgment, but are still  Choice of judgment obligor
within the prescriptive period, you can file an independent  If he doesn‟t make a choice, personal property is
action to execute. prioritized over real property
 When can you file a motion for execution? o What if there is no property?
o Within 5 years from entry of judgment  Go to 
 After lapse of period of ten years, can you still revive it?  Garnishment
o No. o Custodian of the funds/deposit/royalty has to make a report.
o Is it always ten years? o How many days to report?
 YES. This is the flat prescriptive period for  5 days from receipt of notice. The custodian/manager
judgments. has 5 days to report if there is money.
 o What does the court do next?  No.
 It issues an order requiring transfer of funds. o [Among others]
o Can you garnish without prior demand of payment?  When can you apply for a motion for execution?
 No. o Section 14. This also tells you the life of the writ.
 Specific acts o What is the life of the writ?
o If the court requires the obligor to do something, but he  5 years, before it expires.
refuses, what happens?  Sec. 15-34:
 The court can require another person to perform it. o Important parts:
o If the other person does not comply?  Requirements of sale
 The court may consider that it has been DEEMED  Certificates of sale
complied with.  Redemption
 Give an example.  Redemption period
 The court orders that there must be  Who will be in possession of the property sold in
execution of deed of sale in favor of Y, done public sale
by X. X refuses. The court orders Z to  Who will be entitled to fruits/profits of the property
perform it. Z refuses. The court will deem it  What if after participating in the sale, you are unable
complied with. This deed of sale will be to take possession of the property – remedies
forwarded to the Register of Deeds or o What are the requirements for sale?
whoever/whatever office  TWO NOTICE REQUIREMENT: one to the judgment
o Can an order for demolition be given along with the writ of obligor, one to the public
execution?  Public – posting in conspicuous places, or
 No. It is punitive in nature, so there must be a even by publication
hearing.  What if it is a perishable good or personal
o When can there be contempt? property?
 ONLY applies for special judgment, and there is  Perishable goods – within reasonable time
refusal to comply. (no strict timeframe)
 What are the properties exempt from judgment?  Personal property – at least 5 days notice
o Family home, homestead, and the land  Real property – within 20 days
 If you mortgaged your Family Home, will it still be o N.B. not “at least”
exempt from execution?  What if the assessed value of the real
 [See last sentence?] property exceeds 50,000, what is needed?
 What are homestead lands? o There must be publication
 Public lands given to people giving them a  Should you notify the judgment obligor?
chance to cultivate  Perishable goods – just notice before the
o Libraries of professionals not beyond 300K sale
o Furniture for the family not beyond 100K  In all cases, notice at least 3 days before the
o Beasts of burden (up to 3) sale
o Tombstones  What time must the sale be?
 What about mausoleums?
  9 am to 2 pm, and it must be in the office of o Their rights were never
the Clerk of Court. But usually, it is done extinguished. It still exists, over the
outside the hall of justice property.
 What if it is personal property capable of  If the judgment obligor does not redeem,
delivery? can the redemptioners redeem beyond
 It must be done in the place where the the 1 year period?
property is located o No. This is the view sir subscribes
o Is a certificate of sale mandatory for personal properties to, even if some commentators say
capable of manual delivery? there can be endless redemption
 No, it is not. beyond the 1 year period in 60 day
 For real properties, you need a certificate of sale. intervals. But sir said that after 1
 What are the contents of a certificate of sale? year, the last redemptioner gets the
 1. Particular description of the real property property.
sold o Who has possession during redemption period?
 2. Price paid for each distinct parcel or lot  Obligor.
 3. Whole price paid o Who is entitled to fruits and profits?
 4. Statement that right of redemption expires  Obligor.
1 year from the date of registration of the  N.B. The obligor cannot change the nature of the
certificate of sale property during the period. He must not modify it.
  registered with the ROD o How must redemption be made?
o Can you redeem personal property sold on public sale?  It must be willingness and intention coupled with
 No. Personal properties cannot be redeemed, only tender of payment. Willingness and intention without
real properties. tender is not enough.
 Who can redeem?  Case: The redemptioner wanted to redeem in
 The judgment obligor can redeem installments, and not full payment. This was held to
 Who else? be invalid.
 Beyond the redemption period, can it still be
 Those who have interest on the property,
redeemed?
either by credit, encumbrance
(redemptioners)  It is not anymore redemption as
 What is the distinction? contemplated by law; just a contractual
arrangement between the redemptioner and
 Judgment obligor always has a period of 1
whoever purchased the property.
year, non-extendable
 Amount subject to sale + interest + taxes, if
 Once the judgment obligor redeems, no
before the one year period; however, after
further redemption is allowed.
the period is over, the amount can be
 Redemptioners may redeem, but it may
dictated by the parties freely.
again be redeemed from them within 60
o I purchased property in a public sale, but someone with a
days by another redemptioner
better interest came forward, so I wasn’t able to get
 What about the redemptioners?
possession and transfer of the property. But I already
 parted with my money, and paid the sheriff. What should I days. If there is sale within this period, the obligee (!) will be
do? the one penalized (odd).
 1. You can recover its value in the same action or  What are the 3 scenarios to show full satisfaction?
separate action o 1. The writ of execution has been returned to court
 2. You can have the judgment revived in the name of  Every 30 days, the sheriff has to report on the status
the purchaser – he steps into the shoes of the of the writ
judgment obligee. o 2. Written acknowledgement of the judgment obligee or
 In this case, he can execute – just like any counsel
other judgment obligee. o 3. When there is an endorsement on the face of the records of
 [So if he cannot pay, he can levy, and if not, the case
he can garnish.]  Even if the other party does not consent, but the court believes that it
 In execution, you need to remember the word “satisfaction.” Sections has been satisfied, the court may enter that it has been satisfied.
44 and 45 have this end in mind. The books of the case will not be  What are the effects of domestic judgment? (MEMORIZE)
closed, even if you won, if judgment has not yet been fully satisfied. o 1. As against a specific thing, condition/status/relationship of a
 What are the remedies of the judgment obligee is the writ of person – conclusive upon it
execution as returned shows that the judgment has not been  Where a will has been probated, is death of the
satisfied? party conclusive?
o 1. Call the judgment obligor and have him examined in court,  It‟s only presumed
through subpoena o 2. Res judicata
o 2. Call on the stand the debtor of the judgment obligor to be  Baretto v. CA: Two aspects of RJ – 1. judgment bars
examined in court, through subpoena the prosecution of the same claim, demand, or cause
 What if in the course of examination, we find that of action, 2. Precludes the re-litigation of a particular
he owes the obligor? fact or issue in another action between the same
 He can then be charged. parties in a different claim or cause of action
o 3. Pay directly to the sheriff, and the sheriff issues a proper o 3. Preclusion of issues/conclusiveness of judgment
receipt  As to other litigation actually and necessarily included
o 4. Amortization payments therein
o 5. Court appoints a receiver  What are the effects of foreign judgment?
 Akin to the provisional remedy on receivership o 1. Conclusive as a specific thing
 This is the only provisional remedy that can be given o 2. Presumptive evidence of rights between parties
by the court even after judgment  How do you enforce foreign judgments?
 The reason: to preserve the property. o 1. File a verified petition in the RTC
o 6. If it is later discovered that the obligor has an interest over a o 2. There was jurisdiction of the court over the subject matter
property, the court can order a sale and over the parties
 The property must be within the place in which o 3. Prove the law of that jurisdiction
proceedings are had  How do you impugn that foreign judgment?
o 7. If person who has possession of the property of the obligor o 1. Want of jurisdiction/notice to party
refuses to recognize the title of the obligor, the obligee could o 2. Collusion
ask for an order to have the property sold for a period of 120 o 3. Fraud
 o 4. Clear mistake of law/fact  If you go from the MTC to the RTC, what is the process?
 How about foreign arbitral awards? o Take note that the RTC is an appellate court here.
o You file an action for recognition. It is not a foreign judgment. o Parties file a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
Appeals  In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
[*NOTE for Bar review: check your Appellate Practice notes. They‟re better, o Because it‟s only been decided on once, and will be reviewed
for these sections] for the first time.
o As opposed to Petition for Review – this deals with cases that
 What are the three modes of appeal?
have been twice decided on.
o 1. Ordinary appeal (Rules 40 and 41)
 What is the procedure in the CA?
o 2. Petition for review
o Filing of appellant‟s and appellee‟s brief. The procedure is
o 3. Petition for review on certiorari
found in Rule 44, not 41.
 What are the ordinary appeals?
 Period for filing of briefs?
o Notice of appeal
o 45 days, appellant‟s brief
o Record on appeal
o 45 days, appellee‟s brief
 When is there record on appeal?
o 20 days, for reply
o Multiple appeals
o N.B. For the MTC  RTA ordinary appeal, the periods for the
o Special proceedings
memoranda are 15 days and 15 days, respectively
 What are the periods?
 When does the court of original jurisdiction totally lose
o Notice of appeal – 15 days
jurisdiction, during appeal?
o Record on appeal – 30 days
o When all the periods for appeal have expired
 Can you extend the period of 15 days?
o Or when all the parties have appealed in due time
o Not extendable
 What are the two kinds of petition for review?
o But if you file an MR and it is denied, following Neypes, you
o Rule 42
get a fresh period
o Rule 43 (quasi judicial agencies)
 Can you extend the period of 30 days?
o What about petition for review of the decisions of the
o No
Prosecutor?
o Except when there is an authorized alteration or modification of
 It is technically not a petition for review because it is
the record
for criminal procedure, and is in the executive branch
 Where do you file a notice of or record on appeal if you are in the
 When does Rule 42 apply?
MTC going up to the RTC?
o There is denial in the MTC, and then denial in the RTC, and
o MTC. Always on the court that issued the judgment.
then it goes up to the CA through Petition for Review.
 What is a record on appeal? o What about summary proceedings in the MTC?
o It‟s a sequential compilation of the pleadings, orders, etc. of the  When you lose in the MTC, you cannot file an MR.
judge.
BUT you can appeal to the RTC, then petition for
o Unlike a notice of appeal, which is just a statement when you
review to the CA.
received the decision, that you paid appeal docket fees within o What about small claims in the MTC?
period, and you intend to appeal
  You cannot MR or appeal a small claims decision. It o NLRC by the CA?
is final and executory. But if there is GADALEJ, you  Yes, but under Rule 65, not 43
can go up to through a petition for certiorari. o DARAB by the CA?
 When does Rule 43 apply?  Yes.
o When the body with original jurisdiction is a quasi-judicial o CTA by the CA?
agency  No. It must be CTA en banc, then SC.
 What are the periods?  The only way to go up to the SC is through Petition for Review on
o Same for Rule 42 and 43 – 15 days Certiorari.
o Can you ask for an extension? o Except: In a criminal case where the punishment is Life
 Yes, you can ask for one during the reglementary Imprisonment, Death, or RP  you go to the SC through
period. Ordinary Appeal
o Can you ask for a second extension?  Petition for Review on certiorari – what is the period?
 General rule is that no further extensions are allowed, o 15 days.
except for the most compelling reasons. o Can there be extension?
 What are the requirements of a Rule 42?  ONLY ONE extension for 30 days, for good reason
o 1. It must be verified – MEMORIZE o I asked only for an initial extension of 15 days. But I
o 2. Attach a copy of the decision or a duplicate original realized I needed more time. Can I ask for the last 15?
o 3. Affidavit of material dates (date of receipt of decision, date of  NOPE. You only get one extension.
filing of MR, date of denial of MR)
o 4. Parties, issues, grounds relied upon, errors, explanation if Rules 44-56 – CA
service is other than personal
o What are some of the causes that will dismiss your case?  How is jurisdiction acquired over persons for original cases filed in
 1. If the jurat does not comply with the requirements CA?
of the notarial law o Service of order/resolution or voluntary submission to the
 2. Failure to attach registry receipt court‟s jurisdiction
 What are the requirements of a Rule 43? o What does service of order or resolution mean?
o SAME, but you attach all certified true copies  Akin to Rule 13 service
o Why? o What if there was an effort to serve and it was not
received? Is the court deemed to have acquired
 Because it came from a QJA. So the court will not be
jurisdiction?
able to verify if the issued resolutions, etc. are
genuine  No. There must be proper service of the resolution or
order. Not like summons, but the same as Rule 13.
 Is the enumeration in Rule 43 of QJAs exclusive?
 Can the CA conduct a hearing?
o No.
o Can the decision of the Office of the President be reviewed o For original cases, yes. This is why the CA requires hearings
by the CA? or arguments for certiorari, annulment of judgment,
 Yes. mandamus, prohibition, quo warranto.
o Can the decision of the HLURB be reviewed by the CA? o N.B. Annulment of judgment is an original action seeking
 No. By express provision, it must go through the annulment of judgment of an RTC decision.
President before the CA.
  Can you seek an annulment of judgment of an  Comply with minimum requirements of Rule 44 and 50.
MTC decision? o What if you don’t have an assignment of errors?
 Yes. You file annulment in the RTC.  Your appeal will be dismissed.
 Can you seek an annulment of judgment of a CA o What if you don’t comply with court circulars?
decision?  Dismissed.
 No. Fall back to the usual rule that you can  Rule 51 – provision on judgment. (For trial courts, it is Rule 36.)
only go up to the SC through Rule 45.  <spaced out>
o Can the justices hear the case?  Can you file an MR in the appellate court?
 Yes. Alternatively, it can ask the RTC to receive o Yes. Rule 52.
evidence. o Same period (15 days)
 Preliminary conference is the equivalent of pre-trial in the CA. Whether o Same three grounds – except that the period to resolve in the
it is an original or appealed case, the CA can set it for preliminary CA (90 days) is longer than the TC (30 days)
conference.  Can you file a MNT in the CA?
o What is the effect if the appellant is absent here? o Yes.
 The appeal will be dismissed. This is provided in o In the TC, grounds are FAME and newly discovered evidence
Rule 50. o In the CA, the only ground is newly discovered evidence
 Rule 50 enumerates grounds for dismissal of appeals. o Periods?
 Browse through this.  TC – reglementary period within receipt of adverse
 Ex. paid docket fees outside of reglementary decision
period, even if you filed the appeal within the  CA – from the time appeal is perfected and as long as
period; failed to file within the reglementary the CA has jurisdiction
period
 Ex. failure to file an appellant‟s brief Rule 56 – Supreme Court
o Can the parties stipulate on the facts?
 Yes, if it is an original action, or there is a grant of  Remember Sec. 1 and 3. Memorize the cases that will be originally filed
new trial on the ground for newly discovered evidence in the SC.
 (Note: newly discovered evidence is the only ground  What are the cases that can be originally filed in the SC?
for the CA; FAME is not included) o Certiorari, prohibition, mandamus, quo warranto, disciplinary
 Oral arguments: what do I need to know? actiosn against members of the Bar/bench, against
o 1. Only original cases are argued in court; not appealed cases ambassadors, consuls, other public ministers, etc.
 But if the CA feels that there is a need for the parties  But if you file a case against a member of the Bench,
to ventilate their arguments through oral discussion, it will be referred to the Court Administration. If
then it can do it in its discretion. against a member of the Bar, it will be referred to the
o 2. Do you hear motions in the CA? IBP.
 While for trial courts, motions will be heard, except o Found in the Constitution: Constitutionality of law, treaty,
those that will not prejudice the rights of the other ordinance, tax imposition, EO, etc.
party.  What do you need to follow for original cases?
 BUT in the Court of Appeals, motions in the CA need o Rule 46 – original cases
not be heard (same with the SC)
 o PLUS: Rule 48 (preliminary conference), Rule 49 (oral o 1. Any claim for money or damages except moral/exemplary, if
argument), Rule 51 (judgment), Rule 52 (MR) the claim arises from an obligation (law, contract, quasi-
o Is there a MNT? contract, delict, quasi-delict) AND defendant is about to depart
 No. with intent to defraud
 For appealed cases to the Supreme court, what is the mode?  What if claim is recovery for sum of money only?
o Rule 45 – the only way to go up to the Supreme Court  No. You could only apply for attachment if
o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment), the defendant is about to depart with intent
Rule 52 (MR) to defraud.
o Is there oral argument? o 2. Embezzlement/abuse of trust by one with a fiduciary
 No. relationship
 For all intents and purposes, this is estafa
Rule 57 – attachment o 3. Action to recover property and there is willful fraudulent
concealment of the property
 Manguila: citing Davao Light and Power. Question is when should o 4. Fraud in contracting the obligation or fraud in the
jurisdiction over the defendant vest? performance thereof – most asked ground
o Distinguish between issuance and implementation of the writ of  First: If not for the fraud, the other party would not
attachment – to determine when jurisdiction is needed over the have entered into the transaction
defendant.  Second: In the manner of the performance, it was
o Remember you could file an attachment will the initiatory fraudulent
pleading and apply for it ex parte. You can also apply for it o 5. Action against a person who removes/conceals property
upon motion.  Unlike (3), this is directed against a person
o To answer the question: there are three stages for attachment o 6. Defendant is a non-resident
–  Fraud not required here, because he can leave at any
 1. Court issues order granting application time
 2. Writ of attachment issues pursuant to the order  How do you discharge an attachment?
 3. Implementation of the writ o 1. Most common: post a counter-bond
 FOR THE FIRST TWO STAGES, jurisdiction over the  When do you post a counter-bond?
defendant is not yet required because it is an ex parte  Can be posted after enforcement of the writ.
application. However, when you are implementing
 You cannot anticipate its enforcement.
the writ, you need jurisdiction over the defendant.
o 2. Improper, irregular, or excessive attachment
o Thus, how can the writ be implemented?
 What is “improper”?
 You have to get jurisdiction over the defendant first.
 Grounds are not present in the case
o Summons should be served prior to, or contemporaneous with
 What is “irregular”?
the order (for implementation). Contemporaneous is better.
 Wrong process.
o Summons belatedly served does not cure fatal defect in the
 When can this be raised?
enforcement of the writ.
 ANYTIME, even before enforcement.
 Either personal or substituted service.
 Can you recover damages?
 Grounds for attachment? MEMORIZE
o Yes, Section 20 – if there is improper, irregular, or excessive
attachment.
 o Section 20 applies to all provisional remedies except support  Rural Bank of Sta. Barbara: A motion to release property from
pendent lite. attachment was treated as a third party claim (can also be found in Rule
o Where can you apply for it? 57, Sec. 14). Works as the same manner as a third party claim, except
 In the trial court; during or after trial. for one difference: [READ THIS CASE TO CLARIFY]
 You can apply for it within reglementary period, or o Usually, in execution – The applicant posted a bond when he
when appeal has been perfected. AS LONG AS it is applied for a writ of attachment (to cover whatever damages
pending, and not yet final and executory. defendant will suffer due to attachment) By reason of a third
o Yu v. Ngo: Evidence required for wrongful attachment. When party claim, with no bond, the process will be suspended. Now
there is wrongful attachment, defendant may recover actual it is the burden of the applicant to post another bond to cover
damages, without need of proof of bad faith. When there is the third party‟s damages.
malicious attachment, defendant may recover actual, moral, o In attachment – more or less the same procedure. The third
and exemplary damages. party claim suspends the attachment procedure. But the right
o What is the scope of the award of actual damages from of the third party claimant in execution in attachment could be
attachment? vindicated in the same or in a separate action. In execution, it
 1. With best evidence obtainable, fact of loss or injury could only be done in a separate action.
 2. Amount thereof o Why?
o Can actual damages cover unrealized profits?  Because in execution, the judgment is already final.
 Yes. But the amount must be supported by o In Rural Bank, a motion was filed to release property from
independent evidence of mean income of the attachment, giving affidavit of title to the sheriff. The court said
business undertaken. that the filing of the motion can be deemed the same as a third
o How do you prove moral/exemplary damages? party claim (because 3P claim must be filed with sheriff). It can
 Prove that the wrongful attachment was with malice or also be treated as a form of intervention.
bad faith.  Case: Levy on attachment duly registered takes preference over a prior
o How about attorney’s fees? unregistered sale. The preference created by attachment is not
 Generally, attorney‟s fees cannot be awarded when defeated by the subsequent registration (to the attachment) of a prior
moral or exemplary damages are not granted. sale, because attachment is a proceeding in rem.
 Exception: when a party incurs expenses to lift  Magaling v. Ong: Irregular and improper issuance of attachment.
wrongfully issued writ of attachment. When the attachment is challenged for being illegally or improperly
 Metro Ink: Referred to Section 1d of Rule 57. It must be shown that the issued, there must be a hearing.
debtor intended to defraud the creditor by contracting the debt. The o The hearing embraces the right to present evidence, and also
fraud must be related to the execution of the agreement and must have the establishment of rights of other parties.
been the reason that induced the party to give consent. o Mere filing of opposition is not equivalent to a hearing.
o If the writ of attachment is issued for a ground that is also the Absence of a hearing does not discharge attachment.
cause of action of the plaintiff, the only way to dissolve it is to o The discharge of an attachment, whether through counterbond
post a counter bond. or irregular, improper, or excessive – can only be done through
o If you post a counter bond, does this waive any further hearing.
claim for damages arising from wrongful attachment?  Security case: Two ways to secure discharge of attachment. 1) Party
 No. whose property or his representative has been attached can post a
security. 2) Said party can show that the attachment has been
 improperly or irregularly issued. Mere posting of counter bond does not o 1. Preliminary injunction to prohibit or stop (status quo ante)
discharge the attachment. There should be a specific resolution for the o 2. Preliminary mandatory injunction – an injunction which
discharge. requires you to do something or perform something that you do
 Contents of affidavit for attachment? not ordinarily want to perform, in order to maintain the status
o 1. Cause of action quo
o 2. Statement that the grounds apply  Estares: A writ of PI based only on initial and incomplete evidence
o 3. There is no sufficient security – is this allowed? What kind of evidence is required?
 What if the court renders a judgment and there is a previous o You don‟t need to present your entire case. Only a sampling of
attachment, duly registered, what will the subject of execution? evidence is needed, to give the court an idea to justify why you
o If there is money duly garnished or obtained through sale of need to obtain the PI.
perishable goods, the money will be applied.  Can a judge issue a PI without a notice and hearing?
o If not sufficient, use real or personal property that has been o No. It‟s an absolute no. (Dela Paz)
attached. But these properties have to be sold on public sale.  Can the court issue a TRO without notice and hearing?
Procedure is consistent with Rule 39. o Today, yes. (This is the amendment)
 What if the properties attached are not sufficient to satisfy the o If great and irreparable injury, court can issue a TRO ex parte
judgment? (without notice and hearing) for 20 days.
o Court proceeds with ordinary execution to cover the balance.  When stations where there is an executive judge, or the presiding judge
of a single-sala court, there can be an issuance of a 72-hour TRO ex
Rule 58 - Injunction parte – if the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury
 N.B. Rule 58 has been amended on Dec 2007. It was amended  Can an injunction have an effect if enforced outside the judicial
alongside Rules 41 and 65. district? (ex. enforced in Makati and Mandaluyong, and the judge
 What was affected by the amendment? is stationed in Marawi)
o Rule 48, Sec. 5. [Discussed later on] o No. A writ can only be issued in the judicial region.
 Bacolod City v. Labayo: Can there be a principal action for  What is the purpose of the bond?
injunction? o To protect the person against whom the writ of injunction has
o Yes. There could be a principal action for injunction. There is been issued
a distinction made in this case between principal action and o The posting of a bond in connection with PI does not operate
preliminary injunction: to relieve the party obtaining the injunction from paying
o Principal action – seeks a judgment for a final injunction which damages – the bond only gives additional protection in favor of
is separate and distinct from  the defendant
o Preliminary injunction – object is just to preserve status quo o So Rule 57, Sec 20 also applies here. Read above, on the
 Greenfield, Dela Cruz v. DECS: What are the requisites for a PI? rule re: damages.
o 1. A clear and unmistakable right  A court issued a writ of PI. What is the duty of the court in relation
o 2. The right has been violated, and invasion has been material to the main case?
and substantial o The main case has to be decided within 6 months or else the
o 3. There is an urgent and permanent necessity for the writ to judge can be disciplined by the court. This is a new provision.
prevent serious damage
 Types of PI?
 Aquino: Dissolution of the injunction, even if it was obtained in good  Can a 20 day TRO be extended?
faith, it amounts to a determination that it was wrongfully obtained. A  No, it automatically expires w/ or w/o a
right of action against the bond accrues. period.
 Garcia: Posting of a bond is a condition sine qua non to issue a writ of  Unless you obtain a preliminary injunction
PI.  Can a preliminary injunction be issued without notice and
 Borromeo: Where the parties stipulated in their credit agreement, PN, hearing??
contract, etc., that the mortgagee has the right to foreclose in case of o No. NEVER. There must always be notice and hearing.
default, this defeats any future claim for the issuance of a PI. o The hearing is always summary in nature whether TRO or
 SC Circular (2007): On issuance of PI on extrajudicial and judicial preliminary injunction.
foreclosure cases.  If you file a petition for certiorari against the PI, does it suspend
o 1. Today it is not enough to say that you have paid the amount. the main case?
Mere allegation of payment without showing actual payment is o No, it does not. This is an amendment introduced in 2007.
not basis for issuance of PI. o Can you extend the period by which you can file a petition
o 2. Mere claim/allegation that the interest is unconscionable or for certiorari (60 days)?
excessive does not justify issuance of the PI unless the legal  No more.
interest is paid.  Before the 2007 amendment, you can ask for a 15
 What is a Status quo order? day extension. This was removed already.
o It is not a preliminary injunction. Minimum requirements of  How can you dissolve a writ of PI?
TRO/injunction do not apply to status quo orders. o Is insufficiency a ground to dissolve a PI?
o It can be applied in TC or appellate court. A status quo order  NO. It just a ground to deny, not to dissolve
can be issued without a bond, or without a fixed term. o 1. File affidavits showing there is no reason for the PI
o BUT in the SC Circular (2007): requirements for TRO must o 2. File a counterbond + an affidavit showing that he will suffer
apply to status quo orders if issued for judicial or extrajudicial more damage than applicant will
foreclosure of mortgage.  Is a counterbond enough?
 Can the court require you to post a bond for a TRO?  No
o Yes.  Is the statement enough?
 What are the two kinds of TRO?  No
o 72 hour TRO – can only be issued by executive judge of a
multi-sala court, or presiding judge of single sala court Rule 59 – Receivership
 Without notice and hearing
 Can these 3 days become 20 days?  The only provisional remedy that can be applied for post-judgment and
 Yes, after raffle and it is assigned to a even if it is already final and executory.
regular court judge, who can now conduct a  Grounds:
summary hearing to determine w/n it must o 1. Property is in danger of being lost
extend the TRO from 3 to 20 days. o 2. Property is in danger of being wasted/dissipated
o Normal 20 day TRO – issued by a regular court judge after  Or Stipulation in a mortgage contract and the security
raffle in the mortgage is not enough to cover the value of
 Without notice and hearing the application
 Great and irreparable injury
 o 3. Preserve property during pendency of appeal, dispose of it o You can only apply for this AT ANY TIME BEFORE AN
according to judgment, aid execution if execution unsatisfied, ANSWER.
carry judgment into effect o For the other provisional remedies, you can apply anytime
o 4. Other reasons the court finds convenient while the action is pending (or for receivership, even after)
 Requires a bond  What is your remedy after an answer is filed?
 How do you dissolve the bond? o You file an attachment, but the effects are different.
o 1. Show no cause o What are the differences?
o 2. Post a counterbond  1. In replevin, the property subject of the action is
taken. In attachment, properties, whether real or
Rule 60 – Replevin personal are attached to secure the judgment
 2. In replevin, when the writ is served, the sheriff
 Can property held as evidence in criminal case be subject to a writ takes possession, and delivers it to the applicant
of replevin? (unless a counterbond is filed within 5 days). In
o Superlines: NO. In the affidavit of the affiant, the property is attachment, personal property is taken by the sheriff
not subject of custodia legis, execution, or attachment. The and delivered to the court; for real property, the sheriff
deprivation, to be validly subject to replevin, must be illegal or annotates at the dorsal portion of the title.
unlawful.  Note that the main action is recovery of possession of property. The
o Property can be said to be in custodia legis, not only when it is issuance of a writ of replevin is just a provisional remedy.
in official custody, but if it pursuant to a legal order in a case  Can there be a principal action for replevin as a provisional
 Can one quash a writ of replevin? remedy?
o Of course, it may be quashed or dissolved o No, just like everything else, it is a provisional remedy.
o How do you dissolve? o BUT because of the ADR rules, you can file any provisional
 1. If you want to regain immediately custody or remedy as a main action in aid of an arbitration clause. (!!!)
possession, you just simply post a counter-bond  Pinggol: A replevin bond was deemed invalid because the officer who
 [take note of this] signed the bond is without authority to do so from his company.
 2. Attack the sufficiency of the replevin  Danao: Can you subject to replevin a motor vehicle in custody of
 Here, you cannot effect an immediate another court?
release o No. It is in custodia legis.
 What is the value of the bond?  Can goods under custody of an agency of the government (here,
o THIS IS THE ONLY PROV REM WHERE THE ex. Bureau of Forestry) be subject to a writ of replevin?
BOND/COUNTER BOND IS DOUBLE THE VALUE OF THE o No. It is under lawful process.
PROPERTY.  In attachment and replevin, there are rules for third party claims.
 What are the contents of the affidavit? What are these?
o Memorize this for the bar o 1. Rule 39 Sec 16
o 1. The applicant is the owner of the thing o 2. Rule 57 Sec 14
o 2. Property is wrongfully detained o 3. Replevin
o 3. Property is not lawfully taken o Note that unlike execution, in attachment and replevin, a third
o 4. The fair market value of the property party claimant can vindicate his right in the same or a separate
 When can replevin be applied for? action. In Rule 39, a third party claimant can only vindicate his
 right in a separate action, because judgment is final and  Can there be a counterclaim in an interpleader case?
executory. o Yes.
o What is the rule on intervention (Rule 19)?  Stuff to remember:
 You can intervene anytime before judgment. But this o In the interpleader case, the one filing the case was not
only applies to trial courts. violated. There was no breach.
 What about appellate courts? o The person filing the action can either have an interest which is
 You can still intervene, but subject to the not in conflict with the claiming parties, or has no interest at all.
appellate court‟s sound discretion.  Are there filing fees for an interpleader action?
o Yes.
Rule 61 – Support pendente lite o However, the applicant, not being violated nor is he a Real
Party in Interest – is entitled to a lien on the judgment award
 This is the only provisional remedy that does not require a bond. The
 What is the difference with intervention?
four others require a bond. The person applying for support obviously
o In intervention, there is already a pending case. Here, you
needs money.
initiate the action.
o N.B. For all these other provisional remedies, just follow Rule
57 Rule 23. The general rule is you can only recover damages Rule 63 – Declaratory relief
from a bond while the action is pending.
o So what is the rule if you are wrongfully compelled to give  Almeda: Enumerated the requisites of declaratory relief:
support? o 1. Subject matter is a deed, will, contract, or other written
 You don‟t recover damages. You ask for instrument, statute, EO, or regulation
reimbursement. o 2. The terms of the documents are doubtful and require judicial
 What if there is refusal to comply with court order to give support? construction
o The court can order execution. o 3. There must have been no breach of the documents in
o There are only two instances where there can be writ of question
execution even when there is no final judgment: o 4. Actual justiciable controversy
 1. Support pendente lite o 5. Ripe for judicial determination
 2. Indigent (which the court finds that you are not an o 6. Adequate relief is not available
indigent and requires you to give filing fees)  Bottomline: purpose is for interpretation and determine validity. It‟s not
 What if a person believed that he is the father and he gave about constitutionality.
support? Then, it turns out he is not the father. o Also, there must be no breach
o If the action is still pending, you can apply for reimbursement in  What if there is breach?
the same action. o There will be conversion to an ordinary civil action. This is the
o If there is a judgment already, you can apply for it in a separate only such action that can be converted.
court proceeding.  Do you need to pay filing fees when it is converted?
 Can you dissolve support pendente lite? o Yes, you need.
o When there is no reason to give support pendente lite.  Which court has original jurisdiction?
o RTC.
Rule 62 – Interpleader o What if there is an allegation of unconstitutionality?
  The RTC has no exclusive jurisdiction; you can file it o Yes. The same is required – GADALEJ. No plain, available,
elsewhere like the SC. The RTC only has exclusive speedy ordinary remedy.
jurisdiction if it is a pure question of declaratory relief o It is the same as certiorari.
 An action for declaratory relief must be dismissed if there is a pending  Certiorari – whose decision can you question?
action for unlawful detainer. o Judicial or QJA
 Malana: Reiterates that declaratory relief presupposes no actual  Prohibition – whose decision can you question?
breach. o Judicial, QJA, or ministerial
 Second paragraph of Sec. 1: -- covers “other similar remedies”  What is the difference between prohibition and mandamus?
o Removal of cloud o Limited to ministerial functions.
o Quieting of title o Here, you are requiring him to perform.
o Reformation of instrument  Can the OMB be compelled by mandamus to file an information?
 When can you reform? o No. It is not ministerial.
 There must be mutual mistake.  If you entered into a contract with X to build a house for you, and X
 Can there be execution in a declaratory relief case? received the advance of the contract price, and X did not build the
o Yes, nothing prevents the filing of a counterclaim in a house, can you compel his performance by mandamus?
declaratory relief, and there can be execution pursuant to this. o No; it is not ministerial. It is a contractual obligation – specific
performance.
Rule 64 – Review of judgments and Final orders of COMELEC/COA  Can an OMB judgment be reviewed?
o Generally, under Rule 43.
 1. This is actually a petition for certiorari. If you file under Rule 64, it will o However, if the decision of the OMB in a criminal case is
be named a Petition for Certiorari tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
 2. The period to file a petition for certiorari under Rule 64 is 30 days,  In prohibition, you cannot prohibit an act that has already been
non-extendable. performed. It is already moot.
o But the period can be interrupted, if an MR is allowed. In
which case, you get the remaining period. Quo Warranto
 3. This has a limited application; it only covers decisions by the
COMELEC and COA.  Who commences an action for quo warranto?
 NOTE: For 43 and 64, all the attachments are certified true copies. o Liban: Generally commenced by the government.
The reason is you involve Quasi Judicial Agencies. o 1. President, directing the Sol-Gen
o 2. Sol-Gen, in the name of the government, when he has good
Rule 65 – Petition for certiorari, mandamus, prohibition reason to believe
o 3. Upon the relation of another person, telling the Sol-Gen to
 First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule institute the action
65: you do not talk about Rule 65. You have to fight on your first night.  What is the special requirement if it is upon the
 Real first rule of Rule 65: this is not an appeal relation of another person?
 Elements of certiorari?  There must be approval by the court. If not
o 1. GADALEJ approved by the court, the Sol-Gen will not
o 2. No plain, available, speedy ordinary remedy file.
 What is prohibition? Should there be GADALEJ?
 o 4. The person instituting quo warranto in his own behalf must  If it involves a government facility which is subject of
show that he is entitled to the office in dispute. expropriation, how much deposit do you need to give?
 This is where the person aggrieved himself files (Sec o Rule 67, Sec 2 provides that for real property, it must be
5) assessed value, in general. If it is personal property, assessed
 What should he show? [double check]
 1. His claim o Gingoyon: The government must pay at least the proffered
 2. And that he is entitled to the office value, not the assessed value. (RA 8974 – the deposit for
 When can you file it? immediate possession is proffered value.)
o 1. Usurpation  Who can expropriate?
o 2. Public officer who does or suffers an act constituting ground o National government
to forfeit office o LGU
o 3. Association not duly incorporated o Instrumentality of government
 Quo warranto is also available if a government  Veluso v. Panay:
corporation has offended against its chapter. o LGUs by themselves have no inherent power of eminent
 It is a prerogative writ, where the government can exercise its right to domain. Thus, strictly speaking, the power delegated to the
demand proof of what right a person has over office LGUs is “inferior domain.”
 What is the venue? o But an LGU can expropriate.
o 1. RTC where respondent resides o What are the requisites before an LGU can exercise
o 2. CA eminent domain?
o 3. SC  1. Public use, public purpose, public welfare
o This is another example of concurrent jurisdiction  2. [xxx]
o What is the special rule?  3. Just compensation
 If it is the Sol-Gen who institutes the action, it can be  4. Valid and definite offer previously made to owner
filed in the courts of the City of Manila but not accepted
 What is the period to institute an action for quo warranto?  Can a complaint for expropriation be withdrawn?
o One year from happening of the event o It can be withdrawn for as long as there is no judgment yet
 Can you recover damages from a quo warranto judgment? o Once there is an order for expropriation, it can no longer be
o One year from entry of judgment withdrawn
 A person who is declared by the court to be entitled to an office should  Government entered property (took it) and caused demolition of
require delivery of books, papers, documents in the possession of the improvements. But before there was order for expropriation, the
usurper – if he refuses, he can be liable for contempt. government said “huwag na lang.” Can the government withdraw?
 If there is a dispute between and among the Board of Directors of a o Yes. But it is liable for damages.
private corporation, one group claiming that they have been  If there a subsisting contract between government and the private
usurped, is the proper remedy quo warranto? person, there can be no expropriation contrary to that contract.
o No. This is an intra-corporate dispute to be filed in the regular  Determination of just compensation is a judicial function.
courts (RTC) having original jurisdiction.  NPC v. Manubay: Is traversing a lot with transmission lines, is there
expropriation or easement fees?
Rule 67 – Expropriation o There is expropriation
 Mactan Cebu Airport: When you say “public purpose,” it must be the o In Act 3135?
purpose stated, and not another purpose, even if public too  Redemption is one year.
o The acquisition of government of property is limited to the o Bank as lender and mortgagor/borrower is a corporation?
public purpose stated, because it is not a simple purchase in  90 days or registration of certificate of sale, whichever
fee simple, unlike normal purchase of property. comes first.
 Metrobank v. Tan:
Rule 68 – Foreclosure o Involves filing of a civil case involving annulment and
cancellation of an EJF sale.
 Two kinds of foreclosure? o The general rule in redemption – not enough to manifest intent
o Judicial foreclosure (Rule 68) to redeem. It must be accompanied by actual and
o Extrajudicial (Act 3135) simultaneous tender of payment. (This also applies even to
 What is the diff? redemption in execution.)
o Rule 68 – you have to file a case, just like any other action; you  What constitutes payment for purposes of redemption?
have to pay filing fees o 1. The price which the purchaser paid for the property
o Act 3135 – you file a verified petition before the office of the o 2. Interest of 1% per month on the purchase price
clerk of court, who is the ex-officio sheriff o 3. Amount of any assessment or taxes which the purchaser
 When is the EJF scheduled? may have paid on the property
 After paying of incidental fees and fees for o 4. Interest of 1% per month on such assessment
publication  Distinguish a legal redemption from conventional redemption?
 What is diff between JF and execution? o Legal redemption is one that is within the period provided for
o When there is award of JF, the mortgagor continues to be in by law.
possession of the property. o Conventional redemption – beyond the redemption period, and
o In execution, the obligor continues to be in possession of the you still want to redeem, and you would like to agree on a
property. different price
o What about Banking Law?  Governed by contractual law. So the redeemer
 In Banking Law, the possession is different. If the cannot insist on the calculation above
lender is a bank and the borrower/mortgagor is an  Metrobank case:
individual – the one in possession after foreclosure o When the complaint to enforce a repurchase, if filed within the
sale is the purchaser or the bank, if it purchased. redemption period is treated as an offer to redeem and will
o What about Act 3135? have the effect of preserving the right of redemption.
 After foreclosure, the mortgagor still possesses.  Take note of the 2007 SC Circular re: TRO and injunction of
 Under the lender is a banking institution – follow the foreclosures [discussed in Rule 58]
Banking law.  Different types of sale of property?
 What is the redemption period in JF? o 1. Ordinary execution sale
o Equity of redemption: period 90-120 days.  Governed by Rule 39
o This is just the general rule. If there is a law giving a longer o 2. Judicial foreclosure sale
period of redemption for the mortgagor, then that prevails.  Rule 68
o In execution in Rule 39? o 3. Extrajudicial foreclosure sale
 Redemption is one year.  Act 3135
 What is the jurisdiction of courts in JF?  Do you need a bond?
o “Any right title or interest over real property” depends on o For JP, no.
assessed value. So decide whether it‟s RTC or MTC. o For EJP, yes, for personal property.
 Requisites of EJP?
Rule 69 – Partition o 1. There is no will
o 2. There is no debt
 In the last five years, there were questions in the Bar exam, but they o 3. If there are minors, there is appointment of guardians
involved EJ partition, not J partition.  Until what period can you contest the distribution of the estate
 Compare an EJP from a JP? under EJP?
o JP – covered by Rule 69 o Within a period of 2 years.
 You must implead all the co-owners because  Can you contest a JP?
everyone is an indispensable party o Paramount rights cannot be prejudiced, even if there is
o EJP – covered by Rule 74 judgment already
 What are the two stages in JP?  Can JP cover both real and personal properties?
o 1. Determination of existence of a co-ownership o Yes.
 The co-ownership is created by agreement of the
parties or by operation of law Rule 70 – Forcible entry and unlawful detainer
o 2. Partition of the property
 Who institutes action for JP?  Distinguish.
o Any co-owner o Forcible entry – possession by reason of force, intimidation,
 What is the role of the commissioner? strategy, threat, or stealth
o There is a need to refer the matter to a commissioner. But o Unlawful detainer – previous lawful possession but by violation
remember that under this rule, it is NOT mandatory. If the of K or expiration of the period, it became unlawful
parties agreed, the matter will not be referred.  What is the most important allegation in FE cases?
 Step-by-step example of JP: o Prior physical possession
o There is a co-ownership created by death (inheritance)  What is the most important requirement in UD cases?
o An action was instituted under Rule 69. o A demand letter is a specific requirement
o The provision of law does not provide for an answer. But in the o 1. There is a demand to pay unpaid rentals or comply
absence of rules, there is an answer. So file one. o 2. AND vacate
o The pre-trial.  There must always be a demand to vacate
o Then parties can agree. If they do, there will be a judgment o What if the demand letter is defective?
based on the stipulation of the parties.  The complaint can be dismissed. A defective demand
o If there is lack of agreement, refer to commissioners. letter is jurisdictional.
 Examples of EJP:  Can you touch on the question of ownership in FE and UD cases?
o 1. Affidavit of self-adjudication o But only to preliminarily determine who is entitled to
o 2. EJP upon a notarized public instrument possession.
o 3. Even if there is petition for JP, but the parties agreed, it will o But the determination is not binding /prejudicial to future
be treated as an EJP questions of ownership.
 Needs publication  Salient portions of procedure:
 o In ejectment cases, unlike ordinary cases, the court can Rule 71 – Contempt
dismiss the case outright.
o Absence of an answer will not lead to default, but a judgment  What is direct contempt?
of the court. No need to declare the defendant in default. o An act of disrespect in the presence of, or so near the court of
o There is a Preliminary conference, just like summary a judge
procedure. But after preliminary conference even without o It MUST be within the four corners of his office
position papers, the court can render judgment if it is already o Ex. Refusal to take the witness stand or refuses to take an
satisfied. oath. Or wearing shorts in court. Or your phone keeps ringing.
o Third chance to make a decision: 30 days from filing of last  What is the nature of direct contempt?
judicial affidavit or position paper o Direct contempt is summary. You will not be asked to explain.
 How do you stay execution of the MTC decision?  Distinguish from indirect contempt.
o 1. File notice of appeal and pay filing fees o Contempt which is in violation of order or process of court.
o 2. Post a supersedeas bond  Ex. failure to comply with subpoena of court.
 Covers arrearages o There is notice and hearing.
o 3. Pay the monthly rentals before the trial court  How do you charge?
 Can you file an MR in an ejectment case? o For direct contempt, there is no need to charge. You just need
o No, it is a prohibited pleading. to disobey or disrespect.
o Don‟t file an MR, file a notice of appeal. o For indirect contempt, there are two ways:
 Are you entitled to a provisional remedy?  1. Formal charge of the judge motu propio
o Yes. You can apply for a TRO or preliminary mandatory  2. Upon a verified complaint filed and docketed
injunction so you can recover possession in the pendency of separately
the case.  I have a main case pending in an RTC branch in Makati. I obtained
o But you have to file it within 5 days from filing of the complaint. a preliminary injunction but the other party refused to comply.
 In the rule on property, it says 10 days. Can you file a motion for indirect contempt in the same court that
 What prevails: 5 days. issued the injunction?
 Can you appeal? o No, a motion for indirect contempt is NOT a remedy now.
o Yes. The appeal will be elevated to the RTC. o You file a verified petition (separate case).
o The decision of the RTC, once final, is executory and cannot o After it gets raffled to another branch, you can either:
be stayed.  Let them proceed separately
o Even an appeal will not stay the execution.  File a motion to consolidate.
o Benedicto v. CA: If you can get a preliminary injunction or  What is your remedy for direct contempt?
TRO from the next level court, it can be stayed. o It‟s executory, so you can stay its execution by posting a bond.
 What is the mode of appeal from RTC decision in exercise of its o File a petition for certiorari or prohibition.
appellate jurisdiction?  What is your remedy for indirect contempt?
o Petition for review o It‟s executory, so you can stay its execution by posting a bond.
o Can you file an MR before you file a petition for review? o Remedy is an appeal.
 Yes, because RTC is an appellate court and not  What are the penalties for direct contempt?
subject to rules of summary procedure. o If in the RTC or higher court, imprisonment up to 10 days. Fine
not exceeding 2,000.
 o In MTC, imprisonment not exceeding 1 day. Fine not
exceeding 200.
 Penalty for indirect contempt?
o RTC or up. Imprisonment not exceeding 6 months, Fine not
exceeding 30,000.
o MTC not exceeding 1 month. Fine of 5,000 pesos.
 What is difference between criminal and civil contempt?
o Criminal contempt  disrespect of the court/judiciary
o Civil contempt  violation of right of other party
o Can there be administrative contempt? See below (QJAs)
 In case of absence of rules in QJA, what is the rule?
o Venue is where the contemptuous act was performed
o Rules of Court apply
PART II: CRIMINAL PROCEDURE o What happened here was a mere transfer of venue. What was
transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
 What is the rule on venue and jurisdiction? o Where is this rule allowing transfer of hearing found?
o VENUE IS JURISDICTIONAL. The place of commission  Found in the Constitution, and subject to approval of
determines jurisdiction. the SC.
o Contrast with civil law where these are separate concepts.  What is the jurisdiction of courts under RA 7691?
o The crime of stabbing was committed in Makati; where can o RTC: Penalty exceeds six years imprisonment, w/n committed
it be filed? in MM or outside MM does not matter at all.
 ONLY in the courts of Makati.  Regardless of fine or accessory penalty.
o What is the exception? o MTC: Penalty does not exceed six years imprisonment.
 Transitory and continuing offenses, wherein one or o What if the penalty consists of just a fine?
more of the elements happened in more than one  SC Circular 09-94
venue.  If the fine exceeds 4,000 pesos, RTC has jurisdiction.
 Ex. Estafa, where the elements may be committed in  If it does not exceed 4,000 pesos, the MTC has
different places (ex. misappropriation in one place jurisdiction.
and damage in another).  What is the jurisdiction of Special Agrarian Court?
 Ex. BP22  either place of issue, or where the check o This is important because there can be a penalty for its
bounced violation.
 Can an offense be committed outside the Philippines yet be filed o DAR court has exclusive jurisdiction over all matters pertaining
here? to the DAR Law
o Yes.  Exception to DAR‟s exclusive and original jurisdiction
o 1. Exceptions under article 2 of the RPC are matters pertaining to just compensation which
o 2. Under the Human Security Law (Sec. 49) goes to the courts
 Covers acts of terrorism  Also and more importantly the RTC as special
 Even if the act was committed outside the Philippines Agrarian Reform Courts also has exclusive and
(ex. before a consular or embassy of the Philippines original jurisdiction for prosecution of all criminal
and it was an act against an officer, or in a Phil. Ship cases under the DAR Law
or airship)  What is the jurisdiction of the Sandiganbayan?
 Act against Philippine citizens or against a specific o 1. The accused is at least a Salary Grade 27 employee.
ethnic group. o 2. And the office must be a constitutive element of the offense.
 But there can be instances where the hearings are conducted o Can you be charged of offenses falling under the RPC?
elsewhere. Is this an exception?  Yes.
o No, it‟s not an exception, even if there are instances like the  Can there be instances when you are not SG27 and still be under
Ampatuan case being heard in Manila instead of the SB jurisdiction?
Maguindanao, or Mayor Sanchez case being heard in Pasig o Yes, if there is an express provision.
instead of Laguna. o Serrano: UP Student Reagent is a public officer under the
SB‟s jurisdiction. She claimed that she did not get any
compensation and she was not a public officer. While the first
 part of 4a only covers officials SG27 and above, the second o It is determined by the allegations in the information
part covers officers whose positions may not be SG27 and o And any one of the ingredients of the offense or the offense
higher, but who are by express provision of law are placed itself must be committed within the territorial jurisdiction of the
under the SB. court.
 Sec 4a(1g) gives the SB jurisdiction over officers in  What is the concept of a prohibited second MR?
State-owned universities [Student Reagent is part of o As a rule, a second MR is a prohibited pleading.
the board] o Padiola: Such motion is prohibited and will not be allowed
 What if the public officer is not SG27 but the office was a except 1) for ordinarily persuasive reasons and 2) only after
constitutive element of the offense? Which court has jurisdiction? express leave has been obtained.
o Regular courts, subject to appeal before the SB. o A wrong mode of appeal under Rule 56 will cause the
o Because the SB has both original and appellate jurisdiction. dismissal of the case.
 What if there is one public officer falling under the SB jurisdiction o Does dismissal of a criminal charge cover dismissal of an
and the other is not? administrative case?
o They can both be charged as co-accused under the SB if at  No. It does not prevent the continuation of an
least one is SG27. administrative action.
o Esquivel v. OMB: There was a session in Sanggunian  The degree of evidence is different (proof beyond
involving both a Municipal Mayor and a Barangay Captain. reasonable doubt and substantial evidence)
The MM was charged in the SB (since he was SG27) and the  What is the jurisdiction of the OMB?
Brgy. Captain was charged as co-accused, even if he was not o Covers any act of malfeasance/misfeasance or omission by a
SG27. HELD: Valid, because at least one of the co-accused public officer.
was SG27. o It does not have to be in related to an office. The mere fact
 What if a co-accused is a private party? that you are a public officer means that the OMB has
o Yes, the SB can have jurisdiction over him. jurisdiction.
 Which court has jurisdiction to file hold departure orders? o Is the OMB a court?
o Monejar: An MTC court CANNOT. Only an RTC can issue a  No, it‟s an investigative body.
hold departure order.  What is the difference between the powers of investigation of the
o Circular 39-97 – Hold Departure Orders by RTC only apply to OP and the OMB?
offenses cognizable by second level courts. o Unlike the Office of the Prosecutor, which can only act upon an
o But there are instances when the DOJ Secretary can issue affidavit complaint, while the OMB can investigate upon:
a hold departure order, right?  Own initiative, even without a formal complaint
 Yes, but this is not under the law but under the  Inquiry into acts of government
powers of the Executive. o Method of filing a complaint before the OMB is direct, informal,
 There must be probable cause for the DOJ to issue speedy, and inexpensive. Just sufficient information is
one. needed.
o What is the difference between a HDO and a watch list?  Which has primary jurisdiction to prosecute cases cognizable by
 HDO prevents you from leaving. the SB – OP or the OMB?
 Watch list – you‟re only being watched, but you can o The OMB. The OMB has primary jurisdiction over cases
leave. cognizable by the SB. He can take over at whatever stage of
 What determines jurisdiction of the court? investigation by another prosecutor.
 What is the Office of the Special Prosecutor? MM/CC OMM/OCC
o The OSP is merely a component of the office of the OMB and Requiring PI Office of the Prosecutor Office of the Prosecutor
may only act upon authority by the OMB. Not requiring PI Office of the Prosecutor Provincial
o Without authority, the OSP cannot file an information Prosecutor/MTC
Falling under Rule Office of the Prosecutor Provincial
o The OMB‟s power to prosecute carries with it the power to file
on summary proc. Prosecutor/MTC
an information (ex. BP22)
 How do you review the decisions of the OMB?
o If it is a criminal case and there is GADALEJ, you go to the SC.
o Ordinarily, it can be reviewed by the CA under Rule 43 (for  So who can conduct a preliminary investigation?
QJAs). o JUST the prosecutor.
o Which decisions of the OMB in administrative cases are  The old rule which includes an MTC judge was
unappellable? already amended.
 Those imposing penalty of public censure, reprimand, o And the Ombudsman.
suspension of not more than 1 month, or fine of not  Can there be direct filing in a Metropolitan TC (METC)?
more than 1 month salary o No. Just a MTC (Municipal Trial Court).
 Can a case be dismissed outright by the OMB?  What is the procedure in MM, requiring PI?
o Yes, for want of palpable merit. o The entire Rule 112, Sec. 3
 Can the OMB prosecute cases within the jurisdiction of regular  What is the procedure in MM, not requiring PI?
courts? o Only Rule 112, Sec 3(A)
o The powers granted to the OMB are very broad, so it can.  On a BP 22 case, when is the prescriptive period deemed as
 Who represents the people during trial? interrupted? Upon filing the case in court or filing of the case
o Office of the Prosecutor. before the Office of the Prosecutor?
 Who represents the people during appeals? o Note that prescription is 4 years for BP 22. When Act 3326
o Solicitor general was passed on 4 Dec 1926, preliminary investigation was
 What is controlling in determining the age of a child in conflict with conducted by Justices of the Peace (equivalent of MTC
the law? before), and so when it was filed with the JOP for PI, then the
o Remember, below 15 years of age, he is exempt prescriptive period is interrupted.
o 15 to below 18, exempt if without discernment o So by filing the case with the Office of the Prosecutor, it
 If with discernment, go through juvenile law interrupts the running of the period.
o What controls is NOT the age at the time of promulgation of o (It cited a case where the SEC is investigating a violation of the
judgment, but the age at the time of commission of the offense. Securities Code, and it was deemed to have interrupted the
period.)
Rule 110 – institution of criminal actions  Who has control and supervision of a criminal case?
o The public prosecutor.
 If for purposes of jurisdiction of courts, there is no need to distinguish o So what are the 3-fold duties of a PP?
between MM and Outside MM (OMM), for purposes of institution of the  1. Conduct preliminary investigation
criminal complaint, you will have to distinguish between MM/Chartered  2. Prosecute a case
City (CC) and OMM.  3. Conducting inquest proceedings, consistent with
Rule 112, Sec. 6
 o It means that the public prosecutor must be there during the o 1. Name of the accused
case. If the prosecutor is absent, the hearing will be cancelled.  Full name (first and surname)
o A PP cannot come to court because he needed medical  If his full name is not known?
attention. He was not able to inform the court that he  Can use a nickname or appellation (“Boy
could not come. The accused counsel asked if he could Singkit”)
proceed even if the PP was absent, subject to the  What if there is no nickname or appellation?
prosecutor’s right to cross-examine the witness upon his  Use John Doe or Jane Doe. For civil cases,
return. When the PP returned, he claimed the proceedings you use “unknown owner” or “unknown heir”
were null and void. The other party said that the PP can or whatever.
cross-examine anyway. Who is correct? o 2. Designation of the offense by statute
 The PP. The proceedings were null and void  Ex. murder, homicide, estafa
because he was not present.  If there is no designated name of the offense, just say
o So even if the PP‟s presence is a mere passive presence, and “Violation of Sec. 5 and 11 of the Dangerous Drugs
not an active presence, that is fine, because everything is still Law”
under his control and direction.  Recent SC decision: Even in the absence of a
 What is the only exception? particular section, but the allegation in the information
o The private prosecutor can obtain a certification from the Chief shows that you know the nature of the offense, then
of the Prosecution Office to prosecute even in the absence of a there is substantial compliance.
PP. This certification lasts until the end of the case. o .3. Qualifying and aggravating circumstances
 What is the role of a private prosecutor?  Both should be alleged
o The private prosecutor intervenes for the private offended  If it is an aggravating circumstance, it must be
party. He does not represent the people. alleged. If it is not alleged but proven in trial, can
 What is the rule on private offenses? it be taken against the accused?
o Adultery and concubinage cannot just be instituted by anyone.  No.
It must be the offended spouse. You would have to likewise  Even more reason for qualifying circumstances.
implead as accused the paramour or the partner (so both),  How about mitigating circumstances?
unless either is dead. If he has condoned, pardoned, etc. the  No, because it is part of the defense of the
offense. accused.
o Applies to seduction, abduction, and acts of lasciviousness. o 4. Facts or circumstances constituting the offense.
 Who can institute a rape case?  “Cause of accusation” is the equivalent of a cause of
o The minor, the victim, parents, grandparents, guardian, State action in a civil case
in default  The language of the information should be in a
o The minor now can file alone, without assistance of parents language known to the accused.
(esp. when the parents are the offender)  What is the reason for this?
 What about defamatory statements in connection with adultery or  Rule 116 says that the accused must be
concubinage? properly informed of the nature and cause of
o Can only be instituted by the offended party. accusation against him to make a proper
 When is there sufficiency of information? arraignment and plea.
o Sections 7-12 are elaborations of Section 6. o 5. Date of commission
  Do you need to provide the specific date of o Can you still change the substance of an information after
commission of the offense? a plea?
 No need. Just an approximation is needed.  No.
 Exception: if the date is a material element of the o Can you still change a matter of form after a plea?
offense.  Yes, as long as it will not prejudice the right of the
 Election offense accused. Memorize this whole phrase.
 Infanticide  What is the test to know w/n it will prejudice the
 Is date a material element of the offense of rape? rights of the accused?
 No.  If the original defense of the accused will
o 6. Place have to be changed due to the change in the
 Need to show that it is committed within the territorial formal amendment.
jurisdiction of the court  Ex. The original case is for rape, except that
 But for offenses like trespass to dwelling, violation of in the formal amendment, it was alleged that
domicile, election cases, arson, etc. where the place the age should have been 17 and not 18 due
of commission is material, you have to allege it with to a typo. This will prejudice the rights of the
particularity accused.
o 7. Name of the offended party  What is downgrading and exclusion?
 Place it there, if it is known o Downgrading is lessening the offense (ex. robbery to theft,
 If it is a crime against property, you describe the murder to homicide, seduction to acts of lasciviousness)
property so that you will know who the offended party o Exclusion is removing from the information
is o When must downgrading or exclusion take place?
 What if it is later on discovered?  Before plea.
 It can be inserted in the information o What are the requirements for exclusion or downgrading?
 Only one offense per information.  1. Upon motion of prosecution
 Is there an exception?  2. With leave of court
o Yes. If there are multiple offenses in one information and the  3. With consent of the offended party
accused fails to object, each offense proved can be used  What is difference between exclusion before plea and discharge of
against him. the accused as State witness?
 Can you amend an information? o If exclusion no need to submit an affidavit. In discharge, you
o Yes. have to.
 Can you substitute an information? o In exclusion before plea, double jeopardy has not yet attached
o Yes. so you can be charged again later on.
o We always remember amendment, but forget about o In discharge as State witness, it is tantamount to an acquittal
substitution. so double jeopardy sets in.
 When can you amend or substitute?  What is substitution?
o Whether a matter of form or substance, there can be o The information will be substituted with a new one to be filed, if
amendment if it is before plea. the prosecution cannot prove the offense charged in the prior
information
 o The accused will not be released until a new information has o 4. The acts from which the civil liability arises from were not
been filed as a substitute committed
 What is a prejudicial question?
Rule 111 – civil liability in criminal cases o A criminal case will be suspended when there is a pending civil
case which must be suspended until the prejudicial question is
 Once a criminal action is instituted, the civil is likewise instituted resolved.
 Exceptions?  What are the requisites?
o 1. Reserved o 1. The civil action was filed first
 When is reservation not allowed? o 2. The resolution of the civil action is determinative of the
 BP 22 cases criminal action
 When can reservation take place?  Give an example of a prejudicial question.
 Any time before the prosecution commences o Can trespassing be only committed against the owner of a
with presentation of evidence considering property?
the circumstances of the case. Take note of  No. {Check this} So you need not file a civil case to
the underlined part because the timeline is determine who owns the property first.
not a strict rule. o Theft  determine first who owns the property
o 2. Waived o Who determines whether there is a prejudicial question?
o 3. Instituted ahead of the criminal case  The court.
 When is there need for filing fees? o What will be suspended?
o Moral, nominal, exemplary, temperate damages require filing  The criminal case.
fees.  Where do you file a motion to suspend on the ground of prejudicial
o Actual damages do not require filing fees. question?
o For BP 22, what is the rule? o 1. The court
 For EVERYTHING claimed, even liquidated and o 2. The prosecutor, conducting PI
actual damages (this is the face value of the check).  When do you file the motion?
 Can you consolidate a Writ of Amparo case with a civil case? o Anytime before the prosecution rests is case
o No.  Can an administrative case suspend a criminal case on the ground
 Can you consolidate a Writ of Amparo case with an admin case? of prejudicial question?
o No. o No.
 Can you consolidate a Writ of Amparo case with a criminal case?  Can another criminal case suspend a criminal case on the ground
o Yes. of prejudicial question?
o Follow the general rule: if the civil case was instituted ahead of o No.
the criminal case, the civil case is interrupted in whatever stage  If there is an independent civil case filed before the criminal case,
and the criminal case proceeds until judgment. is the independent civil case suspended?
o And there is an option to consolidate. o No.
 What are kinds of acquittal?  If there is a criminal case filed ahead, do you need to reserve the
o 1. Based on reasonable doubt independent civil action?
o 2. Did not commit the crime
o 3. Purely civil
 o No. YOU DO NOT RESERVE AN INDEPENDENT CIVIL  In practice there can be a reply or rejoinder, but this is
ACTION. not provided by the rules
 Can it proceed side by side with a criminal case? o 4. Optional clarificatory hearing
o Yes. o 5. Resolution
o Compare with a reserved civil action (i.e. not  Who prepares the resolution?
independent).  The Assistant prosecutor
 It cannot proceed side by side.  Is it the city prosecutor or the assistant
 What is an independent civil action? prosecutor?
o One that can proceed independent of a criminal case  Assistant prosecutor prepares it, and then
o Arts. 31-34 the city prosecutor approves it
o Art. 2176  City prosecutor has discretion to dismiss the
 Must an independent civil action be reserved? complaint, file the information himself, or ask
o No need to be reserved, and it will not be suspended another assistant/State prosecutor to file it
 If the civil action was instituted ahead of the criminal, and there o Regardless of recommendation
was a judgment stating that there was no civil liability, is the  Can a resolution be issued by an assistant
offended party barred from filing another criminal action? prosecutor even without approval of the City
o No. prosecutor?
 No.
Rule 112 – Preliminary investigation  What if the City prosecutor does not
agree with the recommendation of the
 What is PI? assistant prosecutor?
o Where the prosecutor determines whether there is probable o He has discretion to reverse it.
cause to file a case against a respondent  If the assistant prosecutor believes that there is
 Distinguish from inquest? probable cause, he prepares a resolution AND an
o Inquest is conducted by an inquest prosecutor, when one is information. Information is filed in court and
caught under the three exceptional circumstances provided in resolution served to the parties. If he does not find
law that there is probable cause, he only prepares a
 Who can conduct preliminary investigation? resolution. But regardless, no resolution can be
o City prosecutors, and their assistants, Provincial prosecutors issued without the approval of the City or Provincial
and their assistants prosecutor.
o OMB, and if they authorize the Special Prosecutor he can too  Can you file a complaint with the OMB?
 What is the procedure for PI? o Yes, and he will then investigate. He can also motu propio
o 1. After receiving affidavit-complaint, the prosecutor will investigate.
determine within 10 ten days whether there is probable cause o Can the NBI conduct preliminary investigation?
 Raffle  No (?)
 Assigned to assistant prosecutor  Is service of a subpoena and receipt thereof necessary for the
o 2. Assistant prosecutor issues a subpoena to the respondent Office of the Prosecutor to obtain jurisdiction over the
o 3. The respondent will issue a counter affidavit within 10 days respondent?
o No.
 o There is still no case filed against him, just an investigation.  C. Escaped from confinement or escape
o Even if he does not get to file a counter affidavit, there can still o Also, it must be for an offense that requires PI (at least 4y, 2m,
be a resolution issued against him. 1d) 
 X is arrested, accused of possessing illegal drugs, without a  If no need for PI, just file affidavit-complaint to the
warrant. What is the procedure? office of the prosecutor. (Because only 3A is
o 1. X is taken to the police station required)
o 2. X can choose to apply for preliminary investigation, or have o How do we distinguish (A) from (B)?
them proceed with inquest  First kind – the arresting officer was there when the
 If X applies for preliminary investigation, what crime was committed
happens?  Second kind – the arresting officer has personal
 You sign a waiver of Art. 125 of RPC knowledge
 Will X be released?  If a person is arrested with a warrant can he be placed on inquest?
 If he applies for bail. o No.
 Where does X apply for PI?  What if he was arrested for an offense for which he was previously
 Before the inquest prosecutor. charged, and then he escaped from detention and he was arrested
 Where do you apply for bail? without a warrant?
 With the Executive Judge. (This is a “trade o Inquest must be conducted.
secret”)  How do you appeal a resolution?
 What is the procedure if someone is arrested for vagrancy, without o Within 15 days, file a Petition for Review to the DOJ.
warrant? o Must the petition be verified?
o Note that vagrancy does not need preliminary investigation, so  Yes.
the information can be directly filed with the MTC. o Can the period be extended?
o Can you apply for bail?  No.
 Yes, because you were already arrested. o If the DOJ decision is adverse, to where do you go?
 You were sued for slight physical injuries in MM, and it was not in  Rule 43, to the CA
flagrante delicto, so it was on the basis of affidavit complaint.  (Or Rule 65, to the CA if there was GADALEJ)
What happens?  Only to the SC if it‟s the OMB
o There is no need for preliminary investigation.  (Or Office of the President if punishable by reclusion
o So the prosecutor will determine probable cause, then will file perpetua or higher)
the information in court. o Can you have the DOJ review the resolution if the offense
o Is there a need for the respondent to file a counter affidavit in question does not require a PI?
here, and is there need for preliminary investigation?  No. This is clear in the circular. The offense must
 No. require, for its charging, at least preliminary
 When are inquest proceedings applicable? investigation OR has gone through reinvestigation.
o It must be due to a warrantless arrest:  What is reinvestigation?
 A. In flagrante delicto  There was a regular PI, and you were not
 B. A crime has been committed and the police officer satisfied with it, so one files for a
has personal knowledge that the person committed reinvestigation with the Office of the
the crime Prosecutor or in court.
  This is not provided in the rules.  60 days suspension of arraignment.
 Do all offenses in the RTC require PI?
o Yes, because all offenses charged in the RTC exceed 6 years Rule 113 – Arrest
(and PI is for 4y,2m,1d)
 Does the arresting officer need to show the warrant of arrest?
 Once the information is filed in court, what can the judge do?
o 1. Inform cause of arrest
o 1. Issue a warrant of arrest, after personally determining the
o 2. And that a warrant had been issued for his arrest
existence of probable cause
o Exception to this?
o 2. Dismiss the case for absence of probable cause
 1. Flees/forcible resistance
o 3. The case can call for a hearing to determine probable cause
 2. Informing the accused imperils the arrest
 So what are the options for a judge in an RTC case?
 What is the duty of the arresting officer if the arrest is without a
o Just these three.
warrant?
 What about the MTC? – Distinguish:
o 1. State authority to arrest
o A. Not exceeding 6y, but more than 4y,2m,1d:
o 2. Cause of the arrest
 See above [the three options]. So it‟s like the RTC.
o Exceptions to this?
o B. Below 4y,2m,1d, more than 6m
 1. Engaged in commission of the offense
 Same as three above, but the issuance of the warrant
 2. Pursued immediately after offense
is up to the discretion of the court. If the court
 3. Flees/forcible resistance
believes the offense is not so grave, it may not issue
 4. Informing accused imperils arrest
a warrant and will just issue summons.
 What about arrest by a private person?
o C. Not more than 6m, falling under the rule on SP
o 1. State cause of arrest
 The court cannot issue a warrant of arrest. Instead,
o 2. And intent to arrest him
the court requires you to file a counter affidavit
 So when does the court issue a warrant of arrest?  What are the other circumstances where there can be arrest
without warrant?
 Only when there is failure by the accused to
o 1. Judicial bondsman may arrest him to surrender accused to
appear in court despite repeated notice
court
 What is an example of a crime involving summary
o 2. Attempt to depart the country
procedure?
o 3. Person who has been lawfully arrested and has escaped
 BP 22
 After arrest what do you do?
 When can you file a motion for determination of probable cause?
o 1. Bring him to the police station
o After filing of information, but before the judge has acted on it
o 2. He will be incarcerated until he files for bail
o Can you file after issuance of a warrant of arrest?
 What if he does not apply for bail?
 No.
 He will stay in the city jail in the pendency of
 Will the filing of a petition for review suspend the issuance of a
the case.
warrant of arrest?
 If it‟s a non-bailable offense, it‟s a different
o No. The mere filing of a petition for review will not suspend the
procedure.
issuance of a warrant of arrest.
o What it suspends is the arraignment.  Just wait for arraignment.
o For how long?  What if he applies for bail?
  He is released from the city jail and he has  Except for cases punishable by RP, LI, DP
responsibility to attend arraignment/appear o After conviction, if MTC
o 3. Afterwards, there will be an arraignment  When is it a matter of discretion?
 What if a person is arrested without a warrant? o After conviction, if RTC
o 1. Brought to the nearest police station  What are the types of bail?
o 2. Inquest proceeding will be done o 1. Cash bond
 Brought to the Prosecutor‟s Office  In a cash bond, how much is deposited in court?
o 3. The inquest prosecutor can either release you or keep you  The full amount
in detention  Who receives it?
 When the inquest prosecutor releases you, does  Municipal, city, or provincial treasurer or the
this mean your case is dismissed? CIR
 No. You are released for preliminary  Clerk of court where the case is pending
investigation. o 2. Corporate surety
 This just means the affidavit-complaint of the  Just pay the premium
police officer used as basis for inquest will o 3. Property bond
be filed with the prosecutor as an ordinary  What is the most important requirement for a
case. property bond?
 What if the prosecutor says “detain”?  The owner must be resident of the
 You can either apply for preliminary Philippines
investigation or not.  Registration of the lien must be done within 10 days
 What if you apply for preliminary from approval of the bond
investigation?  Does the accused need to be the owner of the
o You sign a waiver of Art. 125. property?
o Can you then apply for bail?  No.
 Yes. You file it with the o 4. Recognition
executive judge.  Can you be released on your own recognizance?
 After waiver of 125, what is the next step?  Yes.
o Go to preliminary investigation.  What are the stipulations in a bond?
 What if you did not ask for a preliminary o 1. Bond is effective upon approval and unless cancelled
investigation? o 2. Accused must appear in court if required
o An information can be filed o 3. Failure to appear in trial is deemed a waiver
o Afterwards, there is arraignment  Trial can proceed in absentia
o 4. Bondman must surrender accused to the court for final
Rule 114 – Bail judgment
 From when and up until when is a bail in force?
 When does bail apply?
o From approval, until promulgation of judgment by the RTC
o Whenever there is deprivation of liberty o Whether originally filed there or on appeal
 When is bail a matter of right?
o Before conviction, whether MTC or RTC
  N.B. thus if the case started in the MTC, you filed for c. What are the requirements for a plea of guilty to a lesser
and were given bail, it can continue up to appeal in offense?
the RTC i. Notice to prosecutor
ii. Consent of offended party
< Kira notes follow. Thanks, Kira> d. If the trial court convicted you of an offense which is
bailable (original charge was non bailable offense), the
bail should be applied with the appellate court.
Rule 113
Bail as a Matter of Right v. Bail as a Matter of Discretion v. Petition for Bail
People v. Laguio – requisites inflagrante delicto; a 2007 case
for Non-Bailable Offenses
1. Person to be arrested must execute an overt act that he has
1. Petition for Bail:
committed, actually committing, or attempting to commit
a. Case: Governor Leviste shot his aid. On advice of
2. Overt act is done within the presence or within the view of the
counsel, he surrendered and was charged only with
arresting person or officer
homicide. It is a bailable offense. He can avail of bail, as a
matter of right. It was in the RTC, before conviction, the
Presentation of the informer/informant is not indispensable in the
offense is punishable not by reclusion perpetua, death, or
prosecution of a criminal case.
life imprisonment. Homicide is punishable with reclusion
perpetua. But then the information was withdrawn, and he
Hot pursuit only applies:
is now charged with murder – a non bailable offense. He
1. Offense has just been committed (If there is just an attempt, or the
will be arrested. Is he now entitled to bail? ANS. NO. But
person is just committing, hot pursuit will not apply)
he can file a petition for bail. Here, the court granted his
2. No requirement that it be done in the presence of the officer. It is
petition for bail. The court was convinced the evidence of
only required that the arresting officer with an independent and
guilt against him was not strong. Trial proceeded and
personal assessment has probably cause to believe that a crime
there was promulgation of judgment, that he was guilty not
has been committed.
of murder, but of homicide. Can Leviste apply for bail
now? ANS: He is entitled to bail as a matter of discretion.
Rule 114
b. Lets say you were charged with offense where bail is a
matter of right (e.g. estafa), but then convicted. You can
Issues with grant of bail:
apply for bail, but it is a matter of discretion.
1. The General Garcia issue – He was charged of plunder with the
c. What is the nature of a hearing for the petition for bail?
Sandiganbayan, which is a non-bailable offense. He is not entitled
ANS: Summary.
to bail. He has no right to bail, as a rule. But they can file a petition
d. Can we dispense with a hearing for bail? (When the judge
for bail. Then he entered into a plea bargain. (When can you enter
thinks malakas un kaso ng prosecution)? ANS: NO. You
into plea bargain? ANS: At any time before trial. You can enter into
cannot dispense with and ignore hearing for bail.
plea of guilt to lesser offense during arraignment, or even after
e. Can there be joint summary hearing of petitions for bail?
arraignment but before trial, or during pre-trial.) Here the plea
YES.
bargain to a lesser offense of corruption was entered into after trial.
f. Is an arraignment a prerequisite to a petition for bail? NO.
Is he now entitled to bail?
Although the judge in the Ampatuan case required the
a. When there is conviction, are you still entitled to bail? – As
accused to be arraigned before allowing the petition for
a rule, no. But when you appeal the conviction, you can
bail. There is nothing irregular here though, the counsel for
still apply for bail, as long as the decision is not final and
the accused allowed it. The very moment there is a
executory, assuming that it is a bailable offense. In this
deprivation of liberty, you can apply for bail.
case, the bail is a matter of discretion to the court.
2. Bail as a Matter of Right
b. When the judgment has become final and executory, can
a. Basta nasa MTC, bailable as a matter of right.
you still apply for bail? – As a rule, no.
b. In RTC, bailable as matter of right if:
 i. Before conviction a. In all cases whether bail is matter of right or discretion,
ii. And not punishable by reclusion perpetua, death, notify prosecutor of application for bail or allow him to give
or life imprisonment. his recommendation
c. The judge cannot deny bail that is matter of right; he can b. When bail is matter of discretion, conduct hearing on
only increase amount of bail. – Maceda case application, regardless or not whether prosecutor wants to
3. Bail as a Matter of Discretion present evidence that guilt is strong
a. In RTC c. Decide whether evidence of guilt is strong based on
i. Conviction summary evidence of the prosecution
ii. And not punishable by reclusion perpetua, death, d. If guilt is not strong, discharge accused on approval of bail
or life imprisonment
iii. And not accompanied by the ff instances, if the What if charged with murder, petition for bail granted, then convicted of
penalty exceeds 6 years: homicide? – Entitled to bail as matter of discretion. The issue of whether
1. Recidivist, habitual delinquent, etc evidence of guilt is strong is not relevant, because that only applies if the
2. Previously escaped from legal offense is non bailable.
confinement
3. Committed offense while under What if charged with murder, petition for bail granted, then conviction of
probabtion, parole murder? – Can‟t apply for bail; the nature of offense is non bailable.
4. Flight-risk Obviously having been convicted, the evidence of guilt is strong.
5. Undue risk that he may commit crime
during pendency of appeal What if convicted of offense not punishable of imprisonment beyond 6 years,
b. Where will you apply? is it still a bail as a matter of discretion? (That which is alleged is different
i. If appealed, before transmission of records: to from what is proven. – Rule 120) – It is now bail as matter of right.
RTC
ii. If appealed, and the RTC conviction changed For purpose of judge determining if bail if excessive – must consider
nature of offense from non bailable to bailable: to parameters laid down in Section 9
appellate court But for purposes of recommending bail by prosecutor – they have their own
c. Bail as a matter of discretion has an enumeration of administrative list
certain disqualifiers.
i. If convicted, beyond 6 years, and with Where to File Bail:
disqualifiers – bail denied 1. You were arrested in Kamagong (Makati), the case was filed in
ii. If convicted, beyond 6 years, and no disqualifiers Makati. Action pending in same province/city where he was
– bail is matter of discretion arrested.
iii. If convicted, less than 6 years – bail matter of a. Apply in court where case is pending
right b. In absence or unavailability of judge, in any court in the
iv. If convicted, less than 6 years, and with area
disqualifiers – bail matter of discretion, but court 2. Person arrested in Marikina, case pending in QC. Can person file
will impose higher bail because of disqualifiers for bail in QC? NO. Because when you arrested in Marikina, you
will be taken to nearest police station in Marikina. So you‟ll apply
Mabutas v. Perello – requirements for hearing for applications for bail there in Marikina.
1. Bail as a matter of discretion is different from the exercise of 3. If you‟re in Cavite, but the case is pending in Makati, but you
discretion in petitions for bail haven‟t been arrested, you can‟t apply for bail in Cavite.
2. Bail is a matter of judicial discretion that remains with the judge. A 4. Arrested in Ilocos, case pending in Manila. He applied for bail in
hearing on application for bail is mandatory, whether bail is matter Ilocos and was granted. Later the records were sent to Manila.
of right or matter of discretion. a. Should the records be sent to Manila? ANS: Yes.
3. In case application for bail is filed, judge is entrusted with ff duties:
 b. Is the judge in Manila obligated to accept the bail? ANS:  What is the concept of chain of custody in the DNA rule?
He‟s not required. He can require a new bail. o Usually it‟s a concept that is connected with drugs, as re:
possession of seized item from the scene of the crime
Expat is out on bail, he always leave every few weeks, can he do that?
o For purposes of evidence, it is considered for tampering or
Leave without approval of court? ANS: NO. Accused out on bail cannot
depart from Philippines without securing approval of the court. If he departs authenticity of the sample. If the sample has been tampered
without securing such approval, he can be arrested without a warrant. with, you cannot get an accurate result.
 What are the ways by which a laboratory can be accredited?
If accused is charged with vagrancy and has been in detention for almost 2 o See Rules on DNA Evidence 7c
years, what should the judge do with the accused?  What is the rule on filiation?
o DNA results that exclude from paternity are conclusive
In a voluntary surrender, you do not need a certificate of arrest, for an
application for bail. o If the value of probability of paternity is less than 99.9% -
merely corroborative
The DNA Rule o If the value is 99.9% or higher – it is a disputable presumption
1. Can a person who has already been convicted and serving o Why is it just a disputable presumption?
sentence, apply for DNA examination? ANS: Yes  Because you can still argue that it would have been
2. If the court finds after DNA evidence that the person serving physically impossible for one to do it, or there is no
sentence is not guilty, what will the court do? ANS: Person serving
sentence must apply for habeas corpus. access, and that there is someone who could have
similar DNA makeup (twins, for instance).
o Differentiate corroborative from cumulative evidence?
Rule 115 – Rights of the accused  Corroborative  proving same point, but different kind
and character of evidence
 How did the court apply presumption of innocence in P v.  Cumulative  Same kind and character, proving
Dimalanta? same point
o When circumstances lead to two or more inferences, one or  Right to be present in the course of the proceedings
more leading to innocence and one or more leading to guilt, o What is the consequence of his absence in the hearing?
the former should prevail.  There can be a trial in absentia if there already is
 To be informed of the nature and cause of accusation against him: arraignment and the accused is unjustifiably absent
o Get an authorized interpreter if the accused does not speak o When is his presence mandatory?
Filipino/English  The general rule is the he must be present at all
 When can a counsel de officio be appointed? stages of the proceeding.
o 1. During arraignment o Can this be waived?
o 2. During trial  Yes.
o 3. Before records are elevated on appeal (accused informed of o Where and when should it be waived?
right to counsel by clerk of court at this point)  There should be a stipulation in the conditions of bail.
o 4. In the CA – So as a rule, it cannot be waived.
 When the accused signed his appeal by himself o What if the private complainant is absent?
 Or accused is in prison  It‟s fine.
o 5. In the SC – have their own guidelines  The right to public trial
 Right against self-incrimination – o General rule is that the trial is public
 o When can the public be excluded?  Extraordinary remedies against interlocutory
 Found in Rule 119, Sec 21. (offensive to orders
decency/public morals)  Pre-trial proceedings, as long as not
o Does public trial include public viewing on TV or radio exceeding 30 days
broadcast?  Orders of inhibition or change/transfer of
 No. It opens room for lawyers to grandstand. venue
o Also recognized in evidence:  Prejudicial question
 Speedy trial  Any period not exceeding 30 days when the
o How many kinds of speedy trial? accused is actually under advisement
 1. Speedy disposition of the case (constitutional law)  2. Absence or unavailability of an essential witness
 2. Right to speedy trial (criminal law)  Absent  whereabouts unknown
o What is the difference?  Unavailability  whereabouts known
 In the Crim Pro concept, you can invoke it anytime  3. Mental incompetence or physical inability of the
before during trial. accused to stand trial
 In Constitution, any time as long as the action is  4. Prosecution dismissed information upon motion
pending. and then filed another charge for the same case – the
o What is the remedy for speedy trial under the time limit between the dismissal and the subsequent
Constitution? charge
 Habeas Corpus  5. There is a co-accused over whom the court has not
 Because your continuous detention has no more legal acquired jurisdiction or for whom time for trial has not
basis run and no motion for separate trial is granted
o What if it’s in criminal procedure?  6. Continuance granted by the court motu propio or
 Certiorari on motion
 Prohibition  Memorize this list. Rule 119 Sec 3.
 Mandamus o Cases:
o Rule 119 has a computation. How long is the maximum  In one case, Pre-trial happened after 7 years. Delay
time between arraignment to trial? was brought about by extraordinary remedies, like a
 80 days Rule 65 certiorari. The right to speedy trial was
 If you don‟t follow number days, you could expect a invoked, but the SC said there was a valid exclusion
MTD on ground of violation of right to speedy trial  But as a rule, extraordinary remedies must
o Entire period of trial?
not be entertained and will not stop an
 180 days ongoing criminal trial. Of course, there are
o But why are a lot of cases that do not commence in time, special cases.
and are not dismissed due to violation of this right?  In another case, there were 20 postponements. The
 Because of the exclusions. witness requested by the prosecution was in the
o What are the exclusions?
custody of the NBI, but did not bring the witness in.
 1. Other proceedings: This was reasonable delay, and the prosecution was
 Mental/physical examination of accused acting in GF.
 Other criminal chargers o What is “VCO”?
  Vexatious, capricious, oppressive o Can the arraignment be dispensed with? (Ex. by an
 VCO delays violate the right to speedy trial accused that does not want to hear the information)
 Right to confront witnesses presented against him  Never. You cannot waive the arraignment.
o Basically, can cross examine o Can the arraignment or reading be in a language different
 Compulsory processes from what the accused knows?
o Can apply for subpoena ad testificandum and duces tecum  No. It must be in a language known to the accused.
 Right to modes of discovery  What about a belated arraignment? (P v. Trinidad)
o Can apply modes of discovery in criminal cases. o This happened when they realized that there was no
o Rule 119, Secs. 12, 13, 15  Conditional examination of arraignment. There was a belated arraignment that was
witnesses for the prosecution/accused. This is the equivalent validated because the lawyer had an opportunity to cross
of Rule 23 depositions in criminal trial. examine and the lawyer actively participated in the
o Purposes for prosecution: proceedings.
 1. Sick or infirm, or unavailable  What are the kinds of pleas?
 2. or the witness is about to depart. o 1. Plea of guilty
o Purposes for accused:  A. Plea of guilty to lesser offense
 1. Sick or infirm or unavailable  Until when can you do this?
 2. or more than 100km o At very latest, pre-trial
o What is the difference if it will be availed of prosecution or o At trial, cannot plea guilty to lesser
accused? offense
 Prosecution: ONLY in the court where the action is  B. Plea of guilty to capital offense
pending  Punishable by death.
 Accused: Before any judge, member of the Bar in  What is required?
good standing, and if ordered by a superior court o Conduct searching inquiry to see if
directing an inferior court it is voluntary and if he understands
 Right to testify on his own behalf the plea
o Can the accused testify for the prosecution?  What does it entail?
 Yes, but he can refuse o 1. Background check (age,
o Can a party in a criminal case be asked a question that education, socio-economic
would raise civil liability but not criminal liability? conditions)
 [Answer unclear, but since it‟s purely civil, I think the o 2. Conduct of custodial
witness can be compelled] investigation
 Right to appeal o 3. Explain the nature of the offense
o Will be discussed below (Rule 122-125) and extenuating circumstances to
the accused
Rule 116 – Arraignment and Plea  Hearing after the plea
 C. Plea of guilt to a non-capital offense
 What comes first, plea or arraignment?
 Should there be a hearing?
o Arraignment, where the information is read against him
o It‟s not mandatory
 D. Improvident plea
  What is an improvident plea?  Yes, for light offenses.
o Plea of guilty without fully The accused can be
understanding consequences of the represented.
plea  C. Direct plea of not guilty
o X pleaded guilty to homicide. He  D. Say guilty but present exculpatory evidence
didn’t know that if he pleaded  When is there suspension of arraignment?
guilty, there won’t be any hearing o 1. Accused suffers from unsound mental condition
anymore. Can he withdraw the o 2. Prejudicial question
improvident plea? o 3. Petition for review pending with DOJ
 Yes.  Not exceed 60 days
 When can it be withdrawn? o 4. Pending incidents:
o Any time before judgment of  A. Motion to quash
conviction becomes final (after  B. Motion for inhibition
appeal)  C. Motion for bill of particulars
 What are the further actions of the court  Can there be a bill of particulars in a
in case of an improvident plea? criminal case?
o If the sole basis of conviction is the o Yes. Apply before enter of plea.
improvident plea, it is remanded for  What is required?
further proceedings in the trial o Identify defects and details desired
court. (Ex. the SC sends it back to
the RTC) Rule 117 – Motion to quash
o If the conviction is supported by
other evidence, the SC will render  Why do you file motion to quash?
judgment o To quash the information because it is defective or the court
o 2. Plea of non-guilty has no jurisdiction.
 A. Conditional plea  Differentiate from provisional dismissal:
 What is this equivalent to? o In P.D., there is no questioning of the information. In fact, it is
o It‟s akin to a plea of not guilty valid and charges a proper offense and the court has
 B. Refusal to enter a plea jurisdiction over the SM and the person.
 The court assumes it‟s not guilty  What is the effect of a grant of a MTQ?
 Can a representative enter a plea of not o Dismissal of the case.
guilty? o Is it always dismissal?
o No. The accused must be the one  Court can order amendment. [No period provided.]
to enter the plea.  Amendment is a remedy, but it has a narrow
 [Should the accused be present during application. It does not apply to all grounds.
promulgation of judgment?]  Can a case dismissed by a MTQ be re-filed?
o Yes. o As a general rule, yes.
o Is there an exception to this rule? o It depends on the ground.
o When can it not be re-filed?
  1. Prescription  But this has been supplemented by Lacson: Period
 2. Double jeopardy can only start upon receipt of notice by the public
 Can a prosecution file a MTQ? prosecutor
o No. The applicable remedy is substitution of information.  Rationale: because it is the public
 When a case is dismissed provisionally, what is the effect? prosecutor‟s duty to revive the case
o The case is temporarily dismissed.  What are the grounds for a MTQ?
 Ex. “This case is dismissed for 30 days” o 1. Facts stated do not constitute an offense
o It can be revived (don‟t use “re-file” because the dismissal was  The elements of the offense are not there
just provisional)  But is it possible that while not constituting an
o Who will ask for provisional dismissal? offense, you can be liable for another offense?
 1. The prosecution Can this be the proper ground of a MTQ?
 With consent of accused  It‟s possible. This is not a ground for a MTQ.
 If there is no consent of accused, is it a  Ex. Charged with qualified theft, but
provisional dismissal? relationship was not alleged. You file a
o No. A dismissal without the MTQ. The court can order an amendment to
consent of the accused would lead show relationship. The court cannot quash
to double jeopardy (obtains finality). because there is an offense alleged in the
 2. Or the accused information.
 Is the prosecution’s consent required? o 2. Officer who filed the information had no authority to do so.
o No. Even without consent, it‟s still a  There was a case in the Sandiganbayan. There
provisional dismissal. As long as it was a motion for reinvestigation and it was
doesn‟t pass the time leading to granted. The Special Prosecutor amended it and
permanence. re-filed it. Can he do that?
o When can you ask for provisional dismissal?  No. He has no authority; it is not within his
 Any time. powers.
 For a dismissal to take effect in MTQ, do you need to wait for a  Ex. a Prosecutor with authority only extending to
lapse of time? Bulacan cannot file an information in Makati.
o There is still a period to seek a remedy after. Ex. You can file  If a State prosecutor is appointed as Acting city
an MR. prosecutor, does he have authority to approve/file
o After this period, it can be re-filed. (Except for the two the information prepared by the asst. prosecutor?
exceptional grounds.)  Yes as long as he is properly appointed by
 For a provisional dismissal to be permanent, what is the period the DOJ.
required? o 3. Lack of jurisdiction over the person of the accused
o Beyond 6 years  2 years  Accused has not voluntarily surrendered
o 6 years or less  1 year  Or Accused not arrested
o When will this period begin to run? o 4. More than one offense was charged in the information
 Upon receipt of notice, by the accused (given by the  How do you know if there is more than one
code) offense?
  Ex. murder – can you kill a person twice?  What about a motion for determination of
No. probable cause filed by the accused and granted
 Ex. rape – you can rape someone multiple by the court?
times. For instance X raped Y five times.  No, this is not an exception. There is no
How many informations should you file? plea yet. There is no dismissal without
o Five. express consent of the accused.
 What if ten checks bounced?  Compare motion to dismiss from motion to quash.
o Ten informations, because each is o Re: court actions
an offense in its own. o Motion to dismiss:
o 5. Criminal liability has been extinguished by prescription  The court can grant, deny, or order an amendment
 Recall that there is prescription of crimes and o Motion to quash:
prescription of penalties.  The court could only order amendment if it‟s a defect
 To which does this ground apply to? that can be corrected by such amendment.
 Prescription of crimes. In prescription of  UNLIKE in motion to dismiss, regardless of
penalties, there is already a judgment. the ground, the court has a free hand: can
o 6. Contains averments that if were true, would constitute a grant, deny, or order amendment.
legal excuse or justification  Whereas here, the court has to order an amendment
 Ex. Self-defense before denying/granting, on some grounds.
o 7. Double jeopardy o Re: refiling
 What are the requisites? o Motion to dismiss:
 1. Court of competent jurisdiction  In general, it can be re-filed.
 2. Valid information  Except:
 3. Plea  1. Prescription
 4. Conviction, acquittal, or dismissal without  2. Unenforceable under Statute of Frauds
express consent of the accused  3. Res judicata
 What are examples of dismissal without the  4. Extinguish of claim or demand (PWEA)
express consent of the accused? o Motion to quash:
 Ex. failure to prosecute  In general, it can be re-filed.
 What about motion to dismiss prompted by the  Except:
accused on the ground of violation of right to  1. Prescription
speedy trial?  2. Double jeopardy
 It is tantamount to an acquittal and thus o Re: objections not raised
leads to DJ. This is an exception to the o Motion to dismiss:
general rule  In general, grounds not raised are waived.
 What about a demurrer to evidence which is  Except for:
granted by the court?  1. Lack of jurisdiction over the SM
 It is also tantamount to an acquittal and thus  2. Prescription
leads to DJ. Another exception.  3. Litis pendentia
  4. Res judicata o Yes, if it is in writing and signed by the accused and his
o Motion to quash: counsel.
 In general, grounds not raised are waived.  Absences and appearances:
 Except for: o The rule of absences in pre-trial (in civil case) does not apply in
 1. Does not constitute an offense criminal cases.
 2. Prescription o The pre-trial will be reset.
 3. Double jeopardy  If the witness is absent, the court can rely on
 4. Lack of jurisdiction over the offense compulsory processes
 When will double jeopardy not set in?  If the accused in absent
o 1. When there is a supervening event.  1. There is forfeiture of bail
o 2. Facts constituting graver charge only were discovered after  2. There will be a warrant of his arrest
a plea was entered  [Distinguish cancellation from forfeiture of bail]:
o 3. Plea of guilty to lesser offense was made without consent of  Cancellation –
prosecutor o Voluntary surrender or death.
 Except? o It is automatically cancelled upon
 For purpose of plea bargaining, the private acquittal, conviction, or dismissal of
offended party was notified but did not the case against him without
appear during arraignment express consent of the accused.
 And the offense is necessarily included in  Forfeiture – failure to appear
the offense charged  What is the procedure?
 The court will order the bondsman to
Rule 118 – Pre-trial produce the accused within 30 days. If he
fails to do so, the bail will be forfeited.
 Can there be compromise?  What is your remedy for forfeited bail?
o Basic rule: you cannot compromise criminal action  Appeal
o But you can compromise the civil aspect of the case  Is it mandatory?
 But when you compromise the civil liability, it does not o There is pre-trial before Clerk of Court
lead to the dismissal of the criminal case  Can there be stipulations?
 What do you need? o Yes
 Affidavit of desistance by the offended party.  Can there be marking of documents?
This is as to the civil aspect. o Yes
 The prosecution has to move for the dismissal of the
case Rule 119 – Trial
o If the prosecution moves for dismissal, does double
jeopardy set in?  What is the order of trial?
 Check the requisites. If there is plea, double jeopardy o Prosecution
sets in. If there is none, double jeopardy will not. o Defense
 Can the admissions of the accused be used against him in the o [fill in]
proceedings? o Can it be reversed?
  Yes, when there is self defense and other exculpatory  If you file without leave of court and it‟s denied, the
defenses accused will not be able to present evidence – there
 Discharge of the accused as state witness – requisites? will be a judgment
o 1. There is no direct evidence o In civil: no need for leave of court
 So for this, you have no one who can point to the  In criminal cases, if the demurrer is denied, can you file a petition
perpetrator. for certiorari?
 What is the opposite of direct evidence? o No. You cannot file a petition for certiorari. You have to wait
 Circumstantial evidence for judgment.
o 2. There is absolute necessity for the evidence  What’s the effect of a grant of demurrer in a civil case?
o 3. Could be corroborated in its material points o It‟s a final disposition of the case.
o 4. Not the most guilty o In a criminal case?
o 5. Not convicted of a crime involving moral turpitude  It‟s a dismissal. It amounts to an acquittal.
 When can an application for discharge be made?
o Before the prosecution rests its case Rule 120 – Judgments
o What does the applicant need to do or submit?
 Submitting sworn affidavit  What should a judgment contain?
o What happens to the statement? o Offense you have committed
 Becomes part of the evidence of prosecution o Penalty to be imposed
o What happens to the accused? o Participation, whether principal, accomplice, accessory
 Becomes acquitted o Aggravating or mitigating circumstances
o If the application is denied, what happens to the o If acquitted, whether:
statement?  Complete non-liability
 It‟s inadmissible  Reasonable doubt
 Compare with requisites for discharge under Witness Protection  Or if the facts from which the civil liability might rise
Program? from were not committed
o The requisites are the same.  Does the prosecution have remedy against an acquittal?
o But the mode of application is different – you file it with the o Note than an acquittal is immediately executory.
DOJ, not with the court. (Yu v. RTC of Tagaytay) o But if there is GADALEJ (P v. Hernandez) – you can file for
o Does double jeopardy set in, if under WPP? certiorari
 No, because there is no plea.  Before you challenge an acquittal this way, you have
 So he can be prosecuted afterwards (!) to secure consent of the Solicitor General
 When do you file a demurrer to evidence?  And this is only for exceptional circumstances
o Civil – after plaintiff has completed presentation of evidence  How do you promulgate judgment?
o Criminal – after the prosecution rests o The accused should be present during promulgation
 Do you need leave of court?  Except if it is a light offense
o In criminal: you don‟t need to, but there are serious  Or else he forfeits his remedies
consequences if you do not secure leave. o There is a period – within 15 days from promulgation of
 If you file with leave of court and it‟s denied, the judgment – within this period he has to explain why he was
accused can still present evidence absent
 o If he is in jail, to whom is the notice served? 
Go to the CA, through Notice of appeal filed with
 The warden RTC. OR file a record of appeal.
o If he is out on bail?  So still the same.
 The bondsman o What is the procedure followed by the CA in criminal
o If he is at large? cases?
 Notice sent to last known address  File appellant‟s brief (Rule 124), within 30 days
 Is there promulgation in appellate courts?  File appellee‟s brief, within 30 days
o Yes.  Reply brief, within 20 days
o When duly certified by the division, and then forwarded to the o Compare/contrast with civil cases:
clerk of court, who will give notice of promulgation on paper  45/45/20 days
 Can a judgment be modified?
o Yes, before it is final and executory Petition for review

Rule 121-5 – NT/MR/Appeals  How does it reach the CA on petition for review?
o If the original case was filed in the MTC.
 Is there a record of appeal on criminal cases? o MTC  RTC  CA
o No.  What about civil cases?
 Is there ordinary appeal (notice of appeal)? o Found in Rule 42.
o Yes. o Still MTC  RTC  CA
 Criminal: Review by the Supreme Court, if the penalty is not
Ordinary appeal punished by death, life, or reclusion perpetua: from where should
it come from?
 Criminal: X was charged with acts of lasciviousness (within MTC o From the CA or the SB only
jurisdiction). MTC renders judgment. Who reviews it? o Use Rule 45, whether civil or criminal. Again, the general rule
o RTC, through notice of appeal filed with the MTC. (RULE 122) is that you cannot go up to the SC except through petition for
o Compare/contrast with Civil: review on certiorari.
 MTC  RTC, through notice of appeal. (RULE 40) o In civil, from where can you come from?
 Or MTC  RTC, through record of appeal (not  RTC, CA, SB, CTA en banc, etc.
available in criminal cases)  RTC, penalty is death, based on the law (although it cannot be
 What is the procedure in the RTC for criminal cases, when acting implemented). How do you appeal?
as appellate court? o There is automatic review to the Court of Appeals, even in the
o Parties submit their memoranda (Rule 122, Sec 9) absence of a notice of appeal.
o Compare/contrast with Civil: o The case is with the CA. What can the CA do?
 Same. Parties submit memoranda.  If it finds for death again, it can render judgment but
 Criminal: Court of original jurisdiction is the RTC, and he was not enter it.
convicted for homicide. Appeal? o What happens after?
o Go to the Court of Appeals, through Notice of appeal filed with  The CA will certify the case to the SC.
the RTC.  The penalty is life/RP. Is it covered by automatic review?
o Compare/contrast with RTC in civil action: o No. You need notice of appeal.  CA
 o The Court of Appeals found in favor of life/RP. Can it o Yes, even if the amount was not specified. What is required is
render and enter a decision? that the object of the search be described with particularity.
 Yes. Quantity is not required.
o How do you appeal this?  The police officer was armed with a search warrant. But before
 This is the singular instance where you file a NOTICE implement or enforcing it, on plain view, he saw illegal firearms.
OF APPEAL with the Court of Appeals. Can there be a valid search?
 Can there be a valid judgment even if the judge who rendered the o Yes. Plain view exception applies, even if there is a search
judgment was not the same one who heard the case? warrant.
o Yes.  Where could you apply for a search warrant?
 Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not o You apply to the court, following the rule on territoriality.
appeal when there are multiple accused, and there is a favorable  Can it be possible to apply in a court outside of the place where
judgment, it could benefit the non-appealing accused. the crime was committed?
o However, in this case, the accused invoking this provision o Yes, for compelling reasons.
actually filed an appeal, but it was dismissed due to a o What can be a compelling reason?
technicality.  It‟s a question of fact, but an example is when he is a
 When is as appeal deemed to be abandoned? public officer of that locality and there is doubt that a
o When the accused jumps bail, escapes, or fails to file an search warrant can be properly applied for.
appellant‟s brief.  Is application for a search warrant a criminal action?
 Counsel-de-officio: o No. It is a special judicial process.
o The general rule is the accused is given the choice to retain a  Can it become one?
counsel de parte (of his choice) o No. You need an information because the application for a
o If he cannot afford one, the court appoints a counsel de officio search warrant will not evolve into an information.
o One can be appointed during arraignment, or for the rest of the  Where do you file for quashal of search warrant?
trial. o In the court wherein it was applied for if there is no case yet
o Can a counsel de officio be named in the Court of o If there is a case, in the court where the case is pending
Appeals?  Who determined probable cause for search warrants?
 Yes, when the accused signed his own appeal. Also, o The judge. Not the prosecutor.
when he was not assisted by counsel. o Wherelse is probable cause required, apart from
o Can the SC appoint a counsel de officio for the accused? application for search warrant?
 Yes, the SC can, but this is not provided for in the  Preliminary investigation
rules.  Rule 113, warrantless arrest (personal knowledge that
crime has been committed)
Rule 126 – Searches and seizures  Warrant of arrest
 Search and seizure
 The search warrant said “an undetermined amount of shabu.” The
o What is required for the judge to do?
original case was for marijuana. Will this be enough for the police
 Personal examination and determination by the judge
officers to conduct a search?
of the complainant/applicant and witnesses.
 It does not involve mere submission of affidavits.
 Give an example of a search based on a warrant, where the place o The inventory must be made at the scene of the crime. (For
is described with particularity. normal crimes, it can be done in court or police station or
o Ex. if it‟s an apartment, you give the number of the apartment. wherever.)
o What if it’s a stretch of apartments, and what was o The person must make a physical science report to track the
indicated is apartment B, but what was searched was chain of custody.
apartment C. Was there a valid search?  What is the rule as to search and arrest?
 No. o The general rule is that the arrest must come before the search
o But was the search warrant valid? and seizure.
 Yes. The search warrant can be valid, but the o Or, the search and seizure must be contemporaneous to
implemented was invalid. arrest.
o There were illegal items seized from apartment C. How  If you apply for a search warrant in QC, can it be applied outside of
can you prevent these goods from being used in a the territorial jurisdiction?
criminal trial? o If it‟s a violation of the DDL, IP code, illegal possession of
 Motion to suppress. firearms, illegal gambling, heinous crimes, AML, violation of
o Differentiate motion to quash from motion to suppress. tariff and customs code.
 Motion to quash is before implementation of the o You have to apply before an executive judge before the City of
search warrant. Manila or Quezon City. This will be effective anywhere in the
 Motion to suppress is after implement and before Philippines.
presentation in court.  Re: Seizure of fake goods (ex. fake Adidas) – What is the role of
 What if there is no way to describe with particularity the place, esp. the private party?
when it is a province? o The private party can submit documents and pleadings to
o It‟s possible to say “kilometer 30.” But this can‟t apply for cities support the application of the NBI.
or municipalities.  The place of manufacture of the fake goods is in Cavite, and place
 To whom must a search warrant be served? of sale is in San Juan. Where do you apply?
o The lawful occupant. o Either place.
o In the absence of the lawful occupant?
 To a relative. Rule 127 – Provisional remedies
o In the absence of the occupant or relative?
 To two witnesses of sufficient age and discretion  What is the general rule?
residing in that locality. o Provisional remedies in civil procedure are applicable to
 When the items are seized, to whom must the receipt be given? criminal procedure.
o To the lawful occupant or relative  What about replevin?
o If there are two witnesses, the receipt will be left in the o Does not apply because it can only be filed before an answer,
premises where they were seized but in a criminal case, there is no answer.
 What is the duty of the officer after the search?  What are the grounds?
o He should present an inventory of the items. Failure to submit o 1. The accused is about to abscond or depart with intent to
inventory makes him liable for contempt. defraud
 Dangerous Drugs Law: what are the special rules? o 2. Claim for money or property that has been embezzled with
abuse of trust (estafa)
o 3. Accused resides outside
o 4. Accused has concealed/removed/disposed his property
PART III: EVIDENCE  When the witness was able to perceive the matter
being testified upon
o Can circumstantial evidence be the basis for conviction?
 When did the Rules on Evidence take effect?  Yes. As long as there is more than one circumstance
o July 1, 1989 and each is proven.
 What is evidence? o Can circumstantial evidence be basis for identification?
o Evidence is the means, sanctioned by the Rules, of  Yes.
ascertaining in a judicial proceeding the truth respecting a  What is positive evidence?
matter of fact. o Evidence that proves something happened. (“I saw him stab
 Not all concepts of evidence will require presentation of evidence. person X”) or (“I did not see him stab person X”)
What are there?  What is negative evidence?
o Ex. Judicial notice o Evidence where the witness was there, but he did not perceive
o Ex. Judicial admissions anything. (“I was there in the scene, but I did not notice
 When you’re required to present evidence, there are three kinds: anything happen.”)
o 1. Object  What is primary evidence?
o 2. Documentary o Best available evidence to establish the fact in issue
o 3. Testimonial o What is an example of primary evidence?
 Whether it’s object, documentary or testimonial, what is required?  Best Evidence Rule
o They have to pass the test of admissibility (Rule 128, Sec. 3)  The secondary evidence here is photocopy, recital of
 When is evidence admissible? the contents, or testimony as to its contents.
o When it is relevant and competent  What is weightier, physical evidence or testimonial evidence?
o What is relevant? o Physical evidence.
 Has direct relation to the fact in issue  Note: exceptions to the hearsay rule are not absolute. They can be
o What is competent? contested or impugned.
 Not excluded by the rules on evidence o How do you destroy the exception?
o What are not competent – give examples  Destroy the requisites.
 Those excluded by the Best Evidence Rule  “Ex. „was it audible?‟ „was he aware that he was going
 Those seized without valid warrant and without a valid to die?‟”
exception  Is there primary evidence in object evidence?
 Those violating the Parol Evidence Rule (contents in o Yes. If you want to present a car, present the actual itself.
the written document are presumed to be the o What is the secondary evidence?
repository of all the matters agreed upon by the  A car of the same model, same type, etc. which will
parties) aid the court in understanding the object involved.
 Differentiate direct from circumstantial evidence.  Is there primary evidence in testimonial evidence?
o Direct: prove a matter without need for inference or o Yes. A person who had personal knowledge.
presumption o What is the secondary evidence?
o Circumstantial: facts, from which the existence of another fact  Hearsay. N.B. but note that the codal does not
may be inferred as a necessary or probable consequence expressly tag hearsay as secondary evidence
o When is testimonial evidence direct evidence? although it is. When asked in the bar what secondary
 evidence is, give the answer for documentary  Rule 130, sec. 26/27: compromise rules are not the
evidence to be sure. same in civil and criminal cases
 What is prima facie evidence?  Character evidence: there is also difference in civil
o That which suffices to prove a fact, until contradicted by other and criminal cases
evidence  Two witness rule in treason
o But can it establish a conviction?  What is relevancy?
 [not answered] o Has relation to fact in issue as to induce belief in its existence
o What is the difference between prima facie evidence and or non-existence
disputable presumption?  What about collateral facts?
 Prima facie evidence arises from a fact that would o General rule, not relevant
sufficiently create a reasonable belief that an act o EXCEPT, when the collateral matters establish probability or
alleged has arisen improbability of the fact in issue
 Disputable presumption arises from Rule 131 o Give an example.
 N.B. they are the same in such that these  In rape, the accused can point to the character of the
can be controverted supposed victim to prove that there is probability that
 What is conclusive presumption? the intercourse was consensual.
o It cannot be controverted  N.B. You can only use character evidence if there is a
o But can you attack a fact that leads to a conclusive character trait involved in the offense charged.
presumption?
 Yes. Judicial notice
o Give an example of a conclusive presumption.
 Tenant cannot deny the title of his landlord  When is it mandatory?
 Distinguish between preponderance of evidence and proof BRD: o 1. States – existence, territorial extent, political history, forms
o Preponderance – Court determines superior weight of of government, symbols of nationality
evidence; for civil cases o 2. Law of nations, admiralty, maritime courts of the world, and
o Proof BRD – Moral certainty, conviction will arise from an their seals
unprejudiced mind; for criminal cases o 3. Political constitution and history of the Philippines, official
acts of legislative, executive, judicial departments of
 Are the rules of evidence uniformly applied in all our courts?
Philippines
o Yes.
o 4. Laws of nature, measure of time, geographical divisions
o Trade disputes in DTI?
 Why are these mandatory?
 No.
o NLRC exercising QJ functions? o Because they have already been established. They cannot be
 No. You don‟t need best evidence available here disputed anymore.
(can use photocopies, that‟s fine) o No need to introduce evidence anymore.
o What does “except if otherwise provided by law”?  Can the court take judicial notice of rentals?
 If otherwise provided, then the uniform application will o No. The court cannot take judicial notice of factual matters.
not extend to that.  Is the court bound to take judicial notice of municipal orders?
 Ex. Agrarian cases o The court is obliged to take judicial notice of law, but not
ordinances.
 o What about memorandum circulars issued by  There was an insurance recovery claim, dated September 2009. It
departments? was not alleged in the claim that the loss happened on the day
 No. The court is not expected to take notice of these Ondoy struck Manila. Can the other party request the court to take
less important matters. judicial notice (or can the court motu propio take judicial notice) of
 What is covered by discretionary judicial notice? this fact?
o 1. Matters of public knowledge o Yes.
 Examples:  Judicial admissions:
 Ex. death of Corazon Aquino o Statement made as to a fact in issue made in a pleading
o 2. Capable of unquestionable demonstration o Do you need proof as to judicial admissions?
 What is this?  No.
 If repeated in a regular manner, it will o When is there a judicial admission?
establish that fact.  When there is a pending proceeding
 Examples: o What are covered?
 Mathematical computation  1. Statements in pleadings (ex. complaint or answer)
 Statistics  2. Statements made during testimonial presentation
 Effects of poison, etc.  3. Depositions or other documents
 Do surveys fall under this?  4. Pre-trial
 No, because methods change, samples  5. Documents submitted in court
change, etc. o Can they be withdrawn?
o 3. Ought to be known to judges due to their judicial function  Yes, when –
 Can a judge take judicial notice of proceedings  There was no intent to make such an
pending in other courts? admission
 No.  Or there was palpable mistake
 He‟s not bound to know all the cases filed.
Rule 130
 What about pending cases in his own sala?
 No.
 N.B. The rules on admissibility are applicable to object, documentary,
 Unless he takes the consent of the parties. and testimonial evidence alike.
 When can there be taking of judicial notice?
 What is object evidence?
o During trial – on any matter and with hearing
o Those addressed to the senses of the court
o After trial and before judgment – same, but only on matters
 An object is presented so that the court can perceive it.
decisive of a material issue in a case
 What if it is immobilized ex. real property or personal properties
o After appeal – same, but only on matters decisive of a material
attached?
issue in a case
o Ocular inspection
 Can every matter be subject of judicial notice?
 Is a photograph object evidence?
o Yes, during the hearing.
o [not answered]
o You are not limited to the enumerations provided in law.
 Do you need the photographer to identify the picture?
 What is the need for a hearing?
o Yes.
o Propriety of taking judicial notice
o Or a person who can attest to its exactness and accuracy.
 o What must be proved? o When the subject of inquiry is the contents of a document, no
 That it is an accurate representation of what evidence is admissible other than the original document itself
happened. o What if all you want to establish is the existence of a
 As to production and circumstances under which they document, do you need to present the original?
were produced.  No. Because it‟s not the contents of the document
 Prove who operated the camera, the ability of the that are in issue. You can present a copy.
camera to capture the scene, etc.  N.B. However in practice, try to always present the
o Prove all these first before going into the contents of the original.
photograph. o What is the original?
 What about videos?  1. The one the contents of which are the subject of
o Similarly, lay down the basis, before presenting the contents inquiry
 What is a paraffin test?  Is the copy made an original just because
o See definition the contents thereof are the subject of
o Are the results conclusive? inquiry?
 No. It‟s not 100% reliable. o No. You still have to go to the
 Is a lie detector test 100% reliable? original.
o No. You can cheat it.  Do you need to authenticate an original
 What is demonstrative evidence? document even if it appears to be an
o Evidence that adds to or explains. original?
o Maps, charts, graphs, etc. o Yes, even if it appears to be an
o Is it the same as demonstration? original.
 No. Demonstration is when you ask for a re-  2. Document is in two or more copies executed at or
enactment or display of how an act was done or re: about the same time with identical contents
facts.  Usual example is carbon copies
 Computers that shoot straight through to the
Documentary evidence Xerox machine, and then sign all
 Or printing 5 copies of the same document,
 If Blitz had a tattoo saying “I love Jojo” is this documentary and then sign all
evidence?  What if I print and sign one, then make
o Yes. my secretary produce four copies?
 If Blitz wrote on a shirt, saying “Good luck!” is this documentary o The four copies are not originals
evidence?  I executed a document by 8 counterparts
o Yes. (ex. bills in set), signed four here in
 Why are these documentary evidence? Manila on Feb. 28 and shipped four to HK,
o It can be in any material, as long as it is a writing or inscription. which were signed on Mar. 1. Are they all
o What about text mesage? original, even if executed in different
 Yes. dates?
 It is ephemeral evidence o Yes, they can be regarded as
 What is the Best Evidence Rule? originals.
 o N.B. You have to stipulate in the Agreement containing the basic
contract (“execution by terms
counterparts”) that even if not o Ex. A demand letter
executed on or about the same o Must it be a verbatim copy or is
time, they are all originals. paraphrasing fine?
 3. Entry is repeated in the regular course of business,  Verbatim copy
one copied from another at or near the time of the  3. Testimony of a witness
transaction  Must it be in this order?
 N.B. this refers to “entry” not “execution,” but  Yes. Follow this order.
you do not sign the books o 2. Original is in the adverse party‟s custody or control
o Does “execution” in number 2 include formalities like  What are the requisites?
notarization and affixing signature?  1. Document exists
 It depends on what form is required from the contract.  2. There is reasonable notice to produce it
 What are the exceptions to the Best Evidence Rule? given to the other party
o 1. The original has been lost, destroyed, or cannot be  3. There is failure to produce
produced in court  Does this lead to presentation secondary
 Not through the fault or bad faith of the offeror evidence?
 Must there be exercise of diligence?  Yes
 Yes, the offeror must attempt to procure the o 3. Original constitutes voluminous documents
original  Requisites?
 In cases of loss or destruction, can you present  1. Prove voluminous nature of the
secondary evidence? documents, which cannot be examined in
 Yes. You need to lay the basis first. court without great loss of time
 What do you need to do?  2. Provide access to the other party to the
o 1. Prove that the document exists original documents
and it was duly executed  What must be proved by these documents?
o 2. Prove cause of unavailability  The fact sought to be established must be
 The actual presentation of secondary the general result of the whole
evidence will only come after laying the  What if the voluminous documents are financial
basis. documents for the past 20 years, and the fact
 What are the types of secondary evidence that sought to proved is the profit/gain for this period?
you can present?  You can present a summary because you
 1. Copy of the document are proving the general result of a whole.
 2. Recital of its contents in an authentic  What do you need to present?
document  You just need to present a summary of the
o Ex. Secretary‟s certificate, in case documents
of loss of the minutes  When do you need to present the original?
o Ex. There is a mother contract, and
there is a Memorandum of
  When the contents thereof are the subject of Y thought it was the
the inquiry – no matter how voluminous they property in Cavite.
are.  Give an example.
o 4. Original which is in the custody of a public officer or o Contract of sale of property. X
recorded in a public office thought it was Batangas, Y thought
 Can you present the original? it was Batangas. But it was actually
 No, because it‟s in the custody of that officer in Cavite.
or office.  Give an example of imperfection in the written
 What do you present? agreement?
 A certified true copy given by the public  The provision says that the offended party
officer in custody thereof. must pay damages, when it fact, the offender
 Give an example. must pay.
 NSO Birth Certificate.  Another: X and Y entered into a contract of
 What is the Parole Evidence Rule? sale of property, over a Batangas property.
o When the contents of a document are reduced to writing, it is But the technical specifications provided
considered as containing all the terms agreed upon – as were those of the Cavite property.
between the parties and their successors in interest. o 2. The failure of the written agreement to express the true
o No other evidence of such terms can be presented. intent and agreement of the parties
 What are the exceptions?  Give an example.
o 1. Intrinsic ambiguity, mistake, or imperfection in the written  X approached Y, asking for money for tuition
agreement fee of his son. X said he intended to
 Must it be ambiguous on its face? mortgage his property. Y asked him to sign
 No. The ambiguity must be intrinsic. a document, but that contract provided for an
 Give an example. absolute sale.
 In a will, the testator said “I give half my o 3. Validity of the written agreement is at issue
property to my son Buboy.” When the will  Can a contract void on its face be made valid by
was being probated, it turns out there were presentation of extraneous evidence?
two sons with the nickname Buboy.  No. This provision does not contemplate
 What mistake is contemplated? contracts that are by nature void, to make
 Mistake of fact, and the mistake was mutual them legal.
 What do you do with the contract? o 4. Existence of other terms agreed to by the parties/their
o Reform. successors-in-interest after execution of the written agreement
o When do you not reform?  Give an example.
 When there was no  There is an original contract and it was
meeting of the minds. amended from a 20-year agreement to a 10-
Example, X thought it was year agreement
the property in Batangas,
Testimonial evidence
 Who can become witnesses?  To what type of cases does it apply to?
o Those who can perceive, and in perceiving, can make their  “Criminal and non-criminal proceedings”
perceptions known to others  What is a comfort object/person?
o Two steps:  One that puts the child at ease, like a doll or
 1. Perceiving a pillow
 2. Making known this perception to others  Can you ask leading questions to a child?
 How can you make your perception known to another?  YES.
o You must be able to communicate it  What is the special requirement?
o Can a deaf-mute testify? A blind person? o Give notice to the other party
 Yes, as long as they can communicate. o And the judge must approve it first
 Who are disqualified?  Can you use live-link TV?
o 1. Those whose mental condition, at the time of presentation,  Yes, so the child will not be able to see the
is such that they cannot intelligently make known their accused.
perception to others  Ex. The child is in another room from the
 X perceived. Then X became insane. Then X had judge/accused, etc.
a lucid interval during presentation of witness.  Who is a facilitator?
Can X testify?  Appointed by the court to ask the questions
 Yes. The requirement is during his/her to the child as to not pressure/harass the
presentation. child
 What is the presumption?  Can depositions be taken?
 That a witness is of sound mind.  Yes.
 What is the exception?  How are the documents in these proceedings
o He was publicly known as insane or treated?
committed in a mental institution.  Considered confidential, not open to the
o 2. Children whose mental maturity makes them incapable of public
perceiving the facts and relating them truthfully o 3. DQ by marriage (sec. 22)
 Under the Child Witness Rule (CWR), who  What is prohibited here? What does it cover?
determines the competency of the child to testify?  Any testimony, for or against the spouse,
 The judge, who conducts a competency during marriage
examination  What matters are covered?
 Is competency dictated by the age of the  All matters
child?  Even confidential matters?
o No. Mental maturity dictates, even o Yes.
prior to the Child Witness Rule. o After dissolution of the marriage, it
 Who is a child witness under the CWR? can fall under sec. 24 (privileged
 Accused communication)
 Victim  What are exempted?
 Witness  1. Civil case between the parties
 o Does this extend to ascendants o What does it cover?
and descendants?  Any advice or communication in the course of or in
 No. view to professional employment
 2. Criminal case of one spouse against the o Differentiate in the course of and in view to?
other  In the course of – already retained
o Does this extend to ascendants  In view to – preparatory
and descendants? o X asked advice from Atty. Y, asking what the requirements
 Yes. are to form a corporation. Is this covered by the privilege?
 Does it survive even after termination of the  No.
marriage? o X said that he had problems with his corporation, giving
 No. The DQ only lasts during marriage. particular details, names of incorporators, reasons,
 Are these DQs waivable? details, and what are the requirements. Is this covered?
 Yes.  Yes, even if you are not eventually retained.
o 4. “Dead man‟s statute” o Does it recognize agency?
 What is the DMS?  Yes. The privilege extends to secretary, clerk, or
 Party/assignors of parties/beneficiaries stenographer.
cannot testify as to matters of fact occurring o Can it be waived?
before the death or insanity of the other party  Yes.
 What must be the nature of the action? o Note: if the relationship of the lawyer with the person is a
 Claim against the estate of the deceased business relationship, you cannot invoke the privilege.
person or a person of unsound mind  C. Doctor-patient
 What about documentary evidence that will prove o Can you invoke this privilege in a criminal case?
the claim?  No, even if it would blacken your reputation. The
 Not covered by DMS. This prohibition only privilege only covers civil cases.
extends to oral testimony. o Who is covered?
o 5. Privileged communication:  Person must be a doctor of medicine, surgeon, or
 See below obstetrician
 A. Marital privilege  What if he is an optometrist?
o If a third party chanced upon the conversation, is it  No, because he/she is not a doctor of
covered by the privilege? medicine
 No, the third party is not covered.  What if he is an ophthalmologist?
o Is there agency is privileged communication (Ex. H and W  Covered
were talking and H told a third party that the matter being  What about neurologist?
discussed is disclosed)?  Covered
 No, it doesn‟t extend to third parties.  What about psychologist?
o Does attorney-client extend to third parties?  No, he must pursue further studies to be a
 Yes, it can extend to the secretary, stenographer, or doctor
clerk.  What about psychiatrist?
 B. Attorney-client  Covered
  What is the key?  Yes. It should be done by the court, after application.
 You must be a doctor of medicine.  E. Executive privilege
 Who is an obstetrician? o See Neri case.
 For pregnancy o Is this waivable?
 Alternative medicine practitioners and  Yes, by the president.
iridologists?  F. Secrecy of bank deposits
 No.  G. Non-disclosre of trade secrets
o What are the requisites?  H. Non-disclosure of who you voted for
 1. Civil case  I. Newsman‟s privilege
 2. Person is authorized to practice medicine, surgery, o As to sources
or obstetrics  J. Informer‟s privilege
 3. Acquired information in his professional capacity for o As to identity
him to be able to give treatment or advice o You don‟t need to bring to the stand an informer
 4. Disclosure of the information would tend to blacken  K. Filial privilege
the patient‟s reputation o What is this?
 The privilege is only significant if you talk  Nobody may be compelled to testify against a direct
about a pending case ascendant or descendant
 C. Priest-Penitent o Is this waivable?
o A protestant religion does not require confession through  Yes.
a priest. If a protestant approaches her pastor and asks  In a criminal case, no de no descendant may be compelled to testify
for a confession and discloses information in the course against parents and grandparents, except:
thereof, can the pastor invoke the privilege? o When the testimony is indispensable in a crime against the
 No. It should be enjoined by the religious institution to descendant or by one parent against the other
which he/she belongs.
 Just like a Catholic confessing to a nun – not covered Admissions and confessions
by the privilege.
o What if a group requires a public confession before a  What is section 26?
crowd? o The act, declaration, or confession of a relevant fact may be
 Not covered by the privilege. given in evidence against him
o If “confession” was to simply ask for guidance from a  What is the rule on a third party?
minister, is it covered? o As a general rule, the statement of a third party cannot be used
 No. against you, except when it falls under the exceptions
o Should the penitent be a member of that religious  What are exceptions?
institution to which the priest belongs to? o 1. Co-agent or partner
 No. The priest will not ask anyway. o 2. Co-conspirator
 D. State Secrets o 3. Privies
o Who is the subject of the privilege?  What are the requisites for admission of co-partner or agent?
 The public office, as regards State secrets o N.B. these are more or less the same requisites in a
o Is this waivable? conspiracy
 o 1. The admission should have been made during the existence  Yes, these can be compromised.
of the relationship o Is extending offer for medical assistance to the victim an
o 2. Done within the scope of the authority implied admission?
 Ex. if agent, it must be covered by the agency  No.
o 3. Common interest o The JDR rule in criminal cases allows compromise where
o 4. The relationship is established by other evidence other than (the court here in mediation offers compromise)?
the admission  Libel
 Ex. Special power of attorney, articles of partnership,  Theft
etc.  Estafa
 Admissions of a co-conspirator – requisites?  BP 22
o 1. Act/declaration relates to the conspiracy  Criminal negligence
 This is common design o What is covered by the compromise?
o 2. During the conspiracy itself  Only the civil liability
o 3. The conspiracy is established by independent evidence  But in practice, once you compromise the civil liability,
 Admission of privies – requisites? usually the prosecution is no longer interested
o 1. Privity between the parties, where one derives title from the  What is admission by silence?
other o X was making statements in the radio against Y, a public
o 2. Declaration made the when the privy held the property official. If Y does not react to the radio caller, is this an
o 3. It must have been made as to title over the property admission by silence?
o Give an example:  No. See requisite #1 below.
 X sold land to Y. While X holds the title to the o What are the requisites?
property, he made statements as regards his title to  1. Statement made in your presence or within your
the land. When Y holds the land, the statements observation
made by X can be used against her.  2. Fact would have naturally called for a reaction if not
 Do admissions of these third parties extend to court cases? Ex. Y true
testified against X on the witness stand that it was X who was in  3. To deny is proper under the circumstances
conspiracy with him.  Ex. there were armed 5 men who were
o No, these rules do not extend to cases already in court, speaking ill about X – his silence may simply
because there is an opportunity to cross examine. mean that he is being prudent
 Is an offer of compromise admissible in evidence?
o In civil cases, an offer of compromise is not an implied Previous conduct as evidence
admission of liability – it cannot be admitted as evidence
 Mr. X and his group robbed BPI in Makati. X and his group were
o In criminal cases, it is treated as an implied admission of
also suspected of robbing BPI in Intramuros. He was caught, and
liability
o What is the exception for criminal cases? a case was filed against him. If there is a separate criminal case
involving the robbery in BPI Intramuros, can the facts surrounding
 When the law allows for compromise
the Makati BPI robbery be appreciated?
 Ex. criminal negligence
o No, not to establish a different robbery. But you can use it to
 Quasi-offenses
establish any of the exceptions outlined below.
o What about tax violations with penal sanctions?
 o Ex. The manner in which the robbery was conducted is the o 5. Common reputation
same, showing a system. o 6. Part of res gestae
 Ms. Y married Mr. A. She obtained insurance. A died. She married o 7. Entries in the course of business
B. She obtained insurance. B died. She married C. She obtained o 8. Entries in official records
insurance. C almost died due to poisoning. Are the previous o 9. Commercial lists, and the like
deaths admissible? o 10. Learned treatises
o Yes, but only to establish intent. o 11. Prior testimony
 What is the general rule as to prior conduct?
o Generally not admissible. Declarations Reputation Entries
o What are the exceptions? Dying declaration As to pedigree Course of business
Declaration against Common reputation Official record
 To establish intent, knowledge, identity, plan, system,
interest
scheme, habit, custom, or usage, and the like.
Declaration about Commercial lists
 What is the rule on unaccepted offer? pedigree
o An offer in writing to pay a sum of money or deliver a written Res gestae Learned treatises
instrument/personal property, if rejected without valid cause, is
equivalent to actual production and tender
 Dying declaration
Hearsay rule and exceptions o Requisites
 1. The dying person is under the consciousness of his
 What is the hearsay rule? impending death
o A witness may only testify as to matters within his personal  2. Declaration relates to the facts/circumstances
knowledge pertaining to the death
 What is independent relevant statement?  3. He should eventually die
o When the statement is the fact of issue, or when the statement  4. The recipient of the information should be
is circumstantial evidence of the facts in issue. competent to testify
o During Erap impeachment, his former Secretary Espiritu o Does this extend to civil cases?
was placed on the stand and was asked about matters he  Yes.
conversed about with Estrada. He started talking, and  As long as it pertains to the circumstances regarding
there was an objection that is was hearsay. Is it hearsay? his death.
 No, it‟s not hearsay. The conversation actually o There is a dying person on the floor and he calls X. He
happened and he can testify as to the conversation told X to tell his wife to handle his bank account, tell his
and what happened. children to manage the properties, etc. Is this the proper
 But as to the truthfulness of these statements, they subject of a dying declaration?
have to be established separately.  No. It does not cover circumstances re: his death.
 What are the exceptions? o What if he doesn’t die?
o 1. Dying declaration  It becomes part of res gestae
o 2. Declaration against interest o What if the dying declarant made an ante-mortem
o 3. Act or declaration about pedigree statement, in writing, be presented in evidence?
o 4. Family reputation or tradition regarding pedigree  Yes, because this exception covers memoranda.
 Declaration against interest  A member of the family by marriage or consanguinity.
o Requisites? This is unlike declaration about pedigree.
 1. The person is dead/unavailable o What else?
 2. Made statement against his interest  Family bibles, charts, rings, engravings, etc.
 3. Would not have made that statement had it not  Common reputation
been true o What are covered?
o Extends to declaration against pecuniary interest, proprietary  1. Public knowledge of more than 30 years
interest, criminal acts, etc.  This has a partner provision in documentary
o Why is this reliable? evidence (“ancient documents”)
 Because by human nature, nobody will make a  Give an example of public knowledge of
prejudicial statement against himself more than 30 years.
 Act or declaration about pedigree o There is a marker in the barangay
o Requisites? disclosing information on the
 1. The person is dead/unavailable founding of the barangay.
 2. Made by a person related by birth or marriage o Sometimes it can border on history,
 3. Declaration was made prior to the controversy which will then become subject to
 So there is no motive to falsify judicial notice
 4. The relationship between the declarant and the  2. Reputation about marriage
person whose pedigree is in question is shown by  How do you develop a reputation re:
independent evidence marriage?
o Must the witness be related to the declarant? o When people perceive them to be
 No. He need not be. married. Ex. living in one house,
 But the relationship should be between the declarant with children, etc. Even if this is not
and the person whose pedigree is in question true.
 Family reputation or tradition regarding pedigree  3. Reputation as to moral character
o Requisites?  Entries made in the regular course of business
 1. There is controversy re: pedigree of any member of o Requisites?
the family  1. The person is dead/unavailable
 2. Reputation or tradition existed prior to the  2. Made the entry in a position to know the facts, in
controversy professional capacity
 3. Witness testifying must be a member of the family  3. Entries made at or near the time of transaction
of that person, by consanguinity or affinity  4. Done in the regular course of business
 Or proved by family bibles, rings, etc. o Who is ideally the person testifying?
o What is reputation?  The one who actually made the entries. This
 How other people perceive one to be. exception only applies if he/she is dead or unable to
o Can reputation be wrong? testify.
 Yes. o Who will then testify on his/her behalf if this occurs?
 This is different from character – who one really is  Person who is also in a position to know the facts
o Who will testify?  Entries in official records
 o Requisites?  2. Bring in an expert witness to testify that the writer is
 1. Made by public officer or person enjoined by law to an expert in his profession
make entry  Testimony/deposition of a witness
 2. Made in performance of duty o Requisites?
 3. Had sufficient knowledge of the facts, personally or  1. Witness is dead/unable to testify
through official information  2. Identity of parties
o Does the official have to be dead/unavailable?  3. Identity of issues
 No.  4. Opportunity to cross-examine prior case
o How do you use this provision?  Res gestae
 Secure a certified true copy, then you identify it and o What are the kinds of res gestae?
present it in court  A. Spontaneous statements
 When do you present the original only?  B. Verbal acts
 If there is issue as to its genuineness o Requisites of spontaneous statements?
o Reason behind this provision?  1. Startling occurrence
 As to not waste the time of the public official  2. Spontaneous statements
 Commercial lists  3. Relating to the circumstances of the occurrence
o Requisites? o What is to be testified on?
 1. Contained in published compilation  His spontaneous statement
 2. Generally relied upon by these persons o Why is this reliable?
 3. Statements are matters of interest to these persons  No time to fabricate
engaged in the occupation  After 24 hours, is it still a startling occurrence?
o Why can you use this listing?  Depends on how startled the person still is.
 It is used by the members of the profession and it is If he was able to go out malling already, etc.,
relied upon then there was time to fabricate.
o How do you use this? o What are verbal acts?
 Just present the commercial list, no need to present  Statements made contemporaneous to an equivocal
the writer act and characterizing it
o Give examples  Give an example of an equivocal act.
 SCRA (which is not an official publication, but used  X handed a wad of cash to Y. This can
and relied upon) mean anything.
 Buy and Sell paper  NO. Because it is used, but  Give an example of a contemporaneous act
not reliable. characterizing the equivocal act.
 Stock Market listings  “I am lending this to you.”
 Learned treatises  NOTE: If Y testified, it‟s not hearsay because it was
o Covers history, science, law, and the arts ONLY told to him personally. If a third person who
o So it won‟t cover billiards, or whatever overheard it testified, this is when the exception
o How do you present? applies.
 1. Court takes judicial notice that the writer is an
expert recognized in his profession Opinion rule
 What is the opinion rule?  How does character apply for criminal cases?
o It means that only an expert can give an opinion. An ordinary o Can the prosecution present the bad character of the
witness cannot normally give an opinion. accused?
 What can an expert testify on?  No.
o Skill, knowledge, expertise, or training  What is the exception?
 Is an academic degree required?  On rebuttal
o No. Just the special skill, knowledge, expertise, or training.  This comes in after defendant completes his
Unless, of course, the knowledge or skill requires an academic presentation of evidence, and is left to the
degree. discretion of the court
 There are two kinds of experts:  What about surrebutal?
o 1. Expert with personal knowledge of the facts o If there is rebuttal, the court will give
 Ex. medico-legal officer who examined a dead body surrebutal
o 2. Expert with no personal knowledge, only hypothetical facts o Can the accused present his good character?
 Can an ordinary witness give an opinion?  Yes, if there is a character trait involved in the offense
o General rule: no. charged
o Exceptions: o What about the victim?
 1. Handwriting of which he has sufficient familiarity  You can present the good or bad moral character to
 2. Identity of which he has adequate knowledge establish in any reasonable degree the
 Not required to know the name, probability/improbability of the offense charged
relationships, etc. Just as long as you can  Usually applied in rape cases
sufficiently identify the person.  What about civil cases?
 3. Mental sanity of person with whom you are o There is no distinction. As long as there is an issue of
acquainted with character in a case, you can present character evidence.
 4. Impressions on emotion, behavior, condition,  Can a witness’ good or bad character be presented?
appearance o General rule: NO.
 Character evidence: o Exception: when the witness‟ character has been
o Make sure you distinguish civil and criminal cases impeached/impugned
o When is it applicable?
 Only when there is a character trait in the offense Burden of proof and presumptions
charged
 Ex. for murder/homicide – violence  Distinguish burden of proof from burden of evidence?
 Ex. for estafa – honesty o Burden of proof sticks with the party from the beginning until
 Ex. for rape – sexual perversity of accused the end.
 For victim, chastity  Ex. Breach of contract for damages – burden starts
o What offenses have no character traits? with the plaintiff and ends with the plaintiff
 Those covered by special laws; o Burden of evidence shifts
 Ex. BP 22  What is the difference between conclusive and disputable
 Ex. illegal possession of firearms presumptions?
o Conclusive presumptions cannot be rebutted
 What are the conclusive presumptions?  What if the child is born after 300 days after
o 1. Estoppel in pais dissolution of the marriage?
 This is regular estoppel  There is no presumption
 Requisties:  Whoever alleges legitimacy or illegitimacy
 1. Representation must prove it
 2. Lack of knowledge in the other party o 5. Absence
 3. Reliance  What does absence for 7 years establish?
 Similar estoppel:  Death, for all purposes EXCEPT succession
 Estoppel by silence  When does succession open?
 Estoppel as to question of jurisdiction o After 10 years
o 2. Estoppel by deed  What if the person is over 75-years old?
 What does “deed” mean?  After 5 years is enough to establish death
 It means a written document  WhaPert are the “exceptional circumstances” that
 This has a very limited application: only covers a establish death in a shorter period?
landlord-tenant relationship  1. Vessel or aircraft goes missing and he
 Upon signing the deed, it is a recognition of the was not heard of for 4 years
landlord‟s title. You can only challenge it after.  2. Person took part in armed hostilities and
 What are common examples of disputable presumptions? missing for 4 years
o 1. Presumption of innocence  3. Person under danger of death in other
 When does this arise? circumstances and is missing for 4 years
 1. Only when charged of an offense  What is the rule for marriage?
 2. And one is an accused in that case  Can contract subsequent marriage after
o 2. Presumption of regularity absence for 4 years
 When does this arise?  What if the spouse disappeared under
 1. You are a public officer exceptional circumstances?
 2. Performing is official function o 2 years of absence is enough
o 3. When a court renders a decision:  Is declaration of presumptive death of the
 It acted within its jurisdiction spouse to contract subsequent marriage
 It passed upon all questions a special proceeding?
o 4. On filiation o No.
 When a child is born within 300 hundred days of o This is a summary procedure under
termination of the first marriage AND before 180 days the Family Code
after the solemnization of the second marriage it is o 6. Survivorship for those who died due to calamity, wreck,
considered to be conceived from the first marriage battle, or conflagration
 When a child is born within 300 hundred days of  Follow what rule?
termination of the first marriage AND after 180 days  Strength and age of the sexes
after solemnization of the second marriage it is  For what purpose can this be used?
considered to be conceived from the second marriage  ANY purpose except succession
  Allowed for: o 2. Reputation of the witness for honesty/truth/integrity of the
 Insurance witness is bad
 Survivorship agreements o What matters can be raised, in general?
 In general, only those raised in direct
Conduct of proceedings in the courts  What is re-direct examination?
o Allow a witness to explain matters raised in cross-examination
 What is required before witnesses testify?  What is re-cross examination?
o Place the witness under oath or affirmation o To examine matters raised in re-direct
o Oath – imploring divine guidance  Are leading questions allowed?
o Affirmation – for those who don‟t believe in God o As a rule, not allowed in direct examination.
 Whose duty is it to receive evidence? o When else can you ask leading questions?
o The judge  1. Cross examination
 Can delegate to the clerk of court in certain instances  2. On preliminary matters
o How is it recorded?  Ex. “Mr. X, you said a while ago you were an
 1. By stenographer employee of the petitioner corporation. Are
 2. By stenotype you an employee?”
 3. By any other means of recording found suitable by  3. Witness is ignorant, child of tender years, feeble-
the court minded, or deaf-mute
 What questions can you NOT ask to witnesses?  And there is some difficulty to get direct and
o Immaterial, irrelevant, impertinent questions intelligible answers
o Questions that expose him to criminal liability – violates right  4. Unwilling or hostile witness
against self-incrimination  N.B. There must be a court declaration to
 What if it’s only exposing him to civil liability?
make a person a hostile witness
 You can ask the question  Who is a hostile witness?
 But not if it exposes him to criminal penalty o Adverse interest
o Degrading or humiliating questions o Unjustified reluctance to testify
 What is direct examination? o Misled the party into calling him
o Examination-in-chief of the prosecution  5. Adverse witness – adverse party or
o What is examination-in-chief? officer/director/managing agent of juridical person
 One that establishes what the prosecution seeks to who is an adverse party
prove  What are the two kinds of memorandum?
 Evidence-in-chief is what your witness will testify on in o 1. Present recollection revived
direct examination. So if you have eight witnesses, o 2. Past recollection recorded
you have eight evidences-in-chief o When do these apply?
 What is cross examination?  In both cases he knew, he was in charge, or he
o 1. Test the accuracy and truthfulness of witness‟ testimony prepared it. That‟s why he can testify. So even if
o 2. To elicit all information from the witness there is no independent recollection, he can testify.
 What are the two ways to impeach the witness? o What is the purpose?
o 1. Prior inconsistent statement  To refresh his memory
 o What is the evidence? 2. Evidence of genuineness of the
 If the witness has independent recollection, then the signature/handwriting of the maker
testimony is the evidence.  What is an ancient document – requisites?
 If he has no independent recollection, the o 1. Document existing for at least 30 years
memorandum itself is the evidence. But it must be o 2. Unblemished
taken with caution. o 3. In the custody of one who must be with possession over it
 What is alteration?
Authentication of documents o When there is one, you have to account for it
 1. There is consent
 N.B. Whether public or private, the document must be authenticated.
 2. There is knowledge
 What are the kinds of public documents?  3. Did not change the meaning
o 1. Acts of sovereign authority  Can you impugn judicial records?
o 2. Documents duly acknowledged before a notary public o Yes.
except wills o How?
 Not just notarized, but must be acknowledged  1. Want of jurisdiction
o 3. Private documents recorded in a public office  2. Collusion
 Ex. affidavit of adverse claim in a R.O.D.  3. Fraud
 What are private documents?
o All other documents not falling under the prior three Offer of evidence
 How do you authenticate acts of sovereign authority?
o Certified true copy or official publication  What is the rule on formal offer?
o If it is from a foreign country? o Evidence must be offered, or else the court will not consider it
 Certification from foreign service officer as evidence
 How do you authenticate a duly acknowledged document before a  When is it made?
Notary Public? o After the documents as marked, and all the witnesses are
o Certificate of acknowledgement of the document itself presented
o If by chance, your copy is lost, where do you go?  Is offer of testimonial evidence the same?
 You could get a certified true copy from the RTC who o It‟s not, because it‟s made before you present the witness
commissioned him to notarize documents (he submits  What is a continuing objection?
the books to the RTC) o Objection of the same character after the grant or denial of the
 How do you authenticate private documents recorded in a public same objection
office? o A one-time statement covering objections of the same
o Can be proved by original record or a certified true copy character
o Can there be a certificate of no record? o Does it have to be ruled upon by the court?
 Yes.  No.
 How do you authenticate a private document?  What is proffer of evidence?
o Genuineness of the handwriting o This is tender of excluded evidence
 1. By anyone who saw the document executed or o So for instance an excluded witness can still be presented
written through an affidavit showing her qualifications and the
 substance of her testimony – so it can be considered on
appeal

Weight and sufficiency of evidence

 What about administrative cases in QJAs?

o Substantive evidence
o Where else does this standard apply?
 Investigations in the workplace
 QJAs that proceed like the NLRC
 Circumstantial evidence
o Can it be a basis of conviction?
 Yes
 There should be more than one circumstance
 And when taken together, they form proof beyond
reasonable doubt
o Can it be the basis of identification?
 Yes
 Can the judge stop the presentation of evidence?
o Yes, if the judge feels there is no more need for additional
evidence;
PART IV: SPECIAL PROCEEDINGS o Unauthorized disposition can be annulled by the probate court
without need for separate action
o Can the intestate/probate court execute its order annulling
Jurisprudence the sale?
 It can. No need for separate court.
 What is the jurisdiction of the probate court?
o It has limited jurisdiction Settlement of estates
o Determination of whether the property must be included in the
inventory is included here.  Where is the venue for the action?
 Conveyance of a property by a decedent in his lifetime – o Philippine resident – place of last residence at the time of his
requisites? death
o All interested parties need to be notified  X lived in Pampanga. But because of his
o To cause approval of conveyance deteriorating mental condition, he stayed in QC
 Who determines the titles of real properties included as part of the for treatment. Where is the probate proceeding
estate? filed?
o A probate court may hear and pass upon questions of  QC
ownership when its purpose is to determine w/n the property o Resident of foreign country, but has property in the Philippines
must be included in the inventory – in the place where the property is located
o The determination is merely provisional  N.B. we generally do not say “foreigner” because they
 When the estate of partner has become insolvent, how must claims cannot acquire real property except by intestate
against his separate property be prioritized? succession
o 1. Those owing to separate creditors  Settlement of estate of a person presumed dead – how is the
o 2. Those owing to partnership creditors estate dealt with?
o 3. Those owing to partners by way of contribution o He is entitled to the balance of his estate after payment of
 What I the rule on lease rentals being assessed after the death of debts
the person? i.e. There were unpaid rentals accrued from April o Balance may be recovered by mere motion in the same case
1993 to December 1998, but the decedent passed away in 1989. Do where he was declared presumptively dead
these claims pass to the estate?  Requisites for extra-judicial settlement of estates?
o No, because the rentals accrued after his death. o 1. No will
o The general rule is that heirs are bound by the contracts o 2. No debts
entered into by the predecessor-in-interest. o 3. If there are minors they are represented by guardians ad
o Except if non-transmissible by: litem
 1. Nature  How do you extra-judicially settle?
 2. Stipulation o 1. Through a public instrument
 3. Provision of law o 2. Affidavit of self-adjudication
 Sale of real property – must it be with consent of court?  One heir adjudicating the entire estate to his name
o Any disposition of estate property by an administration or o 3. Stipulation in an action for judicial partition (Rule 69)
prospective heir pending final adjudication needs court  What is required for all three?
approval o Publication
 Do you need a bond for extra-judicial settlement of estate?  What determines jurisdiction?
o Yes, but only for personal properties o Value of the estate
 Can you still contest a settlement of estate, if you are an omitted o If in Metro Manila – 400K is threshold
heir? o If outside – 300K is the threshold
o Yes, two years thereafter o Can it be subject of summary proceeding?
 Allowance of a will – what does it settle?  No. Never.
o Only as to due execution  What does the court issue thereafter?
o No will shall pass real or personal property unless proved and o Certificate of allowance
allowed  Who cannot be executor or administrator?
 What is the duty of a custodian of a will? o 1. Minor
o 1. Within 20 days from knowledge of testator‟s death, deliver o 2. Not a resident of the Philippines
the will to the court having jurisdiction o 3. Unfit to execute the provisions of the trust
o 2. Or present it to the executor named in the will  Drunkenness, improvidence, conviction of offense
 Distinguish probate of a will post-mortem and ante-mortem. involving moral turpitude, etc.
o Post-mortem –  To whom are letters of administration granted?
 A. Executor, heir, administrator, or any interested o 1. Surviving spouse or next of kin or those selected by them
person can apply o 2. Principal creditors
 B. Notice given to compulsory heirs o 3. Persons they may select
 Notice given to all heirs too by publication  Can petitions for administration be opposed?
o Ante-mortem – o Yes.
 A. The testator himself applies o On what grounds?
 B. Notice given to compulsory heirs  1. Incompetency of the person prayed for
 No notice to other heirs by publication  2. Contestant‟s own right to be administrator
 When there is probate of a will and there is no contest, what must o To whom?
be done?  To contestant or another person prayed for
o In a notarial will, need just one subscribing witnesses  Who is a special administrator?
 If there is a contest, all subscribing witnesses o Appointed when there is delay in appointment including
o In a holographic will, one witness who knows handwriting and appeals on allowance/disallowance of a will
signature of the testator o Temporarily appointed until such
 In the absence of such, expert witness  Can letters of administration be revoked?
 Who may petition for the allowance of a will? o Yes.
o Executor, devisee, heir, any person interested o When?
 If the will is lost or destroyed, how can it be proved?  1. If a will is discovered
o 1. Establish its existence  2. If the administrator absconds
o 2. It was fraudulently or accidentally lost/destroyed  3. The administrator fails to render accounting
o 3. Two credible witnesses  4. Unsuitable to discharge the trust
 Can a will proved outside of the Philippines be allowed here? o Can he resign as administrator?
o Yes. (Rule 77)  Yes
 Can an executor/administrator have access over partnership  Can the court authorize sale/mortgage/encumbrance of real
books? property?
o Yes. It only extends to a partnership but not a corporation, o Yes.
because there is succession in corporation. o When?
o Failure to comply with order of a court – what is the  1. Personal estate is not sufficient to pay the debts.
consequence?  2. Sale of personal property may injure business or
 Partner can be held in contempt estate
 What is the requirement in terms of notice for money claims  …and the testator did not make provision for payment
against the estate? of the debt (for both)
o Court issues order to all persons with money claims against  When is there distribution?
the estate to file it with the clerk of court o No distribution shall be allowed until payment of debt, funeral
o What is the period? expenses, giving of allowance to widow, admin expenses,
 Not less than 6 months to not more than 12 months estate tax, etc.
from date of first publication  Who can institute actions for escheats?
o General rule: All claims must be filed within the time limit, or o The Sol-gen on behalf of the Republic.
else it is forever barred. o What does he do?
 Exception?  File petition in court where the deceased last resided
 Except as counterclaim to any action an o If you an heir can you still recover an escheated property?
administrator or executor may bring  Five years from the date of such judgment
 What are the claims filed against the executor or administrator by o Can a done (but not an heir) recover the property?
name?  Yes, he is an interested party, because he claims a
o 1. Recovery of real/personal property right to the escheated party. He may appear or
o 2. Claim for damages caused by the deceased oppose petition for escheat.
o 3. All other actions/claims that survive o What is the effect of a judgment in escheat?
 What if the executor/administrator refuse to act to recover property  Conclusive against all persons with actual or
transferred in fraud of creditors? constructive notice
o The creditors can do it, if they:  But not against those who are not privies or parties
 1. Pay expenses of the suit
 2. Give security Guardianship
 The estate sometimes has debts. In this case, how must they be
 Where do you institute petition for guardianship?
paid?
o Where the minor or incompetent is found
o First, from the personal estate.
 In what particular court?
o Second, from real property not disposed of by will.
o Third, retention to meet contingent claims o Family courts
o What is the time to pay the debts?  Who can petition?
 Not exceeding one year in the first instance o Relative, friend, other person
o Can it be extended? o Can the minor himself do so?
 Yes, for not more than six months  Yes, as long as he is at least 14 years old
 Must a parent still apply for guardianship?
 oIf the property of the child exceeds P50K you need to petition  Do you need a judicial declaration that the child
for petition for guardianship was neglected or abandoned?
 When can the guardian sell or encumber the property of the ward?  NO. You just need a certificate from DSWD from an
o 1. The property of the estate is insufficient to maintain the ward administrative proceeding. (Take note of this; new
and his family law and never asked in the Bar.)
o 2. For education of the ward o 3. Legal adoption
o 3. For the benefit of the ward  What if the adopter is a foreigner?
 Who is preferred to become the guardian?  He must have been residing in the
o The natural parent of the ward Philippines for at least 3 years
 What are the other qualifications?
Trustees o 16 year age difference
o Note the others from Civil Law
 Who is a trustee? notes
o Can be made to carry in effect the provisions of a will or a  What kind of petition must be filed?
written instrument o Inter-Country Adoption
o Appointed/confirmed in the probate court  Where do you institute the action for adoption?
 Family Court where the adoptee resides
Adoption
 If the adoptee has no residence
 There was a child who was left outside of the house of a childless (abandoned), where the adopter resides
couple and having noticed that no one is claiming the child, the
Habeas corpus
couple adopted the child. But they secured a birth certificate and
filled in the child’s details (simulation of birth), without applying for
 When can you file a Petition for Habeas Corpus?
legal adoption. The child grew up and when she applied for a visa
o There must be 1. ARREST and 2. DETENTION
to the US, she was denied because she was found to not be the
o What if it is mere disappearance?
natural child of the mother (who is sterile). What are implications
 H.C. does not apply
and what actions must be taken to correct the situation?
 File a criminal case
o 1. Petition for correction/cancellation of entries, because the
 What must be the nature of the arrest/detention?
birth certificate is false
o It must be unlawful or illegal. It cannot be pursuant to a valid
 Where do you file it?
arrest/detention.
 The place where the entry was made or
 Detention in violation of the right to speedy disposition of cases,
recorded
and the petition for such is denied by the court, what can you do?
 Who are the parties; who are impleaded?
o File petition for Writ of H.C.
 Only the civil registrar (under the ROC)
 What is post-conviction petition for HC?
 Under jurisprudence, include the child as
o Under rules on DNA evidence, even after conviction, if the
well and the declared parent of the child, and
testing shows that there is no basis for the
those who hereditary rights are affected (ex.
conviction/detention, you can file petition for HC
Grandparents)
 Where can it be filed?
o 2. Get certification that the child was neglected or abandoned
o RTC, CA, or SC
 What is WHC on custody of minors?  Can appeal be taken from orders or judgments take in Special
o Not a regular WHC. Unlike in ordinary WHC where there is no Proceedings?
pre-trial, there is pre-trial here. o 1. Allowance/disallowance of wills
o See example below. o 2. Determines who are the lawful heirs of a deceased person
o X married Y, but were separated in fact. X requested Y for or distributive shares
some time with their child Z. Y allowed, but X never o 3. Allows/disallows a claim, or claims presented on behalf of
returned Z. What is the remedy? the estate to offset a claim against it
 Habeas corpus on custody of minors. o 4. Settlement of account of executor/admin/guardian
 What is the Writ of Amparo? o 5. Final determination in lower court of rights of the party
o Also instituted in the RTC, CA, SC appealing
o Can be filed at any time of day or night o 6. Final order or judgment rendered in the case, affecting
o Does not just extend to actual or committed acts, but also to substantial rights of appealing person, unless it is an order
threatened acts granting/denying MBT/MR
o Who can file it?  Can the appointment of a Special Administrator be subject of
 Not just the victim or family members appeal?
 Extends to religious institutions or NGOs o No.
 What is the Writ of Habeas Data?  What is the mode of appeal?
o Also instituted in RTC, CA, SC o Record on appeal

Change of name

 When can you ask for change of name?

o 1. Name is ridiculous, dishonorable, extremely hard to
pronounce
o 2. Change will avoid confusion
o 3. One has been continuously known as that name
o 4. Surname causes embarrassment and the desire to change it
is not for a fraudulent purpose
 Can a person have the child’s Filipino middle name dropped for
the purpose of integration with the Singaporean community?
o No.

Family home

 Do you need a judicial declaration of a family home?

o No more. It‟s automatically constituted, under the Family
Code.

Appeal