3.

The rules shall not diminish, increase, or modify

I. GENERAL PRINCIPLES substantive rights

2. POWER OF THE SUPREME COURT

A. CONCEPT OF REMEDIAL LAW TO AMEND AND SUSPEND
B. SUBSTANTIVE LAW AS PROCEDURAL RULES
DISTINGUISHED FROM REMEDIAL
LAW The courts have the power to relax or suspend
C. RULE-MAKING POWER OF THE technical or procedural rules or to except a case from
their operation when compelling reasons so warrant
SUPREME COURT or when the purpose of justice requires it; what
1. Limitations on the rule-making power constitutes good and sufficient cause that would
pf the Supreme Court merit suspension of the rules is discretionary upon
2. Power of the Supreme Court to amend the courts. (Commissioner of Internal Revenue v.
and suspend procedural rules Migrant Pagbilao Corporation, G.R. No. 159593,
D. NATURE OF PHILIPPINE COURTS 2006)
1. Meaning of a court
2. Court as distinguished from a judge What impel the Court to set aside its rules is not the
3. Classification of Philippine courts party‘s empty invocations of liberality but the merits
4. Courts of original and appellate of a party‘s position so that the same may not be
jurisdiction obstructed by mere deficiencies in form. (Munoz v.
5. Courts of general and special jurisdiction People, G.R. No. 162772, 2008)
6. Constitutional and statutory courts
7. Courts of law and equity Compliance with the procedural rules is the general
8. Principle of judicial hierarchy rule, and abandonment thereof should only be done
9. Doctrine of non-interference or doctrine in the most exceptional circumstances. (Pilapil v.
of judicial stability Heirs of Briones, G.R. No. 150175, 2007)
The Supreme Court may promulgate procedural rules
26
A. CONCEPT OF REMEDIAL LAW in all courts. It has the sole prerogative to amend,
repeal or even establish new rules for a more
simplified and inexpensive process, and the speedy
REMEDIAL LAW disposition of cases. In the rules governing appeals
It is a branch of law that prescribes the methods of to it and to the Court of Appeals, particularly Rules
enforcing rights and obligations created by 27 28 29
42, 43 and 45, the Court allows extensions of
substantive law. It provides a procedural system for time, based on justifiable and compelling reasons, for
obtaining redress for the invasion of rights and parties to file their appeals. These extensions may
violations of duties. It also prescribes rules as to how consist of 15 days or more.
suits are filed, tried and decided upon by the courts. To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to appeal
B. SUBSTANTIVE LAW AS their cases, the Court deems it practical to allow a
fresh period of 15 days within which to file the notice
DISTINGUISHED FROM of appeal in the Regional Trial Court, counted from
REMEDIAL LAW receipt of the order dismissing a motion for a new
trial or motion for reconsideration (Neypes v. Court of
SUBSTANTIVE LAW Appeals, G.R. No. 141524)
Creates, defines and regulates rights and duties
concerning life, liberty or property which when Its constitutional power to promulgate rules of
violated gives rise to a cause of action. practice and procedure and to amend or repeal the
same necessarily carries with it the power to overturn
judicial precedents on points of remedial law through
C. RULE-MAKING POWER OF THE the amendment of the Rules of Court. (Pinga v. Heirs
SUPREME COURT of Santiago, G.R. No. 170354, 2006)

CONSTITUTIONAL POWERS
1. LIMITATIONS ON THE RULE- Sec 5 [5], Article VIII Judicial Department
MAKING POWER OF THE SUPREME The Supreme Court shall have the power to
COURT promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
SEC 5 [5], ARTICLE VIII JUDICIAL DEPARTMENT practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal
1. The rules shall provide a simplified and assistance to the under-privileged.
inexpensive procedure for the speedy disposition
of cases Cases where the rules of court will not be
2. The rules shall be uniform for courts of the same applicable
grade. The Rules Will NOT be Applicable in the
Following Cases:

1
1. Election Cases; judge presiding over it. In other words, the judge may
2. Land Registration; resign, become incapacitated, or be disqualified to
3. Cadastral Cases; hold office, but the court remains.
4. Naturalization;
5. Insolvency proceedings; and 3. CLASSIFICATION OF PHILIPPINE
6. Other cases not provided for in the Rules of COURTS
Court.

Exception: Superior and Inferior Courts

The Rules of Court will be applicable in the SUPERIOR COURTS are courts with controlling
abovementioned cases by analogy or in a suppletory authority over some other court or courts, and with
character and whenever practicable and convenient. certain original jurisdiction of its own.

INFERIOR COURTS are those which are

D. NATURE OF PHILIPPINE subordinate to other courts and whose judgments
COURTS and decrees can be reviewed by the higher tribunals.

Courts of Record and Not of Record

1. MEANING OF A COURT A COURT OF RECORD is one keeping a written
account of its proceedings which import verity, or
It is an organ of the government belonging to the which is so denominated by the statute of its
judicial department the function of which is the creation.
application of the laws to controversies brought
before it as well as the public administration of A COURT NOT OF RECORD is one which is not
th
justice. (Black’s, 5 Edition, 356 as cited in Riano, keeping a written account of its proceedings.
nd
Civil Procedure: A Restatement for the bar, 2 ed,
2009) PROBATE COURTS
Courts whose basic jurisdiction is to administer
It is noted that where an administrative tribunal‘s justice in matters relating to decedent estates.
function partakes of the judicial, its exercise is styled
―QUASI-JUDICIAL‖, but such administrative agencies
are NOT considered courts; they are neither part of 4. COURTS OF ORIGINAL AND
the judicial system nor are they deemed judicial APPELLATE JURISDICTION
tribunals. (De Leon, Administrative Law: Text and
th
Cases, 6 ed, 2010) ORIGINAL COURTS are those wherein a case
arises. On the other hand, APPELLATE COURTS
2. COURT AS DISTINGUISHED FROM are those wherein a case is reviewed.
A JUDGE
5. COURTS OF GENERAL AND
JUDGE SPECIAL JURISDICTION
A public officer appointed to preside over a court for
the purpose of administering law. GENERAL COURTS are courts which take
cognizance of all cases, civil or criminal, of a
Although the terms have often been erroneously
particular nature, or courts whose judgment are
used interchangeably, they are not strictly
conclusive until modified or reversed on direct attack,
synonymous as they have the following distinctions:
and who are competent to decide on their own
jurisdiction.
COURT JUDGE
SPECIAL COURTS are those which can take
A tribunal officially Is simply an officer of cognizance of special jurisdiction for a particular
assembled under such tribunal; a public purpose, or are clothed with special powers for the
authority of law; an office officer performance of specified duties, beyond which they
have no authority of any kind.

EXCLUSIVE vs. CONCURRENT JURISDICTION

Is an organ of the Person who sits on the
government with a court EXCLUSIVE JURISDICTION – courts which have
personality separate and jurisdiction over a subject matter to the exclusion of
distinct from the judge other courts.

CONCURRENTJURISDICTION – courts which have

jurisdiction over the same subject matter and within
the same territory and wherein litigants may in the
The continuity of a court and the efficacy of its first instance resort to either court indifferently.
proceedings are not affected by the death,
resignation, or cessation from the service of the

2
6. CONSTITUTIONAL AND c. Replevin, through intervention since the main
STATUTORY COURTS action is still pending. (Rule 60, Section 7)

END OF TOPIC
CONSTITUTIONAL COURTS are created by the
Constitution (i.e. the Supreme Court) while
STATUTORY COURTS are created by mere statute.
II. JURISDICTION
7. COURTS OF LAW AND EQUITY

A COURT OF LAW is any tribunal duly administering A. JURISDICTION OVER THE PARTIES
the laws of the land. 1. How jurisdiction over the plaintiff is
acquired
A COURT OF EQUITY is one which administers 2. How jurisdiction over the defendant is
justice according to the rules and principles of equity. acquired
B. JURISDICTION OVER THE
8. PRINCIPLE OF JUDICIAL SUBJECT MATTER
HEIRARCHY 1. Meaning of jurisdiction over the subject
matter
2. Jurisdiction versus the exercise of
The judicial system follows a ladderized scheme jurisdiction
which in essence requires the lower courts initially 3. Error of jurisdiction as distinguished
decide on a case before it is considered by a higher from error of judgment
court. 4. How jurisdiction is conferred and
determined
A higher court will not entertain direct resort to it 5. Doctrine of primary jurisdiction
unless the redress cannot be obtained in the 6. Doctrine of adherence of jurisdiction
appropriate courts. (Santiago v. Vasquez, G.R. Nos. 7. Objections to jurisdiction over the
99289-90, 1993) subject matter
8. Effect of estoppel on objections to
9. DOCTRINE OF NON- jurisdiction
INTERFERENCE OR DOCTRINE C. JURISDICTION OVER THE ISSUES
OF JUDICIAL STABILITY D. JURISDICTION OVER THE RES OR
PROPERTY IN LITIGATION
This principle holds that courts of equal and E. JURISDICTION OF COURTS
coordinate jurisdiction cannot interfere with each 1. Supreme Court
other‘s orders. (Lapu-lapu Development and Housing 2. Court of Appeals
Corporation v. Group Management Corporation, G.R. 3. Court of Tax Appeals
No. 141407, 2002) 4. Sandiganbayan
5. Regional Trial Courts
Hence, a Regional Trial Court has no power or 6. Family Courts
authority to nullify or enjoin the enforcement of a writ 7. Metropolitan Trial Courts/Municipal Trial
of possession issued by another Regional Trial Courts
Court. (Suico Industrial Corporation v. Court of 8. Shariah Courts
Appeals, G.R. No. 123050, 1999)
F. JURISDICTION OVER SMALL
The principle also bars a court from reviewing or CLAIMS, CASES COVERED BY THE
interfering with the judgment of a co-equal court over RULES ON SUMMARY
which it has no appellate jurisdiction or power of PROCEDURE AND BARANGAY
review. (Villamor v. Salas, G.R. No. L-101041, 1991) CONCILIATION
This doctrine applies with equal force to
G. TOTALITY RULE
administrative bodies; when the law provides for an
appeal from the decision of an administrative body to JURISDICTION
the Supreme Court or Court of Appeals, it means that The power and authority of the court to hear, try and
such body is co-equal with the Regional Trial Court in decide a case. It is also the power to enforce its
terms of rank and stature, and logically beyond the determination as it is only through the judgment and
control of the latter. (Philippine Sinter Corporation v. its execution that the power of the court is made
Cagayan Electric Power and Light Co., Inc., G.R. No. efficacious and its jurisdiction complete.
127371, 2002)
It is not the power of the judge but of the court.
Exceptions: THIRD-PARTY CLAIM
a. Execution through a separate action. (Rule 39, A. JURISDICTION OVER THE
Section 16)
b. Preliminary Attachment (Rule 57, Section 14) PARTIES

3
 It is the power to deal with the general subject
The manner by which the court acquires jurisdiction involved in the action. It refers to jurisdiction of the
over the parties depends on whether the party is class of cases to which the particular case belongs.
the plaintiff or the defendant and is a matter of
procedural law 2. JURISDICTION vs. EXERCISE OF
The following modes of acquisition of jurisdiction JURISDICTION
apply to BOTH ordinary and special civil actions like
mandamus or unlawful detainer cases: JURISDICTION is the power or authority of the court

EXERCISE OF JURISDICTION refers to the exercise

1. HOW JURISDICTION OVER THE of this power or authority.
PLAINTIFF IS ACQUIRED:
Jurisdiction is the authority to decide a case and not
Jurisdiction over the plaintiff is acquired by his filing the decision rendered therein. (Republic of the
of the complaint or petition, even through his counsel. Philippines v. Asset Privatization Trust, G.R. No.
141241, 2005)
2. HOW JURISDICTION OVER THE
Where there is jurisdiction over the subject matter,
DEFENDANT IS ACQUIRED the decision on all other questions arising in the case
is but an exercise of jurisdiction. (Republic of the
Jurisdiction over the defendant is obtained either by a Philippines v. Asset Privatization Trust, G.R. No.
valid service of summons upon him or by his 141241, 2005)
voluntary submission to the court‘s authority. It is
required only in an action in personam.
3. ERROR OF JURISDICTION AS
Submission to the court‘s jurisdiction takes the form DISTINGUISHED FROM ERROR OF
of an appearance that seeks affirmative relief except JUDGMENT
when the relief sought is for the purpose of objecting
to the jurisdiction of the court over the person of the ERROR OF JUDGMENT
defendant. One which the court may commit in the exercise of
its jurisdiction.
Lack of jurisdiction over the defendant may be raised
as a ground for a motion to dismiss. As long as the court acts within its jurisdiction, any
alleged errors committed in the exercise of its
If a motion has been filed and objection to the lack of discretion will amount to nothing more than mere
jurisdiction, which ground was already available at errors of judgment which are correctible by appeal.
the time of filing, was not pleaded, it is DEEMED (Cabrera v. Lapid, G.R. No. 129098, 2006); these
WAIVED pursuant to the omnibus motion rule. errors include errors of procedure or mistakes in the
However when it appears from the pleadings or the court‘s findings. (Banco Filipino Savings and
evidence on record that the court has no jurisdiction Mortgage Bank v. Court of Appeals, G.R. No.
over the subject matter, that there is another action 132703, 2000)
pending between the same parties for the same
cause, or that the action is barred by a prior judgment ERROR OF JURISDICTION
or by stature of limitations, the COURT SHALL On the other hand, an error of jurisdiction is one
DISMISS THE CLAIM. where the act complained of was issued by the court
without or in excess of jurisdiction. (Cabrera v. Lapid,
If no motion to dismiss has been filed at all, the G.R. No. 129098, 2006)
objection of lack of jurisdiction over the person may
be pleaded as an affirmative defense in the It may happen either when a court exercises a
defendant‘s answer. jurisdiction not conferred upon it by law or when the
court, although with jurisdiction, acts in excess of its
B. JURISDICTION OVER THE jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction. (GSIS v. Olisa, G.R.
SUBJECT MATTER No. 126874, 1999)

The item with respect to which the controversy has Errors of jurisdiction are correctible only by the
arisen, or concerning which the wrong has been extraordinary writ of certiorari. (Tolentino v. Leviste,
done, and it is ordinarily the right, the thing, or the G.R. No. 156118, 2004)
contract under dispute.
4. HOW JURISDICTION IS CONFERRED
1. MEANING OF JURISDICTION OVER AND DETERMINED
THE SUBJECT MATTER:
How Jurisdiction is conferred
Jurisdiction over the subject matter is conferred by
law which may either be the Constitution or a statute.

4
 Once jurisdiction has attached, it cannot be ousted
The law that confers such jurisdiction refers to a by subsequent happenings or events, although of a
substantive law, not a procedural law. character which would have prevented jurisdiction
from attaching in the first instance; the court, once
Such Jurisdiction CANNOT be conferred by the jurisdiction has been acquired, retains that
Following: jurisdiction until it finally disposes of the case.
1. Administrative policy of any court; (Baritua v. Mercader, G.R. No. 136048, 2001)
2. A court‘s unilateral assumption of jurisdiction;
3. An erroneous belief by the court that it has 7. OBJECTIONS TO JURISDICTION
jurisdiction; and OVER SUBJECT MATTER
4. The parties by agreement, silence, acquiescence
or consent. The earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed before
How Jurisdiction is Determined the filing or service of an answer. Failure to raise
Jurisdiction over the subject matter is determined by such objection shall NOT be deemed as a waiver.
the allegations of the complaint. It is not determined
either by the defenses of by the pieces of evidence Unlike lack of jurisdiction over the person, failure to
presented in the trial. include the defense of lack of jurisdiction over the
subject matter in a motion to dismiss, when such
Jurisdiction is based on the allegations in the ground was already available at the time of filing,
initiatory pleading and the defenses in the answer are does NOT bar the defendant to subsequently raise it
deemed irrelevant and immaterial in its as an affirmative defense.
determination. De la Cruz v. Court of Appeals, [G.R. If no motion to dismiss has been filed, such defense
No. 139442, December 6, 2006] may be raised as an affirmative defense in the
answer.
Thus, if by the averments of the complaint, the court
has jurisdiction, it does not lose that jurisdiction just Thus, the prevailing rule is that jurisdiction over the
because the defendant makes a contrary allegation subject matter may be raised at ANY stage of the
in his motion or answer or because the court believes proceedings, even for the first time on appeal.
that the plaintiff‘s claims are ridiculous and therefore, (Calimlim v. Ramirez, G.R. No. L-34362, 1982)
untrue. [Tomas Claudio Memorial College, Inc., v.
Court of Appeals, G.R. No. 124262, 1999] Furthermore, courts may take cognizance of the
issue even if not raised by the parties themselves.
5. DOCTRINE OF PRIMARY (Asia International Auctioneers, Inc. v. Parayno, G.R.
JURISDICTION No. 163445, 2007)

When the court dismisses the complaint based on

Under this doctrine, courts will not resolve a such ground, its only authority is to dismiss the
controversy involving a question which is within the complaint and not to refer or forward the case to
jurisdiction of an administrative tribunal, especially another court with the proper jurisdiction.
where the question demands the exercise of sound
administrative discretion requiring the special
knowledge, experience and services of the 8. EFFECTS OF ESTOPPEL ON
administrative tribunal to determine technical and OBJECTIONS TO JURISDICTION
intricate matters of fact. (Paloma v. Mora, G.R. No.
157783, 2005) While it is true that jurisdiction over the subject matter
may be raised at any stage of the proceedings, it is
The doctrine of primary jurisdiction precludes the nevertheless settled that a party may be barred from
courts from resolving a controversy over which raising it on the ground of estoppel.
jurisdiction has initially been lodged in an
administrative body of special competence. The doctrine of estoppel by laches in relation to
(See also Sta. Ana v. Carpo, GR No. 164340, 2008) objections to jurisdiction first appeared in the
landmark case of (Tijam v. Sibonghanoy, G.R. No. L-
The practice is to refer specialized disputes to 21450, 1968)
administrative agencies of specialized competence
and the courts will not determine a controversy prior The fact pattern common among cases wherein the
to the resolution of the question by the administrative Court invoked estoppel to prevent a party from
tribunal. (Fabia v. Court of Appeals, G.R. No. questioning jurisdiction is a party‘s active
132684, 2002) participation in all stages of a case which is
tantamount to recognition of court‘s jurisdiction.
6. DOCTRINE OF ADHERENCE OF
JURISDICTION (CONTINUITY OF The general rule as it has always been, is that the
issue of jurisdiction may be raised at any stage of the
JURISDICTION) proceedings, even on appeal, and is not lost by
waiver or by estoppel. Estoppel by laches, to bar a
litigant from asserting the court‘s absence or lack of

5
jurisdiction, only supervenes in exceptional cases In civil actions, particularly actions in rem or quasi in
similar to the factual milieu of Tijam v. Sibonghanoy. rem, jurisdiction over the res and the subject matter
The fact that a person attempts to invoke is sufficient to vest jurisdiction in the court even in the
unauthorized jurisdiction of a court does not estop absence of jurisdiction over the person of the
him from thereafter challenging its jurisdiction over defendant.
the subject matter, since such jurisdiction must arise
by law and not by mere consent of the parties.
(Figueroa v. People, GR No. 147406, 2008)

Courts are not only courts of law but also of equity.

Thus, where the respondent did not vigorously
question the jurisdiction of the court and instead
actively participated for ten years, a motion to
dismiss based on lack of jurisdiction would render the
effort, time and expenses of the parties for naught.
(Bernardo v. Heirs of Villegas, G.R. No. 183357,
2010)

C. JURISDICTION OVER THE

ISSUES
The power of the court to try and decide the issues
raised in the pleadings of the parties.

An ISSUE is a disputed point or question to which

parties to an action have narrowed down their
several allegations and upon which they are desirous
of obtaining a decision.

With respect to an issue raised by the pleadings, an

issue arises because the material allegations of a
claiming party are specifically denied by the
defending party.

How conferred and determined:

General Rule: It is conferred and determined by the
pleadings of the parties that present the issues to be
tried and determine whether or not the issues are of
fact or of law. Whether or not a court has jurisdiction
over a specific issue is a question that requires
nothing but an examination of the pleadings.

Exceptions:
It may be conferred:
1. By stipulation of the parties - as when in the
pre-trial, the parties enter into stipulations of facts
and documents or enter into an agreement
simplifying the issues of the case.
2. By waiver or failure to object to the
presentation of evidence on a matter not raised
in the pleadings; the parties try with the other
party‘s express or implied consent issues not
raised by the pleadings; such issues shall be
treated in all respects as if they had been raised
in the pleadings.

D. JURISDICTION OVER THE RES

OR PROPERTY IN LITIGATION

Jurisdiction over the res or property in litigation is

acquired either by seizure of the property under legal
process or as a result of the institution of legal
proceedings, in which the power of the court is
recognized and made effective.

6
 E. JURISDICTION OF COURTS
†
NOTE: The Jurisdiction tables below are taken from Feria , Justice Jose Y. and Atty. Maria Concepcion S.
Noche. Civil Procedure Annotated. Vol. 1. 2013 Ed. Quezon City: Central Book Supply, Inc., 2013. 665-
700.

1. SUPREME COURT (Feria and Noche, pp.665-668)

SUPREME COURT

I. ORIGINAL JURISDICTION

A. Original and Exclusive

Petitions for the issuance of writs of certiorari, prohibition and mandamus against:
1. Court of Appeals.
2. Commission on Elections.
3. Commission on Audit.
4. Sandiganbayan.
5. Court of Tax Appeals.
B. Original and Concurrent

1. With the CA 1. Petitions for the issuance of writs of certiorari, prohibition and mandamus against:
a. NLRC. [However, the petitions should be filed with the CA; otherwise, they shall be
dismissed.]
b. CSC.
c. Quasi-Judicial Agencies. [However, the petitions should be filed with the CA.]
d. RTC and lower courts.
2. Petitions for the issuance of a writ of kalikasan.

2. With the CA, 1. Petition for writ of amparo.

SB and RTC 2. Petition for writ of habeas data.

3. With the CA 1. Petitions for habeas corpus and quo warranto.

and RTC 2. Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower
courts or bodies.
3. Petitions for the issuance of writ of continuing mandamus in environmental cases.

4. With the Actions affecting ambassadors, other public ministers and consuls.
RTC

II. APPELLATE JURISDICTION

7
1. Appeal by From the RTC or the SB in all criminal cases in which the penalty imposed is reclusion perpetua
Notice of or higher, and those involving other offenses which, although not so punished, arose out of the
Appeal same occurrence or which may have been committed by the accused on the same occasion, as
that giving rise to the more serious offense, regardless of whether the accused are charged
principals, accomplices or accessories, or whether they have been tried jointly or separately.

By appeal, the SC reviews the questions of law and of fact decided by the court a quo.

2. Appeal by Appeals from the:

Petition for 1. Court of Appeals
Review on 2. Sandiganbayan - on pure questions of law, except in cases where the penalty imposed
Certiorari is reclusion perpetua, life imprisonment or death
3. Court of Tax Appeals.
4. Regional Trial Courts - exercising original jurisdiction in the following cases:
a. If no question of fact is involved and the cases involves:
(i) Constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance or regulation in question;
(ii) Legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto; or
(iii) Jurisdiction of lower courts is in issue.

(Note: If, in addition to constitutional, tax, or jurisdictional questions, the cases

mentioned in (i), (ii) and (iii) above also involve questions of fact or mixed questions of
fact and law, the aggrieved party shall appeal to the CA; and the final judgment or
decision of the latter may be reviewed, revised, reversed, modified or affirmed by the
SC on writ of certiorari)

b. All cases in which only errors of questions of law are involved.

3. Special Civil Decision, order or ruling of:

Action of 1. Commission on Elections.
Certiorari 2. Commission on Audit.
within 30
days

2. COURT OF APPEALS (Feria and Noche, pp. 669-672)

COURT OF APPEALS

I. ORIGINAL JURISDICTION

A. Original and Exclusive

Actions for annulment of judgments of the RTC on the grounds of extrinsic fraud and lack of jurisdiction.

B. Original and Concurrent

8
 1. With the SC 1. Petitions for the issuance of writs of certiorari, prohibition and mandamus against:
a. NLRC. [However, the petitions should be filed with the CA; otherwise, they shall be
dismissed.]
b. CSC.
c. Quasi-Judicial Agencies. [However, the petitions should be filed with the CA.]
d. RTC and lower courts.
2. Petitions for the issuance of a writ of kalikasan.

2. With the SC, 1. Petition for writ of amparo.

SB, and RTC 2. Petition for writ of habeas data.

3. With the SC 1. Petitions for habeas corpus and quo warranto.

and RTC 2. Petitions for the issuance of writs of certiorari, prohibition and mandamus against
lower courts or bodies.
3. Petitions for the issuance of writ of continuing mandamus in environmental cases.

II. APPELLATE JURISDICTION

Exclusive Appellate

1. Ordinary Appeal by Appeals from:

Notice of Appeal or 1. RTC in the exercise of its original jurisdiction, except in all cases where only
Record on Appeal questions of law are raised or involved, which are appealable to the SC by
petition for review on certiorari in accordance with Rule 45.
2. RTC on constitutional and jurisdictional questions which involve questions of
fact.
3. Family Courts.

9
2. Appeal by Petition An appeal may be taken to the CA whether the appeal involves questions of fact, mixed
for Review questions of fact and law, or questions of law, in the following cases:

Regular
1. Appeals from RTC in the exercise of its appellate jurisdiction.
Special
1. Appeals from CSC.
2. Appeals from Quasi-Judicial Agencies:
a. Securities and Exchange Commission
b. Office of the President
c. Land Registration Authority
d. Social Security Commission
e. Civil and Aeronautics Board
f. Intellectual Property Office
g. National Electrification Administration
h. Energy Regulatory Commission
i. National Telecommunications Commission
j. Department of Agrarian Reform under RA 6657
k. Government Service Insurance System
l. Employees‘ Compensation Commission
m. Insurance Commission
n. Philippine Atomic Energy Commission
o. Board of Investments
p. Construction Industry Arbitration Commission
q. Voluntary Arbitrators authorized by law
r. Ombudsman, in administrative disciplinary cases
s. National Commission on Indigenous Peoples
From the judgments or final orders or resolutions of the CA, the aggrieved party may
appeal by certiorari to the SC as provided in Rule 45.

Judgments and final orders of the CTA en banc are now appealable to the SC through a
petition for review under Rule 45, pursuant to RA 9282.

3. SANDIGANBAYAN

SANDIGANBAYAN
(as amended by Section 4, R.A. 10660, promulgated April 16, 2015)

A. EXCLUSIVE ORIGINAL

10
1. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic Act No. 1379, otherwise known as An Act Declaring Forfeiture in favor of the State any
Property Found to have been Unlawfully Acquired by any Public Officer or Employee and Providing for the
Proceedings therefor, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or
more of the accused are officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:
a. Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade ’27’ and higher, of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
i. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads:
ii. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
iii. Officials of the diplomatic service occupying the position of consul and higher;
iv. Philippine army and air force colonels, naval captains, and all officers of higher rank;
v. Officers of the Philippine National Police while occupying the position of provincial director and
those holding the rank of senior superintendent and higher;
vi. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of
the Ombudsman and special prosecutor;
vii. Presidents, directors or trustees, or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations.
b. Members of Congress and officials thereof classified as Grade ’27’ and higher under the
Compensation and Position Classification Act of 1989;
c. Members of the judiciary without prejudice to the provisions of the Constitution;
d. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
e. All other national and local officials classified as Grade ’27’ and higher under the Compensation and
Position Classification Act of 1989.

Note: In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employees, including those employed in government-owned or controlled corporations, they shall
be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive
jurisdiction over them.

Note: In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27‘ or
higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court,
municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective
jurisdictions as provided in Batas Pambansa Blg. 129, as amended.

2. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials
and employees mentioned in subsection a. of this section in relation to their office.

3. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.

Note: Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and
jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the
criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the
filing of such civil action separately from the criminal action shall be recognized.

Note: Where the civil action had heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil
action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation
and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned.

4. Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and
other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature,
including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
Note: That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

11
 B. EXCLUSIVE APPELLATE

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of
Regional Trial Courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as
provided in R.A. 10660.

Note: The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the
Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the
Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the
Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed
pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

4. COURT OF TAX APPEALS (Feria and Noche, pp.676-680)

COURT OF TAX APPEALS

A. EXCLUSIVE APPELLATE JURISDICTION: By APPEAL

1. Decisions from the COMMISSIONER OF INTERNAL REVENUE
- in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the National Internal Revenue Code
(NIRC) or other laws administered by the Bureau of Internal Revenue (BIR).
2. Inaction by the COMMISSIONER INTERNAL REVENUE
- in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered by
the BIR, where the NIRC provides a specific period of action, in which case the inaction shall be
deemed a denial.
3. Decisions, orders or resolutions of REGIONAL TRIAL COURTS
- in local tax cases originally decided or resolved by them in the exercise of their original and
appellate jurisdiction.
4. Decisions of the COMMISSIONER OF CUSTOMS
- in cases involving liability for custom duties, fees or other money charges, seizure, detention or
release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters
arising under the Customs Law or other laws administered by the Bureau of Customs.
5. Decisions of the CENTRAL BOARD OF ASSESSMENT APPEALS in the exercise of its appellate
jurisdiction
- over cases involving the assessment and taxation of real property originally decided by the
provincial or city board of assessment appeals.
6. Decisions of the SECRETARY OF FINANCE
- on customs cases elevated to him/her automatically for review from decisions of the Commissioner
of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs
Code.
7. Decisions of the SECRETARY OF TRADE AND INDUSTRY
- in the case of non-agricultural product, commodity or article; and
Decisions of the SECRETARY OF AGRICULTURE
- in the case of agricultural product, commodity or article involving dumping and countervailing duties
under Sections 301 and 302, respectively, of the Tariff and Customs Code and safeguard
measures under the RA 8800, where either party may appeal the decision to impose or not to
impose said duties.

12
 B. CRIMINAL CASES
1. Exclusive Original Criminal cases arising from violations of the:
Jurisdiction 1. National Internal Revenue Code.
2. Tariff and Customs Code.
3. Other laws administered by the BIR or the Bureau of Customs.
Provided, however, that offenses or felonies mentioned in this paragraph where the
principal amount of taxes and fees, exclusive of charges and penalties, claimed in
less than P1M or where there is no specified amount claimed shall be tried by the
regular courts and the jurisdiction of the CTA shall be appellate.

Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal
action and the corresponding civil action for the recovery of civil liability for taxes and
penalties shall be at all times be simultaneously instituted with, and jointly determined
in the same proceeding by the CTA, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to reserve the filing of
such civil action separately from the criminal action will be recognized.

2. Exclusive 1. Over appeals from the judgments, resolutions or orders of the RTC in tax cases
Appellate originally decided by them, in their respective territorial jurisdiction.
Jurisdiction 2. Over petitions for review of the judgments, resolutions or orders of the RTC in
the exercise of their appellate jurisdiction over tax cases originally decided the
MeTC, MTC and MCTC in their respective jurisdiction.

3. TAX COLLECTION CASES

1. Exclusive Original Cases involving final and executory assessment for taxes, fees, charges and
Jurisdiction penalties: Provided, however, that collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties, claimed is less than P1M shall be
tried by the proper MTC, MeTC and RTC.

2. Exclusive In tax collection cases:

Appellate 1. Over appeals from the judgments, resolutions or orders of the RTC in tax
Jurisdiction collection cases originally decided by them, in their respective territorial
jurisdiction.
2. Over petitions for review of judgments, resolutions or orders of the RTC in the
exercise of their appellate jurisdiction over tax collection cases originally
decided the MeTC, MTC and MCTC in their respective jurisdiction.

5. REGIONAL TRIAL COURTS (Feria and Noche, pp. 680-684)

IMPORTANT:

REGIONAL TRIAL COURTS

I. ORIGINAL JURISDICTION

A. Original and Exclusive

13
1. CIVIL Cases 1. Civil actions in which the subject of litigation is incapable of pecuniary estimation
3. Civil actions which involve the title to, or possession of, REAL property, or any
interest therein, where the assessed value of the property involved exceeds P20K,
or P50K if in Metro Manila, except actions forcible entry and unlawful detainer which
are cognizable by the MeTC, MTC, MCTC.
3. Actions in admiralty and maritime jurisdiction where the demand or claim exceeds
P300K, or P400K if in Metro Manila.
4. Matters of probate, both testate and intestate, where the gross value of the estate
exceeds P300K, or P400K if in Metro Manila.
5. Cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions.
6. Actions involving the contract of marriage and marital relations.
7. Civil actions and special proceedings falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court and of the Special Agrarian Courts as
now provided by law.
8. Other cases in which the demand, exclusive of interest, damages of whatever kind,
attorney‘s fees, litigation expenses, and costs or the value of the property in
controversy, exceeds P300K, or P400K if in Metro Manila.
IMPORTANT: If the claim for damages is the main cause of action, the amount
thereof shall be considered in determining the jurisdiction of the court.

2. CRIMINAL Criminal cases not within the exclusive jurisdiction of any court, tribunal or body, such as
Cases the following:
1. Penalty provided by law exceeds 6 years imprisonment, irrespective of fine.
2. Under (a) above not falling under the original jurisdiction of the Sandiganbayan
where none of the principal accused are occupying positions corresponding to
salary grade ―27‖ or higher, or military and PNP officers occupying the rank of
superintendent or higher, or their equivalent.
3. Only penalty provided by law is a fine exceeding P4K.
4. Violations of the:
a. Comprehensive Dangerous Drugs Act of 2002.
b. Anti-Violence against Women and their Children Act of 2004 (specifically,
those involving violence against women and children as defined under
Section 5).
c. Comprehensive Agrarian Reform Law.
d. Omnibus Election Code.
N.B.: Family Courts have exclusive original jurisdiction over criminal cases where one or
more of the accused is below 18 years old, or when one or more of the victims is a minor
at the time of the commission of the offense.

14
3. OTHER Cases 1. Actions for recognition and enforcement of an arbitration agreement or for vacation,
setting aside, correction or modification of an arbitral award, and any application
with a court for arbitration assistance and supervision.
2. Actions for determination of just compensation to land under the CARL.
3. R.A. 10660 (promulgated April 16, 2015):
The REGIONAL TRIAL COURT shall have exclusive original jurisdiction where the
information involving civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A (1986):
a. Does not allege any damage to the government or any bribery; or
b. Alleges damage to the government or bribery arising from the same or closely
related transactions or acts in an amount not exceeding One million pesos
(P1,000,000.00).

Note: Subject to the rules promulgated by the Supreme Court, the cases falling
under the jurisdiction of the Regional Trial Court under Section 4 of R.A. 10660 shall
be tried in a judicial region other than where the official holds office.

B. Original and Concurrent

1. With the SC Actions affecting ambassadors and other public ministers and consuls.

2. With the SC 1. Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus,
and CA and injunction which may be enforced in any part of their respective regions.
2. Petition for the issuance of writ of continuing mandamus in environmental cases.

3. With the SC, 1. Petition for writ of amparo.

CA and SB 2. Petition for writ of habeas data.
4. With the Claims not exceeding P100K. This is applicable if subject of the action is incapable of
Insurance pecuniary estimation; otherwise, jurisdiction is concurrent with the MeTC.
Commissioner

II. APPELLATE JURISDICTION

Cases decided by the MeTC, MTC, MTCC and MCTC in their respective territorial Jurisdiction.

III. SPECIAL JURISDICTION

The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and domestic
relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial
bodies and agencies, and/or such other special cases as the SC may determine in the interest of a speedy and
efficient administration of justice.

6. FAMILY COURTS (Feria and Noche, pp. 690-692)

15
 FAMILY COURTS

ORIGINAL AND EXCLUSIVE JURISDICTION

1. Criminal cases where one or more of the accused is 15≤x<18 years old, or where one or more of the
victims is a minor at the time of the commission of the offense: provided, that if the minor is found guilty,
the court shall promulgate sentence and ascertain any civil liability which the accused may have
incurred. The sentence, however, shall be suspended without need of application pursuant to the Child
and Youth Welfare Code (PD 603).
2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter.
3. Petitions for adoption of children and revocation thereof.
4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those living together under different status and
agreements, and petitions for dissolution of conjugal partnership or gains
5. Petitions for support and/or acknowledgment.
6. Summary judicial proceedings brought under the provisions of the Family Code of the Philippines (E.O
No. 209).
7. Petitions for declaration of status of children as abandoned, dependent or neglected children; petitions
for voluntary or involuntary commitment of children; the suspension, termination, or restoration of
parental authority and other cases cognizable under the Child and Youth Welfare Code (PD 603),
Authorizing the Ministry of Social Services and Development to Take Protective Custody of Child
Prostitutes and Sexually Exploited Children, and for Other Purposes (E.O. 56), and other related laws.
8. Petitions for constitution of the family home.
9. Cases against minors cognizable under the Comprehensive Dangerous Drugs Act of 2005.
10. Violations of Special Protection of Children against Child Abuse, Exploitation and Discrimination Act
(RA 7610), as amended by RA 7658 and RA 9231.
11. Cases of domestic violence against:
a. Women – which are acts of gender-based violence that results, or are likely to result in
physical, sexual or psychological harm or suffering to women; and other forms of physical
abuse such as battering or threats and coercion which violate a woman‘s personhood, integrity
and freedom of movement; and
b. Children – which include the commission of all forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other conditions prejudicial to their development

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings
and the corresponding penalties.

If any question involving any of the above matters should arise as an incident in any case pending in the
regular courts, said incident shall be determined in that court.

7. MUNICIPAL TRIAL COURTS – MeTC, MTC and MCTC (Feria and Noche, pp.685-689)

MUNICIPAL TRIAL COURTS

I. ORIGINAL JURISDICTION

2. Original and Exclusive

16
1. CIVIL cases 1. Civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property,
estate or amount of demand does NOT exceed P300K, or P400K if in Metro
Manila, exclusive of interest, damages of whatever kind, attorney‘s fees, litigation
expenses, and costs, the amount of which must be specifically alleged. However,
interest, damages of whatever kind, attorney‘s fees, litigation expenses, and
costs shall be included in the determination of the filing fees.
2. Admiralty and maritime cases where the demand or claim does NOT exceed
P300K, or P400K if in Metro Manila.
Where there are several claims or causes of action between the same or different
parties, embodied in the same complaint, the amount of the demand shall be the
totality of the claims in all the causes of action irrespective of whether the causes
of action arose out of the same or different transactions.
3. Forcible entry and unlawful detainer, with jurisdiction to determine the issue of
ownership only to resolve the issue of possession.
4. Civil actions which involve title to, or possession of, REAL property, or any
interest therein where the assessed value of the property or interest therein does
NOT exceed P20K, or P50K if in Metro Manila, exclusive of interest, damages of
whatever kind, attorney‘s fees, litigation expenses, and costs. In cases of land
not declared for taxation purposes, the value of such property shall be
determined by the assessed value of the adjacent lots.
5. Inclusion and exclusion of voters.

2. CRIMINAL cases EXCEPT in cases falling within the exclusive original jurisdiction of the RTC or SB—
1. Violations of city or municipal ordinances committed within their respective
territorial jurisdiction.
2. Offenses punishable with imprisonment NOT exceeding 6 years irrespective of
the amount of fine, and regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or predicated
thereon, irrespective of kind, nature, value or amount thereof.
3. Offenses under (2) above include those NOT falling within the exclusive original
jurisdiction of the SB where none of the accused is occupying positions
corresponding to salary grade ―27‖ or higher.
4. Offenses involving damage to property through criminal negligence.
5. In cases where the only penalty provided by law is a fine of not more than P4K.

II. DELEGATED JURISDICTION

Cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots
where the value of which does NOT exceed P100K, such value to be ascertained by the affidavit of the claimant
or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration
of the real property.

III. SPECIAL JURISDICTION

17
 In the absence of all the RTC Judges in a province of city—
1. Hear and decide petitions for writ of habeas corpus.
2. Hear and decide applications for bail in criminal cases.

IV. SUMMARY PROCEDURE

1. CIVIL cases 1. Forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered.
2. All other cases, except probate proceedings, where the total amount of the
plaintiff's claim does not exceed one hundred thousand pesos (P100,000) or two
hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest
and costs. (A.M. No. 02-11-09-SC)

2. CRIMINAL cases 1. Traffic violations.

2. Rental law violations.
3. Violations of city or municipal ordinances.
4. Violations of B.P. 22 (Bouncing Checks Law).
5. All other cases where penalty does NOT exceed 6 months and/or fine of P1K.

8. THE COURTS OF MUSLIM MINDANAO

1. THE SHARI’AH APPELLATE COURT (Feria and Noche, p. 697)

THE SHARI’AH APPELLATE COURT

I. ORIGINAL JURISDICTION

Petitions for certiorari, prohibition, mandamus, habeas corpus, and other auxiliary writs and processes only in aid of
its appellate jurisdiction

II. APPELLATE JURISDICTION

All cases tried in the Shari‘ah District Courts as established by law

2. THE SHARI’AH DISTRICT COURT (Feria and Noche, pp. 698-699)

THE SHARI’AH DISTRICT COURT

I. ORIGINAL JURISDICTION

18
 1. Original and 1. All cases involving the custody, guardianship, legitimacy, paternity and filiation
Exclusive arising under the Code of Muslim Personal Laws of the Philippines (PD 1083).
2. All cases involving the disposition, distribution and settlement of the estate of
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrators or executors, regardless of the nature or the
aggregate value of the property.
3. Petitions for the declaration of absence and death and for the cancellation or
correction of entries in the Muslim Registries mentioned in Title VI of Book 2 of
PD 1083.
4. All actions arising from customary contracts in which the parties are Muslims, if
they have not specified which law shall govern their relations.
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
and all other auxiliary writs and processes in aid of its appellate jurisdiction.

2. Original and 1. Petitions by Muslims for the constitution of a family home, change of name
Concurrent with and commitment of an insane person to an asylum.
Civil Courts 2. All other personal and real actions NOT mentioned in paragraph 1(4) above
wherein the parties involved are Muslims except those for forcible entry
and unlawful detainer, which shall fall under the exclusive original
jurisdiction of the MTC.
3. All special civil actions for interpleader or declaratory relief wherein the
parties are Muslims or the property involved belongs exclusively to Muslims.

II. APPELLATE JURISDICTION

Over all cases tried in the Shari‘ah Circuit Courts within their territorial jurisdiction.

3. THE SHARI’AH CIRCUIT COURTS (Feria and Noche, pp. 699-700)

THE SHARI’AH CIRCUIT COURTS

ORIGINAL and EXCLUSIVE JURISDICTION

1. All cases involving offenses denied and punished under the Code of Muslim Personal Laws of the Philippines
(PD 1083).
2. All civil actions and proceedings between parties who are Muslims or have been married in accordance with
Article 13 of PD 1083 involving disputes relating to:
a. Marriage;
b. Divorce under PD 1083;
c. Betrothal or breach of contract to marry;
d. Customary dower (marh);
e. Disposition and distribution of property upon divorce;
f. Maintenance and support, and consolatory gifts (mut‘a); and
g. Restitution of marital rights.
3. All cases involving disputes relative to communal properties.

4. THE TRIBAL COURTS (Feria and Noche, p. 700)

19
 THE TRIBAL COURTS

1. Determine, settle and decide controversies and enforce decisions involving personal, family and property rights
in accordance with the tribal codes of the tribal communities.
2. Exercise exclusive jurisdiction over crimes committed by members of indigenous cultural communities where the
imposable penalty as prescribed by RPC or other pertinent laws does NOT exceed imprisonment of 6 years or a
fine NOT exceeding P50K or both such imprisonment and fine and where the offended party or parties are also
members of the indigenous cultural community concerned.

20
 2. Where one party is a public officer or employee
F. JURISDICTION OVER SMALL and the dispute relates to the performance of his
CLAIMS, CASES COVERED BY official functions;
THE RULES ON SUMMARY 3. Where the dispute involves real properties
located in different cities and municipalities,
PROCEDURE AND BARANGAY unless the parties thereto agree to submit their
CONCILIATION difference to amicable settlement by an
appropriate Lupon;
SMALL CLAIMS 4. Any complaint by or against corporations,
partnerships or juridical entities, since only
Actions before the Metropolitan Trial Courts, individuals shall be parties to Barangay
Municipal Trial Courts in Cities, Municipal Trial conciliation proceedings either as complainants
Courts and Municipal Circuit Trial Courts for or respondents [Sec. 1, Rule VI, Katarungang
payment of money where the value of the claim Pambarangay Rules];
does not exceed One Hundred Thousand Pesos 5. Disputes involving parties who actually reside in
(P100,000.00), exclusive of interest and costs. barangays of different cities or municipalities,
except where such barangay units adjoin each
Cases Covered: other and the parties thereto agree to submit
1. Purely civil in nature where the claim or relief their differences to amicable settlement by an
prayed for by the plaintiff is solely for payment or appropriate Lupon;
reimbursement of sum of money; and 6. Offenses for which the law prescribes a
2. The civil aspect of criminal actions, either filed maximum penalty of imprisonment exceeding
before the institution of the criminal action, or one [1] year or a fine of over P5, 000.00;
reserved upon the filing of the criminal action in 7. Offenses where there is no private offended
court. (Rule 111 of the Revised Rules of party;
Criminal Procedure) 8. Disputes where urgent legal action is necessary
to prevent injustice from being committed or
Claims or Demands Covered: further continued, specifically the following:
1. For money owed under any of the following: a) Criminal cases where accused is under
a) Contract of Lease; police custody or detention [Sec. 412 (b) (1),
b) Contract of Loan; Revised Katarungang Pambarangay Law];
c) Contract of Services; b) Petitions for habeas corpus by a person
d) Contract of Sale; or illegally deprived of his rightful custody over
e) Contract of Mortgage. another or a person illegally deprived of or on
2. For damages arising from any of the following: acting in his behalf;
a) Fault or negligence; c) Actions coupled with provisional remedies
b) Quasi-contract; or such as preliminary injunction, attachment,
c) Contract. delivery of personal property and support
3. The enforcement of a barangay amicable during the pendency of the action;
settlement or an arbitration award involving a d) Actions which may be barred by the Statute
money claim covered by the Rule of Limitations.
9. Any class of disputes, which the President may
KATARUNGANG PAMBARANGAY determine in the interest of justice or upon the
(A.C. No. 14-93) recommendation of the Secretary of Justice;
10. Where the dispute arises from the
General Rule: Comprehensive Agrarian Reform Law (Secs.
ALL disputes between individuals/natural persons 46 & 47, R. A. 6657);
are subject to Barangay conciliation pursuant to the 11. Labor disputes or controversies arising from
Revised Katarungang Pambarangay Law and prior employer-employee relations (Montoya v.
recourse thereto is a pre-condition before filing a Escayo, et al., G.R. No. 82211-12, 1989); (Art.
complaint in court or any government offices is 226, Labor Code)
allowed. 12. Actions to annul judgment upon a compromise
that may be filed directly in court (Sanchez v.
There must have been confrontation between the Tupaz, G.R. No. 76690, 1988)
parties before the lupon chairman or pangkat and a
showing that there was no settlement reached or
that it was repudiated by the parties before a A case filed in court WITHOUT compliance with
complaint, petition, action or proceeding may be prior Barangay conciliation, which is a pre-condition
filed or instituted in court or in a government office for formal adjudication, may be dismissed upon
for adjudication. motion of defendant/s on the ground of failure to
comply with a condition precedent. The non-referral
Exceptions: of a case for barangay conciliation is not
1. Where one party is the government, or any jurisdictional in nature, thus it necessitates a motion
subdivision or instrumentality thereof; to dismiss before it may be considered by the Court.

21
A prior recourse to Barangay conciliation is a pre- govern where the imposable fine does not
condition before filing a complaint in court or any exceed ten thousand pesos (P10,000).
government offices. Non-compliance with the said
condition precedent could affect the sufficiency of Exception:
the plaintiff‘s cause of action and make his The Rule on Summary Proceedings shall not apply
complaint vulnerable to dismissal on ground of lack to a civil case where the plaintiff‘s cause of action is
of cause of action or prematurity; but the same pleaded in the same complaint with another cause
would not prevent a court of competent jurisdiction of action subject to the ordinary procedure.
from exercising its power of adjudication over the
case before it, where the defendants failed to object Nor is it applicable to a criminal case where the
to such exercise of jurisdiction. (Sps. Santos v. Sps. offense charged is necessarily related to another
Lumbao, G.R. No. 169129, 2007) criminal case subject to the ordinary procedure.

Interruption of Prescriptive Period: Prohibited Pleadings:

While the dispute under mediation, conciliation, or 1. Motion to dismiss the complaint or to quash the
arbitration, the prescriptive periods for offenses and complaint or information except on the ground
cause of action under existing laws shall be of a) lack of jurisdiction over the subject matter,
interrupted upon filing of the complaint with the or b) failure to comply with the preceding
Punong Barangay. section;
2. Motion for a bill of particulars;
Agreement to Arbitrate:
The parties may, at any stage of the proceedings,
3. Motion for new trial, or for reconsideration of
judgment, or for reopening of trial;
agree in writing to have the matter in dispute
decided by arbitration by the Lupon Chairman or 4. Petition for relief from judgment;
Pangkat. 5. Motion for extension of time to file pleadings,
affidavits or any other paper;
RULE ON SUMMARY PROCEDURE 6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
The rule shall govern the summary procedure in the against any interlocutory order issued by the
Metropolitan Trial Courts, Municipal Trial Courts in court;
Cities, Municipal Trial Courts, and the Municipal
8. Motion to declare the defendant in default;
Circuit Trial Courts in cases falling within their
jurisdiction. 9. Dilatory motions for postponement;
10. Reply;
Cases Covered: 11. Third party complaints; and
1. Civil Cases 12. Interventions.
a) All cases of forcible entry and unlawful
detainer, irrespective of the amount of Appeal:
damages or unpaid rentals sough to be The judgment or final order shall be appealable to
recovered. Where attorney‘s fees are the appropriate Regional Trial Court.
awarded, the same shall not exceed twenty
thousand pesos (P20,000) The decision of the Regional Trial Court in civil
b) All other cases, except probate cases governed by this Rule, including forcible entry
proceedings, where the total amount of the and unlawful detainer, shall be immediately
plaintiff's claim does not exceed one hundred executory, without prejudice to further appeal that
thousand pesos (P100,000) or two hundred may be taken therefrom.
thousand pesos (P200,000) in Metropolitan
Manila, exclusive of interest and costs. (A.M. Execution Pending Appeal
No. 02-11-09-SC) On motion of the prevailing party with notice to the
adverse party filed in the trial court while it has
2. Criminal Cases jurisdiction over the case and is in possession of
a) Violations of traffic laws, rules and either the original record or the record on appeal, as
regulations; the case may be, at the time of the filing of such
b) Violations of the rental law; motion, said court may, in its discretion, order
c) Violations of municipal or city ordinances; execution of a judgment or final order even before
the expiration of the period to appeal. After the trial
d) Violations of B.P. 22 (Bouncing Checks Law) court has lost jurisdiction the motion for execution
e) All other criminal cases where the penalty pending appeal may be filed in the appellate court.
prescribed by law for the offense charged is Discretionary execution may only issue upon good
imprisonment not exceeding six (6) months, reasons to be stated in a special order after due
or a fine not exceeding (P1,000), or both, hearing. (Rule 39, Section 2)
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising therefrom; Provided, however, that in
offenses involving damage to property
through criminal negligence, this Rule shall

22
 With the modifications introduced by R.A. No. 7691
G. TOTALITY RULE in 1994, the jurisdiction of the first level courts has
been expanded to include jurisdiction over other
Under this rule, where there are several claims or real actions where the assessed value does not
causes of action between the same or different exceed P20,000, P50,000 where the action is filed
parties, embodied in the same complaint, the in Metro Manila. The first level courts thus have
amount of the demands shall be the totality of the exclusive original jurisdiction over accion publiciana
claims in all the causes of action, irrespective of and accion reivindicatoria where the assessed
whether the causes of action arose out of the same value of the real property does not exceed the
or different transactions. aforestated amounts. Accordingly, the jurisdictional
Concepts in jurisdiction – element is the assessed value of the
property.(Barrera v. Legaspo, GR No. 174346,
Hierarchy of courts
2008 )
Petitions for the issuance of a writ of certiorari
against the acts or issuances of a court, tribunal or Referral to Lupon when appropriate
any government agency should be filed with the
The barangay justice system is accomplished
Regional Trial Court. The jurisdiction of the RTC
through a proceeding before the barangay courts
over petitions for certiorari is concurrent with the
which is essentially arbitration in character; and to
Supreme Court.
make it truly effective, it should also be compulsory.
It would be wholly in keeping with the underlying
However, such concurrence does not allow
philosophy of Presidential Decree No. 1508
unrestricted freedom of choice of the court forum. A
(Katarungang Pambarangay Law), if an out-of-court
direct invocation of the Supreme Court‘s original
settlement of the case is reached voluntarily by the
jurisdiction to issue this writ should be allowed only
parties. To ensure this objective, Section 6 of
when there are special and important reasons,
Presidential Decree No. 1508 requires the parties to
clearly and specifically set out in the petition.(First
undergo a conciliation process before the Lupon
United v. Poro Point, GR No. 178799, 2009)
Chairman or the Pangkat ng Tagapagkasundo as a
precondition to filing a complaint in court subject to
SC power to discipline judiciary employees
certain exceptions. The said section has been
The CSC has administrative jurisdiction over the declared compulsory in nature. (Wee v. De Castro,
civil service. However, the Constitution provides GR No. 176405, 2008 )
that the Supreme Court is given exclusive
administrative supervision over all courts and Referral to Lupon NOT jurisdictional
judicial personnel. By virtue of this power, it is only
It is true that the precise technical effect of failure to
the Supreme Court that can oversee the judges‘
comply with the requirement of Section 412 of the
and court personnel‘s compliance with all laws,
Local Government Code on barangay conciliation is
rules and regulations. No other branch of
much the same effect produced by non-exhaustion
government may intrude into this power, without
of administrative remedies—the complaint becomes
running afoul of the doctrine of separation of
afflicted with the vice of pre-maturity; and the
powers.
controversy there alleged is not ripe for judicial
determination. Nevertheless, the conciliation
Administrative jurisdiction over a court employee
process is not a jurisdictional requirement, so that
belongs to the Supreme Court, regardless of
non-compliance therewith cannot affect the
whether the offense was committed before or after
jurisdiction which the court has otherwise acquired
employment in the judiciary.(Sarah Ampong v. CSC
over the subject matter or over the person of the
GR No. 167916, 26 August 2008)
defendant.
(Aquino v. Aure, GR No. 253567, 2008)
Intra-corporate case
Not every allegation of fraud done in a corporate END OF TOPIC
setting or perpetrated by corporate officers will bring
the case within the special commercial court‘s
jurisdiction. There must be sufficient nexus showing
that the corporation‘s nature, structure, or powers
were used to facilitate the fraudulent device or
scheme.

In cases governed by the Interim Rules of

Procedure on Intra-Corporate Controversies, a bill
of particulars is a prohibited pleading. It is essential
for the complaint to show on its face what are
claimed to be the fraudulent corporate acts if the
complainant wishes to invoke the court‘s special
commercial jurisdiction. (Oscar Reyes v. RTC
Makati, GR No. 265744, 2008)

Basis for determining jurisdiction for real actions

23
 5. When the rules on venue do not
apply
CIVIL PROCEDURE 6. Effects of stipulations on venue

E. PLEADINGS
A. ACTIONS 1. Kinds of pleadings
1. Meaning of ordinary civil a. Complaint
actions b. Answer
2. Meaning of special civil actions i. Negative defenses
3. Meaning of criminal actions ii. Negative pregnant
4. Civil actions versus special iii. Affirmative defenses
proceedings c. Counterclaims
i. Compulsory
5. Personal actions and real counterclaim
actions ii. Permissive
6. Local and transitory actions counterclaim
7. Actions in rem, in personam iii. Effect on the
counterclaim when the
and quasi in rem complaint is dismissed
8. Independent Civil Actions d. Cross-claims
e. Third (fourth, etc.) party
B. CAUSE OF ACTION complaints
1. Meaning of cause of action f. Complaint-in-intervention
2. Right of action versus cause of g. Reply
action 2. Pleadings allowed in small
3. Failure to state a cause of claim cases and cases
action covered by the Rules on
4. Test of the sufficiency of a Summary Procedure
cause of action 3. Parts of a pleading
5. Splitting a single cause of a. Caption
action and its effects b. Signature and address
6. Joinder and misjoinder of c. Verification and certification
against forum shopping
causes of action i. Requirements of a
corporation executing
C. PARTIES TO CIVIL ACTIONS the
1. Real parties in interest; verification/certificatio
n of non-forum
indispensable parties; shopping
Representatives as parties; d. Effect of the signature of
necessary parties; indigent counsel in a pleading
parties; alternative defendants 4. Allegations in a pleading
2. Compulsory and permissive a. Manner of making allegations
joinder of parties i. Condition precedent
3. Misjoinder and non-joinder of ii. Fraud, mistake, malice,
intent, knowledge and
parties other condition of the
4. Class suit mind, judgments,
5. Suits against entities without official documents or
juridical personality acts
6. Effect of death of party litigant b. Pleading an actionable
document
c. Specific denials
D. VENUE i. Effect of failure to
1. Venue versus jurisdiction make specific denials
2. Venue of real actions ii. When a specific denial
requires an oath
3. Venue of personal actions
4. Venue of actions against non- 5. Effect of failure to plead
residents a. Failure to plead defenses and
objections

24
 b. Failure to plead a compulsory b. Service upon residents
counterclaim and cross-claim temporarily outside the
6. Default Philippines
a. When a declaration of default 6. Extra-territorial service, when
is proper
allowed
b. Effect of an order of default
7. Service upon prisoners and
c. Relief from an order of default
minors
d. Effect of a partial default
e. Extent of relief
8. Proof of service
f. Actions where default are not
allowed G. MOTIONS
7. Filing and service of pleadings 1. Motions in general
a. Payment of docket fees a. Definition of a motion
b. Filing versus service of b. Motions versus pleadings
pleadings c. Contents and form of motions
c. Periods of filing of pleadings d. Notice of hearing and hearing
d. Manner of filing of motions
e. Modes of service e. Omnibus motion rule
i. Personal service f. Litigated and ex parte motions
ii. Service by mail g. Pro-forma motions
iii. Substituted service
iv. Service of judgments,
2. Motions for bill of particulars
final orders or a. Purpose and when applied for
resolutions b. Actions of the court
v. Priorities in modes of c. Compliance with the order and
service and filing effect of noncompliance
vi. When service is d. Effect on the period to file a
deemed complete responsive pleading
vii. Proof of filing and
service
3. Motion to dismiss
8. Amendment a. Grounds
a. Amendment as a matter of b. Resolution of motion
right c. Remedies of plaintiff when the
complaint is dismissed
b. Amendments by leave of court
c. Formal amendment
d. Remedies of the defendant
when the motion is denied
d. Amendments to conform to or
e. Effect of dismissal of
authorize presentation of
complaint on certain grounds
evidence
e. Different from supplemental
f. When grounds pleaded as
affirmative defenses
pleadings
f. Effect of amended pleading
g. Bar by dismissal
h. Distinguished from demurrer
to evidence under Rule 33
F. SUMMONS
1. Nature and purpose of H. DISMISSAL OF ACTIONS
summons in relation to
1. Dismissal upon notice by
actions in personam, in rem
plaintiff; two-dismissal rule
and quasi in rem
2. Dismissal upon motion by
2. Voluntary appearance
plaintiff; effect on existing
3. Personal service
counterclaim
4. Substituted service
3. Dismissal due to the fault of
5. Constructive service (by
plaintiff
publication)
4. Dismissal of counterclaim,
a. Service upon a
cross-claim or third-party
defendant where his
complaint
identity is unknown or
where his whereabouts
are unknown I. PRE-TRIAL
1. Concept of pre-trial

25
 2. Nature and purpose 5. Physical and mental
3. Notice of pre-trial examination of persons
4. Appearance of parties; effect of 6. Consequences of refusal to
failure to appear comply with modes of
5. Pre-trial brief; effect of failure to discovery
appear
6. Distinction between pre-trial in M. TRIAL
civil case and pre-trial in 1. Adjournments and
criminal case postponements
7. Alternative Dispute Resolution 2. Requisites of motion to
(ADR) postpone trial
a. Special Rules of Court on ADR a. For absence of evidence
(A.M. No. 07-11-08-SC) b. For illness of party or counsel
3. Agreed statement of facts
J. INTERVENTION 4. Order of trial; reversal of order
1. Requisites for intervention 5. Consolidation or severance of
2. Time to intervene hearing or trial
3. Remedy for the denial of motion 6. Delegation of reception of
to intervene evidence
7. Trial by commissioners
K. SUBPOENA a. Reference by consent or
1. Subpoena duces tecum ordered on motion
2. Subpoena ad testificandum b. Powers of the commissioner
3. Service of subpoena c. Commissioner’s report; notice
to parties and hearing on the
4. Compelling attendance of report
witnesses; contempt
5. Quashing of subpoena
N. DEMURRER TO EVIDENCE
1. Ground
L. MODES OF DISCOVERY 2. Effect of denial
1. Depositions pending action; 3. Effect of grant
depositions before action or 4. Waiver of right to present
pending appeal evidence
a. Meaning of deposition 5. Demurrer to evidence in a civil
b. Uses; scope of examination case versus demurrer to
c. When may objections to evidence in a criminal case
admissibility be made
d. When may taking of
deposition be terminated or its O. JUDGMENTS AND FINAL
scope limited ORDERS
2. Written interrogatories to 1. Judgment without trial
adverse parties 2. Contents of a judgment
a. Consequences of refusal to 3. Judgment on the pleadings
answer
4. Summary judgments
b. Effect of failure to serve
written interrogatories a. For the claimant
3. Request for admission b. For the defendant
a. Implied admission by adverse c. When the case not fully
adjudicated
party
b. Consequences of failure to
d. Affidavits and attachments
answer request for admission 5. Judgment on the pleadings
c. Effect of admission versus summary judgments
d. Effect of failure to file and 6. Rendition of judgments and
serve request for admission final orders
4. Production or inspection of 7. Entry of judgment and final
documents or things order

26
 Q. EXECUTION, SATISFACTION
P. POST-JUDGMENT REMEDIES AND EFFECT OF JUDGMENTS
1. Motion for new trial or 1. Difference between finality of
reconsideration judgment for purposes of
a. Grounds appeal; for purposes of
b. When to file execution
c. Denial of the motion; effect 2. When execution shall issue
d. Grant of the motion; effect a. Execution as a matter of right
e. Remedy when motion is b. Discretionary execution
denied, fresh 15-day period 3. How a judgment is executed
rule
a. Execution by motion or by
2. Appeals in general independent action
a. Judgments and final orders b. Issuance and contents of a
subject to appeal writ of execution
b. Matters not appealable c. Execution of judgments for
c. Remedy against judgments money
and orders which are not d. Execution of judgments for
appealable specific acts
d. Modes of appeal e. Execution of special
i. Ordinary appeal judgments
ii. Petition for review
iii. Petition for review on
f. Effect of levy on third persons
certiorari 4. Properties exempt from
e. Issues to be raised on appeal execution
f. Period of appeal 5. Proceedings where property is
g. Perfection of appeal claimed by third persons
h. Appeal from judgments or a. In relation to third party claim
final orders of the MTC in attachment and replevin
i. Appeal from judgments or 6. Rules on redemption
final orders of the RTC 7. Examination of judgment
j. Appeal from judgments or obligor when judgment is
final orders of the CA unsatisfied
k. Appeal from judgments or 8. Examination of obligor of
final orders of the CTA
judgment obligor
l. Review of final judgments or
final orders of the Comelec 9. Effect of judgment or final
m. Review of final judgments or orders
final orders of the 10. Enforcement and effect of
Ombudsman foreign judgments or final
n. Review of final judgments or orders
final orders of the NLRC
o. Review of final judgments or
final orders of quasi-judicial R. PROVISIONAL REMEDIES
agencies 1. Nature of provisional remedies
3. Relief from judgments, orders 2. Jurisdiction over provisional
and other proceedings remedies
a. Grounds for availing of the 3. Preliminary attachment
remedy a. Grounds for issuance of writ
b. Time to file petition of attachment
c. Contents of petition b. Requisites
4. Annulment of judgments or c. Issuance and contents of
final orders and resolutions order of attachment; affidavit
and bond
a. Grounds for annulment
b. Period to file action d. Rule on prior or
contemporaneous service of
c. Effects of judgment of summons
annulment
e. Manner of attaching real and
5. Collateral attack of judgments personal property; when

27
 property attached is claimed b. Requisites of action for
by third person declaratory relief
f. Discharge of attachment and c. When court may refuse to
the counter-bond make judicial declaration
g. Satisfaction of judgment out d. Conversion to ordinary action
of property attached
e. Proceedings considered as
4. Preliminary injunction similar remedies
a. Definitions and differences: i. Reformation of an
preliminary injunction and instrument
temporary restraining order; ii. Consolidation of
status quo ante order ownership
b. Requisites iii. Quieting of title to real
c. Kinds of injunction property
d. When writ may be issued 6. Review of judgments and final
e. Grounds for issuance of orders or resolution of the
preliminary injunction Comelec and COA
f. Grounds for objection to, or a. Application of Rule 65 under
for the dissolution of Rule 64
injunction or restraining order b. Distinction in the application
g. Duration of TRO of Rule 65 to judgments of the
h. In relation to R.A. 8975, ban on Comelec and COA and the
issuance of TRO or writ of application of Rule 65 to other
injunction in cases involving tribunals, persons and officers
government infrastructure 7. Certiorari, prohibition and
projects mandamus
i. Rule on prior or a. Definitions and distinctions
contemporaneous service of
summons in relation to
i. Certiorari
distinguished from
attachment
peal by certiorari
5. Receivership ii. Prohibition and
a. Cases when receiver may be mandamus
appointed distinguished from
b. Requisites injunction
c. Requirements before issuance b. Requisites
of an order c. When petition for certiorari,
d. General powers of a receiver prohibition and mandamus is
e. Two kinds of bonds proper
f. Termination of receivership d. Injunctive relief
6. Replevin e. Exceptions to filing of motion
a. When may writ be issued for reconsideration before
filing petition
b. Requisites
c. Affidavit and bond; redelivery f. Reliefs petitioner is entitled to
bond g. Actions/omissions of
MTC/RTC in election cases
d. Sheriff’s duty in the
implementation of the writ; h. When and where to file
when property is claimed by petition
third party i. Effects of filing of an
unmeritorious petition
S. SPECIAL CIVIL ACTIONS 8. Quo warranto
1. Nature of special civil actions a. Distinguish from quo warranto
in the omnibus election code
2. Ordinary civil actions versus b. When government commence
special civil actions an action against individuals
3. Jurisdiction and venue c. When individual may
4. Interpleader commence an action
a. Requisites for interpleader d. Judgment in quo warranto
b. When to file action
5. Declaratory reliefs and similar e. Rights of a person adjudged
remedies entitled to public office
a. Who may file the action 9. Expropriation

28
 a. Matters to allege in complaint a. Definitions and distinction
for expropriation b. Distinguished from accion
b. Two stages in every action for publiciana, accion
expropriation reivindicatoria and accion
c. When plaintiff can immediately interdictal
enter into possession of the c. How to determine jurisdiction
real property, in relation to in accion publiciana, accion
R.A. 8974 reivindicatoria and accion
d. New system of immediate interdictal
payment of initial just d. Who may institute the action
compensation and when; against whom the
e. Defenses and objections action may be maintained
f. Order of expropriation e. Pleadings allowed
g. Ascertainment of just f. Action on the complaint
compensation g. When demand is necessary
h. Appointment of h. Preliminary injunction and
commissioners; preliminary mandatory
commissioner’s report; court injunction
action upon commissioner’s i. Resolving defense of
report ownership
i. Rights of plaintiff upon j. How to stay the immediate
judgment and payment execution of judgment
j. Effect of recording of k. Summary procedure,
judgment prohibited pleadings
10. Foreclosure of real estate 13. Contempt
mortgage a. Kinds of contempt
a. Judgment on foreclosure for b. Purpose and nature of each
payment or sale c. Remedy against direct
b. Sale of mortgaged property; contempt; penalty
effect d. Remedy against indirect
c. Disposition of proceeds of contempt; penalty
sale e. How contempt proceedings
d. Deficiency judgment are commenced
i. Instances when court f. Acts deemed punishable as
cannot render indirect contempt
deficiency judgment
g. When imprisonment shall be
e. Judicial foreclosure versus imposed
extrajudicial foreclosure
h. Contempt against quasi-
f. Equity of redemption versus judicial bodies
right of redemption
11. Partition
a. Who may file complaint; who
should be made defendants
b. Matters to allege in the
complaint for partition
c. Two stages in every action for
partition
d. Order of partition and partition
by agreement
e. Partition by commissioners;
appointment of
commissioners,
commissioner’s report; court
action upon commissioner’s
report
f. Judgment and its effects
g. Partition of personal property
h. Prescription of action
12. Forcible entry and unlawful
detainer

29
 A. ACTIONS PERSONAL ACTION - on the other hand, when
personal property is sought to be recovered or
where damages for breach of contract are sought,
the action is personal.
1. MEANING OF ORDINARY CIVIL
ACTIONS While a real action is founded on privity of real
2. MEANING OF SPECIAL CIVIL estate, a personal action is founded on privity of
contract.
ACTIONS
3. MEANING OF CRIMINAL ACTIONS
4. CIVIL ACTIONS VERSUS SPECIAL 6. LOCAL AND TRANSITORY
PROCEEDINGS ACTIONS
5. PERSONAL ACTIONS AND REAL
The distinction between a real and personal action
ACTIONS is significant in determining the venue of an action.
6. LOCAL AND TRANSITORY
ACTIONS A real action is LOCAL, i.e., its venue depends
7. ACTIONS IN REM, IN PERSONAM upon the location of the property involved in the
AND QUASI IN REM litigation. It is filed in the court where the property
or any part thereof is situated. An example of such
action is recovery of real property.
1. MEANING OF ORDINARY CIVIL
ACTIONS A personal action is TRANSITORY, i.e., its venue
depends upon the residence of the plaintiff or the
It is a formal demand of one‘s legal rights in a court defendant at the option of the plaintiff. An example
of justice in a manner prescribed by the court for by of such action is recovery of sum of money.
the law. It is governed by ordinary rules.
7. ACTIONS IN REM, IN PERSONAM
2. MEANING OF SPECIAL CIVIL AND QUASI IN REM
ACTIONS
The distinction is important to determine whether or
A special civil action contains special features not not jurisdiction over the person of the defendant is
found in ordinary civil actions. It is also governed required and consequently to determine the type of
by ordinary rules but subject to specific rules summons to be employed.
prescribed (Rules 62-71).
a) In Rem
1. A proceeding to determine the state or condition
3. MEANING OF CRIMINAL ACTIONS of a thing.
2. Directed against the thing itself.
A criminal action is one by which the State 3. Jurisdiction over the person of the defendant is
prosecutes a person for an act or omission not required.
punishable by law. 4. Judgment is binding on the whole world.

Examples: probate and cadastral proceedings.

4. CIVIL ACTIONS VERSUS SPECIAL
PROCEEDINGS b) In Personam
1. An action to impose a responsibility or liability
A CIVIL ACTION is one by which a party sues upon a person directly.
another for the enforcement or protection of a right, 2. Directed against a particular person.
or the prevention or redress of a wrong. 3. Jurisdiction over the person of the defendant is
Proceedings are to be regarded as civil when the required.
purpose is primarily compensatory. 4. Judgment is binding only upon the parties
impleaded or their successors in interest.
On the other hand, the purpose of a SPECIAL
PROCEEDING is to establish a status, a right or a Examples: actions for specific performance and
particular fact. actions for breach of contract.

c) Quasi In Rem
5. PERSONAL ACTIONS AND REAL 1. It is a proceeding, the purpose of which is to
ACTIONS subject the interest of a named defendant over a
particular property to an obligation or lien
burdening it.
REAL ACTION - when it affects title to or
2. Directed against particular persons.
possession of real property or an interest therein.

30
3. Jurisdiction over the person of the defendant is Exception to the exception: When justice so
not required as long as jurisdiction over the res warrants or upon showing that it would cause
is acquired. injustice.
4. Judgment is binding upon the particular persons.

Examples: actions for partition and foreclosure of 8. INDEPENDENT CIVIL ACTIONS

real estate mortgages.
Definition
In what cases NOT applicable: Independent civil actions refer to those provided for
1. Election cases, in Articles 32, 33, 34 and 2176 of the Civil Code of
2. Land registration, the Philippines.
3. Cadastral,
4. Naturalization; Purpose: To make the court‘s disposition of the
5. Insolvency proceedings; and criminal case of no effect whatsoever on the
6. Cases not herein provided for, except by separate civil case.
analogy or in a suppletory character.
Requisites
Commencement of action 1. May be brought by the offended party;
An action commences upon filing of the complaint in 2. Shall proceed independently of criminal action;
court. For additional defendants, the action is and
commenced upon filing of the amended complaint.
To vest the court with jurisdiction over the subject
3. Shall require only a preponderance of
evidence. (Rule 111, Section 3)
matter, however, the complaint should be filed AND
the docket fees should be paid. This is also
Note: An offended party cannot recover damages
applicable to permissive counterclaims, pleadings
twice for the same act or omission charged in the
and third party claims. (Sun Insurance Office Ltd. v.
criminal action. (Rule 111, Section 3)
Asuncion GR No. 79937-38, 1989)
Recall
Note: The date of mailing is the date of
Article 32, Civil Code
commencement of action in cases where the action
General Rule
is commenced by registered mail.
Violation, impediment or impairment of a person‘s
rights and liberties by any public officer or
Construction
employee, or any private individual.
These rules shall be liberally construed in order to
promote their objective of securing a just, speedy
Exception
and inexpensive disposition of every action and
Not demandable from a judge unless his act or
proceeding.
omission constitutes a violation of the Penal Code
or other penal statute.
The courts have the power to relax or suspend
technical or procedural rules or to except a case
Note: The indemnity shall include moral damages.
from their operation when compelling reasons so
Exemplary damages may also be adjudicated.
warrant or when the purpose of justice requires it;
what constitutes good and sufficient cause that
Article 33, Civil Code
would merit suspension of the rules is discretionary
Cases of defamation, fraud, and physical injuries a
upon the courts. (Commissioner of Internal
civil action for damages, entirely separate and
Revenue v. Migrant Pagbilao Corporation, G.R. No.
distinct from the criminal action.
159593, 2006)
Article 34, Civil Code
The liberal interpretation and application of rules
When a member of a city or municipal police force
apply only in proper cases of demonstrable merit
refuses or fails to render aid or protection to any
and under justifiable causes and circumstances.
person in case of danger to life or property, such
The Court cannot be expected to be liberal or
peace officer shall be primarily liable for damages,
indulgent when petitioner is without a valid
and the city or municipality shall be subsidiarily
explanation for failure to submit a verification with
responsible therefor.
her appeal to the SEC en banc. (Rural Bank of
Seven Lakes v. Dan, G.R. No. 174109, 2008)
Article 2176, Civil Code
Whoever by act or omission causes damage to
Procedural laws do not come within the legal
another, there being fault or negligence, is obliged
conception of a retroactive law, or the general rule
to pay for the damage done. Such fault or
against the retroactive operation of statutes. (Makati
negligence, if there is no pre-existing contractual
Ins. v. Reyes, G.R. No. 167403, 2008)
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter
However, reglementary periods, rules on forum
(Quasi-Delicts).
shopping and rules on service of summons must be
followed strictly.
END OF TOPIC

31
 RIGHT OF ACTION
A remedial right or right to relief granted by law to a
B. CAUSE OF ACTION party to institute an action against a person who has
(Rule 2) committed a delict or wrong against him/her; it is the
right of a person to bring and prosecute an action to
obtain a judgment, the elements of which are as
follows:
1. MEANING OF CAUSE OF ACTION 1. There must be a cause of action;
2. RIGHT OF ACTION VERSUS CAUSE 2. Compliance with all the conditions precedents;
OF ACTION and
3. Action must be instituted by the proper party.
3. FAILURE TO STATE A CAUSE OF
ACTION While the ―cause of action‖ is the reason for the
4. TEST OF THE SUFFICIENCY OF A action (e.g. breach of contract), the ―right of action‖
CAUSE OF ACTION is the remedy or means afforded or the consequent
5. SPLITTING A SINGLE CAUSE OF relief (e.g., filing a civil action for recovery of
damages on the ground of breach of contract).
ACTION AND ITS EFFECTS
6. JOINDER AND MISJOINDER OF While a cause of action depends on substantive
CAUSES OF ACTION law, the right of action is a matter of procedure (a
remedial right) and depends on the pleadings filed
Basis of Ordinary Civil Actions by the parties.
Every ordinary civil action must be based on a
cause of action. Lastly, a cause of action is not affected by
affirmative defenses (fraud, prescription, estoppel
etc.). On the other hand, a right of action may be
1. MEANING OF CAUSE OF ACTION lost or waived (e.g. through prescription if a
complaint is not filed within the prescriptive period.)
CAUSE OF ACTION is the act or omission by
which a party violates the rights of another, the
elements of which are as follows:
3. FAILURE TO STATE A CAUSE OF
1. Legal right of the plaintiff; ACTION
2. Correlative obligation of the defendant to respect
plaintiff‘s right; It refers to insufficiency in the allegations of the
complaint. To avoid dismissal, the cause of action
3. Act or omission of the defendant in violation of must unmistakably be stated or alleged in the
plaintiff‘s legal right. complaint or that all the elements of the cause of
action required by substantive law must clearly
Whether one is a party or not in a contract is not
appear from the mere reading of the complaint.
determinative of the existence of a cause of
action—participation in a contract is not an element
in considering whether or not a complaint states a The curing effect under Section 5 is applicable only
cause of action because even a third party outside if a cause of action in fact exists at the time the
the contract can have a cause of action against complaint is filed, but the complaint is defective for
either or both contracting parties. (Camarines Sur failure to allege the essential facts. For example, if a
IV Electric Cooperative, Inc. v. Aquino, G.R. No. complaint failed to allege the fulfillment of a
167691, 2008) condition precedent upon which the cause of action
depends, evidence showing that such condition had
The phrase “financial and business difficulties‖ already been fulfilled when the complaint was filed
in the complaint is a vague notion, ambiguous in may be presented during the trial, and the complaint
concept. With no ―particular injury‖ alleged in the may accordingly be amended thereafter. It thus
complaint, there is no delict or wrongful act or follows that a complaint whose cause of action has
omission attributable to the petitioner that would not yet accrued cannot be cured or remedied by an
violate the primary rights of the respondent and amended or supplemental pleading alleging the
there is failure to state a cause of action. (Vinzons- existence or accrual of a cause of action while the
Chato v. Fortune, G.R. No. 141309, 2008) case is pending. Such an action is prematurely
brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper
2. RIGHT OF ACTION VERSUS motion seasonably filed by the defendant. The
CAUSE OF ACTION underlying reason for this rule is that a person
should not be summoned before the public tribunals
CAUSE OF ACTION to answer for complaints which are immature.
A delict or wrongful act or omission committed by (Swagman v. Court of Appeals, G.R. No. 161135,
the defendant in violation of the primary rights of the 2005)
plaintiff.

32
 counterclaims and cross-claims. (Mariscal v. Court
4. TEST OF SUFFICIENCY OF A of Appeals, G.R. No. 123926, 1999)
CAUSE OF ACTION
If two or more suits are instituted for a single cause
The test of the sufficiency of the facts alleged in the of action, the filing of one or a judgment upon the
complaint as constituting a cause of action is merits in any of one is available as a ground for
whether or not admitting the facts alleged, the court dismissal of others. The remedy then of the
could render a valid verdict in accordance with the defendant is to file a motion to dismiss.
prayer of the complaint.
Hence, if the first action is pending when the
If the allegations in the complaint furnish sufficient second action is filed, the latter may be dismissed
basis by which the complaint can be maintained, based on LITIS PENDENTIA. On the other hand, if
the same should not be dismissed regardless of the a final judgment had been rendered in the first
defense that may be assessed by the defendants. action when the second action is filed, the latter
(Ceroferr Realty Corp. v. Court of Appeals, G.R. No. may be dismissed based on RES JUDICATA. Note
139539, 2002) that it need not be the second action filed that
should be dismissed.

Anticipatory Breach JOINDER AND MISJOINDER OF CAUSES OF

As a general rule, a contract to do several things at ACTION
several times is divisible in its nature. This kind of
obligation authorizes successive actions and a A party may in one pleading assert, in the
judgment recovered for a single breach does not alternative or otherwise, as many causes of action
bar a suit for a subsequent breach. If the obligor as he may have against an opposing party, subject
manifests an unqualified and positive refusal to to the following conditions:
perform a contract, though the performance of the (a) The party joining the causes of action shall
same is not yet due, and the renunciation goes to comply with the rules on joinder of parties;
the whole contract, it may be treated as a complete (b) The joinder shall not include special civil actions
breach, which will entitle the injured party to bring or actions governed by special rules;
his action at once. In this case, the breach is (c) Where the causes of action are between the
considered a total breach and there can only be one same parties but pertain to different venues or
action and the plaintiff must recover all his damages jurisdictions, the joinder may be allowed in the
therein (Blos- soms & Co. v. Manila Gas Regional Trial Court provided one of the causes of
Corporation, 55 Phil. 226,240-241) action falls within the jurisdiction of said court and
the venue lies therein; and
One suit for a single cause of action (d) Where the claims in all the causes action are
A party may not institute more than 1 suit for a principally for recovery of money, the aggregate
single cause of action amount claimed shall be the test of jurisdiction.
(Rule 2, Section 5)
The true rule which determines whether a party has The assertion of as many causes of action as a
only a single and entire cause of action, or has a party may have against another in one pleading
severable demand for which he may maintain alone. It is not compulsory, but merely permissive.
separate suits, is whether the entire amount arises It is the process of uniting two or more demands or
from one and the same act or contract or the rights of action in one action.
several parts arise from distinct and different acts or
contracts. (BPI Family v. Vda. De Coscolluela, G.R. When there are two or more defendants, or one or
No. 167724, 2006) more plaintiffs, the causes of action against the
defendants can only be joined if there is compliance
with the rules on joinder of parties. (Flores v.
5. SPLITTING A SINGLE CAUSE OF Mallare-Philipps, G.R. No. L-66620, 1986)
ACTION AND ITS EFFECTS
However, joinder does NOT include special civil
Splitting a single cause of action is the act of actions or those actions governed by special rules,
instituting two or more suits for the same cause of i.e., ejectment, REM foreclosure and partition.
action.
And where the causes of action are between the
The pleader divides a single cause of action, claim same parties but pertain to different venues or
or demand into two or more parts, brings a suit for jurisdictions, the joinder may be allowed in the
one of such parts with the intent to reserve the rest Regional Trial Court provided one of the causes of
for another separate action. (Quadra v. Court of action falls within the jurisdiction of said court and
Appeals, G.R. No. 147593, 2006) the venue lies therein (Section5(c), Rule 2.

It is to be noted that splitting a cause of action is TOTALITY RULE

NOT allowed by the Rules of Court and such Note: Rule will only apply if ALL cases of action
prohibition applies not only to complaints but also to are for recovery of money

33
When there are several claims or causes of actions
between the same or different parties, embodied in
the same complaint, the amount of the demand Who May Be Parties: (NJE)
shall be the totality of the claims in all causes of Only the following may be parties to a civil action
action, irrespective of whether the causes of action 1. Natural persons;
arose out of the same or different transaction. 2. Juridical persons; and
3. Entities authorized by law.
The aggregate amount claimed shall be the test of
jurisdiction. (Section 5(c), Rules of Court) PLAINTIFF DEFENDANT

The Jurisdictional Amount Excludes: Generally refers to the Does not only refer to the
1. Interest; claiming party or more original defending party.
2. Damages of whatever kind; appropriately, the
3. Attorney‘s fees; and original claiming party,
and is the one who files
4. Litigation expenses and costs. the complaint.
Misjoinder of causes of action
When there is a misjoinder of causes of action, the
erroneously joined cause of action can be severed
and proceeded with separately upon motion by a
party or upon the court‘s own initiative. The term may refer to If a counterclaim is filed
the claiming party, the against the original
When after severance the case falls outside the counter-claimant, the plaintiff, the latter
jurisdiction of the court, the case may be dismissed cross-claimant or the becomes a defendant
motu propio or on motion. third-party plaintiff. and the former, a plaintiff
in the counterclaim.
Note that unlike splitting of cause of action, a
misjoinder is NOT a ground for the dismissal of an
action.

If no one objects to the misjoinder, it would be

tried and decided together with the other
causes of action. It may also apply to a It may also pertain to a
defendant who files a defendant in a
END OF TOPIC counterclaim, a cross- counterclaim, the cross-
claim or a third party defendant, or the third-
complaint. (Rule 3, party defendant. (Rule 3,
Section 1) Section 1)
C. PARTIES TO CIVIL ACTION
(Rule 3)

The JURIDICAL persons who may be parties to

1. REAL PARTIES IN INTEREST; a civil action:
1. The State and its political subdivisions;
INDISPENSABLE PARTIES; 2. Other corporations, institutions and entities for
REPRESENTATIVES AS PARTIES; public interest or purpose, created by law; and
NECESSARY PARTIES; INDIGENT 3. Corporations, partnerships and associations for
PARTIES; ALTERNATIVE private interest or purpose to which the law
grants a juridical personality, separate and
DEFENDANTS distinct from that of each shareholder, partner or
2. COMPULSORY AND PERMISSIVE member (Art. 44, Civil Code)
JOINDER OF PARTIES
3. MISJOINDER AND NON-JOINDER Entities authorized by law to be parties:
OF PARTIES 1. A corporation by estoppel;
2. A contract of partnership having a capital of
4. CLASS SUIT three thousand pesos or more but which fails to
5. SUITS AGAINST ENTITIES comply with the registration requirements;
WITHOUT JURIDICAL 3. Estate of a deceased person;
PERSONALITY 4. A legitimate labor organization;
5. The Roman Catholic Church; and
6. EFFECT OF DEATH OF PARTY 6. A dissolved corporation for suits that occur
LITIGANT within 3 years after its dissolution and suits in

34
 connection with the settlement and closure of its (c) To avoid a multiplicity of suits; and
affairs (Riano 2014 p. 264) (d) To discourage litigation and keep it within
certain bounds, pursuant to sound public
Remedies when a party impleaded is not policy. (Stronghold Insurance Company, Inc. v.
authorized to be a party: Cuenca, G.R. No. 173297, 2013)
1. If PLAINTIFF- a motion to dismiss may be filed
on the round that the plaintiff has no legal General Rule: Only parties to a contract may sue.
capacity to sue. (Sec. 1 [d], Rule 16, ROC) Exceptions:
2. If DEFENDANT- the complaint may be 1. A beneficiary of a stipulation pour autrui may
dismissed on the ground of failure to state a demand fulfillment of the contract. (Art. 1311,
cause of action. (Rule 16, Sec. 1[g],) Civil Code)
2. Those who are not principally or subsidiarily
obligated in a contract ma show the detriment
1. REAL PARTIES IN INTEREST; that could result from it i.e., when contracts
INDISPENSABLE PARTIES; entered into in fraud of creditors may be
REPRESENTATIVES AS PARTIES; rescinded when the creditors cannot collect the
NECESSARY PARTIES; INDIGENT claims due them. (Art. 1318, Civil Code)
PARTIES; ALTERNATIVE
The attorney in fact of the principal plaintiff filed the
DEFENDANTS complaint in his residence. An attorney in fact is not
a real party in interest. Hence, his residence is
Real Party in Interest immaterial. A real party in interest is the party who,
One who stands to be benefited or injured by the by the substantive law has the right sought to be
judgment in the suit, or the party entitled to the enforced. Nowhere in Rule 3, Sec. 3 is it stated or
avails of the suit. (Rule 3, Section 2) implied that the representative is likewise deemed
as the real party in interest. The Rule simply states
“Interest,” within the meaning of the rule, means that in actions which are allowed to be prosecuted
material interest, an interest in issue and to be or defended by a representative, the beneficiary
affected by the decree, as distinguished from mere shall be deemed the real party in interest and
interest in the question involved, or a mere hence, should be included in the title of the case.
incidental interest. (Republic v. Coalbrine (Ang v. Ang, 22 August 2012, 678 SCRA 699.)
International Philippines, Inc., G.R. No. 161838,
2010) Indispensable Party
A real party-in-interest without whom NO final
His interest must be real which is a present determination can be had of an action. They are
substantial interest as distinguished from a mere those with such an interest in the controversy that a
expectancy or a future, contingent subordinate or final adjudication cannot be made, in his absence,
consequential interest (Rayo v. Metrobank, G.R. without injuring or affecting that interest. (Rule 3,
No. 165142, 2007) Section 7)

[We find] no merit to petitioners contention that they Without the presence of this party the judgment of a
are not real parties-in-interest since they are not court cannot attain real finality. (Servicewide
parties nor signatories to the contract and hence Specialists, Inc. v. Court of Appeals, G.R. No.
should not have been impleaded as defendants. It 110048, 1999)
is undeniable that petitioner Chan is an heir of
Ramon Chan and, together with petitioner Co, was Absence of an indispensable party renders all
a successor-in-interest to the restaurant business of subsequent actions of the court null and void for
the late Ramon Chan. Both continued to operate want of authority to act, not only as to the absent
the business after the death of Ramon. Thus, they parties but even as those present. (MWSS v. Court
are real parties-in-interest in the case filed by of Appeals, G.R. No. 126000, 1998)
private respondent, notwithstanding that they are
not signatories to the Contract of Lease. (Sui Man When an indispensable party is not before the
Hui Chan v. Court of Appeals, G.R. No. 147999, court, the action should be dismissed. However,
2004) outright dismissal is not the immediate remedy for
failure to implead an indispensable party; parties
Every action must be prosecuted and defended in may be dropped or added at any stage upon motion
the name of the real party-in-interest. of any party or on court‘s own initiative; only when
the order of the court to implead an indispensable
The purposes of the requirement for the real party party goes unheeded may the case be dismissed.
in interest prosecuting or defending an action at law (Riano, 2014, p. 279)
are:
(a) To prevent the prosecution of actions by In an action for the cancellation of memorandum
persons without any right, title or interest in the annotated at the back of a certificate of title, the
case; persons considered as indispensable include those
(b) To require that the actual party entitled to legal whose liens appear as annotations pursuant to
relief be the one to prosecute the action; Section 108 of Presidential Decree (PD) No. 1529.

35
The reason behind the compulsory joinder of deemed to be the real party in interest (Rule 3,
indispensable parties is the complete determination Section 3)
of all possible issues, not only between the parties
themselves but also as regards other persons who NOTE: Impleading the beneficiary as a party is
may be affected by the judgment. (Crisologo v. mandatory
JEWM Agro 3 March 2014, 717 SCRA 644)
Indigent Party
NOTE: While the general rule is that joinder of A party may be authorized to litigate as an indigent
parties is permissive, it becomes compulsory when if the court is satisfied that the party is one who has
the one involved is an indispensable party. no money or property sufficient and available for
food, shelter and basic necessities.
Necessary Party
A necessary party is not an indispensable party. He The application and the hearing to litigate as an
is ought to be joined as a party if COMPLETE relief indigent litigant may be made ex parte.
is to be accorded as to those already parties; he
should be joined whenever possible. If one is authorized to litigate as an indigent, such
authority shall include an exemption from the
The non-inclusion of a necessary party does NOT payment of docket fees, and of transcripts of
prevent the court from proceeding in the action, and stenographic notes, which the court may order to be
the judgment rendered therein shall be without furnished by him
prejudice to the rights of such necessary party.
(Agro Conglomerates, Inc. v. CA, G.R. No. 117660, However, the amount of the docket and other lawful
2000) fees, which the indigent was exempt from paying,
shall be lien on the judgment rendered in the case
Distinction between an Indispensable and a favorable to the indigent
Necessary Party
A lien on the judgment shall not arise if the court
provides otherwise. (Rule 3, Section 21)
Indispensable Party Necessary Party
When an application to litigate as an indigent litigant
Must be joined under any Should be joined is filed, the court shall determine if the applicant
and all conditions whenever possible complies with the income and property standards
prescribed in the present Section 19 of Rule 141—
that is, the applicant‘s gross income and that of the
No final decree can be A final decree can be applicant‘s immediate family do not exceed an
had in case of absence had despite absence amount double the monthly minimum wage of an
employee; and the applicant does not own real
(Riano, 2014, p. 281) property with a fair market value of more than Three
Hundred Thousand Pesos (PhP 300,000.00).
Duty of a Pleader When a Necessary Party is
NOT Joined: If the trial court finds that the applicant meets the
1. Set forth the name of the said necessary party, if income and property requirements, the authority to
known; and litigate as indigent litigant is automatically granted
2. State the reason why the necessary party is and the grant is a matter of right. However, if the
omitted (Rule 3, Section 9) trial court finds that one or both requirements have
not been met, then it would set a hearing to enable
NOTE: If the reason given for the non-joinder of the the applicant to prove that the applicant has ―no
necessary party is found by the court to be money or property sufficient and available for food,
unmeritorious, it may order the pleader to join the shelter and basic necessities for himself and his
omitted party if jurisdiction over his person may be family.‖ (Spouses Algura v. LGU, GR No. 150135,
obtained. Failure to comply with such order without 2006)
justifiable cause shall be deemed a waiver of the
claim against such party. (Rule 3, Section 9) Alternative Defendant
Where the plaintiff cannot definitely identify who
Where the obligation of the parties is solidary, either among two or more persons should be impleaded
of the parties is indispensable, and the other is not as a defendant, he may join all of them as
even a necessary party because complete relief is defendants in the alternative, although a right to
available from either. (Cerezo v. Tuazon, G.R. No. relief against one may be inconsistent with a right of
141538, 2004) relief against the other. (Rule 3, Section 13)

Representatives as Parties Spouses as Parties

Even where the action is allowed to be prosecuted Husband and wife shall sue or be sued jointly
or defended by a representative party or someone except when the litigation pertains to the exclusive
acting in a fiduciary capacity, the beneficiary shall property of a spouse or when there is
be included in the title of the case and shall be abandonment.

36
Minors or Incompetents as Parties
A suit may be brought by OR against a minor or Requisites of a Class Suit:
incompetent but with the assistance of his parents 1. Subject matter of the controversy of common or
or his guardian. (Rule 3, Section 4) general interest to many persons;
2. Persons are so numerous that it is
impracticable to join all as parties;
2. COMPULSORY AND PERMISSIVE 3. The parties actually before the court are
JOINDER OF PARTIES sufficiently numerous and representative; and
4. The representatives sue or defend for the
General Rule: Joinder of parties is not compulsory, benefit of all.
but merely permissive.
Exception: When it refers to joinder of COMMON INTEREST – as a requisite for a class
indispensable parties. (Rule 3, Section 7) suit to prosper, common interest in the subject
matter (e.g. money, land, chattel) of the litigation is
Requisites for Joinder of Parties: required. It does not pertain to the delict or wrong
1. The right to relief should arise out of the SAME committed by the defendant.
transaction or series of transactions; and
2. That there exists a common question of law or
fact.
5. SUITS AGAINST ENTITIES
WITHOUT JURIDICAL
NOTE: Same transaction means that it pertains to PERSONALITY
transactions connected with the same subject
matter of the suit. When two or more persons not organized as an
entity with juridical personality enter into a
NOTE: The plaintiff is mandated to implead all the transaction, they may be sued under the name by
indispensable parties, considering that the absence which they are generally or commonly known.
of one such party renders all subsequent actions of
the court null and void for want of authority to act, Under the same provision, the responsive pleading
not only as to the absent parties, but even as to of the entity sued must disclose the names and
those present. (Riano, 2014, p. 278) addresses of its members since they are the
persons ultimately liable to the plaintiff. (Rule 3,
3. MISJOINDER AND NON-JOINDER Section 15)
OF PARTIES
NOTE: These entities may be a defendant but not a
plaintiff as the provision states ―may be sued.‖
A party is MISJOINED when he is made a party to
the action although he should not be impleaded. An unlicensed foreign corporation doing business in
the Philippines cannot sue before Philippine
A party is NOT JOINED when he is supposed to be courts. On the other hand, an unlicensed foreign
joined but is not impleaded in the action. corporation not doing business in the Philippines
can sue before Philippine courts. (Van Zuiden v.
Neither of the two is a ground for the dismissal of an GTVL, G.R. No. 147905, 2007)
action, as parties may be dropped or added by
order of the court or on motion of any party OR on
its own initiative at any stage of the action and on 6. EFFECT OF DEATH OF PARTY
such terms as are just. LITIGANT
In contract, in misjoinder of cause of action, the
court can order severance. There is no rule on
The death of the client extinguishes the attorney-
consolidation. (Rule 3, Section 11)
client relationship and divests a counsel of his
authority to represent the client; neither does he
NOTE: However, the failure to obey the order of the
become the counsel of the heirs of the deceased
court to drop or add a party is a ground for the
unless said heirs engage his services.
dismissal of the complaint, because it is a
disobedience to the order of a court.
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the
4. CLASS SUIT duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and to
give the name and address of his legal
A class suit is an action where one or more may
representative or representatives. Failure of counsel
sue for the benefit of all if the requisites for said
to comply with this duty shall be a ground for
action are complied with.
disciplinary action. The heirs of the deceased may
be allowed to be substituted for the deceased,
An action does not become a class suit merely
without requiring the appointment of an executor or
because it is designated as such in the pleadings; it
depends upon the attendant facts. (Banda v. administrator and the court may appoint a guardian
ad litem for the minor heirs.( Rule 3, Section 16)
Ermita, 618 SCRA 488)

37
The purpose behind this rule is the protection of the Where the deceased has no heirs, the court shall
right to due process of every party to the litigation require the appointment of an executor or
who may be affected by the intervening death. The administrator; if the heir is a minor, a guardian ad
deceased litigant is herself or himself protected as litem. (Rule 3, Section 16)
he/she continues to be properly represented in the
suit through the duly appointed legal representative An unlicensed foreign corporation doing business in
of his estate. the Philippines cannot sue before Philippine
The rule on substitution in case of death of a party courts. On the other hand, an unlicensed foreign
is governed by Section 16, Rule 3 of the 1997 Rules corporation not doing business in the Philippines
of Civil Procedure, as amended, which provides: can sue before Philippine courts. (Van Zuiden v.
Section 16. Death of a party; duty of counsel.— GTVL, G.R. No. 147905, 2007)
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the It Is Possible That the Court May Order the
duty of his counsel to inform the court within thirty Opposing Party to Procure the Appointment of
(30) days after such death of the fact thereof, and to an Executor or Administrator for the Estate of
give the name and address of his legal the Deceased When:
representative or representatives. Failure of counsel 1. The counsel for the deceased does not name a
to comply with this duty shall be a ground for legal representative; or
disciplinary action. The heirs of the deceased may 2. There is a representative named but he fails to
be allowed to be substituted for the deceased, appear within the specified period. (Rule 3,
without requiring the appointment of an executor or Section 16)
administrator and the court may appoint a guardian
ad litem for the minor heirs. (Sumaljag v. Literato, All court charges in procuring such appointment, if
GR No. 149787, 2008 defrayed by the opposing party may be recovered
as costs. (Rule 3, Section 17)
Duty of the Counsel upon Death of His Client
Whenever a party to a pending action dies, it is the END OF TOPIC
duty of the counsel of the deceased party to inform
the court of such fact within 30 days after such
death.

Counsel also has the obligation to give the name D. VENUE

and address of the legal representative of the
deceased.

Such duty is MANDATORY and failure to comply is

1. VENUE VERSUS JURISDICTION
a ground for disciplinary action 2. VENUE OF REAL ACTIONS
3. VENUE OF PERSONAL ACTIONS
Actions of the Court upon Notice of Death 4. VENUE OF ACTIONS AGAINST
Upon receipt of the notice of death, the court shall NON-RESIDENTS
determine whether or not the claim is extinguished
by such death. 5. WHEN THE RULES ON VENUE DO
NOT APPLY
Examples of claims NOT extinguished by death 6. EFFECTS OF STIPULATIONS ON
are: VENUE
1. Recovery of real and personal property against
the estate;
2. Enforcement of liens on such properties; and 1. VENUE VERSUS JURISDICTION
3. Recovery for an injury to person or property by
reason of tort or delict committed by the VENUE is the place, or the geographical area
deceased. (Riano, 2014, p. 289) where an action is to be filed and tried. (Manila
Railroad Company v. Attorney General, G.R. No. L-
If the deceased left an heir and the claim is not 7688, 1912)
extinguished by death, the heir may be allowed to
be substituted for the deceased without need for an JURISDICTION is the power and authority of the
appointment of an administrator or executor. tribunal to hear, try and decide a case. (Veneracion
Service of summons is NOT necessary to effect v. Mancilla, G.R. No. 158238, 2006)
such substitution as the court shall order such legal
representative to appear and be substituted for the In the absence of qualifying or restrictive words (i.e.,
deceased within thirty (30) days from notice. solely, exclusively, particularly, etc.), venue
stipulation is merely permissive and NOT exclusive.
Substitution of the deceased by his representative This implies that the stipulated venue will only be in
or heir is effected by the order of substitution and its addition to the venue provided for in the Rules.
service, and not by the amendment of the pleading
VENUE JURISDICTION

38
The place where the case The authority to hear Forcible entry and detainer actions shall be
is to be heard or tried and determine a case commenced and tried in the municipal trial court of
(e.g., Regional Trial Court the municipality or city wherein the real property
of Makati City or Quezon involved, or a portion thereof, is situated.
City)
Real actions, as so opposed to personal actions,
are those which affect the title to or possession of
real property. Where a contrary claim to ownership
A matter of procedural A matter of substantive
is made by an adverse party, and where the relief
law law
prayed for cannot be granted without the court
deciding on the merits, the issue of ownership and
Establishes a relation Establishes a relation title, more specifically, as to who, between the
between plaintiff and between the court and contending parties, would have a better right to the
defendant, or petitioner the subject matter property, the case can only be but a real action.
and respondent (Gumabon v. Larin, G.R. No. 142523, 2001)

The Court explicitly pronounced that ―[t]he court

acquires jurisdiction over any case only upon the
payment of the prescribed docket fee.‖ Hence, the
May be conferred by the Fixed by law and payment of docket fees is not only mandatory, but
act or agreement of the cannot be conferred by also jurisdictional. A real action indisputably
parties (e.g. the parties agreement of the involves real property. The docket fees for a real
can include the following parties action would still be determined in accordance with
stipulation in a contract of the value of the real property involved therein; the
lease: ―In case of dispute only difference is in what constitutes the acceptable
arising from this contract, value. In computing the docket fees for cases
a party shall file a suit involving real properties, the courts, instead of
with the Regional Trial relying on the assessed or estimated value, would
Court of Pasig City‖ OR now be using the fair market value of the real
―In case of dispute arising properties (as stated in the Tax Declaration or the
from this contract, a party Zonal Valuation of the Bureau of Internal Revenue,
shall file a suit whichever is higher) or, in the absence thereof, the
exclusively with the stated value of the same. (Ruby Shelter v. Hon.
Regional Trial Court of Formaran III, G.R. No. 175914, 2009)
Pasig City‖
An action to recover the deficiency after
extrajudicial foreclosure of a real property mortgage
is a personal action because it does not affect title
to or possession of real property, or any interest
therein.
(BPI Family v. Yujuico, G.R. 175796, 2015)

3. VENUE OF PERSONAL ACTIONS

Not a ground for a motu Lack of jurisdiction over
Venue is Transitory. Hence, the Action May Be
proprio dismissal (except the subject matter is a
Commenced and Tried:
in cases subject to ground for a motu
1. Where the plaintiff or any of the principal
Summary Procedure) proprio dismissal
plaintiffs reside;
2. Where the defendant or any of the principal
defendants resides; or
3. In the case of a non-resident defendant, where
May be waived only in Cannot be waived he may be found.
civil cases. In criminal All at the election of the PLAINTIFF.
cases, venue is
jurisdictional. RESIDENCE means physical or actual habitation.

When there is more than one plaintiff in a personal

action case, the residences of the principal parties
should be the basis for determining proper venue.
2. VENUE OF REAL ACTIONS According to Justice Feria, ―the word ‗principal‘ has
been added in order to prevent the plaintiff from
choosing the residence of a minor plaintiff or
It shall be commenced and tried in the proper court defendant as the venue.‖ Eliminate the qualifying
which has jurisdiction over the area wherein the real term ―principal‖ and the purpose of the Rule would
property involved, or a portion thereof, is situated. be defeated where a nominal or formal party is

39
impleaded in the action since the latter would not
have the degree of interest in the subject of the 5. WHEN RULE ON VENUE NOT
action which would warrant and entail the desirably APPLICABLE
active participation expected of litigants in a
case.(Marcos-Araneta v. Cam GR No. 154096, The Rule on Venue is INAPPLICABLE in Cases
2008.) Where a specific rule or law provides otherwise.

As regards the venue of derivative suits, Section 5, Venue of Derivative Suits

Rule 1 of A.M. No. 01-2-04-SC states: SEC. 5. Regional Trial Court which has jurisdiction over the
Venue. All actions covered by these Rules shall be principal office of the corporation, partnership, or
commenced and tried in the Regional Trial Court, association concerned.
which has jurisdiction over the principal office of the
corporation, partnership, or association concerned. Where the principal office of the corporation,
Where the principal office of the corporation, partnership or association is registered in the
partnership or association is registered in the Securities and Exchange Commission as Metro
Securities and Exchange Commission as Metro Manila, the action must be filed in the city or
Manila, the action must be filed in the city or municipality where the head office is located. (Rule
municipality where the head office is located. (Hi- 1 of A.M. No. 01-2-04-SC, Section 5)
Yield Realty, Inc. v. Court of Appeals, G.R. No.
168863, 2009) Venue of Action of Nullity of Marriage
Where plaintiff resides, where the defendant resides
4. VENUE OF ACTIONS AGAINST or where their conjugal home is located.
NON-RESIDENTS Venue of Adoption
Where the prospective parents reside.
If Defendant Does Not Reside But IS FOUND in
the Philippines Venue of Probate
When it is a PERSONAL action, the action may be If the decedent died in the Philippines: Where the
commenced and tried in the court of the place deceased last resided at his time of death.
where the plaintiff resides or where the defendant
may be found (e.g. If the defendant is U.S. resident, If the decedent died abroad: In any of the province
but is on vacation in Makati, summons may be where he has property.
served on defendant in Makati).
Writ of habeas corpus on residence of minor:
If there are several defendants, but one of them is a General Rule: Regional Trial Court where the
resident or a nonresident but can be found in the minor is supposed to be found.
Philippines, the action may be commenced where
the plaintiff resides or where the resident defendant Exception: When place is unknown or
resides or where the nonresident defendant may be minor cannot be found, it can be filed in
found. the Court of Appeals or the Supreme
Court.
When it is a REAL action (e.g., recovery of real
property), the action may be commenced where the 2. Where the parties have validly agreed in writing
property or any portion thereof is situated or found. before the filing of the action on the exclusive venue
thereof.
If None of the Defendants Reside in the
Philippines and None are Found in the Example: ―In case of dispute arising from this
Philippines contract, a party shall file a suit exclusively with the
When the action affects the PERSONAL STATUS Regional Trial Court of Pasig City‖.
of the PLAINTIFF, the action may be commenced
and tried in the court of the place where the plaintiff Venue of Libel
resides. General rule:
The criminal and civil action for damages in cases
When the action affects the PROPERTY of the of written defamations shall be filed simultaneously
DEFENDANT located in the Philippines, the action or separately with the RTC of the province or city
may be commenced where the property or any where the libelous article is printed and first
portion thereof is situated or found. published or where any of the offended parties
actually resides at the time of the commission of the
The proper venue in an action for revival of offense.
judgment depends on the determination of whether
the present action for revival of judgment is a real Exception:
action or a personal action. The allegations in the Where one of the offended parties is a public
complaint for revival of judgment determine whether officer whose office is in the City of Manila at the
it is a real action or a personal action. (Infante v. time of the commission of the offense, the action
Aran Builders, G.R. No. 156596, 2006) shall be filed in the RTC of the City of Manila, or
of the city or province where the libelous article

40
 is printed and first published, and in case such bound by the exclusive venue stipulation contained
public officer does not hold office in the City of therein and should be filed in accordance with the
Manila, the action shall be filed in the RTC of the general rules on venue. It would be inherently
province or city where he held office at the time inconsistent for a complaint of this nature to
of the commission of the offense or where the recognize the exclusive venue stipulation when it, in
libelous article is printed and first published and fact, precisely assails the validity of the instrument
in case one of the offended parties is a private in which such stipulation is contained. (Briones v.
individual, the action shall be filed in the RTC of Court of Appeals, G.R. No. 204444, 2015)
the province or city where he actually resides at Waiver of Venue
the time of the commission of the offense or The ground of improperly laid venue must be raised
where the libelous matter is printed and first seasonably, else it is deemed waived. Where the
published. (Article 360, Revised Penal Code) defendant failed to either file a motion to dismiss on
the ground of improper venue or include the same
Note: The civil action shall be filed in the same as an affirmative defense, he is deemed to have
court where the criminal action is filed and vice waived his right to object to improper venue.
versa. (Article 360, Revised Penal Code)
In the case at bench, petitioners raised at the
Note: The court where the criminal action or civil earliest time possible, meaning ―within the time for
action for damages is first filed, shall acquire but before filing the answer to the complaint,‖ the
jurisdiction to the exclusion of other courts. (Article matter of improper venue. (Marcos-Araneta v. Court
360, Revised Penal Code) of Appeals, G.R. No. 154096, 2008)

6. EFFECTS OF STIPULATIONS ON Venue for a case for revival of judgment

The proper venue depends on the determination of
VENUE whether the present action for revival of judgment is
a real action or a personal action. Applying the
The Stipulation on Venue Must Be: afore-quoted rules on venue, if the action for revival
1. In writing; of judgment affects title to or possession of real
2. Made before the filing of the action; and property, or interest therein, then it is a real action
3. Exclusive as to the venue. that must be filed with the court of the place where
the real property is located. If such action does not
The mere stipulation on the venue of an action is fall under the category of real actions, it is then a
not enough to preclude parties from bringing a case personal action that may be filed with the court of
in other venues. In the absence of qualifying or the place where the plaintiff or defendant resides.
restrictive words, the stipulation should be (Infante v. Aran Builders, GR No. 156596, 2007 )
deemed as merely an agreement on an additional
forum, not as limiting venue to the specified place. END OF TOPIC
(Sps. Lantin v. Lantion, G.R. No. 160053, 2006)

If the intention of the parties were to restrict venue,

there must be accompanying language clearly and
categorically expressing their purpose and design E. PLEADINGS
that actions between them be litigated only at the
place named by them. (Riano, Civil Procedure: A
nd
Restatement for the bar, 2 ed, 2009)
1. KINDS OF PLEADINGS
Examples of qualifying or restrictive a. Complaint
words: "exclusively" and "waiving for this b. Answer
purpose any other venue," "shall only" preceding i. Affirmative defenses
the designation of venue, "to the exclusion of the ii. Negative defenses
other courts," or words of similar import. (Auction in iii. Negative pregnant
Malinta, Inc. v. Luyaben, G.R. No. 173979, 2007) c. Counterclaims
i. Compulsory counterclaim
Exclusive venue stipulation embodied in a contract ii. Permissive counterclaim
restricts or confines parties thereto ONLY when the iii. Effect on the counterclaim when
suit relates to breach of said contract. Since the the complaint is dismissed
other causes of action in petitioner‘s complaint do d. Cross-claims
not relate to the breach of the agreement it forged
embodying the exclusive venue stipulation, they e. Third (fourth, etc.) party complaints
should not be subject to the exclusive venue. The f. Complaint-in-intervention
stipulation should be strictly confined to the specific g. Reply
undertaking or agreement. (Uniwide v. Cruz, G.R. 2. PLEADINGS ALLOWED IN SMALL
No. 171456, 2007) CLAIM CASES AND CASES
If the complaint was assailing the validity of the COVERED BY THE RULES ON
written instrument itself, the parties should not be SUMMARY PROCEDURE

41
3. PARTS OF A PLEADING f. Effect of amended pleading
a. Caption
b. Signature and address 1. KINDS OF PLEADINGS
c. Verification and certification against
forum shopping PLEADING
i. Requirements of a corporation The written statements of the respective claims and
executing the defenses of the parties submitted to the court for
verification/certification of non- appropriate judgment (Section 1, Rule 6 of the
forum shopping Rules of Court)
d. Effect of the signature of counsel in a
pleading MOTION
4. ALLEGATIONS IN A PLEADING An application for relief other than by a pleading.
a. Manner of making allegations The rules that apply to pleadings shall also apply to
i. Condition precedent written motions so far as concerns caption,
ii. Fraud, mistake, malice, intent, designation, signature, and other matters of form.
knowledge and other condition of (Rule 15, Section 10)
the mind, judgments, official
documents or acts PLEADING MOTION
b. Pleading an actionable document
c. Specific denials Is a submission of Is an application for an
i. Effect of failure to make specific claims or defenses for order not included in the
denials appropriate judgment judgment
ii. When a specific denial requires an
oath
5. EFFECT OF FAILURE TO PLEAD May be initiatory Cannot be initiatory as
a. Failure to plead defenses and motions are made in a
objections case already filed in court
b. Failure to plead a compulsory
counterclaim and cross-claim
6. DEFAULT
a. When a declaration of default is proper Must be written May be oral when made
b. Effect of an order of default in open court or in the
c. Relief from an order of default course of a hearing or a
d. Effect of a partial default trial
e. Extent of relief
f. Actions where default are not allowed Must be filed before May be filed after
7. FILING AND SERVICE OF judgment judgment
PLEADINGS
a. Payment of docket fees PLEADINGS ALLOWED BY THE RULES OF
b. Filing versus service of pleadings COURT:
c. Periods of filing of pleadings 1. Complaint
d. Manner of filing 2. Answer
e. Modes of service 3. Counterclaim
i. Personal service 4. Cross-claim
ii. Service by mail 5. Third (fourth, etc. – party complaint)
iii. Substituted service 6. Complaint-in-intervention
iv. Service of judgments, final orders 7. Reply
or resolutions
v. Priorities in modes of service and a. COMPLAINT
filing
vi. When service is deemed complete The complaint is the pleading alleging the plaintiff‘s
vii. Proof of filing and service cause or causes of action. The names and
residences of the plaintiff and defendant must be
8. AMENDMENT stated in the complaint. (Rule 6, Section 3)
a. Amendment as a matter of right
b. Amendments by leave of court A pleading should only contain ULTIMATE FACTS,
c. Formal amendment which are essential to a party‘s cause of action or
d. Amendments to conform to or defense. It must be stated in a logical form and in a
authorize presentation of evidence plain and concise manner.
e. Different from supplemental pleadings
What are NOT Ultimate Facts:

42
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of Denial Amounting to Admissions:
facts not stated, or incorrect inferences or 1. General Denial
conclusions from facts stated;
A general denial is one which puts in issue all the
3. The details of probative matter or particulars of
material averments of the complaint or petition, and
evidence, statements of law, inferences and
permits the defendant to prove any and all facts
arguments; or
which tend to negative those averments or some
4. An allegation that a contract is valid or void is a one or all of them.( Loyola vs. House of
mere conclusion of law.
Representatives Electoral Tribunal, G.R. No.
109026. January 4, 1994.)
b. ANSWER

An answer is a pleading in which a defending party (iii) NEGATIVE PREGNANT

sets forth his defenses. A negative implying also an affirmative and which
although is stated in a negative form, really admits
It may be an answer to a complaint, a counterclaim the allegations to which it relates. (Cramer v. Aiken,
or a cross-claim. 63 App. D.C. 16, 68 F 2d 761, 762, 1933) This
usually arises when the leader merely repeats the
Defenses allegations in a negative form.

(i) Affirmative Defenses Where a fact is alleged with some qualifying or

modifying language, and the denial is conjunctive, a
An affirmative defense is an allegation of a new ‗negative pregnant‘ exists, and only the qualification
matter which, while hypothetically admitting the or modification is denied, while the fact itself is
material allegations in the pleading of the claimant admitted. A denial in the form of a negative
would nevertheless prevent or bar recovery by pregnant is an ambiguous pleading, since it cannot
him. The affirmative defenses include fraud, statute be ascertained whether it is the fact or only the
of limitations, release, payment, illegality, statute of qualification that is intended to be denied. (Galofa v.
frauds, estoppel, former recovery, discharge in Nee Bon Sing, G.R. No. L-22018, 1968)
bankruptcy, and any other matter by way of
confession and avoidance. Example: There is a negative pregnant where a
respondent denies having ―personal knowledge‖ of
Before an allegation qualifies as an affirmative the plaintiff‘s daughter Y‘s Certificate of Live Birth.
defense, it must be of such nature as to bar the In said certificate, the plaintiff named respondent—a
plaintiff from claiming on his cause of action ―lawyer,‖ 38 years old—as the child‘s father. And
(Pesane Animas Mongao v. Pryce Properties the phrase ―NOT MARRIED‖ is entered on the
Corp., G.R. No. 156474, 2005) desired information on ―DATE AND PLACE OF
MARRIAGE.‖ A comparison of the signature
(ii) NEGATIVE DEFENSES attributed to the plaintiff‘s in the certificate with her
signature on the Marriage Certificate shows that
they were affixed by one and the same person.
Negative defense refer to the specific denial of the
Notatu dignum is that, as the Investigating
material fact or facts alleged in the pleading of the
Commissioner noted, respondent never denied
claimant essential to his cause or causes of action. being the father of the child. (Guevarra vs. Eala,
A.C. No. 7136., 2007)
Denials in the answer must be specific, or based on
a lack of information sufficient to form a belief as to Example: A complaint, in par. 4, alleged that the
the truth of the allegation in the complaint.
plaintiff was unable to take actual possession of the
property because of the ―unwarranted adverse
Specific Denial – A specific denial is made by
claim of rights of ownership and possession by the
specifying each material allegation of fact, the truth
defendant, alleging sale by a certain Fe of said
of which the defendant does not admit and,
property to defendant, which if true, had no right
whenever practicable, setting forth the substance of
whatsoever to legally dispose the above-described
the matters upon which he relies to support his
property not being the owner thereof.‖ In response,
denial. ( UA vs. Wallem Philippines Shipping, Inc
the answer of the defendant stated: ―The defendant
G.R. No. 171337. July 11, 2012)
denies the material averments contained in par. 4,
the truth being, that the defendant never asserted
The purpose of requiring the defendant to make a
title of ownership to the property described in the
specific denial is to make him disclose the matters
complaint to anybody, much less to the herein
alleged in the complaint which he succinctly intends
plaintiff in virtue of any deed of conveyance
to disprove at the trial, together with the matter
executed in favor of the defendant by one Fe, nor
which he relied upon to support the denial.
claimed any possessory right over the said
(Aquintey vs. Tibong, G.R. No. 166704. December
property, either by himself or through another. The
20, 2006)
Court held that there was a negative pregnant in the
The failure to make a specific denial will be
defendant‘s reply, which is to be construed as an
considered an admission of that particular allegation
implied admission. Particularly, when the
in the complaint.

43
plaintiff alleged that his inability to take actual claim (Maceda v. Court of Appeals, G.R. No. 83545,
possession of the parcel of land due to "an 1989)
unwarranted adverse claim of rights of ownership
and possession by the defendant," followed by an A party who desires to plead a compulsory
allegation of how such claim was exercised, the counterclaim should NOT file a motion to dismiss. If
defendant‘s denial is as to "the material averments he files a motion to dismiss and the complaint is
contained in par. 4 of the Complaint," conjoined with dismissed there will be no chance to invoke the
his disclaimer of dominical or possessory rights in counterclaim. (Riano, Civil Procedure: A
the manner alleged in the complaint. It thus Restatement for the bar, 2nd ed, 2009)
appeared that he denied the averments in par. 4,
but he did not deny the fact of ownership and right A dismissal of the complaint does not carry with it
to possession of the plaintiff. (Galofa v. Nee Bon the dismissal of the counterclaim.
Sing, G.R. No. L-22018, 1968)
A compulsory counterclaim not initially set up
It does not qualify as a specific denial but is because of the pleader‘s oversight, inadvertence,
conceded to be actually an admission. (Riano, Civil excusable neglect or when justice requires, may be
nd
Procedure: A Restatement for the Bar, 2 ed, 2009) set up, by leave of court by amendment of the
pleadings before judgment (Rule 11, Section 10). If
c. COUNTERCLAIMS not set up in the action, the compulsory
counterclaim shall be barred (Rule 9, Section 2)
A counterclaim is any claim, which a defending
party may have against an opposing party. If a compulsory counterclaim matures or was
acquired by a party after serving his answer, the
When a defendant files a counterclaim against the compulsory counterclaim is not deemed barred and
plaintiff, he becomes the plaintiff in the counterclaim may be pleaded by filing a supplemental answer or
and the original plaintiff becomes the defendant. pleading before judgment.

A counterclaim may be COMPULSORY or Difference between Counterclaims filed in the

PERMISSIVE. Municipal Trial Court and in the Regional Trial
Court:
(i) COMPULSORY COUNTERCLAIM A counterclaim filed in the Municipal Trial Court or
in the Metropolitan Trial Court must be within the
Elements: court‘s jurisdiction both as to the nature and to the
1. Arises out of or is necessarily connected with amount of the claim.
the transaction or occurrence which is the
subject matter of the opposing party‘s claim; A counterclaim filed in the Regional Trial Court may
2. It does not require for its adjudication the be deemed compulsory regardless of the amount
presence of third parties over whom the court but it must be within its jurisdiction as to nature –
cannot acquire jurisdiction; i.e., an RTC cannot try an unlawful detainer case as
3. The court has jurisdiction over the amount and a counterclaim, but it may take cognizance of a
nature of the case; and counterclaim involving an amount below its
4. It must be cognizable by the regular courts of jurisdictional threshold (i.e. small amounts).
justice.
(ii) PERMISSIVE COUNTERCLAIM
To determine whether a counterclaim is compulsory
or not, the Supreme Court have devised the A counterclaim is permissive if any of the elements
following tests: (1) Are the issues of fact or law of a compulsory counterclaim is absent (see
raised by the claim and the counterclaim largely the above). The most commonly treated feature of a
same? (2) Would res judicata bar a subsequent suit permissive counterclaim is its absence of a logical
on defendant‘s claim absent the compulsory connection with the subject matter of the complaint.
counterclaim rule? (3) Will substantially the same (International Container Terminal Services Inc. v.
evidence support or refute plaintiff‘s claim as well as CA, G.R. No. 90530, 1992)
the defendant‘s counterclaim? and (4) Is there any
logical relation between the claim and the In contrast, a permissive counterclaim does not
counterclaim? Affirmative answers to the above necessarily arise out of or is not directly connected
queries indicate the existence of a compulsory with the subject matter of the first claim; it can be
counterclaim. (See Financial Building v. FPA, GR filed as a separate case altogether. There is a need
No. 133119, 2000) to pay for docket fees since it is seen as a different
action altogether with defendants becoming
Despite the lack of jurisdiction of the court to ‗plaintiffs‘ in respect of such counterclaim. (Reillo v.
adjudicate on the counterclaim, the same may San Jose, G.R. No. 166393, 2009)
nevertheless be pleaded in the same action, not to The counterclaim must be existing at the time of the
obtain affirmative relief because the court, for want filing the answer, though not at the commencement
of jurisdiction cannot do so. The purpose would of the action for under Section 3 of the former Rule
merely be as a defense to weaken the plaintiff‘s 10, the counterclaim or cross-claim must be one
which he may have ―at the time‖ against the

44
 One which arises out or It does not arise out of
opposing party. (Banco de Oro v. Court of Appeals, is necessarily nor is it necessarily
G.R. No. 160354, 2005) connected with the connected with the
If the compulsory counterclaim is by reason of an transaction or subject matter of the
unfounded suit then it may prosper even with the occurrence that is the opposing party‘s claim
main complaint having been dismissed. The cause subject matter of the
of action of the counterclaimant is not eliminated by opposing party‘s claim
the mere dismissal of the main complaint. (Padilla v.
Globe Asiatique, G.R. No. 207376, 2014)
The rule that ―the additional docket fee therefor
shall constitute a lien on the judgment‖ applies only
to damages arising after the filing of the complaint No requirement for the May require for its
or similar pleading, for then it will not be possible for presence of third adjudication the
the claimant to specify nor speculate as to the parties whom the court presence of third parties
amount thereof. (GSIS v. Caballero, G.R. No. cannot acquire over whom the court
158090, 2010) jurisdiction over for its cannot acquire
adjudication jurisdiction
COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM
Shall be contained in May be set up as an
the answer. If not set independent action and (iii) EFFECT ON THE COUNTERCLAIM
up it shall be barred. will not be barred if not WHEN THE COMPLAINT IS
contained in the answer DISMISSED
to the complaint.
The defending party has the right to prosecute the
counterclaim in the same or separate action
notwithstanding the dismissal of the complaint, and
without regard as to the permissive or compulsory
Not an initiatory An initiatory pleading nature of the counterclaim. (Rule 17, Sections 2 and
pleading 3)

Does not require Should be accompanied d. CROSS-CLAIMS

certification of forum by a certification against
shopping forum shopping and A cross-claim is any claim by one party against a
whenever required by co-party arising out of the transaction or occurrence
law, a certificate to file that is the subject matter either of the original action
action issued by Lupong or of a counterclaim therein.
Tagapamayapa Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to
the cross-claimant for all or part of a claim asserted
in the action against the cross-claimant. (Section 8,
Rule 6 of the Rules of Court)

A compulsory Must be answered by the A cross-claim that a party has at the time the
counterclaim that party against whom it is answer is filed shall be contained in the answer.
merely reiterates interposed otherwise, he
special defenses are may be declared in Requirements:
deemed controverted default as to the
even without a reply. counterclaim. 1. A claim by one party against a co-party;
2. Must arise out of the transaction or occurrence
Issues raised in a The answer must be that is the subject matter either of the original
counterclaim are made within ten (10) action or of a counterclaim; and
deemed automatically days from service. 3. The cross-claimant is prejudiced by the claim
joined by the against him by the opposing party.
allegations of the
complaint, which need If It is Not Set Up in the Action, It is Barred
not be answered. EXCEPT:
1. When it is outside the jurisdiction of the court;
2. If the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim. In which case,
the cross-claim is considered PERMISSIVE;
3. Cross claim that may mature or maybe acquired
after service of the answer.

45
The dismissal of the complaint carries with it the arising out of another or different transaction, is
dismissal of a cross-claim which is purely defensive, connected with the plaintiff‘s claim;
but not a cross-claim seeking an affirmative relief. 2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all or
Counter-counterclaims and counter-cross- part of the plaintiff‘s claim against the original
claims defendant; and
A counter-counter claim is filed when there is a 3. Whether the third party defendant may assert
claim against the original counterclaimant. On the any defenses that the third-party plaintiff has or
other hand, a counter-cross-claim is filed against an may have to plaintiff‘s claim.
original cross claimant.
Summons on third, fourth etc.-party defendant must
be served for the court to obtain jurisdiction over his
CROSS COUNTER- 3RD PARTY
person, since he is not an original party.
CLAIM CLAIM COMPLAINT
Against a co- Against an Against a Where the trial court has jurisdiction over the main
party opposing party person not a case, it also has jurisdiction over the third party
party to the complaint; regardless of the amount involved as a
action third party complaint is merely auxiliary to and is a
continuation of the main action.
Must arise out May arise out Must be in
of the of or be respect of the A prerequisite to the exercise of such right is that
transaction that necessarily opponent‘s some substantive basis for a third-party claim be
is the subject connected with (Plaintiff) claim found to exist, whether the basis be one of
matter of the the transaction indemnity, subrogation, contribution or other
original action or that is the substantive right. There must be a causal
or of a subject matter connection between the claim of the plaintiff in his
counterclaim of the opposing complaint and a claim for contribution, indemnity or
therein party‘s claim in other relief of the defendant against the third-party
which case, it defendant. The Court made out the following tests:
is called a (1) whether it arises out of the same transaction on
compulsory which the plaintiff‘s claim is based; or whether the
counterclaim, third-party claim, although arising out of another or
or it may not, in different contract or transaction, is connected with
which case it is the plaintiff‘s claim; (2) whether the third-party
called a defendant would be liable to the plaintiff or to the
permissive defendant for all or part of the plaintiff‘s claim
counterclaim against the original defendant, although the third-
party defendant‘s liability arises out of another
transaction; and (3) whether the third-party
defendant may assert any defenses which the third-
party plaintiff has or may have to the plaintiff‘s
claim. (Asian Construction v. Court of Appeals, G.R.
No. 160242, 2005)

Bringing new parties

This is availed of when none of the parties desired
to be brought into the action is a part of the main
No need for No need for Leave of court
action.
leave of court leave of court is required
f. COMPLAINT-IN-INTERVENTION

e. THIRD, (FOURTH, ETC.) PARTY INTERVENTION

COMPLAINT A legal proceeding by w/c a person who is not a
party to the action is permitted by the court to
A claim that a defending party may, with leave of become a party by intervening in a pending action
court, file against a person not a party to the action, after meeting the conditions and requirements of
called the third (fourth, etc.)—party defendant, for the Rules of Court. (Riano, Civil Procedure: A
contribution, indemnity, subrogation or any other Restatement for the bar, 2nd ed, 2009)
relief, in respect of his opponent‘s claim.
If the purpose of the motion for intervention is to
assert a claim against either or all of the original
Tests to Determine Whether the Third-Party parties, the pleading shall be called a COMPLAINT-
Complaint is in Respect of Plaintiff‘s Claim: IN-INTERVENTION.
1. Whether it arises out of the same transaction on
which the plaintiff‘s claim is based, or although Intervention is an action that is neither compulsory
nor mandatory but only optional and permissive; the

46
court has the full discretion in permitting or allowing court. (Section 4, Rule of Procedure for Small
the same. Claims Cases)

Requisites: A small claims action is commenced by filing with

1 Motion for intervention must be filed before the court an accomplished and verified Statement
judgment; of Claim in duplicate, accompanied by a
2. Movant must show that he has the ff. legal Certification of Non-forum Shopping, and two (2)
interest in the (a) matter in litigation, (b) the duly certified photocopies of the actionable
success of either parties, or (c) against both document/s subject of the claim, as well as the
parties; affidavits of witnesses and other evidence to
3. Movant will be adversely affected by the support the claim. (Section 5, Rule of Procedure for
judgment; and Small Claims Cases)
4. Intervention must NOT unduly delay or
prejudice the adjudication of the rights of the The defendant shall file his Response and serve
original parties and that the movant‘s rights may the same upon the plaintiff. He shall file a
not be fully protected by a separate proceeding. Counterclaim with the Response IF the
(Riano, Civil Procedure: A Restatement for the counterclaim is
bar, 2nd ed, 2009) 1. Within the coverage of the Rule exclusive of
interests and costs;
2. Arises out of the same transaction or event that
The motion to intervene may be filed at any time
is the subject matter of the plaintiff‘s claim;
before rendition of judgment by the trial court.
3. Does not require the joinder of third parties; and
4. Is not the subject of another pending action.
g. REPLY
Prohibited Pleadings in Small Claims Cases
A pleading, the office or function of which is to 1. Motion to dismiss the complaint;
deny, or allege facts in denial or avoidance of 2. Motion for a bill of particulars;
new matters alleged by way of defense in the
answer and thereby join or make issue as to such
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
new matters.
4. Petition for relief from judgment;
If a party does not file such reply, all the new 5. Motion for extension of time to file pleadings,
matters alleged in the answer are deemed affidavits or any other paper;
controverted or denied. No admission follows from 6. Memoranda;
the failure to file a reply (Section 10, Rule 6 of the 7. Petition for certiorari, mandamus, or prohibition
Rules of Court) against any interlocutory order issued by the
court;
Filing of a Reply is NOT Mandatory, EXCEPT: 8. Motion to declare the defendant in default;
1. When the defense in the answer is based upon 9. Dilatory motions for postponement;
an actionable document (Rule 8, Section 7); or
2. To set up affirmative defenses on the 10. Reply;
counterclaim. 11. Third-party complaints; and
12. Interventions
Thus, where the defense in the Answer is based on
an actionable document, a Reply specifically The RULE ON SUMMARY PROCEDURE shall
denying it under oath must be made; otherwise, the apply to the following:
genuineness and due execution of the document 1. All cases of forcible entry and unlawful detainer,
will be deemed admitted. (Casent Realty v. irrespective of the amount of damages or unpaid
Philbanking, G.R. No. 150731, 2007) rentals sought to be recovered.
2. All other cases, except probate proceedings,
where the total amount of the plaintiff‘s claim
2. PLEADINGS ALLOWED IN SMALL does not exceed one hundred thousand pesos
CLAIMS CASES AND CASES (P100,000) or two hundred thousand pesos
COVERED BY THE RULES ON (P200,000) in Metropolitan Manila, exclusive of
SUMMARY PROCEDURE interests and costs. (A.M. No. 02-11-09-SC)

Allowed Pleadings in Summary Procedure

The RULES OF PROCEDURE FOR SMALL Cases
CLAIMS CASES shall apply in All Actions which 1. Complaint
are: 2. Compulsory Counterclaim
1. Purely civil in nature where the claim or relief 3. Cross-Claims pleaded in the Answer
prayed for by the plaintiff is solely for payment or 4. Answers to these pleadings (Section 3, Rules on
reimbursement of sum of money. Summary Procedure)
2. The civil aspect of criminal actions either filed
before the institution of the criminal action, or Prohibited Pleadings
reserved upon the filing of the criminal action in

47
1. Motion to dismiss the complaint or to quash the Generally, a pleading need not be verified EXCEPT
complaint or information except on the ground of only when verification is required by a law or by a
lack of jurisdiction over the subject matter, or rule. (Rule 7, Section 4)
failure to comply with the preceding section;
2. Motion for a bill of particulars; A pleading which is required to be verified but lacks
3. Motion for new trial, or for reconsideration of the proper verification shall be treated as an
judgment, or for opening of trial; unsigned pleading which produces no legal effect
4. Petition for relief from judgment; and is dismissible.
5. Motion for extension of time to file pleadings,
affidavits or any other paper; However, it has been held that the requirement
6. Memoranda; regarding verification of a pleading is formal, not
7. Petition for certiorari, mandamus, or prohibition jurisdictional—non-compliance with which does not
against any interlocutory order issued by the necessarily render the pleading fatally defective.
court; The court may order the correction of the pleading if
8. Motion to declare the defendant in default; verification is lacking or act on the pleading
9. Dilatory motions for postponement; although it is not verified, if the attending
10. Reply; circumstances are such that the strict compliance
11. Third party complaints; with the rules may be dispensed with in order that
12. Interventions the ends of justice may thereby be served.
(Republic v. Coalbrine International Philippines,
Inc., G.R. No. 161838, 2010)
3. PARTS OF A PLEADING
A Pleading is verified by an AFFIDAVIT which
a. CAPTION declares that:
1. The affiant has read the pleading; and
The caption contains the following: 2. That the allegations therein are true and correct
1. The name of the court; of his personal knowledge or based on authentic
2. The title of the action; and records on file. (Rule 7, Section 4)
3. The docket number, if assigned.
CERTIFICATION AGAINST FORUM SHOPPING
Body
The body sets forth: FORUM SHOPPING
1. Its designation; It consists of filing multiple suits in different courts,
2. The allegation of the party‘s claims and either simultaneously or successively, involving the
defenses; same parties, to ask the courts to rule on the same
3. The reliefs prayed for; and related causes and/or to grant the same or
4. The date of the pleading. substantially the same relief.

b. SIGNATURE AND ADDRESS The CERTIFICATION AGAINST FORUM

SHOPPING is executed by the PLAINTIFF or the
PRINCIPAL PARTY under oath and must be signed
The complaint must be signed by the plaintiff OR by the party himself/herself and not merely by his
counsel representing him/her indicating his/her attorney.
address.
A certification against forum shopping signed by
Insufficiency in form and substance, as a ground for counsel is a defective certification that is equivalent
dismissal of the complaint, should not be based on to non-compliance with the requirement and
the title or caption, especially when the allegations constitutes a valid cause for the dismissal of the
of the pleading support an action. (Sps. Munsalud v. petition. (Ty-De Zuzuarregui v. Villarosa, G.R. No.
NHA, G.R. No. 167181, 2008) 183788, 2010)
An UNSIGNED PLEADING produces NO LEGAL The Certification Against Forum Shopping is a
EFFECT. The court is authorized, however, to Sworn Statement Certifying to the Following
allow the pleader to correct the deficiency if the Matters:
pleader shows, to the satisfaction of the court, that 1. That the party has not commenced any action or
the failure to sign the pleading was due to the mere filed any claim involving the same issues in any
inadvertence and not to delay the proceedings. court, tribunal, or quasi-judicial agency and, to
(Section 3, Rule 7 of the Rules of Court) the best of his/her knowledge, no such other
action or claim is pending therein;
c. VERIFICATION and CERTIFICATION AGAINST 2. That if there is such other pending action or
FORUM SHOPPING claim, a complete statement of the present
status thereof; and
VERIFICATION 3. That if he/she should thereafter learn that the
same or similar action or claim has been filed or
is pending, he/she shall report that fact within 5

48
 days therefrom to the court wherein his/her land Pasig Land Development Co. v. Mario
complaint or initiatory pleading was been filed. Tablante, G.R. No. 162924, 2010)
(Rule 7, Section 5)
Effect of Submission of False Certification or
The certificate of non-forum shopping is a Non-Compliance with the Undertakings Therein:
mandatory requirement in filing a complaint and 1. Indirect contempt; and
other initiatory pleadings asserting a claim or 2. Without prejudice to the filing of administrative
relief. (Rule 7, Section 5) and criminal actions.

An initiatory pleading includes: Effects of Willful and Deliberate Forum

1. Permissive counterclaim; Shopping:
2. Cross-claim; 1. Shall be ground for summary dismissal of the
3. Third (fourth, etc.)-Party complaint; case with;
4. Complaint-in-intervention; and 2. Direct contempt; and
5. Petition or any application in which a party 3. A cause for administrative sanctions
asserts his claim for relief.
In order to be held liable for willful an deliberate
Failure to comply with the requirements is not forum shopping, there should be, on the party‘s
curable by mere amendment of the pleading but part, either a failure to include the certification in
shall be cause for dismissal of the case, WITHOUT one's initiatory pleading, or a misrepresentation as
prejudice, unless otherwise provided. Dismissal to the pendency of another case involving the same
shall be UPON MOTION and AFTER hearing. issues, parties, and causes of actions with the
second complaint. But where plaintiff files his
To determine Forum Shopping, the test is to see second complaint, after the court with jurisdiction
whether, in the two or more cases pending, over the first complaint had granted a dismissal
there is: order, and such dismissal order has attained finality,
1. Identity of parties; the plaintiff cannot be made liable for forum
2. Identity of rights and causes; and shopping. (Daswani v. BDO Universal, G.R. No.
3. Identity of reliefs sought. 190983, 2015)
(Huibonhoa v. Concepcion, G.R. No. 153785,
2006) There is substantial compliance with the rules
regarding the need for an authorized person to sign
Thus, forum shopping exists when the elements of the certificate when a corporate officer, previously
litis pendentia are present or where a final judgment empowered via board resolution to sign the
in one case will amount to res judicata in another. certification against forum shopping, executes a
special power of attorney in favor of a manager of
the corporation, and it is the latter who signs the
i) REQUIREMENT OF A CORPORATION
verification and certificate against forum shopping.
EXECUTING THE
In other words, the power granted by a corporation
VERIFICATION/CERTIFICATION OF
to a corporate officer to sign the verification and
NON-FORUM SHOPPING
certificate may be further delegated, via special
power of attorney, to another. (Fuji Television
The certification may be executed by an authorized Network v. Espiritu, G.R. No. 204944-45, 2014)
person as long as he/she is duly authorized by the
.
corporation and has personal knowledge of the
Verification and Certification Against Forum
facts required to be disclosed in the certification
Shopping When Petitioner is a Government
against forum shopping, the certification may be
Entity:
signed by the authorized lawyer. (National Steel
Where the petitioner is government entity created
Corporation v. CA, G.R. No. 134468, 2002)
by the Constitution, and headed by its Chairman,
there is no need for the Chairman himself to sign
Where a general manager of a corporation signs the verification. Its representative, lawyer or any
the verification and certification against forum person who personally knew the truth of the facts
shopping without attaching therewith a alleged in the petition could sign the verification.
Corporate Secretary’s certificate or board HOWEVER, with regard to the certification of non-
resolution that he is authorized to sign for and on forum shopping, the established rule is that it must
behalf of the petitioner-corporation, such failure is be executed by the plaintiff or any of the principal
NOT fatal to the complaint of the corporation. This parties and not by counsel. Failure to show such
is especially true where the requisite board authority to execute the petition on behalf of the
resolution was subsequently submitted to the plaintiff or principal party renders the petition
court together with the pertinent documents. The dismissible. (People v. Iroy, G.R. No. 187743, 2010)
dismissal on a purely technical ground is frowned
upon especially if it will result in unfairness. The
d. EFFECT OF THE SIGNATURE OF COUNSEL
rules of procedure ought not to be applied in a very
IN A PLEADING
rigid, technical sense for they have been adopted to
help secure, not override, substantial justice. (Mid-

49
The signature of a counsel in a pleading Every pleading shall contain in a
constitutes a certification by him/her that: methodical and logical form, a plain,
1. He/she has read the pleading; concise and direct statement of the ultimate facts
2. That to the best of his/her knowledge, on which the party pleading relies for his claim or
information and belief there is good ground to defense, as the case may be, omitting the
support it; statement of mere evidentiary facts. (Rule 8,
3. That it is not interposed for delay. Section 1)

A Counsel Shall be Subject to Disciplinary a. MANNER OF MAKING ALLEGATIONS

Action in the Following Cases:
1. When he/she deliberately files an unsigned The pleading must contain only ULTIMATE FACTS,
pleading; which refer to the essential facts of the claim. It
2. When he/she signs a pleading in violation of the must omit the statement of mere evidentiary facts.
Rules;
3. When he/she alleges in the pleading scandalous The ULTIMATE FACTS are the important and
or indecent matter; substantial facts which form the basis of the primary
4. When he/she fails to promptly report to the court right of the plaintiff and which make up the wrongful
a change of his/her address. (Rule 7, Section 3) act or omission of the defendant. If the ultimate
facts are not alleged, the cause of action would be
Differentiating Rules on Verification and insufficient (Riano, Civil Procedure: A Restatement
Certificate Against Forum Shopping (Fuji for the bar, 2nd ed, 2009)
Television Network v. Espiritu, G.R. No. 204944-45,
2014) EVIDENTIARY FACTS – refer to those which are
necessary to prove the ultimate fact or which furnish
evidence of the existence of some other facts
VERIFICATION CERTIFICATE AGAINST
FORUM SHOPPING
i) CONDITION PRECEDENT

CONDITIONS PRECEDENT are matters which

Non-compliance or a Non-compliance or a must be complied with before a cause of action
defect therein does not defect therein, is arises. (Riano, Civil Procedure: A Restatement for
necessarily render the generally not curable by the bar, 2nd ed, 2009)
pleading fatally its subsequent
defective. The court submission or correction Conditions precedent and a general averment of its
may order its thereof, unless there is a occurrence must be stated in the pleading.
submission, correction need to relax the Rule on
or act on the pleading the ground of "substantial Otherwise, it will subject the complaint to dismissal,
depending on the compliance" or presence even on appeal, on the ground that a condition
attending of "special circumstances precedent for filing the claim has not be complied
circumstances. or compelling reasons. with. (Section 1[j], Rule 16 of the Rules of Court).

ii) FRAUD, MISTAKE, MALICE, INTENT,

KNOWLEDGE AND OTHER CONDITION
Substantially complied Must be signed by all the OF THE MIND, JUDGMENTS, OFFICIAL
with when one who has plaintiffs in a case; those DOCUMENTS, AND ACTS
ample knowledge to who did not sign will be
swear to the truth of the dropped as parties. In averments of fraud or mistake, the
allegations in the Under justifiable circumstances constituting such fraud or mistake
complaint signs the circumstances, however, must be stated with PARTICULARITY. Malice,
verification as when all the plaintiffs intent, knowledge or other conditions of the
or petitioners share a mind of a person may be averred GENERALLY.
common interest and (Rule 8, Section 5)
invoke a common cause
of action or defense, the In pleading a judgment, it is sufficient to aver the
signature of only one of judgment or decision without alleging matters
them substantially showing the jurisdiction to render judgment or
complies with the Rule. decision (Rule 8, Section 6)

In pleading a document or an act, it is sufficient to

aver that the document or act was issued or done in
compliance with law. (Rule 8, Section 9)
4. ALLEGATIONS IN A PLEADING Facts that May be Averred Generally
1. Conditions precedent (BUT there must still be an
allegation that the specific condition precedent

50
 has been complied with, otherwise, it will be fails to file a Reply with specific denials under oath
dismissed); (Section 3) of documents attached in the Answer, his failure
2. Capacity to sue or be sued; (Section 4) constitutes a judicial admission which should be
3. Capacity to sue or be sued in a representative considered by the judge, even in resolving a
capacity; (Section 4) demurrer to evidence. (Casent Realty v.
4. Legal existence of an organization (Section 4) Philbanking, G.R. No. 150731, 2007)
5. A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be GENUINENESS Means that the Instrument is
sued in a representative capacity shall do so by 1. Not spurious, counterfeit, or of different import
SPECIFIC DENIAL which shall include on its face from the one executed by the party or
supporting particulars within the pleader‘s 2. That the party whose signature it hears has
knowledge. signed it
6. Malice, intent, knowledge, or other condition of 3. That at the time it was signed, it was in words
the mind; (Section 5) and figures exactly as set out in the pleadings.
7. Judgments of domestic or foreign courts,
tribunals, boards, or officers (no need to show DUE EXECUTION Means that the Document Was
jurisdiction); and (Section 6) 1. Signed voluntarily and knowingly by the party
8. Official document or act. (Section 9) whose signature appears thereon,
2. If signed by somebody else such representative
Facts that must be averred particularly had the authority to do so,
Circumstances showing FRAUD or MISTAKE in all 3. It was duly delivered, and that the formalities
averments of fraud or mistake. (Section 5) were complied.

b. PLEADING AN ACTIONABLE DOCUMENT The Following Defenses are NOT Waived

Despite Failure to Deny under Oath:
1. Payment;
An ACTIONABLE DOCUMENT refers to a written
2. Want or illegality of consideration;
instrument upon which the action or defense is
3. Fraud;
based.
4. Mistake;
5. Compromise;
Pleading an Actionable Document: The Pleader
6. Statute of Limitations;
Must
7. Estoppel;
1. Set forth in the pleading the substance of the
8. Duress; and
instrument or the document, and to attach the
9. Minority or imbecility.
original or the copy of the document to the pleading
as an exhibit and which shall form part of the
The aforementioned defenses are NOT inconsistent
pleading; or
with the genuineness and due execution of the
2. Set forth in the pleading said copy of the
document.
instrument or document (Section 7, Rule 8 of the
Rules of Court) The Following Defenses are Waived:
1. Forgery in the signature;
How to Contest an Actionable Document
2. Unauthorized signature, as in the case of an
1. By specific denial under oath; and
agent signing for his principal;
2. By setting forth what is claimed to be the facts.
3. The corporation was not authorized under its
charter to sign the instrument;
Where the Actionable Document is Properly 4. Want of delivery; or
Alleged, the Failure to Specifically Deny UNDER 5. At the time the document was signed, it was not
OATH the Same Results in: in words and figures exactly as set out in the
1. The admission of the genuineness and due pleading.
execution of said document, EXCEPT that an
oath is NOT required: Failure to specifically deny under oath the
a. When the adverse party was not a party to genuineness and due execution of an actionable
the instrument; or document generally implies an admission of the
b. When compliance with an order for an same by the other party. However, such IMPLIED
inspection was refused. ADMISSION IS DEEMED WAIVED if the party
2. The document need not be formally offered in asserting the same has allowed the adverse party
evidence. For it may be considered an admitted to present evidence contrary to the contents of such
fact. (Philamgen v. Sweet Lines, G.R. No. document without objection. (Central Surety v.
87434, 1992) Hodges, G.R. No. L-28633, 1971)

Even documents submitted in an Answer must be c. SPECIFIC DENIALS

specifically denied under oath in a Reply, or else
the genuineness and due execution of the Types of Specific Denials:
documents attached to the Answer are deemed
admitted. This is the case even if it is true that a 1. ABSOLUTE DENIAL – The defendant specifies
Reply is generally optional. Thus, where a plaintiff each material allegation of fact the truth of which

51
 he does not admit and, whenever practicable, 2. Denial of allegations of usury in a complaint to
sets forth the substance of the matters upon recover usurious interest (Rule 8, Section 11)
which he relies to support his denial. (Rule 8,
Section 10) When a Specific Denial Does NOT Require an
Oath
2. PARTIAL DENIAL – The defendant specifies 1. The adverse party does not appear to be a party
the part of truth of which he admits and denies to the document;
only the remainder. 2. Compliance with an order for an inspection of
the original document is refused. (Rule 8,
3. DENIAL BY DISAVOWAL OF KNOWLEDGE – Section 8)
The defendant alleges that he is without
knowledge or information to form a belief as to Striking Out of Pleading or Matter Contained
the truth of a material averment made in the therein is initiated
complaint. This must be made sincerely and in 1. Upon motion by a party before responding to a
good faith. pleading;
2. Upon motion by a party within 20 days after
In a case where a copy of the mortgage deed is service of the pleading upon him if no
attached to the complaint, it is error for the responsive pleading is permitted; or
defendants, in their answer, to deny the underlying 3. Upon court‘s own initiative at any time.
debt by saying that they ―are without knowledge or
information sufficient to form a belief as to the truth Allegations of merely evidentiary or immaterial facts
of the material averments.‖ Since a copy of the may be expunged from the pleading or may be
deed was given to the defendants, it was within stricken out upon motion.
their power to thoroughly attack the complaint on
the basis of more specific denials, rather than a 5. EFFECT OF FAILURE TO PLEAD
general denial claiming lack of knowledge as to the
truth. The rule, which specifically authorizes an a. FAILURE TO PLEAD DEFENSES AND
answer of the defendant that he has no knowledge OBJECTIONS (Implied Admissions)
or information sufficient to form a belief to the truth
of an averment and which would have an effect of a General Rule: Defenses and objections not
denial, does not apply where the fact as to which pleaded either in a motion to dismiss or in the
want of knowledge is asserted is to the knowledge answer are deemed waived. (Rule 9, Section 1)
of the court as plainly and necessarily within the
defendant‘s knowledge that his averment of Exceptions:
ignorance must be palpably untrue. (Warner Barnes Grounds Not Deemed Waived (LLRP)
v. Reyes, G.R. No. L-9531, 1958) 1. Lack of jurisdiction over the matter;
2. Litis pendentia;
Where an answer states that the defendants 3. Res judicata or
―specifically deny the allegations in pars. 2 and 3 of 4. Prescription (Statute of limitations)
the complaint for want of knowledge or information
sufficient to form a belief as to the truth thereof, the
b. FAILURE TO PLEAD A COMPULSORY
truth of the matter being those alleged in the special
COUNTERCLAIM OR CROSS-CLAIM
and affirmative defenses of the defendants...," this
is considered a valid denial, as the explanation is
A compulsory counterclaim, or cross-claim, not set
said to be provided for in the affirmative and special
up at the time a defending party files his answer,
defenses. (Gaza v. Lim, G.R. No. 126863, 2003)
shall be BARRED.

(i) EFFECT OF FAILURE TO MAKE A An AMENDED ANSWER is proper if the

SPECIFIC DENIAL counterclaim or cross claim ALREADY EXISTED at
the time the original answer was filed, but due to
General Rule: Allegations NOT specifically denied oversight, inadvertence, or excusable neglect, it
are deemed admitted. was not set up.

Exceptions: A SUPPLEMENTAL ANSWER is proper if the

1. Allegations as to the amount of unliquidated counterclaim or cross-claim matures or is acquired
damages;
2. Allegations immaterial as to the cause of action;
AFTER the answer is filed.
and
3. Conclusion of law. 6. DEFAULT
(ii) WHEN A SPECIFIC DENIAL REQUIRES DEFAULT (Rule 9)
AN OATH Procedural concept when the defending party fails
to file his ANSWER within the reglementary period.
1. Denial of an actionable document (Rule 8, It does not occur from the failure of the defendant to
Section) attend

52
 Despite an answer being filed, a JUDGMENT BY
The defendant‘s non-appearance in the hearing and DEFAULT may still be rendered in the following
the failure to adduce evidence does NOT constitute circumstances
default when an answer has been filed within the 1. If a party refuses to obey an order requiring him
reglementary period. Instead, it amounts to a waiver to comply with the various modes of discovery;
of the defendant‘s right to object to the evidence or
presented during such hearings and to cross- 2. If a party of officer or managing agent of a party
examine the witness presented. (Monzon v. Sps willfully fails to appear before the officer who is
Relova v. Addio Properties, G.R. No. 17182, 2008) to take his deposition

a. WHEN A DECLARATION OF DEFAULT IS ORDER OF DEFAULT JUDGMENT BY

PROPER DEFAULT

Requisites Before a Party May be declared in Issued by the court Rendered by a court
Default: upon plaintiff‘s motion after a default order has
1. There must be a MOTION TO DECLARE the for failure of the been issued or after it
defendant in default; defendant to file his has received, ex parte,
2. Summons has been validly and previously responsive pleading plaintiff‘s evidence
SERVED upon him within the reglementary
3. Defendant FAILS TO ANSWER within the time period
allowed therefore;
4. There must be PROOF of such failure to
answer. Interlocutory Order – Final Order - Appealable
5. There must be NOTICE to the defendant by Not appealable
serving upon him a copy of such motion; and
6. There must be a HEARING of the motion to
declare the defendant in default (Riano, Civil
Procedure: A Restatement for the bar, 2nd ed, Failure to File an Answer in a Summary
2009) Proceeding
The defendant who fails to file an answer
The following are the remedies of a party declared seasonably is NOT supposed to be declared in
in default: default. Instead, the court, motu proprio OR upon
1. Before judgment: motion under oath to set aside motion of the plaintiff, shall render judgment as may
order of default when failure to answer is based be warranted by the facts alleged in the complaint
on fraud, accident, mistake, excusable and limited to what is prayed for.
negligence and the defendant has a meritorious
defense
b. EFFECT OF AN ORDER OF DEFAULT
2. Before judgment becomes final and executor:
motion for new trial
3. When judgment is final and executor: petition for The Court may, upon its own discretion:
relief 1. Proceed to render judgment; OR
4. Appeal judgment rendered against him as 2. Require the plaintiff to present his evidence ex
contrary to evidence or law parte according to judicial discretion. The
5. Petition for certiorari to declare nullity of judgment reception of the evidence may be done by the
by default (Gomez v. Montalban, G.R. No. court or delegated to the clerk of court.
174414, 2008)
The party declared in default LOSES his standing
The court has NO authority to motu proprio declare in court.
the defendant in default. A MOTION to declare the
defending party MUST BE FILED by the claiming Perfecta Cavili and her brothers were involved
party before a declaration of default is made by the in a case for the partition, accounting and
court. (Rule 9, Section 3) damages and they were declared in default due
to their failure to file an answer within the
Filing a motion to dismiss or a motion for a bill of prescribed period.
particulars will interrupt the running of the period to A motion for new trial was filed with the reason
file an answer. Thus, if these two motions are filed, that the counsel employed by Perfecta was only
a defendant may NOT be declared in default representing her and not her brothers and the
pending the resolution of these two motions. court approved this motion.
In the new trial, the brothers presented Perfecta
General Rule: A default order and consequently, a as a witness but the defendants opposed this
default judgment are triggered by the failure to file stating that since Perfecta is already declared in
the required answer by the defending party. default, she cannot participate in the case any
capacity, even as a witness.
Exceptions: The court ruled for the brothers. “Loss of
Pending” must only mean the forfeiture of one’s
right as a party litigant, contestant or legal

53
adversary. When a pleading asserts a claim against several
defending parties and some file and serve their
While the defendant can no longer take part in the answers but the others do not, the court shall try the
trial, he is nevertheless entitled to notices of case against ALL the defending parties based on
subsequent proceedings. He may participate in the the answers filed and render judgment upon the
trial not as a party but as a witness. (Cavili v. evidence presented where the claim states a
Florendo, 9 October 1987, 154 SCRA 610) common cause of action against them. (Rule 9,
Section 3)
A Party in Default is entitled to Notice of
1. Motion to declare him in default; e. EXTENT OF RELIEF
2. Order declaring him in default;
3. Subsequent proceedings; and A Judgment Rendered Against a Party Declared
4. Service of final orders and judgments. in Default Shall NOT
1. Exceed the amount prayed for;
A declaration of default is NOT an admission of the 2. Be different in kind from that prayed for;
truth or the validity of the plaintiff‘s claims. (Monarch 3. Award unliquidated damages.
Insurance v. CA, G.R. No. 92735, 2000)
f. ACTIONS WHERE DEFAULT IS NOT
Complainants are not automatically entitled to the ALLOWED
relief prayed for, once the defendants are declared
in default. Favorable relief can be granted only after 1. Annulment of marriage;
the court has ascertained that the relief is warranted 2. Declaration of nullity of marriage;
by the evidence offered and the facts proven by the 3. Legal Separation;
presenting party. Quantum of proof of plaintiff 4. Special civil actions of certiorari, prohibition and
remains the same even with defendant‘s default. mandamus where comment instead of an
(Gajudo v. Traders Royal Bank, G.R. No. 151098, answer is required to be filed; and
2006) 5. Summary procedure.

Default should be treated as the exception rather 7. FILING AND SERVICE OF

than the rule because the policy of the law is to
have every litigant‘s case tried on the merits as PLEADINGS
much as possible.
FILING
c. RELIEF FROM AN ORDER OF DEFAULT The act of presenting the pleading or other papers
to the CLERK OF COURT. (Rule 13, Section 2) For
After Notice of Order and Before Judgment the purpose of filing, the original must be presented
The defendant must file a MOTION TO SET ASIDE personally to the clerk of court or by sending the
ORDER OF DEFAULT under oath and show that same by registered mail. (Rule 13, Section 3)
1. The failure to answer was due to fraud, accident,
mistake or excusable negligence and that; SERVICE
2. The defendant has a meritorious defense – The act of providing a party with a COPY of the
affidavit of merit pleading or paper concerned.

After Judgment and Before Judgment Becomes The Following Papers Are required to be FILED
Final and Executory in Court and SERVED upon the parties affected:
The defendant may file a MOTION FOR NEW 1. Judgments;
TRIAL under Rule 37 of the Rules of Court. He may 2. Resolutions;
also appeal from the judgment as being contrary to 3. Orders;
the evidence or the law. 4. Pleadings subsequent to the complaint;
5. Written motion;
After Judgment Becomes Final and Executory 6. Notices;
File a PETITION FOR RELIEF OF JUDGMENT 7. Appearances;
under Rule 38 of the Rules of Court. 8. Demands;
9. Offers of judgment; and
d. EFFECT OF A PARTIAL DEFAULT 10. Similar papers. (Rule 13, Section 4)

Partial Default a. PAYMENT OF DOCKET FEES

1. The default asserting a claim states a common
cause of action against several defending The payment of the docket fee vests the court with
parties; jurisdiction over the subject matter.
2. Some of the defending parties answer and the
others fail to do so; and The court requires that all complaints, petitions,
3. The answer interposes a common defense. answers, and similar pleadings must specify the
amount of damages being prayed for both in the
Effect of Partial Default body of the pleading and in the prayer. (Manchester
Development Corp v. CA, G.R. No. 75919, 1987)

54
 c. PERIODS OF FILING OF PLEADINGS
Any defect in the original pleading resulting in the
underpayment of the docket fee cannot be cured by ANSWER TO COMPLAINT
amendment, such as by the reduction of the claim The defendant shall file his answer to the complaint
as, for all legal purposes, there is no original within fifteen (15) days after service of summons,
complaint over which the court has acquired unless a different period is fixed by the court.
jurisdiction.
Where the Defendant is a Foreign Private
Plainly, while the payment of the prescribed docket Juridical Entity
fee is a jurisdictional requirement, even its non- 1. Within fifteen (15) days after service of
payment at the time of filing does not automatically summons if there exists a resident agent.
cause the dismissal of the case, as long as the fee 2. Within fifteen (15) days after service of
is paid within the applicable prescriptive or summons if there is no resident agent but there
reglementary period, more so when the party is an agent or officer in the Philippines.
involved demonstrates a willingness to abide by the 3. Within thirty (30) days after receipt of summons
rules prescribing such payment. (Heirs of Bertuldo by the home office of the foreign private entity if
Hinog v. Hon. Achilles Melicor, G.R. No. 140954, there is no resident agent nor agent or officer in
2005) the Philippines and summons is made to the
proper government office which is tasked to
b. FILING VERSUS SERVICE OF PLEADINGS send a copy of such to the home office of the
foreign private entity.
FILING OF SERVICE OF
PLEADINGS PLEADINGS If the service of summons was made by publication,
within the time specified in the order granting leave
Act of presenting the Act providing a party to serve summons by publication, which shall not be
pleading or other paper with a copy of the less than sixty (60) days after notice.
to the clerk of court pleading or paper
concerned If the service of summons was made by
Modes of Filing Judgment, pleadings extraterritorial service to a non-resident defendant,
1. Personally to the and orders are served to the period to answer should be at least sixty (60)
clerk of court; or counsel, EXCEPT: days.
2. Sending them by 1.When he has no
registered mail counsel; ANSWER TO AMENDED COMPLAINT
2.When counsel of 1. Where the plaintiff files an amended complaint
as a matter of right, the defendant shall answer
record can‘t be located;
or the same within fifteen (15) days after
3.When party himself is being served with a copy thereof.
directed by court to 2. Where filing is NOT a matter of right, the
show cause (e.g. defendant shall answer the amended complaint
contempt) within ten (10) days from notice of the Order
admitting the same. An answer earlier filed may
*If represented by 2 serve as the answer to the amended complaint,
counsels, notice may be if no new answer is filed.
served upon both or
either of them COUNTERCLAIM OR CROSS-CLAIM
A counterclaim or cross-claim must be answered
Modes of Service within ten (10) days from service.
1. Personally;
2. Mail; or THIRD-PARTY COMPLAINT
3. Substituted service The time to answer a third (fourth, etc.)—party
complaint shall be governed by the same rule as
the answer to the complaint.

REPLY may be filed within ten (10) days from

service of the pleading responded to.
ANSWER TO SUPPLEMENTAL COMPLAINT
A supplemental complaint may be answered within
ten (10) days from notice of the order admitting the
same, unless a different period is fixed by the
court.

The answer to the complaint shall serve as the

answer to the supplemental complaint if no new or
supplemental answer is filed.

Extension of Time to Plead

55
1. There must be a motion; (iii) SUBSTITUTED SERVICE
2. With service of such motion to the other party;
and If service of pleadings, motions, notices,
3. On such terms as may be just. resolutions, orders and other papers cannot be
made in either personal service or registered mail,
d. MANNER OF FILING the office and place of residence of the party or his
counsel being unknown, service may be made by
Two Modes of Filing delivering the copy to the clerk of court, with proof
1. By filing personally to the clerk of court of failure of both personal service and service by
2. By registered mail. mail.

Pleadings subsequent to original complaint and (iv) SERVICE OF JUDGMENTS, FINAL

written motions should first be served on the parties ORDERS, AND RESOLUTIONS
before they are filed with court.
How Made
The filing of pleadings, appearances, motions, 1. By personal service
notices, orders, judgments, and all other papers 2. By registered mail
shall be made by presenting the original copies. 3. By publication
4. NO substituted service.
Failure to comply with the requirement that the
petition be accompanied by a duplicate original or (v) PRIORITIES IN MODES OF SERVICE
certified true copy of the judgment, order, resolution AND FILING
or ruling being challenged is sufficient ground for
the dismissal of said petition. (William Golangco Whenever practicable, the service and filing of
Construction Corporation v. Ray Burton pleadings and other papers shall be done
Development Corporation, G.R. No. 163582, 2010) personally.

When a pleading is sent through private courier, the (vi) WHEN SERVICE IS DEEMED
date of actual receipt of the Court is considered as COMPLETE
the date of filing. (Heirs of Miranda v. Miranda, GR
No. 179638, 2013) 1. PERSONAL SERVICE - Upon actual delivery
2. ORDINARY MAIL - Upon expiration of 10 days
e. MODES OF SERVICE after mailing
3. REGISTERED MAIL - Upon actual receipt by
(i) PERSONAL SERVICE the addressee OR five (5) days from the date he
received first notice from postmaster
The preferred mode of service. If another mode of 4. SUBSTITUTED SERVICE - At the time of such
service is used (other than personal service), the delivery of the copy to the clerk of court
service must be accompanied by a written
explanation why the service of filing was not done (vii) PROOF OF FILING AND SERVICE
personally.
PROOF OF PROOF OF
How Personal Service is made FILING SERVICE
1. Delivering personally a copy to the party who is
not represented by a counsel, or to his counsel;
or
2. Leaving a copy in counsel‘s office with his clerk
or with a person having charge thereof; or
3. If no person is found in his office, or if his office
is unknown, or if he has no office – by leaving
the copy between 8 a.m. to 6 p.m. at the party‘s
or counsel‘s residence, if known, with a person
of sufficient age and discretion then residing
therein.

Failure to comply with the explanation requirement

may be cause for the paper to be considered as
NOT having been filed.

(ii) SERVICE BY MAIL

The preferred service by mail is by REGISTERED

MAIL. Service by ordinary mail may be done only if
no registry service is available in the locality of
either the sender or the addressee.

56
Personal The filing of a 1.Written Registered 1. The registry 1. The registry
Service pleading or paper admission of Mail receipt; and receipt; and
shall be proved the party 2. By the affidavit 2. By the
by its existence served; or of the person who affidavit of the
in the record of 2. Official return did the mailing. person who did
the case. of the server; or The affidavit the mailing.
If Not in the 3. Affidavit of must: The registry
Record the party 1. Contain a full return card shall
Written or serving, statement of the be filed
stamped containing full date and place of immediately
acknowledgment information of depositing the upon its receipt
of its filing by the the date, place mail in the post by the sender,
clerk of court on a and manner of office or in lieu thereof
copy of the same service. 2. In a sealed of the
envelope unclaimed letter
addressed to the together with
court the certified or
3. With postage sworn copy of
fully prepaid; and the notice given
4. With by the
instructions to the postmaster to
postmaster to the addressee.
Ordinary Affidavit of the
return the mail to
Mail person mailing the sender after
of the facts ten (10) days if
showing not delivered.
compliance with
Section 7, Rule
13 of the Rules
of Court

8. AMENDED AND SUPPLEMENTAL

PLEADINGS (Rule 10)

Amendments, in General
Proper when there is an event that was not alleged
in the pleadings due to inadvertence, oversight,
etc., but happened before its filing.

Pleadings MAY be Amended By:

1. Adding or striking out an allegation of a party;
2. Adding or striking out the name of a party;
3. Correcting a mistake in the name of a party; and
4. Correcting a mistake or inadequate allegation or
description in any other respect.

a. AMENDMENT AS A MATTER OF RIGHT

A party may amend his pleading ONCE as a matter

of right. Subsequent amendments must be WITH
LEAVE of court.

57
It may be exercised at ANY time BEFORE a Leave of Court is required
responsive pleading is SERVED. In the case of a 1. If the amendment is substantial; and
reply it may be amended at any time within ten (10) 2. A responsive pleading had already been served.
days after it is SERVED. (Rule 10, Section 2)
Requisites
Pleader has a right to amend his complaint before a 1. There must be a motion filed in court;
responsive pleading is served even if it is to correct 2. Notice to the adverse party; and
a jurisdictional defect. 3. Opportunity to be heard afforded to the adverse
party.
Instances Where Amendment is a Matter of Substantial amendments can be done with leave of
Right court. It can substantially alter the cause of action or
1. A COMPLAINT may be amended before an the defenses with leave of court. (PPA v. Gothong
answer is served (regardless of whether a new and Aboitiz, G.R. No. 158401, 2008)
cause of action or change in theory is introduced
– thus, MAY be substantial) Amendment by Leave of Court may NOT be
2. An ANSWER may be amended before a reply is Allowed When
served upon the defendant 1. When cause of action, defense or theory of the
3. A REPLY may be amended any time within ten case is changed;
(10) days after it is served; 2. Amendment is intended to confer jurisdiction to
the court;
A defect in the designation of the parties and other 3. Amendment to cure a premature or non-existing
clearly clerical or typographical errors may be cause of action; and
summarily corrected by the court at any stage of the 4. Amendment for purposes of delay.
action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party. After a responsive pleading has been served, a
(Section 4, Rule 10) complaint cannot be amended to confer jurisdiction
on the court in which it is filed, if the cause of action
Section 2 Rule 10 refers to an amendment made originally set forth was not within the court's
before the trial court and NOT to amendments jurisdiction. (Campos Rueda Corporation v.
before the Court of Appeals. The Court of Appeals Bautista, G.R. No. L-18453, 1962)
is vested with jurisdiction to admit or deny amended
petitions filed before it (Navarro v. Vda De Taroma, c. FORMAL AMENDMENT
G.R. No. 160214, 2005) A defect in the designation of the parties and other
clearly CLERICAL or TYPOGRAPHICAL errors may
If a motion to dismiss is filed, an amendment to the be summarily corrected by the court at ANY stage
complaint would still be a matter of right during the of the action, at its initiative or on motion, provided
pendency of the motion to dismiss. Such a motion so prejudice is caused thereby to the adverse party.
is NOT a responsive pleading. (Paeste v. Jaurigue, (Section 4, Rule 10)
G.R. No. L-5711, 1953). Even if the motion to
dismiss is granted by the court, the plaintiff may still c. AMENDMENTS TO CONFORM TO OR
amend the complaint as a matter of right before AUTHORIZE PRESENTATION OF EVIDENCE
such dismissal becomes final.
When Issues Not Raised by the Pleadings Are
Before the filing of any responsive pleading, a Tried With the Express or Implied Consent of
party has the absolute right to amend his pleading, the Parties
regardless of whether a new cause of action or 1. They shall be treated in all respects as if they
change in theory is introduced. It is settled that a had been raised in the pleadings.
motion to dismiss is not the responsive pleading 2. Such amendment of the pleadings as may be
contemplated by the Rule. (Bautista v. Maya-Maya necessary to cause them to conform to the
Cottages, G.R. No. 148361, 2005) evidence may be made upon motion of any
party at any time, even after judgment.
The plaintiff may amend his complaint once as a 3. BUT failure to amend does NOT affect the result
matter of right, i.e. without leave of court, before any of the trial of these issues.
responsive pleading is filed or served. Responsive
pleadings are those which seek affirmative relief If Evidence is objected to at the Trial on the
and/or set up defenses, like an answer. A motion to Ground That it is Not Within the Issues Made by
dismiss is not a responsive pleading for purposes of the Pleadings
Section 2 of Rule 10. (Marcos-Araneta v. Court of 1. The court may allow the pleadings to be
Appeals, G.R. No. 154096, 2008) amended.
2. It shall do so with liberality if the presentation of
It is erroneous for a court to refuse an amendment the merits of the action and the ends of
exercised as a matter of right and this error may be substantial justice will be sub served thereby.
corrected by mandamus. 3. The court may grant a continuance to enable the
amendment to be made. (Rule 10, Section 5)
b. AMENDMENTS BY LEAVE OF COURT

58
 When an amended A supplemental pleading
This also covers situations where a complaint pleading is filed, a new does not require the filing
insufficiently states the cause of action. Such copy of the entire of a new copy of the
insufficiency may be cured by evidence presented pleading must be filed entire pleading
during the trial without objection. However, this is
applicable only if a cause of action in fact exists at
the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts.
(Swagman Hotels and Travel Inc., v. CA, G.R. No.
161135, 2005)
Filing of Amended Pleadings
d. DIFFERENCE FROM SUPPLEMENTAL When any pleading is amended, a new copy of the
PLEADINGS entire pleading, incorporating the amendments,
which shall be indicated by the appropriate marks,
SUPPLEMENTAL PLEADINGS shall be filed.
Set forth transactions, occurrences or events which
e. EFFECT OF AMENDED PLEADING
have happened since the date of the pleading
sought to be supplemented.
An amended pleading supersedes the pleading that
it amends.
The cause of action stated in the supplemental
pleading is thus the SAME as that stated in the
However, admissions in superseded pleadings may
original. The supplemental pleading is only a
be received in evidence against the pleader; and
CONTINUATION of the primary pleading as it only
claims or defenses alleged therein not incorporated
serves to bolster or add something to it.
in the amended pleading shall be deemed waived.
The adverse party MAY plead thereto within ten
The original complaint is deemed superseded and
(10) days from notice of the order admitting the
abandoned by the amendatory complaint only if the
supplemental pleading. Thus, it is NOT mandatory
latter introduces a new or different cause of action.
for an answer to be filed to a supplemental
(Verzosa v. CA, G.R. No. 119511, 1998)
complaint.
Admissions made in the original pleadings are
Additional filing fees are due to a supplemental
considered as EXTRAJUDICIAL admissions.
complaint and it is not for the party or the trial court
However, admissions in superseded pleadings may
to waive such payment. Failure to pay filing fees for
be received in evidence against the pleader as long
supplemental complaint is fatal only for the
as they are formally offered in evidence (Rule 10,
supplemental complaint. The original complaint is
Section 8)
not affected (Do-All Metals Industries Inc., v.
Security Bank, G.R. No. 176339, 2011)
Effect of Amendment of Complaint on the
Requisite of Service of Summons
AMENDED SUPPLEMENTAL
If new causes of action are alleged in the amended
PLEADING PLEADING
complaint filed BEFORE the defendant has
Refers to facts existing Refers to facts arising appeared in court, another summons must be
at the time of the AFTER the filing of the served on the defendant with the amended
commencement of the original pleading complaint.
action
However, if the defendants have ALREADY
APPEARED before the court by virtue of summons
Takes the place of the Taken TOGETHER with in the original complaint (e.g., by filing an entry of
original pleading the original pleading appearance or motion for extension of time to file a
responsive pleading), the amended complaint may
be served upon them without need of another
summons EVEN IF new causes of action are
Can be made as a Always WITH leave of alleged.
matter of right as when court
no responsive pleading END OF TOPIC
has yet been filed

F. SUMMONS
(Rule 14)

59
1. NATURE AND PURPOSE OF
Nature
SUMMONS IN RELATION TO The issuance of summons by the Clerk of Court is
ACTIONS IN PERSONAM, IN REM MANDATORY upon the filing of the complaint and
AND QUASI IN REM payment of requisite legal fees (Riano, Civil
2. VOLUNTARY APPEARANCE Procedure: A Restatement for the Bar, 2nd Edition,
2009)
3. PERSONAL SERVICE
4. SUBSTITUTED SERVICE Summons May be Served ONLY by
5. CONSTRUCTIVE SERVICE (BY 1. Sheriff;
PUBLICATION) 2. Sheriff‘s deputy; or
a. Service upon a defendant where his 3. Other proper court officers; or
identity is unknown or where his 4. For justifiable reasons, by any suitable person
whereabouts are unknown authorized by the court issuing the summons
b. Service upon residents temporarily
outside the Philippines ALIAS SUMMONS
6. EXTRA-TERRITORIAL SERVICE, One issued by the clerk of court on demand of the
WHEN ALLOWED plaintiff when the original summons was returned
without being served on any or all of the
7. SERVICE UPON PRISONERS AND defendants, or when summons has been lost. When
MINORS issued, it supersedes the first summons.
8. PROOF OF SERVICE
RETURN
1. NATURE AND PURPOSE OF When the service has been completed, the server
SUMMONS IN RELATION TO shall, within five (5), serve a copy of the return, to
the plaintiff's counsel, and shall return the summons
ACTIONS IN PERSONAM, IN REM to the clerk, who issued it, accompanied by proof of
AND QUASI IN REM service.

Summons SUMMONS IN ACTIONS IN PERSONAM

A writ by which the defendant is notified of the
action brought against him/her. Service of such writ Purpose
is the means by which the court may acquire
1. Notify defendant of action against him/her; and
jurisdiction over his/her person. (Cano-Gutierrez v.
2. Acquire jurisdiction over defendant‘s person in a
Gutierrez, G.R. No. 138584, 2000)
civil case
NON-SERVICE OR IRREGULAR SERVICE OF
SUMMONS may be a ground for dismissal for lack Jurisdiction over the defendant, without service of
of jurisdiction over the person of the defending summons, cannot be acquired even if the defendant
party. has knowledge of the case against him. (Habana v.
Vamenta, G.R. No. L-27091, 1970)
Service of such writ is the means by which the court
Even if jurisdiction was not originally acquired due
acquires jurisdiction over his person. Any judgment
to defective service of summons, court acquires
without such service in the absence of a valid
jurisdiction over his person by his act of
waiver is null and void. (Gomez v. Court of
subsequently filing a motion for reconsideration.
Appeals, G.R. No. 127692, 2004)
(Soriano v. Palacio, G.R. No. L-17469, 1964)
The Clerk of Court Shall Issue the Summons to
In case of death of defendant before the service of
the Defendant Upon
summons, the 1976 en banc decision in the case of
1. Filing of the complaint; and Dumlao v. Quality Plastic Products Inc., G.R. No. L-
2. Payment of the requisite legal fees. 27956, 1976, held that:
Contents of Summons
―The lower court's judgment against deceased is
1. Name of the court & names of the parties to the
void for lack of jurisdiction over his person.
action;
Deceased was not, and could not have been, validly
2. Direction that defendant answer within the time
served with summons. He had no more civil
fixed by these Rules; and
personality. His juridical capacity, which is the
3. Notice that unless the defendant so answers,
fitness to be the subject of legal relations, was lost
plaintiff will take judgment by default and may be
through death.‖
granted the relief applied for.

NOTE: A copy of the complaint and order for SUMMONS IN ACTIONS IN REM AND QUASI IN
appointment of guardian ad litem if any shall be REM
attached to the original and each copy of the The purpose of the summons is to satisfy the
summons. constitutional requirement of due process

60
 of justice. Thus, they are enjoined to try their best
It is done NOT to acquire jurisdiction over the efforts to accomplish personal service on
defendant; in actions in rem and quasi in rem, the defendant. On the other hand, since the defendant
court CAN acquire jurisdiction by acquiring is expected to try to avoid and evade service of
jurisdiction over the RES (the thing). summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the
In actions in rem or quasi in rem, jurisdiction over process on the defendant. (Constantino Pascual v.
the person of the defendant is not a prerequisite to Lourdes Pascual, G.R. No. 171916, 2009)
confer jurisdiction on the court provided that the
court acquires jurisdiction over the RES, although How Served
summons must be served upon the defendant in 1. By handing a copy thereof to the defendant in
order to satisfy the due process requirements. person
[Gomez v. Court of Appeals, G.R. No. 127692, 2. If he/she refuses to receive and sign for it,
March 10, 2004] summons will be tendered by server to
defendant.
Jurisdiction Over the Res is Acquired Either
1. By the seizure of the property under legal A summons may be served personally wherever the
process, whereby it is brought into actual defendant is found within the Philippine. As stated
custody of the law; or in Sansio Philippines Inc. v Sps, Mogol, G.R. No.
2. As a result of the institution of legal proceedings, 177007, 2009, ―Section 6, Rule 14 of the Rules of
in which the power of the court is recognized Court does not require that the service of summons
and made effective. on the defendant in person must be effected only at
the latter‘s residence as stated in the summons. On
2. VOLUNTARY APPEARANCE the contrary, said provision is crystal clear that,
whenever practicable, summons shall be served by
handing a copy thereof to the defendant; or if he
General Rule: Voluntary appearance is equivalent refuses to receive and sign for it, by tendering it to
to service of summons. him. Nothing more is required.‖

Exception: Tender is part of service of summons and NOT a

Filing a motion to dismiss on the ground of lack of separate mode of service. (Riano, Civil Procedure:
jurisdiction is NOT considered as voluntary nd
A Restatement for the Bar, 2 ed, 2009)
appearance.
Against a NONRESIDENT, jurisdiction over the
Inclusion in motion to dismiss of other grounds defendant is acquired by service upon his person
aside from lack of jurisdiction over person of while said defendant is within the Philippines. If
defendant shall NOT be deemed as voluntary the non-resident defendant is not in the Philippines,
appearance. and the action is an action in personam, Philippine
courts cannot acquire jurisdiction over the
It is settled that a party who makes a special defendant.
appearance in court for the purpose of challenging
the jurisdiction of said court, based on the invalidity
of the service of summons, cannot be considered to 4. SUBSTITUTED SERVICE
have voluntarily submitted himself to the jurisdiction
of the court. (Perkin Elmer Singapore Pte Ltd. v. Substituted service can only be made if personal
Dakila Trading Corporation, G.R. No. 172242, service CANNOT be made within a reasonable time
2007) for justifiable causes.

For Substituted Service of Summons to be valid,

3. PERSONAL SERVICE the following MUST be demonstrated
1. That personal service of summons within a
When Required reasonable time was impossible;
Personal service is MANDATORY in actions in 2. That efforts were exerted to locate the party;
personam to acquire jurisdiction over person of and
defendant. 3. That the summons was served upon a person
of sufficient age and discretion residing at the
In an action strictly in personam, personal service party's residence or upon a competent person
on the defendant is the preferred mode of service, in charge of the party's office or regular place of
that is, by handing a copy of the summons to the business.
defendant in person. (Imelda Manotoc v. Court of
Appeals, G.R. No. 130974, 2006) It is likewise required that the pertinent facts proving
these circumstances be stated in the proof of
Sheriffs are asked to discharge their duties on the service or in the officer's return.‖ (Sagana v.
service of summons with due care, utmost Francisco, G.R. No.161952, 2009)
diligence, and reasonable promptness and speed
so as not to prejudice the expeditious dispensation

61
The failure to comply faithfully, strictly and fully with personally serve the summons within a reasonable
all the foregoing requirements of substituted service period [of one month], which eventually resulted in
renders the service of summons ineffective. (San failure to prove impossibility of prompt service.
Pedro v. Ong, G.R. No. 177598, 2008) ―Several attempts‖ means at least three (3) tries,
preferably on at least two different dates. In
Without specifying the details of the attendant addition, the sheriff must cite why such efforts were
circumstances or of the efforts exerted to serve the unsuccessful. It is only then that impossibility of
summons, a general statement that such efforts service can be confirmed or accepted. (Imelda
were made will not suffice for purposes of Manotoc v. Court of Appeals, G.R. No. 130974,
complying with the rules of substituted service of 2006)
summons. (Guiguinto Credit Cooperative, Inc. v.
Torres, G.R. No. 170926, 2006) “Suitable Age and Discretion”
A person of suitable age and discretion is one who
Substituted service as the normal mode of service has attained the age of full legal capacity (18
for residents temporarily out of the Philippines. years old) and is considered to have enough
(Leah Palma v. Danilo Galvez, G.R. 165273, 2010) discernment to understand the importance of a
summons.
A plain and simple reading of the above provisions
indicates that personal service of summons should Discretion is defined as ―the ability to make
and always be the first option, and it is only when decisions which represent a responsible choice and
the said summons cannot be served within a for which an understanding of what is lawful, right or
reasonable time can the process server resort to wise may be presupposed‖. Thus, to be of sufficient
substituted service. (Constantino A. Pascual v. discretion, such person must know how to read and
Lourdes S. Pascual, G.R. No.171916, 2009) understand English to comprehend the import of the
summons, and fully realize the need to deliver the
Substituted Service is Made By summons and complaint to the defendant at the
1. Leaving copes of the summons at the earliest possible time for the person to take
defendant‘s residence with a person of suitable appropriate action. Thus, the person must have the
age and discretion residing therein; or ―relation of confidence‖ to the defendant, ensuring
2. Leaving copies of the summons at the that the latter would receive or at least be notified of
defendant‘s office or regular place of business the receipt of the summons. The sheriff must
with some competent person in charge thereof. therefore determine if the person found in the
alleged dwelling or residence of defendant is of
“Reasonable Time” Requirement legal age, what the recipient‘s relationship with the
Reasonable time is defined as ―so much time as is defendant is, and whether said person
necessary under the circumstances for a comprehends the significance of the receipt of the
reasonably prudent and diligent man to do, summons and his duty to immediately deliver it to
conveniently, what the contract or duty requires that the defendant or at least notify the defendant of said
should be done, having a regard for the rights and receipt of summons. These matters must be clearly
possibility of loss, if any to the other party.‖ (Imelda and specifically described in the Return of
Manotoc v. Court of Appeals, G.R. No. 130974, Summons. (Imelda Manotoc v. Court of Appeals,
2006) G.R. No. 130974, 2006) AND (Constantino Pascual
v. Lourdes Pascual, G.R. No. 171916, 2009)
What then is a reasonable time for the sheriff to
effect a personal service in order to demonstrate “Competent Person in Charge”
impossibility of prompt service? To the plaintiff, If the substituted service will be done at defendant‘s
―reasonable time‖ means no more than seven (7) office or regular place of business, then it should be
days since an expeditious processing of a complaint served on a competent person in charge of the
is what a plaintiff wants. To the sheriff, ―reasonable place. Thus, the person on whom the substituted
time‖ means 15 to 30 days because at the end of service will be made must be the one managing the
the month, it is a practice for the branch clerk of office or business of defendant, such as the
court to require the sheriff to submit a return of the president or manager; and such individual must
summons assigned to the sheriff for service. The have sufficient knowledge to understand the
Sheriff‘s Return provides data to the Clerk of Court, obligation of the defendant in the summons, its
which the clerk uses in the Monthly Report of Cases importance, and the prejudicial effects arising from
to be submitted to the Office of the Court inaction on the summons. (Imelda Manotoc v. Court
Administrator within the first ten (10) days of the of Appeals, G.R. No. 130974, 2006)
succeeding month. Thus, one month from the
issuance of summons can be considered Entity Without Juridical Personality
―reasonable time‖ with regard to personal service on If sued under the name by which they are generally
the defendant. (Constantino Pascual v. Lourdes or commonly known, service may be effected upon
Pascual, G.R. No. 171916, 2009) all the defendants by serving upon:
1. Any one of them; or
“Several Attempts” 2. Upon the person in charge of the office or place
For substituted service of summons to be available, of business maintained in such name.
there must be several attempts by the sheriff to

62
But such service shall not bind individually any corporation that such person will know what to do
person whose connection with the entity has, upon with the legal papers served on him.
due notice, been severed before the action was The impossibility of prompt service must be shown
brought. by stating the efforts have been made to find the
defendant personally and that such efforts failed;
Domestic Private Juridical Entity these requirements must be followed strictly,
When the defendant is a corporation, partnership or faithfully and fully and any substituted service other
association organized under the laws of the than that authorized by statute is considered
Philippines with a juridical personality, service may ineffective.
be made on the
1. President; Foreign Private Juridical Entity
2. Managing Partner; When the defendant is a foreign private juridical
3. General Manager; entity which has transacted business in the
4. Corporate Secretary; Philippines, service may be made on its resident
5. Treasurer; or agent designated in accordance with law for that
6. In-house Counsel. purpose, or, if there be no such agent, on the
government
Section 13, Rule 14 is ―restricted, limited, and official designated by law to that effect, or on any of
exclusive.‖ (Paramount Insurance Corp. v. A.C. its officers or agents within the Philippines.
Ordoñez Corporation, G.R. No. 175109, 2003)
If the foreign private juridical entity is not registered
Basic is the rule that a strict compliance with the in the Philippines or has no resident agent, service
mode of service is necessary to confer jurisdiction may, with leave of court, be effected out of the
of the court over a corporation. The officer upon Philippines through any of the following means:
whom service is made must be one who is named
in the statute; otherwise, the service is insufficient.‖ a) By personal service coursed through the
(Bank of the Philippine Islands v. Santiago G.R. No. appropriate court in the foreign country with the
169116, 2007) assistance of the Department of Foreign
Affairs;
The rationale of the rule is that service must be b) By publication once in a newspaper of general
made on a representative so integrated with the circulation in the country where the defendant
corporation sued as to make it a priori presumable may be found and by serving a copy of the
that he will realize his responsibilities and know summons and the court order by-registered
what he should do with any legal papers received mail at the last known address of the
by him. (Millenium Industrial Commercial defendant;
Corporation v. Tan, G.R. No. 131724, 2000) c) By facsimile or any recognized electronic
means that could generate proof of service; or
d) By such other means as the court may in its
Substituted Service For Corporation – See BD discretion direct. (A.M. No. 11-3-6-SC)
Longspan v. Ampeloquio 11 September 2009,
GR 169919. Public Corporations
BD Long Span Builders and R.S. Ampeloquio are When the defendant is the Republic of the
Philippine corporations that entered into an Philippines, service may be effected on the
agreement worth P80M thus one of the conditions SOLICITOR GENERAL.
was for BD Long Span, as the obligor, to deposit
P800K during the duration of the project and it was In case of a province, city or municipality, or like
agreed that the deposit would be returned once the public corporations, service may be effected on its
project is done. EXECUTIVE HEAD, or on such OTHER OFFICER
BD Long Span was unable to finish the project OR OFFICERS as the law or the court may direct.
which resulted in the cancellation of the agreement.
BD Long Span demanded for the refund of the Non-resident Defendant
deposit but RS Ampeloquio refused. Generally, summons to a non-resident defendant
BD Long Span then filed a case for rescission of may be served wherever he may be found. Note,
contract and damages against RS. The summons however, in the case of, Gemperle v. Schenker,
and a copy of the complaint were served on RS G.R. No. L-18164, 1967, where the Court carved
through its staff member. out a very narrow exception to the requirement of
SC ruled that at the outset, service of summons to personal service. In said case, the Court deemed
a corporation should be through the President, the service of summons to the resident spouse who
managing partner, corporate secretary, treasurer or was also the defendant‘s attorney-in-fact, valid.
in-house counsel otherwise the service would be Thus:
insufficient.
The purpose is to reasonably ascertain that the ―Nevertheless, We hold that the lower court had
corporation will receive prompt and proper notice in acquired jurisdiction over said defendant, through
an action against it or to insure that summons is service of the summons addressed to him upon
served to a representative so integrated with the Mrs. Schenker, it appearing from said answer that
she is the representative and attorney-in-fact of her

63
husband (xxx), which apparently was filed at her (Millenium Industrial Commercial Corporation v.
behest, in her aforementioned representative Tan, G.R. No. 131724, 2000)
capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of
her husband, so that she was, also, empowered to
5. CONSTRUCTIVE SERVICE (BY
represent him in suits filed against him, particularly PUBLICATION)
in a case, like the of the one at bar, which is
consequence of the action brought by her on his Constructive notice by publication used to be
behalf.‖ available only in actions IN REM or QUASI IN REM.

Effect of Ineffective Substituted Service Now, constructive service is available in action IN

The Court does NOT acquire jurisdiction over the PERSONAM (thus, in ANY ACTION) where the
person of the accused and the judgment against defendant is designated as an unknown owner or
him must perforce be nugatory and without legal whenever his whereabouts are unknown and
effect.‖ (Litonjua v. CA, G.R. No. L-46255, October cannot be ascertained.
28, 1977)
a. SERVICE UPON A DEFENDANT WHERE HIS
Furthermore, in the 1993 decision in Laus v. Court IDENTITY IS UNKNOWN OR WHERE HIS
of Appeals, G.R. No. 101256, 1993, the period to WHEREABOUTS ARE UNKNOWN
file motion to dismiss for lack of jurisdiction over the
defendant‘s person does not commence to run Constructive Service of Summons (through
since court has no jurisdiction to adjudicate the publication) may be effected on RESIDENT
controversy as to him, unless he voluntarily submits DEFENDANT
to the jurisdiction of the court. 1. Who is designated as an unknown owner (or the
like), or
Effect of Substituted Service Validly Served but 2. Whose whereabouts are unknown and cannot
Not Received by Defendant be ascertained by diligent inquiry;
Where the substituted service has been validly 3. With leave of court.
served, its validity is NOT affected by the
defendant‘s failure to receive the summons from the Service of summons shall be effected by publication
person with whom the summons had been left. in a newspaper of general circulation and in such
places and for such time as the court may order.
If diligent efforts were undertaken by the Sheriff to
serve summons upon the defendant but he was b. SERVICE UPON RESIDENTS
PREVENTED from effecting such service by the TEMPORARILY OUTSIDE THE PHILIPPINES
DEFENDANT HIMSELF, summons shall be
deemed PROPERLY served and that the court has The defendant is a resident of the Philippines, and
acquired jurisdiction over the person of the remains to be one, except that he is temporarily
defendant. (Robinson v. Miralles, G.R. No. 163584, outside of the country. The provision does not
2006) provide for the length of time needed, as long as the
defendant is certain to return, although it may not
Substantial Compliance be known when.
Requisites for the application of the doctrine of
substantial compliance: In ANY suit against a resident of the Philippines
(a) There must be actual receipt of the summons by temporarily absent from the country, the defendant
the person served, i.e., transferring possession of may be served by SUBSTITUTED service because
the copy of the summons from the Sheriff to the he still leaves a definite place of residence where
person served; he/she is bound to return.
(b) The person served must sign a receipt or the
sheriffs return; and In addition, EXTRA-TERRITORIAL service [by
(c) There must be actual receipt of the summons by personal service effected out of the Philippines OR
the corporation through the person on whom the by publication in a newspaper of general circulation
summons was actually served. The third requisite is in such places and for such time as the court may
the most important for it is through such receipt that order] MAY be resorted to WITH LEAVE OF
the purpose of the rule on service of summons is COURT.
attained. (Porac Trucking, Inc. v. Court of Appeals
G.R. No. 81093, 1990) Summons by publication against a NON-
RESIDENT in an action IN PERSONAM is NOT a
For there to be substantial compliance, actual proper mode of service.
receipt of summons by the corporation through the
person served must be shown. Where a corporation 6. EXTRA-TERRITORIAL SERVICE,
only learns of the service of summons and the filing
of the complaint against it through some person or
WHEN ALLOWED
means other than the person actually served, the
service of summons becomes meaningless. Specific actions justifying application of
Extraterritorial Service

64
 The said extraterritorial service of summons is not
EXTRA-TERRITORIAL SERVICE for the purpose of vesting the court with jurisdiction,
Involves a NON-RESIDENT defendant who but for complying with the requirements of fair play
CANNOT be found in the Philippines and the action or due process, so that the defendant will be
against him is IN REM or QUASI IN REM. informed of the pendency of the action against him
and the possibility that property in the Philippines
Exception belonging to him or in which he has an interest may
When service may be effected OUT of the be subjected to a judgment in favor of the plaintiff,
Philippines (as provided in extra-territorial service) and he can thereby take steps to protect his interest
for ANY ACTION involving residents who are if he is so minded. (Perkin Elmer Singapore Pte Ltd.
TEMPRORARILY out of the Philippines. (Rule 14, v. Dakila Trading Corporation, G.R. No. 172242,
Section 16) 2007)

Instances When Extra-territorial Service May be “In Any Other Manner the Court May Deem
availed of Sufficient”
1. Actions that affect the personal status of the The list of modes of service provided in the code is
plaintiff; inclusive of the other modes that the court may
2. Actions which relate to, or the subject matter of deem sufficient. In this light, note the difference
which is property within the Philippines, in which between the following cases of Valmonte and
defendant claims a lien or interest, actual or Gemperle, where the common fact involves a
contingent; spouse receiving in behalf of the other. Gerperle is
3. Actions in which the relief demanded consists, the EXCEPTION to the general rule of personal
wholly or in part in excluding the defendant from service.
an interest in the property located in the Philippines;
and Service of summons upon the non-resident
4. When defendant‘s property has been attached in husband who was not appointed as attorney-in-fact
the Philippines. of wife nor authorized by wife to receive summons
for her could not fall within the ambit of the third
Applicability of Extra-territorial Service mode (in any manner the court may deem
It must be noted that extraterritorial service of sufficient), for the following reasons:
summons or summons by publication applies only 1. Service of summons on petitioner was not made
when the action is in rem or quasi in rem. The first upon the order of the court as required by
is an action against the thing itself instead of Section 17, Rule 14, and certainly was not a
against the defendant‘s person; in the latter, an mode deemed sufficient by the court which in
individual is named as defendant, and the purpose fact refused to consider the service to be valid
is to subject that individual‘s interest in a piece of and on that basis declare petitioner in default for
property to the obligation or loan burdening it. (Jose her failure to file an answer.
v. Boyon, G.R. No. 147369, 2003) 2. Service in the attempted manner on petitioner
was not made upon prior leave of the trial court
Modes of Extra-Territorial Service as required also in Section 17, Rule 14. As
provided in § 19, such leave must be applied for
As per the same rule, the following are the by motion in writing, supported by affidavit of the
allowed Modes of Extra-Territorial Service plaintiff or some person on his behalf and setting
1. Personal service as under Section 6 of Rule 14 forth the grounds for the application.
2. Publication in a newspaper of general circulation 3. Petitioner did not appoint her husband as her
in such places and for such time as the court attorney-in-fact. Although she wrote private
may order AND service by registered mail to the respondent‘s attorney that ―all communications‖
last known address of the defendant. intended for her should be addressed to her
Publication and service must BOTH concur husband who is also her lawyer at the latter‘s
3. In any other manner the court may deem address in Manila, no power of attorney to
sufficient receive summons for her can be inferred
therefrom. (Valmonte v. CA, G.R. No. 108538,
NOTE: ALL require prior leave of court. 1996)

Jurisdiction over the person of the defendant, if Gemperle v. Shenker, [G.R. No. L-18164, January
acquired at all in such an action, is obtained by the 23, 1967] (In contrast with Valmonte): We hold that
voluntary submission of the defendant or by the the lower court had acquired jurisdiction over said
personal service of process upon him within the defendant, through service of the summons
territory where the process is valid. If, however, addressed to him upon Mrs. Schenker, it appearing
the defendant is a nonresident and, remaining from said answer that she is the representative and
beyond the range of the personal process of the attorney-in-fact of her husband aforementioned civil
court, refuses to come in voluntarily, the court never case No. Q-2796, which apparently was filed at her
acquires jurisdiction over the person at all. (Banco behest, in her aforementioned representative
Espanol-Filipino v. Palanca, G.R. No. L-11390, capacity. In other words, Mrs. Schenker had
1918) authority to sue, and had actually sued on behalf of

65
her husband, so that she was, also, empowered to In the 2002 decision in the case of Samartino v.
represent him in suits filed against him, particularly Raon et. Al., [G.R. No. 131482, July 3, 2002] the
in a case, like the of the one at bar, which is Court said that:
consequence of the action brought by her on his ―We have long held that the impossibility of
behalf. personal service justifying availment of substituted
service should be explained in the proof of service;
In Cariaga Jr. v. Malaya, 143 SCRA 441, summons why efforts exerted towards personal service failed.
was effected through extra-territorial service via The pertinent facts and circumstances attendant to
registered mail and the court upheld its validity the service of summons must be stated in the proof
since it falls under the third mode, i.e., ―in any of service or Officer‘s Return; otherwise, the
manner the court may deem sufficient.‖ substituted service cannot be upheld.‖

Proof of Service by Publication may be proved

7. SERVICE UPON PRISONERS AND by:
MINORS 1. Affidavit of the –
a. Printer, his foreman or principal clerk OR
Prisoners b. Editor, business or advertising manager, to
Defendant referred to by provision is in prison or which affidavit a copy of the publication shall
otherwise confined in an institution. be attached AND
2. Affidavit showing the deposit of a copy of the
Service shall be effected upon him by summons and order for publication in the post
1. The officer having the management of such jail; office, postage prepaid, directed to the defendant by
or registered mail to his last known address.
2. Institution who is deemed deputized as a special
sheriff for said purpose. END OF TOPIC

Minors and Incompetents

Defendant is either a minor, insane, or incompetent

Service shall be made upon him G. MOTIONS

1. Personally; and (Rule 15)
2. On his legal guardian if he/she has one, OR if
none, upon his/her guardian ad litem whose
appointment shall be applied for by the plaintiff.
1. MOTIONS IN GENERAL
In the case of a MINOR, service may also be made a. Definition of a motion
on his father or mother. b. Motions versus pleadings
c. Contents and form of motions
8. PROOF OF SERVICE d. Notice of hearing and hearing of
motions
e. Omnibus motion rule
The following are the requisites and contents of f. Litigated and ex parte motions
a valid proof of service g. Pro-forma motions
1. Made in writing by the server;
2. Shall set forth the manner, place, and date of
2. MOTIONS FOR BILL OF
service PARTICULARS
3. Shall specify any papers which have been a. Purpose and when applied for
served with the process and the name of the b. Actions of the court
person who received the same; and c. Compliance with the order and effect of
4. Shall be sworn to when made by a person other noncompliance
than a sheriff or his deputy. (Section 18, Rule 14 d. Effect on the period to file a responsive
of the Rules of Court) pleading
3. MOTION TO DISMISS
The certificate of service of the process server of a. Grounds
the court a quo is prima facie evidence of the facts b. Resolution of motion
as set out therein. This is fortified by the c. Remedies of plaintiff when the
presumption of the regularity of performance of complaint is dismissed
official duty. To overcome the presumption of d. Remedies of the defendant when the
regularity of official functions in favor of such motion is denied
sheriff‘s return, the evidence against it must be e. Effect of dismissal of complaint on
clear and convincing. Sans the requisite quantum of certain grounds
proof to the contrary, the presumption stands f. When grounds pleaded as affirmative
deserving of faith and credit. [Guanzon v. Arradaza, defenses
G.R. No. 155392, December 6, 2006] g. Bar by dismissal
h. Distinguished from demurrer to
evidence under Rule 33

66
 Rules that apply to pleadings shall also apply to
written motions as to caption, designation, signature
1. MOTIONS IN GENERAL and other matters of form.

a. DEFINITION OF A MOTION Contents of a Motion

1. Statement of relief sought to be obtained
MOTION 2. Grounds upon which the motion is based
An application for relief other than by a pleading. It 3. Supporting affidavits and other papers when
has facts based on relief and facts based on claims. mandated by the Rules or when necessary to
It is NOT a pleading since it does not have claims or prove facts stated in motion
defenses
Requisites of a Motion:
Kinds of Motions: 1. It must be in writing;
1. Motion EX PARTE is made without the 2. The applicant must set hearing of motion [the
presence or a notification to the other party date of the hearing must not be later than ten
2. Motion OF COURSE is where the movant (10) days from the filing of the motion];
is entitled to the relief or remedy sought as 3. Notice of hearing must be addressed to all
a matter of discretion on the part of the parties concerned
court. 4. Motion and notice of hearing must be served at
3. LITIGATED Motion is the one made with least three (3) days before the date of hearing
notice to the adverse party to give an (THREE DAY NOTICE RULE)
opportunity to oppose 5. Proof of service
4. SPECIAL Motion is a motion addressed to
the discretion of the court Exceptions to the Three Day Notice Rule
1. Ex-Parte motions
b. MOTION VERSUS PLEADINGS 2. Urgent motions
3. Motions agreed upon by the parties to be heard
MOTION - is an application for relief OTHER THAN on shorter notice or jointly submitted by the
a pleading. parties
4. Motions for summary judgment which must be
PLEADINGS - are those allowed under Section 2, served at least 10 days before its hearing
Rule 6 of the Rules of Court (complaint,
counterclaim, cross-claim, third-party complaint and d. NOTICE OF HEARING AND HEARING OF
complaint-in-intervention) MOTIONS

PLEADING MOTION Every written motion shall be set for hearing by the
Is a submission of Is an application for an applicant. Thus, every written motion is deemed a
claims or defenses for order not included in the litigated motion.
appropriate judgment judgment
Notice of Hearing Shall
1. Be addressed to all the parties concerned;
May be initiatory Cannot be initiatory as 2. Specify the time and the date of the hearing,
motions are made in a which shall not be later than 10 days after the
case already filed in filing of the motion.
court
Service of the Motion
The motion which contains the notice of hearing
Must be written May be oral when made shall be SERVED in such a manner as to ensure its
in open court or in the receipt by the other party AT LEAST THREE (3)
course of a hearing or a DAYS before the date of hearing, UNLESS the
trial court for good cause sets the hearing on shorter
notice.
Must be filed before May be filed after
judgment judgment The motion shall be served upon the other party. A
motion set for hearing shall not be acted upon by
c. CONTENTS AND FORM OF MOTIONS the court without proof of service thereof.

e. OMNIBUS MOTION RULE

General Rule
All motions must be in writing
A procedural principle which requires that every
motion that attacks a pleading, judgment, order or
Exceptions
proceeding shall include ALL grounds then
1. Motions made in open court;
AVAILABLE and all objections not so included shall
2. Motions made in the course of a hearing or trial
be deemed waived.

Exceptions to Waiver

67
1. No jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and 2. MOTIONS FOR BILL OF
4. Statute of limitations or prescription. PARTICULARS (Rule 12)
f. LITIGATED AND EX PARTE MOTIONS
Motion for a bill of particulars
It is a motion which seeks to clarify matters in the
LITIGATED MOTION
complaint which are vague, ambiguous, or not
One which requires the parties to be heard before
averred with sufficient definiteness.
ruling on the motion can be made by the court
It applies to ANY PLEADING which in the
Examples
perception of the movant contains ambiguous
1. Motion to Dismiss (Rule 16)
allegations.
2. Motion for Judgment on Pleadings (Rule 34)
3. Summary Judgment (Rule 35)
The Motion Shall Point Out
A motion which does NOT meet the requirements of 1. Defects complained of;
Sections 4 and 5 of Rule 15 on hearing and notice, 2. The paragraphs wherein they are contained;
respectively, is a MERE SCRAP OF PAPER, which 3. The details desired must be supplied by the
the clerk of court has NO right to receive and court movant
has NO authority to act upon. Service of a copy of a
motion containing a notice of the time and the place The motion must comply with the requirements for
of hearing of the motion is mandatory, and failure to motions under Rule 15. Otherwise, it shall be
comply renders motion fatally defective. (Vette treated as a pro forma motion which shall not stop
Industrial Sales Co., Inc. v. Cheng, G.R. Nos. the running of the period for filing the requisite
170232– 170301, 2006) pleading

EX PARTE MOTION a. PURPOSE and WHEN APPLIED FOR

One that does NOT require a party to be heard and
which the court may act upon without prejudice the Purpose
rights of the other party. This kind of motion is NOT The purpose of the motion is to seek an order from
covered by the hearing requirement under Section the court directing the pleader to submit a bill of
2, Rule 15 of the Rules of Court. particulars which avers matters with sufficient
definiteness or particularity to enable the movant to
Examples prepare his responsive pleading.
1. Setting for pre-trial
2. Motion for extension of time When applied for

Ex parte motions are frequently permissible in A motion for a bill of particulars must be filed
procedural matters and situations of emergency. An BEFORE responding to a pleading. Thus, the
exception to the rule requiring notice is sometimes period to file the motion refers to the period for filing
made where notice or the resulting delay might tend the responsive pleading in Rule 11.
to defeat the objective of the motion. (Sarmiento v.
Zaratan, G.R. No. 167471, February 5, 2007) If the Bill of Particulars is Directed to a
Complaint
It is stated that a MOTION DAY is set at Friday Motion should be filed fifteen (15) days after service
afternoons or if a Friday is a non-working day, in the of summons
afternoon of the next working day.
If Directed to a Counterclaim
g. PRO FORMA MOTIONS Motion should be filed ten (10) days from service of
counterclaim
A motion which fails to comply with the
requirements under Section 4 (Hearing of motion), In Case of a Reply to Which No Responsive
Section 5 (Notice of hearing) and Section 6 (Proof Pleading is Provided for
of service of notice of hearing) of Rule 15 of the The motion must be filed within ten (10) days of
Rules of Court is a useless piece of paper. service of said reply.

It is pro forma, presenting no question which the b. ACTIONS OF THE COURT

court could decide. (Boiser v. Aguirre, Jr., [A.M. No.
RTJ-04-1886, 2005) If filed, such motion is not Upon the filing of the motion, the clerk of court must
entitled to judicial recognizance and does not stop immediately bring it to the attention of the court.
the running of the period for filing the requisite
pleading. (Cruz v. Court of Appeals, G.R. No. The Clerk of Court May Either:
123340, 2002) It will be treated as one filed merely 1. Deny motion outright; or
to delay the proceeding. (Marikina Development 2. Grant motion outright; or
Corporation v. Flojo, G.R. No. 110801, 1995) 3. Allow the parties the opportunity to be heard.

68
 prove essential or ultimate facts and to obtain
c. COMPLIANCE WITH THE ORDER and evidentiary matters is not the function of a motion
EFFECT OF NON-COMPLIANCE for bill of particulars. (Salita v. Magtolis, G.R. No.
106429, 1994)
Compliance
When the motion is granted (in whole or in part),
compliance must be effected WITHIN 10 DAYS
3. MOTION TO DISMISS (Rule 16)
from NOTICE of the order UNLESS the court fixes a
a. GROUNDS
different period.
1. Absence of jurisdiction over
In complying with the order, the pleader may file the
a) Person of the defending party OR
bill of particulars either in a separate leading or in
b) Subject matter of the claim
the form of an amended pleading, a copy of which
2. Venue is improperly laid
must be served on the adverse party.
3. Plaintiff has no legal capacity to sue
Effect of Noncompliance or Insufficient 4. Another action is pending between the same
Compliance parties for the same cause (Litis Pendentia)
The court may: 5. Cause of action is barred by
a) A prior judgment (Res Judicata) OR
1. Order striking out of the pleading;
b) The statute of limitations (Prescription)
2. Order striking out portions of pleading to which
6. No cause of action stated in pleading asserting
the order was directed;
the claim (Failure to state cause of action)
3. Make such other order as it deems just;
7. Payment, waiver, abandonment, or
4. Dismiss the complaint with prejudice unless
extinguishment of claim or demand set forth in
otherwise ordered by the court if it is the
the plaintiff's pleading
PLAINTIFF who fails to comply;
8 Unenforceable (under the provisions of the
5. Strike off the answer and dismiss the
Statute of Frauds) claim under which the action
counterclaim plus a declaration of in default
is founded
upon motion of the plaintiff if it is the
9. Non-compliance with a condition precedent for
DEFENDANT who fails to comply.
filing the claim
d. EFFECT ON THE PERIOD TO FILE A
RESPONSIVE PLEADING It is subject to the OMNIBUS MOTION RULE. Any
objection available at the time of filing of the
pleading NOT raised will be DEEMED WAIVED.
Filing of bill of particulars interrupts or STAYS the
period to file a responsive pleading.
Exceptions to Waiver
1. No jurisdiction over the subject matter;
Movant may file his responsive pleading within the
period to which he is entitled (balance of 2. Litis pendentia;
reglementary period) at the time the bill of 3. Res judicata; and
4. Statute of limitations or prescription.
particulars is filed, which shall NOT be less than five
(5) days in any event AFTER:
Material Allegations Deemed Hypothetically
1. Service of the bill of particulars upon him; or
Admitted
2. Notice of the denial of his motion
No other principle in remedial law is more settled
When filing for a Bill of Particulars is NOT than that when a motion to dismiss is filed, the
appropriate material allegations of the complaint are deemed to
be hypothetically admitted, which hypothetical
It would also be improper to call for the production
admission extends not only to the relevant and
of the particulars constituting malice, intent,
material facts well pleaded in the complaint, but
knowledge or condition of the mind, which under the
also to inferences that may be fairly deduced from
Rules may be averred generally.
them. (Municipality of Hagonoy vs Hon. Simeon
Dumdum, G.R. 168289, 2010)
A motion for bill of particulars will not be granted if
the complaint, while not very definite, nonetheless
Exceptions to the Hypothetical Admission of the
already states a sufficient cause of action. A
Veracity of the Allegations:
motion for bill of particulars may not call for matters
1. The falsity of the allegations is subject to judicial
which should form part of the proof of the complaint
notice;
upon trial. Such information may be obtained by
other means. (Salita v. Magtolis, G.R. No. 106429, 2. Such allegations are legally impossible;
1994) 3. The allegations refer to facts which are
inadmissible in evidence
4. By the record or document in the pleading, the
Where private respondent has already alleged that
allegations appear to be unfounded; or
petitioner was unable to understand and accept the
5. There is evidence which has been presented to
demands made by his profession upon his time and
the court by stipulation of the parties or in the
efforts, it is certain that she can respond to this. To
course of the hearings related to the case. (Heirs of
demand for more details would indeed be asking for
information on evidentiary facts—facts necessary to

69
Loreto C. Maramag vs. Maramag, G.R. 181132,
2009) Res judicata applies as well to the judicial and
quasi-judicial acts of public, executive or
Laches as Ground for Motion to Dismiss administrative officers and boards acting within their
Where a claim or demand set forth in the plaintiff‘s jurisdiction as to the judgments of courts having
pleading has been paid, waived, abandoned, or general judicial powers. The Director of Lands is a
otherwise extinguished, the same may be raised in quasi-judicial officer. As such officer, his decisions
a motion to dismiss. The language of the rule, and orders rendered pursuant to his quasi-judicial
particularly on the relation of the words authority, have upon their finality, the force and
"abandoned" and "otherwise extinguished" to the binding effect of a final judgment. (Heirs of
phrase "claim or demand deemed set forth in the Wenceslao Tabia v. CA, G.R. Nos. 129377 &
plaintiff‘s pleading" is broad enough to include 129399, 2007)
within its ambit the defense of bar by laches.
However, when a party moves for the dismissal of Res judicata is a doctrine of civil law and thus has
the complaint based on laches, the trial court must no bearing on criminal proceedings (Trinidad v.
set a hearing on the motion where the parties shall Office of the Ombudsman, G.R. No. 166038, 2007)
submit not only their arguments on the questions of
law but also their evidence on the questions of fact Res judicata, as a ground for dismissal, is based on
involved. Thus, being factual in nature, the two grounds:
elements of laches must be proved or disproved (1) Public policy and necessity, which makes it to
through the presentation of evidence by the parties. the interest of the State that there should be an
(Pineda vs. Heirs of Eliseo Guevarra, G.R. 143188, end to litigation---republicae ut sit litium; and
2007) (2) The hardship on the individual of being vexed
twice for the same cause---nemo debet bis
Res Judicata as a Ground for Motion to Dismiss vexari et eadem causa. (Sps Torres vs Medina,
1. The former judgment must be final; G.R. 166730, 2010)
2. The court, which rendered judgment, had
jurisdiction over the subject matter and the Res judicata as a ground for the dismissal of a case
parties; may be disregarded if its rigid application would
3. The judgment must be on the merits; involve the sacrifice of justice to technicality (PNB v.
4. There must be between the first and second Estate of De Guzman, G.R. 182507, 2010)
actions, identity of parties, subject matter and
cause of action. (Riano, Civil Procedure Litis Pendentia as a Ground for Motion to
Volume 1, 481, 2014) Dismiss
1. Identity of the parties or at least such parties
The identity of parties need not be absolute but only representing the same interests in both actions;
substantial identity is necessary. (Cruz v. CA, G.R. 2. There is substantial identity in the cause of
164797, 2006) action and relief sought, the relief being
founded on the same facts; and
Two Concepts of Res Judicata 3. The identity in the two cases should be such that
1. Bar by prior judgment; and any judgment that may be rendered in one,
2. Conclusiveness of judgment. regardless of which party is successful, would
amount to res judicata in the other case (Riano,
Bar by Prior Judgment Civil Procedure Volume 1, 482, 2014)
There is "bar by prior judgment" when, as between
the first case where the judgment was rendered, Litis pendentia as a ground for the dismissal of a
and the second case that is sought to be barred, civil action contemplates a situation wherein
there is identity of parties, subject matter, and another action is pending between the same parties
causes of action. for the same cause of action, such that the second
action becomes unnecessary and vexatious. In
Conclusiveness of Judgment fact, it is one of the grounds that authorizes a court
There is conclusiveness of judgment where there is to dismiss a case motu proprio. Among the several
identity of parties and subject matter in the first and tests resorted to in ascertaining whether two suits
second cases, but no identity of causes of action, relate to a single or common cause of action are:
the first judgment is conclusive only as to those (1) Whether the same evidence would support and
matters actually and directly controverted and sustain both the first and second causes of
determined and not as to matters merely involved action; and
therein. Under the doctrine of conclusiveness of (2) Whether the defenses in one case may be
judgment, facts and issues actually and directly used to substantiate the complaint in the other.
resolved in a former suit cannot again be raised in (Subic Telecommunications Company v Subic
any future case between the same parties, even if Metropolitan Bay Authority, G.R. 185189,
the latter suit may involve a different claim or cause October 12, 2009)
nd
of action. The identity of causes of action is not (3) Whether the cause of action in the 2 case
required but merely identity of issues. (Heirs of existed at the time of the filing of the complaint
Tomas Dolleton vs. Fil-Estate Management, Inc., or answer with counterclaim (Intramuros
G.R. 170750, 2009) Administration v. Contacto, G.R. 152576, 2003)

70
 circumstances is not allowed. (Equitable PCIB v.
Prescription as a Ground for Motion to Dismiss CA, G.R. 143556, 2004)
The affirmative defense of prescription does not
automatically warrant the dismissal of a complaint. Exceptions to rule that Failure to State
An allegation of prescription can effectively be used is based on complaint alone
in a motion to dismiss only when the complaint on
its face shows that indeed the action has already Loreto Maramag designated as beneficiary his
prescribed. If the issue on prescription is one concubine, Eva and their illegitimate children. The
involving evidentiary matters requiring full blown petitioners of this case, the legitimate family of
trial on the merits, it cannot be determined in a Loreto are claiming that Eva was a suspect in the
motion to dismiss. (Heirs of Tomas Dolleton vs. Fil- murder of Loreto thus, she is disqualified from
Estate Management, Inc., G.R. 170750, 2009) claiming from the insurance.
The issue in this case is whether the concubine can
Time to File the Motion claim from the insurance however the motion to
A motion to dismiss is filed within the time for filing dismiss filed was granted due to failure to state a
the answer but BEFORE filing said answer. cause of action.
When a motion to dismiss is premised on this
If a motion to dismiss is filed AFTER the answer ground, the ruling should be based only on the facts
has been filed, it is to be considered filed OUT OF alleged in the complaint. The court must resolve the
TIME and the defending party is estopped from issues on the strength of such allegations,
filing the motion to dismiss. assuming them to be true. This is the general rule
but it has certain exceptions such that there are no
Three Rules in Determining which of the Actions hypothetical admission of the veracity of the
should be Abated on the Ground of Litis allegations if:
Pendentia  The falsity of the allegations is subject to
judicial notice
1. PRIORITY IN TIME RULE  Such allegations are legally impossible
As a rule, preference is given to the first action filed  The allegations refer to facts which are
to be retained. This is in accordance with the inadmissible as evidence
maxim Qui prior est tempore, potior est jure.  By the record or document in the pleading, the
However, a later case shall not be abated if not allegations appear unfounded
brought to harass or vex; and the first case can be  There is evidence which has been presented
abated if it is merely an anticipatory action or, more to the court by stipulation of the parties or in
appropriately, an anticipatory defense against an the course of the hearings related to the case
expected suit – a clever move to steal the march (Heirs of Maramag v. Maramag, 5 June 2009,
from the aggrieved party. 588 SCRA 774)
2. MORE APPROPRIATE ACTION TEST Can court consider evidence presented in a
This considers the real issue raised by the hearing on affirmative defenses to determine
pleadings and the ultimate objective of the parties; failure to state a cause of action?
the more appropriate action is the one where the This is a case for quieting of title filed by the
real issues raised can be fully and completely petitioners who claim to be the rightful owners of a
settled. house and lot in Pampanga, they claim that they
have been in open, continuous, adverse and
3. ANTICIPATORY TEST notorious possession of the property for more than
If the first suit is filed merely to preempt the later a hundred years.
action or to anticipate its filing and lay the basis for That sometime in 2005, the petitioners received
its dismissal, then the first suit should be demand letters from the respondents, claiming
dismissed. (Benavidez vs. Salvador, G.R. 173331, ownership over the subject property and demanding
2013) that they vacate the same. The Register of Deeds
of Pampanga confirmed that the property have
Failure to State a Cause of Action as a Ground been titled in the name of the respondents and
for Motion to Dismiss declared the title of the petitioners to be invalid, thus
In a motion to dismiss for failure to state cause of the present case was filed
action, The focus is the sufficiency, not the veracity Respondents claim that petitioners have no cause
of material allegations. Test of Sufficiency: Whether of action which the trial court granted however,
or not, admitting the facts alleged, the court could petitioners are averring that in considering this
render a valid judgment upon the same in particular ground for dismissal, no preliminary
accordance with the prayer of the complaint. hearing on the affirmative defenses may be held.
(Republic v. Glasgow, G.R. 170281, 2008) SC ruled in the affirmative. The trial court may
indeed elect to hold a preliminary hearing on the
A ruling on the ground of failure to state cause of affirmative defenses as raised in the answer under
action should be based only on facts alleged in the Section 6 of Rule 16 but it has been held that such
complaint. Consideration of any other facts is out of hearing is not necessary when the affirmative
the question and any attempt to prove extraneous defense is failure to state a cause of action and that
it is in fact error for the court to hold a preliminary

71
hearing to determine the existence of external facts
outside the complaint. The Plaintiff may:
The ground of failure to state a cause of action must 1. Re-file complaint if ground for dismissal does
be determined only on the basis of the facts alleged NOT bar refiling
and no other (Aquino v. Quiazon, 11 March 2015, 2. Appeal from order of dismissal if ground for
GR NO. 201248) dismissal is one which BARS refilling of
complaint such as:
Can a court motu proprio dismiss a case for a) Res judicata
failure to state earnest efforts to compromise? b) Prescription
Dr. Favis has two families (legitimate and common) c) Extinguishment of obligation
and near the end of his life, he allegedly executed a d) Violation of the Statue of Frauds (Section 5,
Deed of Donation in favor of his illegitimate child, Rule 16 of the Rules of Court)
transferring certain properties. The legitimate 3. Petition for Certiorari if court gravely abuses
children, claiming that the alleged donation its discretion in a manner amounting to lack of
compromised their legitime, filed for the annulment jurisdiction and is the appropriate remedy in
of the Deed of Donation. those instances when the dismissal is without
The CA dismissed the case motu proprio for failure prejudice.
of petitioners to make an averment that earnest
efforts toward a compromise have been made, as d. REMEDIES OF THE DEFENDANT WHEN
mandated by Art. 151 of the Family Code. THE MOTION IS DENIED
Section 1 Rule 9 provides for the only instances
when the court may motu proprio dismiss the claim 1. File answer within time prescribed by Rule 11,
(1) lack of jurisdiction over the subject matter (2) but not less than five (5) days computed from his
litis pendencia (3) res judicata (4) prescription of receipt of the notice of the denial.
action. Outside of these instances, any motu proprio 2. If the pleading is ordered to be amended, he
dismissal would amount to a violation of the right of shall file his answer within the period prescribed
the plaintiff to be heard. by Rule 11 counted from service of the amended
Failure to allege earnest but failed efforts at a pleading, unless the court provides a longer
compromise in a complaint among members of the period.
same family is not a jurisdictional defect but merely 3. Where the denial of the motion was tainted with
a defect in the statement of a cause of action. grave abuse of discretion amounting to lack of
(Heirs of Favis v. Gonzales, 15 January 2014, 713 jurisdiction, the defendant may file a petition for
SCRA 568) certiorari or prohibition under Rule 65.

When a Motion to Dismiss MAY be Filed AFTER An order denying a motion to dismiss is an
the Filing of an Answer interlocutory order that neither terminates nor
1. If the ground raised is lack of jurisdiction over finally disposes of a case. As such, the general rule
the subject matter; is that the denial of a motion to dismiss cannot be
2. If it is alleged that there is another action questioned in a special civil action for certiorari
pending between the same parties for the same which is a remedy designed to correct errors of
cause; jurisdiction and not errors of judgment. Neither can
3. If the ground filed is that the action is barred by a denial of a motion to dismiss be the subject of an
prior judgment; or appeal unless and until a final judgment or order is
4. If the action is barred by the statute of rendered. In order to justify the grant of the
limitations. (Riano, Civil Procedure Volume 1, extraordinary remedy of certiorari, the denial of the
477, 2014) motion to dismiss must have been tainted with
grave abuse of discretion amounting to lack or
b. RESOLUTION OF MOTION excess of jurisdiction (Douglas Lou Ym v. Gertrudes
Nabua, G.R. No. 161309, 2005)
After the Hearing, the Court May
1. Dismiss the action or claim e. EFFECT OF DISMISSAL OF COMPLAINT ON
2. Deny the motion CERTAIN GROUNDS
3. Order the amendment of the pleading.
ON COUNTERCLAIM - shall be WITHOUT
Court shall NOT defer the resolution of the motion prejudice to prosecution in the same OR a separate
for the reason that the ground relied upon is not action of a counterclaim pleaded in the answer of a
indubitable. defendant.

The resolution shall state clearly and distinctly the Dismissal of main action does NOT carry with it
reasons therefor in every case. dismissal of counterclaim.

c. REMEDIES OF PLAINTIFF WHEN THE f. WHEN GROUNDS PLEADED AS

COMPLAINT IS DISMISSED AFFIRMATIVE DEFENSES (Rule 16, Section
6)
If motion is granted, complaint is dismissed. Such
dismissal is FINAL and not interlocutory in character

72
If NO motion to dismiss has been filed, ANY of the 4. Claim is unenforceable under the Statute of
grounds for dismissal provided for in this Rule may Frauds
be pleaded as an affirmative defense in the
answer. It is NOT deemed waived. Where the defendant is barred from re-filing,
remedy is to file an APPEAL. Such dismissal is said
In the discretion of the court, a preliminary hearing to be WITH prejudice to re-filing of case.
may be had AS IF a motion to dismiss had been
filed. h) DISTINGUISHED FROM DEMURRER TO
EVIDENCE UNDER RULE 33
The dismissal of the complaint under this section
shall be WITHOUT prejudice to the prosecution in MOTION TO DISMISS MOTION TO DISMISS
the same or separate action of a counterclaim UNDER RULE 16 UNDER RULE 33
pleaded in the answer. (DEMURRER TO
EVIDENCE)
The Omnibus Motion Rule applies only when a Grounded on Based on insufficiency
motion to dismiss is filed. If no motion to dismiss is preliminary objections of evidence
filed, any of the grounds for dismissal under Rule 16 Maybe filed by Maybe filed only by the
may be pleaded as an affirmative defense in the defending party against defendant against the
answer. (Riano, Civil Procedure Volume 1, 476, whom a claim is complaint of the
2014) asserted in the action plaintiff
Should be filed within May be filed only after
The general rule must be reiterated that the the time for, but prior to the plaintiff has
preliminary hearing contemplated under Section 6, the filing of an answer, completed the
Rule 16 applies only if no motion to dismiss has of the defending party to presentation of his
been filed. This is expressly provided under the the pleading asserting evidence
rule, which relevantly states "[i]f no motion to the claim against him
dismiss has been filed, any of the grounds for
IF DENIED - defendant IF DENIED - defendant
dismissal provided for in [Rule 16] may be pleaded
must file an answer, may present evidence
as an affirmative defense in the answer and, in the
else be declared in
discretion of the court, a preliminary hearing may be
default IF GRANTED - plaintiff
had thereon as if a motion to dismiss had been
IF GRANTED - plaintiff appeals and the order of
filed." An exception was carved out in California and
may appeal or re-file dismissal is reversed,
Hawaiian Sugar Company v. Pioneer Insurance,
case (if subsequent the defendant loses his
wherein the Court noted that while Section 6
case is not barred) right to present evidence
disallowed a preliminary hearing of affirmative
defenses once a motion to dismiss has been filed,
such hearing could nonetheless be had if the trial END OF TOPIC
court had not categorically resolved the motion to
dismiss. Such circumstance does not obtain in this
case, since the trial court had already categorically
denied the motion to dismiss prior to the filing of the
answer and the motion for preliminary hearing. H. DISMISSAL OF ACTONS
(Sps. Rasdas v. Estenor, G.R. No. 157605, 2005) (Rule 17)
After the filing of an answer which raises affirmative
defenses, the defendant may file a motion to hear
the affirmative defenses so that his defenses can be
heard before the plaintiff presents his case. The 1. DISMISSAL UPON NOTICE BY
filing of a ―motion to dismiss‖ raising any of the PLAINTIFF; TWO-DISMISSAL RULE
grounds set forth in Section 1, Rule 16 after the 2. DISMISSAL UPON MOTION BY
filing of the answer is likewise permissible since
such motion essentials prays for the same thing, PLAINTIFF; EFFECT ON EXISTING
i.e., that defendant‘s affirmative defenses be heard. COUNTERCLAIM
(Associated Bank vs Sps Montano G.R. 166383, 3. DISMISSAL DUE TO THE FAULT OF
2009) PLAINTIFF
g. BAR BY DISMISSAL
4. DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM OR THIRD-PARTY
Order Granting Motion to Dismiss Shall BAR Re- COMPLAINT
filing of Same Action or Claim if Dismissal is
based on the following:
1. Cause of action barred by prior judgment
1. DISMISSAL UPON NOTICE BY
2. Cause of action barred by statute of limitations PLAINTIFF; TWO-DISMISSAL RULE
3. Claim or demand has been paid, waived,
abandoned, or extinguished Characteristics
1. A matter of right;

73
2. Made by mere notice; respondents‘ counsel and cannot be deemed a fatal
3. Made by plaintiff only; consequence.
4. Made before service of answer OR motion for a
summary judgment; 2. DISMISSAL UPON MOTION BY
5. Confirmation of dismissal by order of court is PLAINTIFF; EFFECT ON EXISTING
required;
6. Dismissal is without prejudice to the re-filing of COUNTERCLAIM
the same action by the plaintiff. EXCEPT:
a) When otherwise stated in the notice Characteristics
b) Where the plaintiff has previously dismissed 1. Dismissal by a motion to dismiss filed by the
the same case in a court of competent plaintiff
jurisdiction (Two-Dismissal Rule) 2. Made after service of answer or motion for
summary judgment
TWO-DISMISSAL RULE – The rule states that two 3. Requires approval of court (matter of judicial
dismissals of the same claim before a competent discretion)
rd
court will bar a subsequent (3 ) action on the same 4. Dismissal is without prejudice to refiling unless
claim or on a claim included therein (Handbook on otherwise stated in the order
Civil Procedure, Gayo)
A Dismissal Upon Motion by Plaintiff is NOT for the
Requirements of Two-Dismissal Rule: purpose of voluntarily abandoning his claim when
1. Twice dismissed actions; the intention was to expedite the enforcement of his
2. Based on or including the same claim; and rights and there was clearly no inaction nor lack of
3. In a court of competent jurisdiction. interest on his part. Prescription, therefore, does not
run. [Antonio, Jr. vs. Morales G.R. 165552, January
If the plaintiff files a notice of dismissal providing 23, 2007]
therein a reason that prevents the refilling of the
complaint, the dismissal must be deemed one with Under Rule 17, Section 3, a defendant may move to
prejudice even if the notice does not state that the dismiss the case if the plaintiff defaults; it does not
dismissal is with prejudice. (Riano, Civil Procedure: contemplate a situation where the dismissal was
nd
A Restatement for the Bar, 2 ed., 2009) due to lack of jurisdiction Thus, when respondents
filed the second case, they were merely refiling the
When complaint cannot be refiled: same claim that had been previously dismissed on
A Motion to Dismiss grounded on the following the basis of lack of jurisdiction. When they moved to
1. The cause of action is barred by prior judgment dismiss the second case, the motion to dismiss can
2. The cause of action is barred by the statute of be considered as the first dismissal at the plaintiffs
limitations instance. Accordingly, the dismissal at this instance
3. The claim or demand has been paid, waived, is a matter of right that is not subject to the trial
abandoned, or otherwise extinguished court's discretion. For this reason, the trial court
4. The claim, on which the action is founded, is issued its order dismissing case 2, without
unenforceable under the provisions of the statute prejudice. When respondents filed the third case on
of frauds (Riano, Civil Procedure Volume 1, 486, substantially the same claim, there was already one
2014) prior dismissal at the instance of the plaintiffs and
one prior dismissal at the instance of the
The Supreme Court made the following clarification: defendants. While it is true that there were two
Under Section 1, Rule 17 of the OLD RULES, the previous dismissals on the same claim, it does not
dismissal contemplated therein could be necessarily follow that the re-filing of the claim was
accomplished by the plaintiff through mere notice of barred by Rule 17, Section 1. In granting the
dismissal, and not through motion subject to dismissal of the second case, the trial court
approval by the Court. Dismissal is ipso facto specifically orders the dismissal to be without
upon notice and without prejudice unless prejudice. It is only when the trial court's order
otherwise stated in the notice. (OB Jovenir either is silent on the matter, or states otherwise,
Construction v. Macamir Realty and Development that the dismissal will be considered an adjudication
Corporation G.R. 135803, 2006) on the merits. (Ching v. Cheng, 8 October 2014,
737 SCRA 610)
On the other hand, the 1997 Rules of Civil
Procedure now requires that upon the filing of such Notice of Dismissal prevails over a Motion to
notice, the court MUST issue an order confirming Dismiss
the dismissal. The new requirement intends to Section 1 of Rule 17 does not encompass a Motion
qualify the right of a party to dismiss the action to Dismiss. The provision specifically provides that
before the adverse party files his answer or asks for a plaintiff may file a notice of dismissal before
summary judgment. service of the answer or a motion for summary
judgment. Thus, upon the filing of the Notice of
If respondents resorted to a MOTION to effect what Dismissal by the plaintiff, the Motion to Dismiss filed
could have been effected by mere NOTICE, then by respondents became moot and academic and
such error is only indicative of a certain degree of the trial court should have dismissed the case
ignorance of procedural rules on the part of without prejudice based on the Notice of Dismissal

74
filed by the petitioner. (Dael vs. Spouses Beltran challenged by APPEAL within the reglementary
G.R. No. 156470, 2008) period. (3A Apparel Corporation vs. Metropolitan
Bank and Trust Co. G.R. 186175, 2010)
Effect on Counterclaim
The dismissal of the complaint does not necessarily Effect on Counterclaim
carry with it the dismissal of the counterclaim, Dismissal of the action is WITHOUT prejudice to the
compulsory or otherwise. The dismissal of the right of the defendant to prosecute his counterclaim
complaint is without prejudice to the right of the in the same OR in a separate action.
defendants to prosecute the counterclaim. (Pinga v.
Santiago, G.R. 170354, 2006) 4. DISMISSAL OF COUNTERCLAIM,
Counterclaim NOT dismissed if pleaded by a CROSS-CLAIM OR THIRD-PARTY
defendant prior to the service upon him of the COMPLAINT
plaintiff‘s motion for dismissal. Dismissal of the
action upon motion by the plaintiff is WITHOUT The provisions under Rule 17 apply to the dismissal
prejudice to the right of the defendant to prosecute of any counterclaim, cross-claim or third-party
his counterclaim in a separate action. complaint.

Counterclaim can be resolved in the same action if A dismissal or discontinuance of an action operates
defendant manifests such preference within fifteen to annul orders, rulings or judgments previously
(15) days from notice of the motion. made in the case, as well as all proceedings had in
connection therewith and renders all pleadings
These alternative remedies of the defendant are ineffective.
available to him regardless of whether his
counterclaim is compulsory OR permissive. END OF TOPIC

If the dismissal of the complaint somehow

eliminates the cause of the counterclaim, then the
counterclaim also cannot survive. Conversely, if the
counterclaim itself states sufficient cause of action I. PRE-TRIAL
then it should stand independently and survive the (Rule 18)
dismissal of the complaint. (Perkin Elmer Singapore
Pte. Ltd. vs. Dakila Trading Corporation G.R.
172242, 2007)
1. CONCEPT OF PRE-TRIAL
3. DISMISSAL DUE TO FAULT OF 2. NATURE AND PURPOSE
PLAINTIFF 3. NOTICE OF PRE-TRIAL
4. APPEARANCE OF PARTIES;
Applies When, If for No Justifiable Cause,
Plaintiff FAILS to: EFFECT OF FAILURE TO APPEAR
1. Appear on the date of presentation of his 5. PRE-TRIAL BRIEF; EFFECT OF
evidence in chief; or FAILURE TO APPEAR
2. Prosecute his action for an unreasonable length 6. DISTINCTION BETWEEN PRE-
of time; or
TRIAL IN CIVIL CASE AND PRE-
3. Comply with the Rules of Court; or
4. Comply with any order of the Court; or TRIAL IN CRIMINAL CASE
5. Appear at pre-trial 7. ALTERNATIVE DISPUTE
RESOLUTION (ADR)
The Dismissal Can be Made By a. Special Rules of Court on ADR
1. Upon motion of the defendant; or
2. Court‘s own motion
(A.M. No. 07-11-08-SC)

The dismissal of the complaint will be deemed as a 1. CONCEPT OF PRE-TRIAL

FINAL judgment on the merits and is therefore
WITH PREJUDICE to a refilling of the same action
Concept under A.M. No. 03-1-9-SC
by the plaintiff UNLESS otherwise stated in the
An undeniably important and vital component of
order of the court.
case management in trial courts, the purpose of
which is to abbreviate court proceedings, ensure
Unless the court states that the dismissal is without
prompt disposition of cases and decongest court
prejudice, the dismissal should be understood as
dockets.
adjudication on the merits and is with prejudice to
refiling. (PNB vs. de Guzman G.R. 182507, 2010)
Pre-trial shall endeavor to persuade the parties to
arrive at a settlement of the dispute, with due regard
Dismissal for failure to prosecute is an adjudication
to the rights of the parties.
on the merits. Therefore, such dismissal should be

75
 4. The possibility of obtaining stipulations or
The court shall endeavor to make the parties agree admissions of facts and of documents to avoid
to an equitable compromise or settlement at any unnecessary proof;
stage of the proceedings before rendition of 5. The advisability of a preliminary reference of
judgment. issues to a commissioner;
6. The propriety of rendering judgment on the
Concept Derived From Jurisprudence pleadings, or summary judgment, or dismissing
Pre-trial is primarily intended to make certain that all the action should a valid ground exist;
issues necessary to the disposition of a case are 7. The advisability or necessity of suspending the
properly raised. To eliminate the element of proceedings; and
surprise during actual trial, parties are expected to 8. Such other matters as may aid in the prompt
disclose at the pre-trial conference all issues of law disposition of the action.
and fact that they intend to raise at the trial.
However, in cases in which the issue may involve
privileged or impeaching matters, or if the issues
3. NOTICE OF PRE-TRIAL
are impliedly included therein or may be inferable
therefrom by necessary implication as integral parts Notice shall be served on:
of the pre-trial order, then the general rule does not 1. Counsel; or
apply. A pre-trial order is not meant to be a detailed 2. The party himself, ONLY IF he is without
catalogue of each and every issue that is to be or counsel.
may be taken up during the trial. (LCK Industries v.
Planters Development Bank, G.R. No. 170606, Counsel served with such notice is charged with the
2007) DUTY to notify his/her client.

2. NATURE AND PURPOSE 4. APPEARANCE OF PARTIES;

EFFECT OF FAILURE TO APPEAR
The pre-trial is mandatory BOTH in civil and in
criminal cases. Parties and their counsel BOTH have the duty to
appear at pre-trial.
When Pre-Trial is Conducted
After the last pleading has been served and filed, it
shall be the duty of the PLAINTIFF within five (5) Non-appearance May Be Excused Only If:
days to promptly move ex-parte that the case be 1. A valid cause is shown; or
set for pre-trial. (Administrative Circular No. 3-99, 2. A representative appears fully authorized in
January 15, 1999) writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution
If the plaintiff fails to file said motion within the given and to enter into stipulations or admissions of
period, the branch CLERK OF COURT shall issue a facts and of documents.
notice of pre-trial.
The authorization in writing must be in the form of a
The pre-trial brief serves as a guide during the pre- SPECIAL POWER OF ATTORNEY.
trial conference so as to simplify, abbreviate and
expedite the trial if not to dispense with it. It is a The parties and their counsels are required to
devise essential to the speedy disposition of attend the pre-trial the purpose of which is to
disputes, and parties cannot brush it aside as a exhaust all possibilities of reaching a compromise.
mere technicality. In addition, pre-trial rules are not Having failed to justify their absence, they have no
to be belittled or dismissed, because their non- valid ground to request for a new trial. Further, an
observance may result in prejudice to a party‘s improvident termination of legal services is not a
substantive rights. Like all rules, they should be valid excuse to be absent at the pretrial. (Jonathan
followed except only for the most persuasive of Landoil International Co v Sps. Mangudadatu, G.R.
reasons when they may be relaxed to relieve a No. 155010, 2004)
litigant of an injustice not commensurate with the
degree of his thought[less]ness in not complying Stipulations freely and voluntarily made are valid
with the procedure. (Eufemia Balatico vda. De and binding and will not be set aside unless for
Agatep vs Roberta L. Rodriguez and Natalia good cause. The Rules of Court mandate parties in
Aguinaldo Vda. De Lim, G.R. No. 170540, 2009) a criminal case to stipulate facts. Once they have
validly and voluntarily signed the stipulations, the
The Purpose of the Pre-trial is to Allow the accused and their counsel may not set these aside
Court to Consider: on the mere pretext that they may be placed at a
1. The possibility of an amicable settlement or of a disadvantage during the trial. (Sixto Bayas vs
submission to alternative modes of dispute Sandiganbayan, G.R. No. 143689-91, 2002)
resolution;
2. The simplification of the issues; Effect of Failure to Appear of Parties
3. The necessity or desirability of amendments to 1. If PLAINTIFF failed to appear, the case is
the pleadings; dismissed with prejudice unless otherwise
ordered by the court.

76
 1. If PLAINTIFF failed to appear, the case is
The dismissal is to be considered as a final dismissed with prejudice unless otherwise
judgment, thus, the remedy of the plaintiff is to ordered by the court.
APPEAL. 2. If DEFENDANT failed to appear, the plaintiff will
be allowed to present evidence ex-parte, and
2. If DEFENDANT failed to appear, the plaintiff will the court shall render judgment on the basis
be allowed to present evidence ex-parte, and thereof.
the court shall render judgment on the basis of
the evidence presented. Having no counsel in a civil case is not a
reasonable excuse to not file a pre-trial brief. It does
The order allowing the plaintiff to present his/her not also deprive one of due process. Failure to file a
evidence ex-parte is interlocutory, hence, NOT pre-trial brief will have the same effect as not
APPEALABLE. appearing during pre-trial. (Saguid v. CA, G.R.
150611, 2003)
Section 1 of Rule 18 of the Rules of Court imposes
upon the plaintiff the duty to set the case for pre-trial
after the last pleading is served and filed. Under Pre-Trial Order
Section 3 of Rule 17, failure to comply with the said The order of the court is issued upon the
duty makes the case susceptible to dismissal for termination of the pre-trial.
failure to prosecute for an unreasonable length of
time or failure to comply with the rules. The failure The Order Shall Contain:
of the plaintiff to prosecute the action without any 1. The matters taken up in the pre-trial conference;
justifiable cause within a reasonable period of time 2. The action taken thereon;
will give rise to the presumption that he is no longer 3. The amendments allowed to the pleadings; and
interested in obtaining the relief prayed for. [Jazmin 4. The agreements or admissions made by the
Espiritu vs Vladimir Lazaro, G.R. 181020, parties.
November 25, 2009]
The pre-trial order shall define and limit the issues
to be tried and shall control the subsequent course
5. PRE-TRIAL BRIEF; EFFECT OF of the action EXCEPT if it is modified before trial to
FAILURE TO FILE prevent manifest injustice.

A pre-trial brief is required to be filed at least three 6. DISTINCTION BETWEEN PRE-TRIAL

(3) days before the date of the pre-trial conference
and it MUST be served on the adverse party. IN CIVIL CASES AND PRE-TRIAL IN
CRIMINAL CASES
The Pre-Trial Brief Shall Contain the Following:
1. Statement of the parties‘ willingness to enter into IN CIVIL IN CRIMINAL
amicable settlement or alternative modes of CASES CASES
dispute resolution (e.g., arbitration), indicating
the desired terms;
2. A summary of admitted facts and proposed Commencement Pre-trial is set Pre-trial is
stipulation of facts; when the ordered by the
3. Issues to be tried or resolved; PLAINTIFF court after
4. Documents or exhibits to be presented, stating moves EX- arraignment
the purpose thereof (No evidence shall be PARTE to set and within
allowed to be presented and offered during the the case for thirty (30) days
trial in support of a party's evidence-in-chief pre-trial from the date
other than those that had been earlier identified conference the court
and pre-marked during the pre-trial, except if after the last acquired
allowed by the court for good cause shown; pleading has jurisdiction
(A.M. No. 03-1-09-SC) been filed. over the
5. A manifestation of their having availed OR their person of the
intention to avail themselves of discovery accused
procedures or referral to commissioners; (either through
6. The number and names of witnesses and the voluntary
substance of their testimonies. surrender or
arrest).
Parties are bound by the representations and
statements in their respective pre-trial briefs as NO MOTION
such are in the nature of judicial admissions. to set the case
for pre-trial is
Effect of Failure to File a Pre-Trial Brief required.
The same as failure to appear at the pre-trial:

77
As to matters Minutes of Agreements or
discussed each pre-trial admissions SPECIAL RULES OF COURT ON ALTERNATIVE
conference made or DISPUTE RESOLUTION
shall contain entered during “Special ADR Rules”
matters taken the pre-trial A.M. NO. 07-11-08-SC
up therein, conference Effective October 30, 2009
more shall be
particularly reduced in PART I
admissions of writing and GENERAL PROVISIONS AND POLICIES
facts and signed by
exhibits and BOTH the RULE 1
shall be accused and GENERAL PROVISIONS
signed by the counsel;
parties and/or otherwise, Applicability of Special ADR Rules
their counsel. they cannot be 1. Relief on the issue of Existence, Validity, or
used against Enforceability of the Arbitration Agreement;
the accused. 2. Referral to Alternative Dispute Resolution
As to Pre-Trial Shall set forth Shall set forth ("ADR");
Order in detail the the actions 3. Interim Measures of Protection;
matters taken taken during 4. Appointment of Arbitrator;
up during the the pre-trial 5. Challenge to Appointment of Arbitrator;
conference, conference, 6. Termination of Mandate of Arbitrator;
the action the facts 7. Assistance in Taking Evidence;
taken stipulated, the 8. Confirmation, Correction or Vacation of Award
thereon, the admissions in Domestic Arbitration;
amendments made, 9. Recognition and Enforcement or Setting Aside
allowed to evidence of an Award in International Commercial
the marked, the Arbitration;
pleadings, number of 10. Recognition and Enforcement of a Foreign
and the witnesses to Arbitral Award;
agreements be presented 11. Confidentiality/Protective Orders; and
or and the 12. Deposit and Enforcement of Mediated
admissions schedule of Settlement Agreements. (Rule 1.1)
made by the trial.
parties as to Nature of the proceedings
any of the All proceedings under the Special ADR Rules are
matters special proceedings. (Rule 1.2)
considered.
As to non- Non- If the counsel Summary proceedings in certain cases
appearance of appearance for the The proceedings in the following instances are
parties of parties or accused or the summary in nature and shall be governed by this
counsel does prosecutor provision:
not authorize does not 1. Judicial Relief Involving the Issue of Existence,
the courts to appear at the Validity or Enforceability of the Arbitration
impose pre-trial Agreement;
―penalties‖. conference, 2. Referral to ADR;
and does not 3. Interim Measures of Protection;
offer an 4. Appointment of Arbitrator;
acceptable 5. Challenge to Appointment of Arbitrator;
excuse, the 6. Termination of Mandate of Arbitrator;
court may 7. Assistance in Taking Evidence;
impose proper 8. Confidentiality/Protective Orders; and
sanctions and 9. Deposit and Enforcement of Mediated
penalties. Settlement Agreements. (Rule 1.3)

Service and filing of petition by petitioner in

summary proceedings
1. Service upon the respondent either by personal
7. ALTERNATIVE DISPUTE service or courier a copy of the petition before
RESOLUTION (ADR) the filing thereof.
2. Proof of service shall be attached to the petition
a. SPECIAL RULES OF COURT ON ADR (A.M. filed in court.
No. 07-11-08) a. For Personal Service
Proof of service of the petition consists of
the affidavit of the person who effected

78
 service, stating the time, place and manner 2. By the written or stamped acknowledgment of
of the service on the respondent. its filing by the clerk of court on a copy of the
b. For Service by Courier same (if filed personally); or
Proof of service consists of the signed 3. By the proof of delivery from the courier
courier proof of delivery. (Rule 1.3-A) company (if filed by courier). (Rule 1.8-A)

Note: If service is refused or has failed, the affidavit Proof of service

or delivery receipt must state the circumstances of A. Proof of personal service shall consist of:
the attempted service and refusal or failure thereof. 1. Written admission by the party served;
(Rule 1.3-A) 2. Official return of the server; or
3. Affidavit of the party serving, containing a full
Verification and submissions statement of the date, place and manner of
1. Any pleading, motion, opposition, comment, service.
defense or claim filed under the Special ADR B. Proof of service by courier shall consist of:
Rules by the proper party shall be verified and Affidavit of the proper person, stating facts
contain as annexes the supporting documents. showing that the document was deposited with
(Rule 1.4) the courier company in a sealed envelope,
2. The annexes may include a legal brief, duly plainly addressed to the party at his office, if
verified by the lawyer submitting it, stating the known, otherwise at his residence, with
pertinent facts, the applicable law and postage fully pre-paid, and with instructions to
jurisprudence to justify the necessity for the the courier to immediately provide proof of
court to rule upon the issue raised. (Rule 1.4) delivery. (Rule 1.8-B)

Certification against Forum Shopping Filing and service by electronic means and
A Certification against Forum Shopping shall be proof thereof
appended to all initiatory pleadings EXCEPT a Filing and service by electronic means may be
Motion to Refer the Dispute to Alternative Dispute allowed by agreement of the parties and if approved
Resolution. (Rule 1.5) by the court. If the filing or service of a pleading or
motion was done by electronic transmission, proof
Prohibited submissions of filing and service shall be made in accordance
The following pleadings, motions, or petitions shall with the Rules on Electronic Evidence. (Rule 1.8-C)
not be allowed in the cases governed by the Special
ADR Rules and shall not be accepted for filing by No summons
the Clerk of Court: In cases covered by the Special ADR Rules, a court
1. Motion to dismiss; acquires authority to act on the petition or motion
2. Motion for bill of particulars; upon proof of jurisdictional facts, i.e., that the
3. Motion for new trial or for reopening of trial; respondent was furnished a copy of the petition and
4. Petition for relief from judgment; the notice of hearing. (Rule 1.9)
5. Motion for extension, except in cases where an
ex-parte temporary order of protection has Proof of service of the petition and notice of
been issued; hearing upon respondent shall:
6. Rejoinder to reply; 1. Be made in writing by the server; and
7. Motion to declare a party in default; and 2. Set forth the manner, place and date of service.
8. Any other pleading specifically disallowed (Rule 1.9-A)
under any provision of the Special ADR Rules. 3. Burden of proof that a copy of the petition and
(Rule 1.6) the notice of hearing were served on the
respondent rests on the petitioner. (Rule 1.9-B)
Service and filing of pleadings, motions and
other papers in NON-SUMMARY proceedings Note: The technical rules on service of summons
1. Initiatory pleadings do not apply to the proceedings under the Special
The initiatory pleadings shall be filed directly ADR Rules. However, if service is not made
with the court. The court will then cause the personally, the method of service resorted to must
initiatory pleading to be served upon the be such as to reasonably ensure receipt thereof by
respondent by personal service or courier. the respondent to satisfy the requirement of due
2. Action is already pending process.
Pleadings, motions and other papers shall be
filed and/or served by the concerned party by Contents of petition/motion
personal service or courier. Where courier The initiatory pleading in the form of a verified
services are not available, resort to registered petition or motion, in the appropriate case where
mail is allowed. (Rule 1.8) court proceedings have already commenced, shall
include:
Proof of filing 1. Names of the parties;
The filing of a pleading shall be proved: 2. Addresses of the parties; and
1. By its existence in the record of the case; 3. Necessary allegations supporting the petition
and the relief(s) sought. (Rule 1.10)

79
Definition of Terms An arbitration is commercial if it covers matter
(from Special ADR Rules, Arbitration Law, arising from all relationships of a commercial
Alternative Dispute Resolution Act, and Model Law) nature, whether contractual or not. (Section 3(g) of
R.A. 9285) Relationships of a transactions: any
Alternative Dispute Resolution (ADR) System trade transaction for the supply or exchange of
Any process or procedure used to resolve a dispute goods or services; distribution agreements;
or controversy, other than by adjudication of a construction of works; commercial representation or
presiding judge of a court or an officer of a agency; factoring; leasing, consulting; engineering;
government agency, as defined in this Act, in which licensing; investment; financing; banking; insurance;
a neutral third party participates to assist in the joint venture and other forms of industrial or
resolution of issues, which includes arbitration, business cooperation; carriage of goods or
mediation, conciliation, early neutral evaluation, passengers by air, sea, rail or road. (Section 21 of
mini-trial, or any combination thereof. (Section 3 of R.A. 9285)
R.A. 9285)
International Commercial Arbitration
ADR Laws
Refers to the whole body of ADR laws in the International Arbitration:
Philippines. (Rule 1.11) An arbitration is international if:
1. The parties to an arbitration agreement
Arbitration have, at the time of the conclusion of that
A voluntary dispute resolution process in which one agreement, their places of business in different
or more arbitrators, appointed in accordance with States; or
the agreement of the parties, or rules promulgated 2. One of the following places is situated
pursuant to this Act, resolve a dispute by rendering outside the State in which the parties have their
an award. (Section 3 of R.A. 9285) places of business:
Types of Arbitration a. the place of arbitration if
determined in, or pursuant to, the
Domestic Arbitration arbitration agreement;
b. any place where a substantial
Arbitration that is not international as defined in part of the obligations of the commercial
Article 1(3) of the Model Law. (Article 1.6, IRR of relationship is to be performed or the place
R.A. 9285) with which the subject-matter of the
dispute is most closely connected; or
Note: Domestic arbitration shall continue to be 3. The parties have expressly agreed that the
governed by R.A. 876 (Arbitration Law), as subject-matter of the arbitration agreement
amended by R.A. 9285 (Alternative Dispute relates to more than one country. (Article 1(3)
Resolution Act of 2004). (Section 32 of R.A. 9285) of the Model Law)
Note: Article 8, 10, 11, 12, 13, 14, 18 and 19 and Note: International commercial arbitration is
29 to 32 of the Model Law and Section 22 to 31 of governed by the United Nations Commission on
the Chapter 4 (International Commercial Arbitration) International Trade Law (UNCITRAL) Model Law on
of R.A. 9285 shall apply to domestic arbitration. International Commercial Arbitration (Model Law).
(Section 33 of R.A. 9285)

Foreign Arbitration

Arbitration that takes place in another state.

Foreign arbitration and international arbitration

Commercial Arbitration are not the same
An arbitration that takes place in State A is a foreign
arbitration in State B. It does not matter whether the
arbitration is commercial or non-commercial or
whether the parties are from the same country, from
different countries or that one or all are from State
A. Since even a domestic arbitration in State A is a
foreign arbitration in State B, the courts of State B
would be called upon to apply the New York
Convention to enforcement of a clause calling for
arbitration in State A and to the enforcement of any
award that would result. (United Nations, Dispute
Settlement: International Commercial
Arbitration, 2005, p.12)

80
 the courts shall not refuse to refer parties to
Appointing Authority arbitration for reasons including, but not limited
Person or institution named in the arbitration to, the following:
agreement as the appointing authority; or the 1. The referral tends to oust a court of its
regular arbitration institution under whose rule the jurisdiction;
arbitration is agreed to be conducted. Where the 2. The court is in a better position to resolve the
parties have agreed to submit their dispute to dispute subject of arbitration;
institutional arbitration rules, and unless they have 3. The referral would result in multiplicity of suits;
agreed to a different procedure, they shall be 4. The arbitration proceeding has not
deemed to have agreed to procedure under such commenced;
arbitration rules for the selection and appointment of 5. The place of arbitration is in a foreign country;
arbitrators. In ad hoc arbitration, the default 6. One or more of the issues are legal and one or
appointment of arbitrators shall be made by the more of the arbitrators are not lawyers;
National President of the Integrated Bar of the 7. One or more of the arbitrators are not
Philippines or his duly authorized representative. Philippine nationals; or
(Rule 1.11) 8. One or more of the arbitrators are alleged not
to possess the required qualification under the
Types of arbitral awards arbitration agreement or law. (Rule 2.2-A)
Domestic Arbitral Award
(B) Where court intervention is allowed under ADR
Laws or the Special ADR Rules, courts shall
One made in a domestic arbitration in the
not refuse to grant relief, as provided herein, for
Philippines, which is governed by the Arbitration
any of the following reasons:
Law, as amended.
1. Prior to the constitution of the arbitral tribunal,
the court finds that the principal action is the
Foreign Arbitral Award subject of an arbitration agreement; or
2. The principal action is already pending before
One made in a country other than the Philippines. an arbitral tribunal. (Rule 2.2-B)
(Rule 1.11) The recognition and enforcement of a
foreign arbitral award shall be governed by the 1958 Principle of Competence-Competence
New York Convention on the Recognition and The arbitral tribunal may initially rule on its own
Enforcement of Foreign Arbitral Awards (New York jurisdiction, including any objections with respect to
Convention) and the Special ADR Rules. (Rule 13.4) the existence or validity of the arbitration agreement
or any condition precedent to the filing of a request
Convention Award for arbitration.
A foreign arbitral award made in a Convention State
(party to the New York Convention). (Section 3 of Principle of Separability of the Arbitration
R.A. 9285) Clause
Said clause shall be treated as an agreement
Non-Convention Award independent of the other terms of the contract of
A foreign arbitral award made in a State which is not which it forms part. A decision that the contract is
a Convention State. (Section 3 of R.A. 9285) null and void shall not entail ipso jure the invalidity
of the arbitration clause.

Rules governing arbitral proceedings

The parties are free to agree on the procedure to be
followed in the conduct of arbitral proceedings.
Spirit and intent of the Special ADR Rules Failing such agreement, the arbitral tribunal may
conduct arbitration in the manner it considers
In situations where no specific rule is provided
appropriate. (Rule 2.3)
under the Special ADR Rules, the court shall
resolve such matter summarily and be guided by
Policy implementing competence-competence
the spirit and intent of the Special ADR Rules and
principle
the ADR Laws. (Rule 1.13)
1. The arbitral tribunal shall be accorded the first
opportunity or competence to rule on the issue
RULE 2 of whether or not it has the competence or
STATEMENT OF POLICIES jurisdiction to decide a dispute submitted to it
for decision, including any objection with
Policy on arbitration respect to the existence or validity of the
(A) Where the parties have agreed to submit their arbitration agreement.
dispute to arbitration, courts shall refer the Note: When a court is asked to rule upon
parties to arbitration pursuant to R.A. 9285 issue/s affecting the competence or jurisdiction
(Alternative Dispute Resolution Act of 2004) of an arbitral tribunal in a dispute brought
bearing in mind that such arbitration agreement before it, either before or after the arbitral
is the law between the parties and that they are tribunal is constituted, the court must exercise
expected to abide by it in good faith. Further, judicial restraint and defer to the competence

81
 or jurisdiction of the arbitral tribunal by allowing Any party to an arbitration agreement. (Rule 3.2)
the arbitral tribunal the first opportunity to rule
upon such issues. When the petition may be filed
2. Where the court is asked to make a The petition may be filed at any time PRIOR to the
determination of whether the arbitration commencement of arbitration. (Rule 3.3)
agreement is null and void, inoperative or Note: Despite the pendency of the petition provided
incapable of being performed, under this policy herein, arbitral proceedings may nevertheless be
of judicial restraint, the court must make no commenced and continue to the rendition of an
more than a prima facie determination of that award, while the issue is pending before the court.
issue. (Rule 3.3)
Note: Unless the court, pursuant to such prima
facie determination, concludes that the Venue
arbitration agreement is null and void, The petition may be filed before the Regional Trial
inoperative or incapable of being performed, Court that has jurisdiction over the place where any
the court must suspend the action before it and of the petitioners or respondents has his:
refer the parties to arbitration pursuant to the 1. Principal place of business; or
arbitration agreement. (Rule 2.4) 2. Residence. (Rule 3.4)

Policy on mediation Grounds

The Special ADR Rules do not apply to Court- Arbitration agreement is, under the applicable law:
Annexed Mediation (CAM), which shall be governed 1. Invalid;
by issuances of the Supreme Court. 2. Void;
3. Unenforceable; or
Note: Where the parties have agreed to submit 4. Inexistent. (Rule 3.5)
their dispute to mediation, a court before which that
dispute was brought shall suspend the proceedings Court action; judicial restraint
and direct the parties to submit their dispute to In resolving the petition, the court must exercise
private mediation. If the parties subsequently agree, judicial restraint in accordance with the policy set
however, they may opt to have their dispute settled forth in Rule 2.4, DEFERRING to the competence
through CAM. (Rule 2.5) or jurisdiction of the arbitral tribunal to rule on its
Policy on Arbitration-Mediation or Mediation- competence or jurisdiction. (Rule 3.8)
Arbitration
No arbitrator shall act as a mediator in any Application for interim relief
proceeding in which he is acting as arbitrator (and If the petitioner also applies for an interim measure
vice versa). All negotiations towards settlement of of protection, he must also comply with the
the dispute must take place without the presence of requirements of the Special ADR Rules for the
that arbitrator. (Rule 2.6) application for an interim measure of protection.
(Rule 3.10)
Conversion of a settlement agreement to an
arbitral award Relief against court action
Where the parties to mediation have agreed in the A prima facie determination by the court upholding
written settlement agreement that the mediator shall the existence, validity or enforceability of an
become the sole arbitrator for the dispute or that the arbitration agreement shall NOT be subject to a
settlement agreement shall become an arbitral motion for reconsideration, appeal or certiorari.
award, the sole arbitrator shall issue the settlement (Rule 3.11)
agreement as an arbitral award, which shall be
subject to enforcement under the law. (Rule 2.7) Such prima facie determination will NOT,
however, prejudice the right of any party to
PART II raise the issue of the existence, validity and
SPECIFIC COURT RELIEF enforceability of the arbitration agreement
before the arbitral tribunal or the court in an
RULE 3 action to vacate or set aside the arbitral award.
JUDICIAL RELIEF INVOLVING THE ISSUE OF In the latter case, the court‘s review of the arbitral
EXISTENCE, VALIDITY AND ENFORCEABILITY tribunal‘s ruling shall no longer be limited to a mere
OF THE ARBITRATION AGREEMENT prima facie determination of such issue or issues as
prescribed in this Rule, but shall be a full review of
When judicial relief is available such issue or issues with due regard, however, to
The judicial relief provided in Rule 3, whether the standard for review for arbitral awards
resorted to before or after commencement of prescribed in these Special ADR Rules. (Rule 3.11)
arbitration, shall apply only when the place of
arbitration is in the Philippines. (Rule 3.1) B. Judicial Relief AFTER Arbitration
Commences
A. Judicial Relief BEFORE Commencement of
Arbitration Who may file petition
Any party to arbitration may file a petition for judicial
Who may file petition relief from the ruling of the arbitral tribunal on a

82
preliminary question upholding or declining its Rendition of arbitral award BEFORE court
jurisdiction. (Rule 3.12) decision on petition from arbitral tribunal’s
preliminary ruling on jurisdiction
Note: Should the ruling of the arbitral tribunal If the arbitral tribunal renders a final arbitral award
declining its jurisdiction be reversed by the court, and the Court has not rendered a decision on the
the parties shall be free to replace the arbitrators or petition from the arbitral tribunal‘s preliminary ruling
any one of them in accordance with the rules that affirming its jurisdiction, that petition shall become
were applicable for the appointment of arbitrator ipso facto moot and academic and shall be
sought to be replaced. (Rule 3.12) DISMISSED by the Regional Trial Court, without
prejudice to the right of the aggrieved party to raise
When petition may be filed the same issue in a timely petition to vacate or set
The petition may be filed within 30 days after having aside the award. (Rule 3.21)
received notice of that ruling by the arbitral tribunal.
(Rule 3.13) Note: Arbitral tribunal is only a nominal party. (Rule
3.22)
Venue
The petition may be filed before the Regional Trial RULE 4: REFERRAL TO ADR
Court of the place:
1. Where arbitration is taking place; or Who makes the request
2. Where any of the petitioners or respondents A party to a pending action filed in violation of the
has his principal place of business or arbitration agreement, whether contained in an
residence. (Rule 3.14) arbitration clause or in a submission agreement,
may request the court to refer the parties to
Court action (Rule 3.18) arbitration in accordance with such agreement.
1. No injunction of arbitration proceedings (Rule 4.1)
The court shall NOT enjoin the arbitration
proceedings during the pendency of the When to make request (Rule 4.2)
petition. (Judicial recourse to the court shall 1. Where the arbitration agreement exists
NOT prevent the arbitral tribunal from before the action is filed
continuing the proceedings and rendering its The request for referral shall be made not later
award.) than the pre-trial conference. After the pre-trial
2. When dismissal of petition is appropriate conference, the court will only act upon the
The court shall dismiss the petition: request for referral if it is made with the
a. If the petition fails to comply with Rule agreement of all parties to the case.
3.16; or 2. Where there is no existing arbitration
b. If upon consideration of the grounds agreement at the time the case is filed but
alleged and the legal briefs submitted by the parties subsequently enter into an
the parties, the petition does not appear to arbitration agreement
be prima facie meritorious. The parties may request the court to refer their
dispute to arbitration at any time during the
Relief against court action proceedings. (Submission Agreement)
1. The aggrieved party may file a Motion for
Reconsideration of the order of the court. Court action
Note: The decision of the court shall, however, After hearing, the court shall:
not be subject to appeal. The ruling of the court 1. Stay the action; and
affirming the arbitral tribunal‘s jurisdiction shall 2. Refer the parties to arbitration
not be subject to a petition for certiorari. if it finds prima facie, based on the pleadings and
2. The ruling of the court that the arbitral tribunal supporting documents submitted by the parties,
has no jurisdiction may be the subject of a that:
Petition for Certiorari. (Rule 3.19) 1. There is an arbitration agreement; and
2. The subject-matter of the dispute is capable of
Where no petition is allowed settlement or resolution by arbitration in
Where the arbitral tribunal defers its ruling on accordance with Section 6 of the ADR Act.
preliminary question regarding its jurisdiction until
its final award, the aggrieved party CANNOT seek Otherwise, the court shall continue with the judicial
judicial relief to question the deferral and must await proceedings. (Rule 4.5)
the final arbitral award before seeking appropriate
judicial recourse. No reconsideration, appeal or certiorari
1. An order referring the dispute to arbitration
A ruling by the arbitral tribunal deferring resolution shall be immediately executory and shall NOT
on the issue of its jurisdiction until final award, shall be subject to a motion for reconsideration,
NOT be subject to a motion for reconsideration, appeal or petition for certiorari.
appeal or a petition for certiorari. (Rule 3.20) 2. An order denying the request to refer the
dispute to arbitration shall NOT be subject to
an appeal, but may be the subject of a motion

83
 for reconsideration and/or a petition for 4. Where the real property subject of arbitration,
certiorari. (Rule 4.6) or a portion thereof is situated. (Rule 5.3)

Multiple actions and parties Grounds (not exclusive)

The court shall NOT decline to refer some or all of 1. The need to prevent irreparable loss or injury;
the parties to arbitration for any of the following 2. The need to provide security for the
reasons: performance of any obligation;
1. Not all of the disputes subject of the civil action 3. The need to produce or preserve evidence; or
may be referred to arbitration; 4. The need to compel any other appropriate act
2. Not all of the parties to the civil action are or omission. (Rule 5.4)
bound by the arbitration agreement and referral Type of interim measure of protection that a
to arbitration would result in multiplicity of suits; court may grant
3. The issues raised in the civil action could be 1. Preliminary injunction directed against a party
speedily and efficiently resolved in its entirety to arbitration;
by the court rather than in arbitration; 2. Preliminary attachment against property or
4. Referral to arbitration does not appear to be the garnishment of funds in the custody of a bank
most prudent action; or or a third person;
5. The stay of the action would prejudice the 3. Appointment of a receiver;
rights of the parties to the civil action who are 4. Detention, preservation, delivery or inspection
not bound by the arbitration agreement. (Rule of property; or
4.7) 5. Assistance in the enforcement of an interim
measure of protection granted by the arbitral
Note: The court may, however, issue an order tribunal, which the latter cannot enforce
directing the inclusion in arbitration of those parties effectively. (Rule 5.6)
who are not bound by the arbitration agreement but
who agree to such inclusion provided those Dispensing with prior notice in certain cases
originally bound by it do not object to their inclusion. Prior notice to the other party may be dispensed
(Rule 4.7) with when the court finds that the reason/s given by
the petitioner are meritorious where the petitioner
Arbitration to proceed alleges in the petition that there is an urgent need to
Despite the pendency of the action referred to in either:
Rule 4.1, arbitral proceedings may nevertheless be 1. Preserve property;
commenced or continued, and an award may be 2. Prevent the respondent from disposing of, or
made, while the action is pending before the court. concealing, the property; or
(Rule 4.8) 3. Prevent the relief prayed for from becoming
illusory because of prior notice. (Rule 5.7)
RULE 5
INTERIM MEASURES OF PROTECTION Court action (Rule 5.9)
1. Where the other parties fail to file their
Who may ask for interim measures of protection opposition on or before the day of the
A party to an arbitration agreement may petition the hearing
court for interim measures of protection. (Rule 5.1) The court shall motu proprio render judgment
only on the basis of the allegations in the
When to petition petition that are substantiated by supporting
A petition for an interim measure of protection may documents and limited to what is prayed for
be made: therein.
1. Before arbitration is commenced; 2. Where based solely on the petition, the
2. After arbitration is commenced, but before the court finds that there is an urgent need to
constitution of the arbitral tribunal; or either:
3. After the constitution of the arbitral tribunal and a. Preserve property;
at any time during arbitral proceedings but, at b. Prevent the respondent from disposing of,
this stage, only to the extent that the arbitral or concealing, the property; or
tribunal has no power to act or is unable to act c. Prevent the relief prayed for from
effectively. (Rule 5.2) becoming illusory because of prior notice
The court shall:
Venue 1. Issue an immediately executory temporary
A petition for an interim measure of protection may order of protection (TPO); and
be filed with the Regional Trial Court, which has 2. Require the petitioner, within 5 days from
jurisdiction over any of the following places: receipt of that order, to post a BOND to
1. Where the principal place of business of any of answer for any damage that respondent
the parties to arbitration is located; may suffer as a result of its order.
2. Where any of the parties who are individuals
resides; Ex-parte TPO
3. Where any of the acts sought to be enjoined The ex-parte TPO shall be valid only for a period of
are being performed, threatened to be twenty (20) days from the service on the party
performed or not being performed; or

84
required to comply with the order. Within that amended, revised or revoked an interim
period, the court shall: measure of protection previously issued by the
a. Furnish the respondent a copy of the petition court to the extent that it is inconsistent with the
and a notice requiring him to comment thereon subsequent interim measure of protection
on or before the day the petition will be heard; issued by the arbitral tribunal. (Rule 5.13)
and
b. Notify the parties that the petition shall be Conflict or inconsistency between interim
heard on a day specified in the notice, which measure of protection issued by the court and
must not be beyond the 20-day period of the by the arbitral tribunal
effectivity of the ex-parte order. Any question involving a conflict or inconsistency
between an interim measure of protection issued by
Counter-bond the court and by the arbitral tribunal shall be
The respondent has the option of having the TPO immediately referred by the court to the arbitral
lifted by posting an appropriate counter-bond as tribunal which shall have the authority to decide
determined by the court. such question. (Rule 5.14)

Relief against court action Court to defer action on petition for an interim
If respondent was given an opportunity to be heard measure of protection when informed of
on a petition for an interim measure of protection, constitution of the arbitral tribunal
any order by the court shall be immediately The court shall defer action on any pending petition
executory, but may be the subject of a/an: for an interim measure of protection filed by a party
1. Motion for reconsideration; and/or to an arbitration agreement arising from or in
2. Appeal; or, connection with a dispute thereunder upon being
3. Petition for certiorari (if warranted). (Rule 5.10) informed that an arbitral tribunal has been
constituted pursuant to such agreement. The court
Duty of the court to refer back may act upon such petition only if it is established
The court shall not deny an application for by the petitioner that the arbitral tribunal has no
assistance in implementing or enforcing an interim power to act on any such interim measure of
measure of protection ordered by an arbitral tribunal protection or is unable to act thereon effectively.
on any or all of the following grounds: (Rule 5.15)
a. The arbitral tribunal granted the interim relief ex
parte; or Court assistance should arbitral tribunal be
b. The party opposing the application found new unable to effectively enforce interim measure of
material evidence, which the arbitral tribunal protection
had not considered in granting in the The court shall assist in the enforcement of an
application, and which, if considered, may interim measure of protection issued by the arbitral
produce a different result tribunal which it is unable to effectively enforce.
Note: If it finds that there is sufficient merit in (Rule 5.16)
the opposition to the application based on letter
(b), the court shall REFER the matter back to RULE 6
the arbitral tribunal for appropriate APPOINTMENT OF ARBITRATORS
determination; or
c. The measure of protection ordered by the When the court may act as Appointing Authority
arbitral tribunal amends, revokes, modifies or is The court shall act as Appointing Authority only in
inconsistent with an earlier measure of the following instances:
protection issued by the court. (Rule 5.11) 1. Institutional Arbitration
a. Where any of the parties failed or refused
Security to appoint an arbitrator; or
The order granting an interim measure of protection b. When the parties have failed to reach an
may be conditioned upon the provision of security, agreement on the sole arbitrator (in an
performance of an act, or omission thereof, arbitration before a sole arbitrator); or
specified in the order. The Court may not change or c. When the two designated arbitrators have
increase or decrease the security ordered by the failed to reach an agreement on the third
arbitral tribunal. (Rule 5.12) or presiding arbitrator (in an arbitration
before a panel of three arbitrators), and
Modification, amendment, revision or revocation the institution under whose rules
of court’s previously issued interim measure of arbitration is to be conducted fails or is
protection unable to perform its duty as appointing
1. Any court order granting or denying interim authority within a reasonable time from
measure/s of protection is issued without receipt of the request for appointment;
prejudice to subsequent grant, modification, 2. Ad Hoc Arbitration
amendment, revision or revocation by the a. Where the parties failed to provide a
arbitral tribunal as may be warranted. method for appointing or replacing an
2. An interim measure of protection issued by the arbitrator, or substitute arbitrator, or the
arbitral tribunal shall, upon its issuance be method agreed upon is ineffective; AND
deemed to have ipso jure modified,

85
 b. The National President of the Integrated upon by the parties or under the procedure
Bar of the Philippines (IBP) or his duly provided for in Article 13(2) of the Model Law
authorized representative fails or refuses and the challenge is not successful:
to act within such period as may be The aggrieved party may request the
allowed under the pertinent rules of the Appointing Authority to rule on the
IBP or within such period as may be challenge.
agreed upon by the parties, or in the 2. When such Appointing Authority fails or refuses
absence thereof, within thirty (30) days to act on the challenge within such period as
from receipt of such request for may be allowed under the applicable rule or in
appointment. the absence thereof, within 30 days from
receipt of the request:
3. When the Appointing Authority fails or refuses The aggrieved party may renew the
to act or appoint an arbitrator within a challenge in court. (Rule 7.2)
reasonable time from receipt of the request to
do so Venue
The challenge shall be filed with the Regional Trial
Who may request for appointment Court:
Any party to an arbitration. (Rule 6.2) 1. Where the principal place of business of any of
the parties is located;
Venue 2. If any of the parties are individuals, where
The petition for appointment of arbitrator may be those individuals reside; or
filed, at the option of the petitioner, in the Regional 3. In the National Capital Region. (Rule 7.3)
Trial Court:
1. Where the principal place of business of any of Grounds
the parties is located; An arbitrator may be challenged on any of the
2. If any of the parties are individuals, where grounds for challenge provided for in:
those individuals reside; or
3. In the National Capital Region. (Rule 6.3) A. R.A. 9285 (Alternative Dispute Resolution Act
of 2004) and its Implementing Rules
Court action 1. International Commercial
After hearing the petition for appointment of Arbitration
arbitrator, the court shall either: a. Circumstances exist that give rise to
1. Appoint an arbitrator (if it finds merit in the justifiable doubts as to impartiality or
petition); or, independence of the arbitrator; or
2. Dismiss the petition. (Rule 6.7) b. Arbitrator does not possess qualifications
Note: At any time after the petition is filed and agreed to by the parties. (Article 4.12 of
before the court makes an appointment, it shall IRR)
also dismiss the petition upon being informed 2. Domestic Arbitration
that the Appointing Authority has already made a. Circumstances exist that give rise to
the appointment. (Rule 6.7) justifiable doubts as to the impartiality or
independence of the arbitrator;
Relief against court action b. Arbitrator does not possess qualifications
1. An order APPOINTING an arbitrator as provided for in Chapter 5 (Domestic
a. Shall be immediately executory; Arbitration) or those agreed to by the
and parties;
b. Not be the subject of a motion for c. Arbitrator is disqualified to act as
reconsideration, appeal or certiorari. arbitration under the IRR
2. An order of the court DENYING the petition for Qualifications/Disqualifications: Any
appointment of an arbitrator person appointed to serve as an arbitrator
a. May be the subject of a: must be of legal age, in full enjoyment of
i. Motion for reconsideration; his/her civil rights and knows how to read
ii. Appeal; or and write. No person appointed to serve as
iii. Certiorari. (Rule 6.9) an arbitrator shall be related by blood or
marriage within the sixth degree to either
party to the controversy. No person shall
RULE 7 serve as an arbitrator in any proceeding if
CHALLENGE TO APPOINTMENT OF he/she has or has had financial, fiduciary
ARBITRATOR or other interest in the controversy or
cause to be decided or in the result of the
Who may challenge proceeding, or has any personal bias,
Any of the parties to an arbitration may challenge which might prejudice the right of any party
an arbitrator. (Rule 7.1) to a fair and impartial award. No party shall
select as an arbitrator any person to act as
When challenge may be raised in court his/her champion or to advocate his/her
1. When an arbitrator is challenged before the cause. (5.10 of IRR); or
arbitral tribunal under the procedure agreed

86
 d. Arbitrator refuses to respond to questions The court shall decide the challenge on the basis of
by a party regarding the nature and extent the evidence submitted by the parties in the
of his professional dealings with a party or following instances:
its counsel. (5.11 of IRR) 1. The other arbitrators in the arbitral tribunal
agree to the removal of the challenged
B. R.A. 876 (Arbitration Law) arbitrator; and
When the arbitrator is not qualified to be 2. If the challenged arbitrator fails or refuses to
such. submit his comment on the petition or the brief
Qualifications/Disqualifications: Any person of legal arguments as directed by the court, or
appointed to serve as an arbitrator must be of in such comment or brief of legal arguments,
legal age, in full-enjoyment of his civil rights he fails to object to his removal following the
and know how to read and write. No person challenge. (Rule 7.7)
appointed to serve as an arbitrator shall be
related by blood or marriage within the sixth Note: Any order of the court resolving the petition
degree to either party to the controversy. No shall be immediately executory and shall NOT be
person shall serve as an arbitrator in any the subject of a motion for reconsideration, appeal,
proceeding if he has or has had financial, or certiorari. (Rule 7.8)
fiduciary or other interest in the controversy or
cause to be decided or in the result of the RULE 9
proceeding, or has any personal bias, which ASSISTANCE IN TAKING EVIDENCE
might prejudice the right of any party to a fair
and impartial award. No party shall select as an Who may request assistance
arbitrator any person to act as his champion or Any party to an arbitration, whether domestic or
to advocate his cause. (Section 10 of R.A. foreign, may request the court to provide assistance
876) in taking evidence. (Rule 9.1)

C. Model Law When assistance may be sought

1. Circumstances exist that give rise to Assistance may be sought at any time during the
justifiable doubts as to the impartiality or course of the arbitral proceedings when the need
independence of the arbitrator; or arises. (Rule 9.2)
2. Arbitrator does not possess qualifications
agreed to by the parties. (Article 12 of the Venue
Model Law) A petition for assistance in taking evidence may, at
the option of the petitioner, be filed with Regional
Note: The nationality or professional qualification of Trial Court where:
an arbitrator is NOT a ground to challenge an 1. Arbitration proceedings are taking place;
arbitrator UNLESS the parties have specified in 2. The witnesses reside or may be found; or
their arbitration agreement a nationality and/or 3. Where the evidence may be found. (Rule 9.3)
professional qualification for appointment as
arbitrator. (Rule 7.4) Ground
The court may grant or execute the request for
Court action assistance in taking evidence within its competence
After hearing, the court shall: and according to the rules of evidence. (Rule 9.4)
1. Remove the challenged arbitrator if it finds
merit in the petition; otherwise, it shall dismiss Type of assistance
the petition. A party requiring assistance in the taking of
2. Allow the challenged arbitrator who evidence may petition the court to direct any
subsequently agrees to accept the challenge to person, including a representative of a corporation,
withdraw as arbitrator. association, partnership or other entity (other than a
3. Accept the challenge and remove the arbitrator party to the ADR proceedings or its officers) found
in the following cases: in the Philippines, for any of the following:
a. The party or parties who named and 1. To comply with a subpoena ad
appointed the challenged arbitrator agree testificandum and/or subpoena duces tecum;
to the challenge and withdraw the 2. To appear as a witness before an officer for the
appointment. taking of his deposition upon oral examination
b. The other arbitrators in the arbitral tribunal or by written interrogatories;
agree to the removal of the challenged 3. To allow the physical examination of the
arbitrator; and condition of persons, or the inspection of things
c. The challenged arbitrator fails or refuses to or premises and, when appropriate, to allow the
submit his comment on the petition or the recording and/or documentation of condition of
brief of legal arguments as directed by the persons, things or premises (i.e., photographs,
court, or in such comment or legal brief, he video and other means of
fails to object to his removal following the recording/documentation);
challenge. (Rule 7.7) 4. To allow the examination and copying of
documents; and
Basis of decision of the court 5. To perform any similar acts. (Rule 9.5)

87
 Confidential information shall not be subject to
Court action discovery and shall be inadmissible in any
If the evidence sought is not privileged, and is adversarial proceeding, whether judicial or
material and relevant, the court shall: quasi judicial.
1. Grant the assistance in taking evidence Note: However, evidence or information that is
requested; and otherwise admissible or subject to discovery
2. Order petitioner to pay costs attendant to such does not become inadmissible or protected
assistance. (Rule 9.8) from discovery solely by reason of its use
therein.
Relief against court action 3. For MEDIATION proceedings, the court shall
1. The order GRANTING assistance in taking be further guided by the following principles:
evidence shall be immediately executory and a. Information obtained through mediation shall
NOT subject to reconsideration or appeal. be privileged and confidential.
2. If the court DECLINES to grant assistance in b. A party, a mediator, or a nonparty participant
taking evidence, the petitioner may file a: may refuse to disclose and may prevent any
a. Motion for reconsideration; or other person from disclosing a mediation
b. Appeal. (Rule 9.9) communication.
c. In such an adversarial proceeding, the
RULE 10 following persons involved or previously
CONFIDENTIALITY/PROTECTIVE ORDERS involved in a mediation may not be compelled
to disclose confidential information obtained
Who may request confidentiality during the mediation: (1) the parties to the
A party, counsel or witness who disclosed or who dispute; (2) the mediator or mediators; (3) the
was compelled to disclose information relative to counsel for the parties: (4) the nonparty
the subject of ADR under circumstances that would participants; (5) any persons hired or engaged
create a reasonable expectation, on behalf of the in connection with the mediation as secretary,
source, that the information shall be kept stenographer; clerk or assistant; and (6) any
confidential has the right to prevent such other person who obtains or possesses
information from being further disclosed without the confidential information by reason of his/ her
express written consent of the source or the party profession.
who made the disclosure. (Rule 10.1) d. The protection of the ADR Laws shall continue
to apply even if a mediator is found to have
When request made failed to act impartially.
A party may request a protective order at any time e. A mediator may not be called to testify to
there is a need to enforce the confidentiality of the provide information gathered in mediation. A
information obtained, or to be obtained, in ADR mediator who is wrongfully subpoenaed shall
proceedings. (Rule 10.2) be reimbursed the full cost of his attorney fees
and related expenses. (Rule 10.8)
Venue
1. A petition for a protective order may be filed Relief against court action
with the Regional Trial Court where that order 1. The order ENJOINING a person or persons
would be implemented. from divulging confidential information shall be
2. A motion to enjoin the confidential information immediately executory and may not be
from being divulged or to suppress confidential enjoined while the order is being questioned
information may be filed with the court where with the appellate courts.
the proceedings are pending and in which the 2. If the court DECLINES TO ENJOIN a person or
information obtained in an ADR proceeding is persons from divulging confidential information,
required to be divulged or is being divulged. the petitioner may file a/an:
(Rule 10.3) a. Motion for reconsideration; or
b. Appeal. (Rule 10.9)
Grounds
A protective order may be granted only if it is shown RULE 11
that the applicant would be materially prejudiced by CONFIRMATION, CORRECTION OR VACATION
an unauthorized disclosure of the information OF AWARD IN DOMESTIC ARBITRATION
obtained, or to be obtained, during an ADR
proceeding. (Rule 10.4) This rule applies only to awards in DOMESTIC
Arbitrations.
Court action
1. If the court finds the petition or motion Who may request confirmation, correction or
meritorious, it shall issue an order enjoining a vacation
person or persons from divulging confidential Any party to a domestic arbitration may petition the
information. court to confirm, correct or vacate a domestic
2. In resolving the petition or motion, the courts arbitral award. (Rule 11.1)
shall be guided by the following principles
applicable to all ADR proceedings: When to request confirmation,
correction/modification or vacation (Rule 11.2)

88
1. Confirmation complete, final and definite award upon the
At any time after the lapse of 30 days from subject matter submitted to them was not
receipt by the petitioner of the arbitral award, made.
he may petition the court to confirm that award. 6. The arbitration agreement did not exist, or is
2. Correction/Modification invalid for any ground for the revocation of a
Not later than 30 days from receipt of the contract or is otherwise unenforceable; or
arbitral award, a party may petition the court to 7. A party to arbitration is a minor or a person
correct/modify that award. judicially declared to be incompetent.
3. Vacation Note: When based on this ground, the petition
Not later than 30 days from receipt of the shall be filed only on behalf of the minor or
arbitral award, a party may petition the court to incompetent and shall allege that:
vacate that award. a. The other party to arbitration had
4. Petition to vacate the arbitral award in knowingly entered into a submission or
opposition to a petition to confirm the agreement with such minor or
arbitral award incompetent; or
Not later than 30 days from receipt of the b. The submission to arbitration was
award by the petitioner. Otherwise, it shall be made by a guardian or guardian ad litem
dismissed. who was not authorized to do so by a
5. Petition to confirm the arbitral award in competent court.
opposition to a petition to vacate the
arbitral award (B) To correct/modify an arbitral award:
At any time after the petition to vacate such 1. Where there was an evident miscalculation of
arbitral award is filed. figures or an evident mistake in the description
Note: The dismissal of the petition to vacate of any person, thing or property referred to in
the arbitral award for having been filed beyond the award;
the reglementary period shall not result in the 2. Where the arbitrators have awarded upon a
dismissal of the petition for the confirmation of matter not submitted to them, not affecting the
such arbitral award. merits of the decision upon the matter
Note: The filing of a petition to confirm an submitted;
arbitral award shall not authorize the filing of a 3. Where the arbitrators have omitted to resolve
belated petition to vacate or set aside such an issue submitted to them for resolution; or
award in opposition thereto. 4. Where the award is imperfect in a matter of
6. Petition to correct an arbitral award form not affecting the merits of the controversy,
May be included as part of a petition to confirm and if it had been a commissioner‘s report, the
the arbitral award or as a petition to confirm defect could have been amended or
that award. disregarded by the Court.

Venue Court action

The petition for confirmation, correction/modification 1. Unless a ground to vacate an arbitral award
or vacation of a domestic arbitral award may be under Rule 11.5 is fully established, the court
filed with Regional Trial Court having jurisdiction shall confirm the award.
over the place: An arbitral award shall enjoy the
1. Where one of the parties is doing business; presumption that it was made and
2. Where any of the parties reside; or released in due course of arbitration and is
3. Where arbitration proceedings were conducted. subject to confirmation by the court.
(Rule 11.3) 2. In resolving the petition or petition in
opposition, the court shall either confirm or
Grounds (Rule 11.4) vacate the arbitral award.
(A) To vacate an arbitral award: The court shall NOT disturb the arbitral
(Note: The grounds are exclusive.) tribunal‘s determination of facts and/or
1. The arbitral award was procured through interpretation of law. (Rule 11.9)
corruption, fraud or other undue means;
2. There was evident partiality or corruption in the Referral back to the same or new arbitral
arbitral tribunal or any of its members; tribunal
3. The arbitral tribunal was guilty of misconduct or 1. In petitions to:
any form of misbehavior that has materially a. Vacate an award; or
prejudiced the rights of any party such as b. Vacate an award in opposition to
refusing to postpone a hearing upon sufficient a petition to confirm the award
cause shown or to hear evidence pertinent and The petitioner may simultaneously apply with the
material to the controversy; Court to refer the case back to the same arbitral
4. One or more of the arbitrators was disqualified tribunal to:
to act as such under the law and willfully a. Make a new or revised award;
refrained from disclosing such disqualification; b. Direct a new hearing; or
or c. In the appropriate case, order the
5. The arbitral tribunal exceeded its powers, or so new hearing before a new arbitral tribunal,
imperfectly executed them, such that a the members of which shall be chosen in

89
 the manner provided in the arbitration When to file a petition to recognize and enforce
agreement or submission, or the law. In an arbitral award may be made:
the latter case, any provision limiting the 1. Anytime from receipt of the award; or
time in which the arbitral tribunal may 2. Within the period for filing an opposition, if a
make a decision shall be deemed timely petition to set aside an arbitral award is
applicable to the new arbitral tribunal. filed.
2. In referring the case back to the arbitral tribunal
or to a new arbitral tribunal pursuant to Rule 24 When to file a petition to set aside
of Republic Act No. 876, the court may NOT Only within 3 months from the time the petitioner
direct it to: receives a copy thereof.
a. Revise its award in a particular
way; or Failure to file a petition to set aside shall preclude a
b. Revise its findings of fact or party from raising grounds to resist enforcement of
conclusions of law or otherwise encroach the award.
upon the independence of an arbitral
tribunal in the making of a final award. Note: If a timely request is made with the arbitral
(Rule 11.10) tribunal for correction, interpretation or additional
award, the 3-month period shall be counted from
Multi-party arbitration the time the petitioner receives the resolution by the
1. Agreement of the parties arbitral tribunal of that request.
In this multi-party arbitration among the lender,
the borrower and the third party securing the Note: Dismissal of the petition to set aside an
loan, the parties may agree to submit to arbitral for being time-barred shall not automatically
arbitration before a sole arbitrator or a panel of result in the approval of the petition filed therein and
three arbitrators to be appointed either by an in opposition thereto for the recognition an
Appointing Authority designated by the parties enforcement of the same award. (Rule 12.2)
in the arbitration agreement or by a default
Appointing Authority under the law. Where to file a petition to recognize and enforce
2. In default of an agreement or set aside an arbitral award
In default of an agreement on the manner of At the option of the petitioner, in the Regional Trial
appointing arbitrators or of constituting the court:
arbitral tribunal in such multi-party arbitration, 1. Where arbitration proceedings were conducted;
the dispute shall be resolved by a panel of or
three arbitrators to be designated by the 2. Where any of the assets to be attached or
Appointing Authority under the law. But even in levied upon is located; or
default of an agreement on the manner of 3. Where the act to be enjoined will be or is being
appointing an arbitrator or constituting an performed; or
arbitral tribunal in a multi-party arbitration, if the 4. Where any of the parties to arbitration resides
borrower and the third party securing the loan or has its place of business; or
agree to designate a common arbitrator, 5. In the National Capital Judicial Region (Rule
arbitration shall be decided by a panel of three 12.3)
arbitrators: one to be designated by the lender;
the other to be designated jointly by the The court may set aside or refuse the
borrower and the provider of security who have enforcement of the arbitral award only if:
agreed to designate the same arbitrator; and a 1. The party making the application furnishes
third arbitrator who shall serve as the proof that:
chairperson of the arbitral panel to be a. A party to the arbitration
designated by the two party-designated agreement was under some incapacity, or
arbitrators. (Rule 11.10) the said agreement is not valid under the
law to which the parties have subjected it
RULE 12 or, failing any indication thereof, under
RECOGNITION AND ENFORCEMENT OR Philippine law; or
SETTING ASIDE OF AN INTERNATIONAL b. The party making the application
COMMERCIAL ARBITRATION AWARD. to set aside or resist enforcement was not
given proper notice of the appointment of
See definitions of international arbitration (Article an arbitrator or of the arbitral proceedings
1(3) of Model Law) and commercial arbitration or was otherwise unable to present his
(Section 3(g) of R.A. 9285) in the discussion under case; or
Rule 1. c. The award deals with a dispute
not contemplated by or not falling within
Who may request recognition and enforcement the terms of the submission to arbitration;
or setting aside provided that, if the decisions on matters
Any party to an international commercial arbitration submitted to arbitration can be separated
where the venue of arbitration is in the Philippines. from those not so submitted, only that part
(Rule 12.1) of the award which contains decisions on
matters not submitted to arbitration may be

90
 set aside or only that part of the award Note: The court when asked to set aside an arbitral
which contains decisions on matters award may also, when the preliminary ruling of an
submitted to arbitration may be enforced; arbitral tribunal affirming its jurisdiction to act on the
or matter before it had been appealed by the party
d. The composition of the arbitral aggrieved by such preliminary ruling to the court,
tribunal or the arbitral procedure was not in suspend the proceedings to set aside to await the
accordance with the agreement of the ruling of the court on such pending appeal or, in the
parties, unless such agreement was in alternative, consolidate the proceedings to set aside
conflict with a provision of Philippine law with the earlier appeal. (Rule 12.11)
from which the parties cannot derogate, or,
failing such agreement, was not in Presumption in favor of confirmation
accordance with Philippine law. Unless the adverse party is able to establish a
ground for setting aside or not enforcing an arbitral
2. The court finds that: award, the presumption is that an arbitral award
a. The subject- matter of the dispute was made and released in due course and is
is not capable of settlement by arbitration subject to enforcement by the court. (Rule 12.12)
under the law of the Philippines; or
b. The recognition or enforcement of Judgment of the Court
the award would be contrary to public Unless a ground to set aside an arbitral award
policy. (Rule 12.4) under Rule 12.4 is fully established, the court shall
dismiss the petition.
Exclusive recourse to a court against an arbitral
award If, in the same proceedings, there is a petition to
Recourse to a court against an arbitral award shall recognize and enforce the arbitral award filed in
be made only through a petition to set aside the opposition to set aside, the court shall recognize
arbitral award and on the grounds prescribed by the and enforce the award.
law that governs international commercial
arbitration. This recourse is exclusive and any other In resolving the petition or petition in opposition
recourse such as appeal or petition for review or thereto, the court shall either set aside or enforce
petition for certiorari shall be dismissed by the court. the arbitral award.
(Rule 12.5)
The court shall not disturb the arbitral tribunal‘s
Note: When a petition to recognize and enforce an determination of facts and/or interpretation of law.
arbitral award is pending, the application to set it (Rule 12.13)
aside, if not yet time-barred, shall be made through
a petition to set aside the same award in the same Costs
proceedings. General Rule: The party praying for recognition
and enforcement or setting aside of an arbitral
When a timely petition to set aside an arbitral award award shall submit a statement under oath
is filed, the opposing party may file a petition for confirming the costs he has incurred only in the
recognition and enforcement of the same award in proceedings for such recognition and enforcement
opposition thereto. (Rule 12.6) or setting aside. The costs shall include the
attorney‘s fees the party has paid or is committed to
Proceedings of the case pay to his counsel of record.
During the hearing, the affidavits of witnesses shall
take the place of their direct testimonies and they Exception: If otherwise agreed upon by the parties
shall immediately be subject to cross-examination in writing.
thereon. The court shall have full control over the
proceedings to ensure that the case is heard Note: The prevailing party shall be entitled to an
without undue delay. (Rule 12.10) award of costs, which shall include reasonable
attorney‘s fees of the prevailing party against the
Suspension of proceedings to set aside unsuccessful party. The court shall determine the
Where appropriate and upon request by a party, the reasonableness of the claim for attorney‘s fees.
court may suspend the proceedings for a period of
time determined by it to give the arbitral tribunal an RULE 13
opportunity to resume the arbitral proceedings and RECOGNITION AND ENFORCEMENT OF A
to take such other action as in the arbitral tribunal‘s FOREIGN ARBITRAL AWARD
opinion will eliminate the grounds for setting aside.
Who may request recognition and enforcement
The court, in referring the case back to the arbitral Any party to a foreign arbitration. (Rule 13.1)
tribunal may not direct it to revise its award in a
particular way, or to revise its findings of fact or When to petition
conclusions of law or otherwise encroach upon the At any time after receipt of a foreign arbitral award,
independence of an arbitral tribunal in the making of any party to arbitration may petition the proper
a final award. Regional Trial Court to recognize and enforce such
award. (Rule 13.2)

91
 aside or suspended by a court of the
Venue country in which that award was made; or
At the option of the petitioner, with the Regional 2. The court finds that:
Trial Court: a. The subject-matter of the dispute
1. Where the assets to be attached or levied upon is not capable of settlement or resolution
is located; by arbitration under Philippine law; or
2. Where the act to be enjoined is being b. The recognition or enforcement of
performed; the award would be contrary to public
3. In the principal place of business in the policy.
Philippines or any of the parties;
4. If any of the parties is an individual, where any The court shall disregard any ground for
of those individuals resides; or opposing the recognition and enforcement of a
5. In the National Capital Judicial Region (Rule foreign arbitral award other than those
13.3) enumerated above. (Rule 13.4)

Governing Law and Grounds to refuse Adjournment/ deferment of decision on

recognition and enforcement enforcement of award
The recognition and enforcement of a foreign The court before which a petition to recognize and
arbitral award shall be governed by the 1958 New enforce a foreign arbitral award is pending, may
York Convention on the Recognition and adjourn or defer rendering a decision thereon if, in
Enforcement of Foreign Arbitral Awards (the ―New the meantime, an application for the setting aside or
York Convention‖) and this Rule. suspension of the award has been made with a
competent authority in the country where the award
The court may upon grounds of comity and was made.
reciprocity, recognize and enforce a foreign arbitral
award made in a country that is not a signatory to Upon application of the petitioner, the court may
the New York Convention as if it were a Convention also require the other party to give suitable security.
Award. (Rule 13.10)

A Philippine court shall not set aside a foreign Court Action

arbitral award but may refuse it recognition and It is presumed that a foreign arbitral award was
enforcement on any or all of the following grounds: made and released in due course of arbitration and
1. The party making the application to refuse is subject to enforcement by the court.
recognition and enforcement of the award
furnishes proof that: The court shall recognize and enforce a foreign
a. A party to the arbitration arbitral award unless a ground to refuse recognition
agreement was under some incapacity; or or enforcement of the foreign arbitral award under
the said agreement is not valid under the this rule is full established.
law to which the parties have subjected it
or, failing any indication thereof, under the The decision of the court recognizing and enforcing
law of the country where the award was a foreign arbitral award is immediately executory.
made; or
b. The party making the application In resolving the petition for recognition and
was not given proper notice of the enforcement of a foreign arbitral award in
appointment of an arbitrator or of the accordance with these Special ADR Rules, the
arbitral proceedings or was otherwise court shall either:
unable to present his case; or
c. The award deals with a dispute 1. Recognize and/or enforce; or
not contemplated by or not falling within 2. Refuse to recognize and enforce the
the terms of the submission to arbitration, arbitral award.
or contains decisions on matters beyond
the scope of the submission to arbitration; The court shall not disturb the arbitral tribunal‘s
provided that, if the decisions on matters determination of facts and/or interpretation of law.
submitted to arbitration can be separated (Rule 13.11)
from those not so submitted, only that part
of the award which contains decisions on Recognition and enforcement of non-
matters not submitted to arbitration may be convention award
set aside; or The court shall, only upon grounds provided by
d. The composition of the arbitral these Special ADR Rules, recognize and enforce a
tribunal or the arbitral procedure was not in foreign arbitral award made in a country not a
accordance with the agreement of the signatory to the New York Convention when such
parties of, failing such agreement, was not country extends comity and reciprocity to awards
in accordance with the law of the country made in the Philippines.
where arbitration took place; or
e. The award has not yet become If that country does not extend comity and
binding on the parties or has been set reciprocity to awards made in the Philippines, the

92
court may nevertheless treat such award as a e. Any order resolving the issue of the
foreign judgement enforceable as such under Rule termination of the mandate of an arbitrator;
39, Section 48, of the Rules of Court. (Rule 13.12) and
f. An order granting assistance in taking
PART VI evidence. (Rule 19.1)
MOTION FOR RECONSIDERATION, APPEAL
AND CERTIORARI When to move for reconsideration
RULE 19 A motion for reconsideration may be filed with the
MOTION FOR RECONSIDERATION, APPEAL Regional Trial Court within a non-extendible period
AND CERTIORARI of 15 days from receipt of the questioned ruling or
A. MOTION FOR RECONSIDERATION order. (Rule 19.2)
1. When motion for reconsideration with the RTC
is allowed: Resolution of motion
a. That the arbitration agreement is inexistent, A motion for reconsideration shall be resolved
invalid or unenforceable pursuant to Rule within 30 days from receipt of the opposition or
3.10 (B); comment or upon the expiration of the period to file
b. Upholding or reversing the arbitral tribunal‘s such opposition or comment. (Rule 19.5)
jurisdiction pursuant to Rule 3.19;
c. Denying a request to refer the parties to Note: No party shall be allowed a second motion for
arbitration; reconsideration. (Rule 19.6)
d. Granting or denying a party an interim
measure of protection; B. GENERAL PROVISIONS ON APPEAL AND
e. Denying a petition for the appointment of an CERTIORARI
arbitrator;
f. Refusing to grant assistance in taking No appeal or certiorari on the merits of an
evidence; arbitral award
g. Enjoining or refusing to enjoin a person An agreement to refer a dispute to arbitration shall
from divulging confidential information; mean that the arbitral award shall be final and
h. Confirming, vacating or correcting a binding. Consequently, a party to an arbitration is
domestic arbitral award; precluded from filing an appeal or a petition for
i. Suspending the proceedings to set aside certiorari questioning the merits of an arbitral award.
an international commercial arbitral award (Rule 19.7)
and referring the case back to the arbitral
tribunal; Subject matter and governing rules
j. Setting aside an international commercial The remedy of an appeal through a petition for
arbitral award; review or the remedy of a special civil action of
k. Dismissing the petition to set aside an certiorari from a decision of the Regional Trial Court
international commercial arbitral award, made under the Special ADR Rules shall be
even if the court does not recognize and/or allowed in the instances, and instituted only in the
enforce the same; manner, provided under this Rule. (Rule 19.8)
l. Recognizing and/or enforcing, or dismissing
a petition to recognize and/or enforce an Prohibited alternative remedies
international commercial arbitral award; Where the remedies of appeal and certiorari are
m. Declining a request for assistance in taking specifically made available to a party under the
evidence; Special ADR Rules, recourse to one remedy shall
n. Adjourning or deferring a ruling on a preclude recourse to the other. (Rule 19.9)
petition to set aside, recognize and/or
enforce an international commercial arbitral Rule on judicial review on arbitration in the
award; Philippines
o. Recognizing and/or enforcing a foreign General Rule:
arbitral award, or refusing recognition The court can only vacate or set aside the decision
and/or enforcement of the same; and of an arbitral tribunal upon a clear showing that the
p. Granting or dismissing a petition to enforce award suffers from any of the infirmities or grounds
a deposited mediated settlement for vacating an arbitral award under:
agreement. (Rule 19.1) 1. Section 24 of R.A. 876 (domestic arbitration);
2. Rule 34 of the Model Law (domestic arbitration);
2. When motion for reconsideration of the rulings
of the RTC is NOT allowed:
3. Article 34 of the Model Law (international
arbitration); or
a. A prima facie determination upholding the
existence, validity or enforceability of an 4. Other grounds provided under these Special
arbitration agreement pursuant to Rule 3.1 Rules. (Rule 19.10)
(A);
b. An order referring the dispute to arbitration; Grounds for vacating an arbitral award
c. An order appointing an arbitrator; Domestic Arbitration
d. Any ruling on the challenge to the Section 24 of R.A. 876
appointment of an arbitrator;

93
1. The award was procured by corruption, fraud, or 1. The party making the application furnishes proof
other undue means; or that:
2. That there was evident partiality or corruption in a. A party to the arbitration agreement
the arbitrators or any of them; or referred to in article 7 was under some
3. That the arbitrators were guilty of misconduct in incapacity; or the said agreement is not valid
refusing to postpone the hearing upon sufficient under the law to which the parties have
cause shown, or in refusing to hear evidence subjected it or, failing any indication thereon,
pertinent and material to the controversy; that under the law of this State; or
one or more of the arbitrators was disqualified to b. The party making the application was not
act as such under section nine hereof, and given proper notice of the appointment of an
wilfully refrained from disclosing such arbitrator or of the arbitral proceedings or was
disqualifications or of any other misbehavior by otherwise unable to present his case; or
which the rights of any party have been c. The award deals with a dispute not
materially prejudiced; or contemplated by or not falling within the terms
4. That the arbitrators exceeded their powers, or of the submission to arbitration, or contains
so imperfectly executed them, that a mutual, decisions on matters beyond the scope of the
final and definite award upon the subject matter submission to arbitration, provided that, if the
submitted to them was not made. decisions on matters submitted to arbitration
can be separated from those not so submitted,
only that part of the award which contains
decisions on matters not submitted to arbitration
may be set aside; or
d. The composition of the arbitral tribunal or
International Commercial Arbitration the arbitral procedure was not in accordance
Article 34 of the Model Law with the agreement of the parties, unless such
agreement was in conflict with a provision of this
Law from which the parties cannot derogate, or,
failing such agreement, was not in accordance
with this Law; or
2. The court finds that:
a. The subject-matter of the dispute is not capable
of settlement by arbitration under the law of this
State; or
b. The award is in conflict with the public policy of
this State.

Domestic Arbitration
Rule 11.4 of the Special ADR Rules

94
1. The arbitral award was procured through 1. The party making the application furnishes
corruption, fraud or other undue means; proof that:
2. There was evident partiality or corruption a. A party to the arbitration
in the arbitral tribunal or any of its members; agreement was under some incapacity, or
3. The arbitral tribunal was guilty of the said agreement is not valid under the
misconduct or any form of misbehavior that has law to which the parties have subjected it
materially prejudiced the rights of any party or, failing any indication thereof, under
such as refusing to postpone a hearing upon Philippine law; or
sufficient cause shown or to hear evidence b. The party making the application
pertinent and material to the controversy; to set aside or resist enforcement was not
4. One or more of the arbitrators was given proper notice of the appointment of
disqualified to act as such under the law and an arbitrator or of the arbitral proceedings
willfully refrained from disclosing such or was otherwise unable to present his
disqualification; or case; or
5. The arbitral tribunal exceeded its powers, c. The award deals with a dispute
or so imperfectly executed them, such that a not contemplated by or not falling within
complete, final and definite award upon the the terms of the submission to arbitration;
subject matter submitted to them was not provided that, if the decisions on matters
made. submitted to arbitration can be separated
6. The arbitration agreement did not exist, or from those not so submitted, only that part
is invalid for any ground for the revocation of a of the award which contains decisions on
contract or is otherwise unenforceable; or matters not submitted to arbitration may be
set aside or only that part of the award
7. A party to arbitration is a minor or a person which contains decisions on matters
judicially declared to be incompetent.
submitted to arbitration may be enforced;
Note: When based on this ground, the petition
or
shall be filed only on behalf of the minor or
incompetent and shall allege that: d. The composition of the arbitral
tribunal or the arbitral procedure was not in
a. The other party to arbitration had accordance with the agreement of the
knowingly entered into a submission or
parties, unless such agreement was in
agreement with such minor or incompetent; or
conflict with a provision of Philippine law
b. The submission to arbitration was made by from which the parties cannot derogate, or,
a guardian or guardian ad litem who was not failing such agreement, was not in
authorized to do so by a competent court. accordance with Philippine law.

2. The court finds that:

International Commercial Arbitration
a. The subject- matter of the dispute
is not capable of settlement by arbitration
Rule 12.4 of the Special ADR Rules
under the law of the Philippines; or
b. The recognition or enforcement of
the award would be contrary to public
policy.

Exception: If the Regional Trial Court is asked

to set aside an arbitral award in a domestic or
international arbitration on any ground OTHER
THAN those provided in the Special ADR
Rules, the court shall entertain such ground for
the setting aside or non-recognition of the
arbitral award only if the same amounts to a
violation of public policy. (Rule 19.10)

Note: The court shall not set aside or vacate the

award of the arbitral tribunal merely on the ground
that the arbitral tribunal committed errors of fact, or
of law, or of fact and law, as the court cannot
substitute its judgment for that of the arbitral
tribunal. (Rule 19.10)

Rule on judicial review of foreign arbitral award

The court can deny recognition and enforcement of
a foreign arbitral award only upon the grounds

95
provided in Article V of the New York Convention,
but shall have no power to vacate or set aside a 1. APPEALS TO THE COURT OF
foreign arbitral award. (Rule 19.11) APPEALS
Grounds to deny recognition and enforcement
Appeal to the Court of Appeals through a petition
of a foreign arbitral award under the New York
for review under this Special Rule shall only be
Convention
allowed from the following final orders of the
Article V of the New York Convention Regional Trial Court:
1. Granting or denying an interim measure of
1. Recognition and enforcement of the award protection;
may be refused, at the request of the party 2. Denying a petition for appointment of an
against whom it is invoked, only if that party arbitrator;
furnishes to the competent authority where the 3. Denying a petition for assistance in taking
recognition and enforcement is sought, proof evidence;
that:
4. Enjoining or refusing to enjoin a person from
a. The parties to the agreement referred to in divulging confidential information;
article II were, under the law applicable to them,
under some incapacity, or the sad agreement is
5. Confirming, vacating or correcting/modifying a
domestic arbitral award;
not valid under the law to which the parties have
subjected it or, failing any indications thereon, 6. Setting aside an international commercial
under the law of the country where the award arbitration award;
was made; or 7. Dismissing the petition to set aside an
b. The party against whom the award is international commercial arbitration award even
invoked was not given proper notice of the if the court does not decide to recognize or
appointment of the arbitrator or of the arbitration enforce such award;
proceedings or was otherwise unable to present 8. Recognizing and/or enforcing an international
his case; commercial arbitration award;
c. The award deals with a difference not 9. Dismissing a petition to enforce an international
contemplated by or not falling within the terms commercial arbitration award;
of the submission to arbitration, or it contains 10. Recognizing and/or enforcing a foreign arbitral
decisions on matters beyond the scope of the award;
submission to arbitration, provided that, if the 11. Refusing recognition and/or enforcement of a
decisions on matters submitted to arbitration foreign arbitral award;
can be separated from those not submitted, that 12. Granting or dismissing a petition to enforce a
part of the award which contains decisions on deposited mediated settlement agreement; and
matters submitted to arbitration may be
recognized and enforced; or 13. Reversing the ruling of the arbitral tribunal
upholding its jurisdiction. (Rule 19.12)
d. The composition of the arbitral authority or
the arbitral procedure was not in accordance Where to appeal
with the agreement of the parties, or, failing An appeal under this Rule shall be taken to the
such agreement, was not in accordance with the Court of Appeals within the period and in the
law of the country where the arbitration took manner herein provided. (Rule 19.13)
place; or
e. The award has not yet become binding on When to appeal
the parties, or has been set aside or suspended The petition for review shall be filed within 15 days
by a competent authority of the country in from notice of the decision of the Regional Trial
which, or under the law of which, that award Court or the denial of the petitioner‘s motion for
was made. reconsideration. (Rule 19.14)
2. Recognition and enforcement of an arbitral
award may also be refused if the competent Effect of appeal
authority in the country where recognition and The appeal shall NOT stay the award, judgment,
enforcement is sought finds that: final order or resolution sought to be reviewed
a. The subject matter of the difference is not unless the Court of Appeals directs otherwise upon
capable of settlement by arbitration under the such terms as it may deem just. (Rule 19.22)
law of that country; or
b. The recognition or enforcement of the Subject of appeal restricted in certain instance
award would be contrary to the public policy of If the decision of the Regional Trial Court refusing to
that country. recognize and/or enforce, vacating and/or setting
aside an arbitral award is premised on a finding of
fact, the Court of Appeals may inquire only into
such fact to determine the existence or non-
existence of the specific ground under the
arbitration laws of the Philippines relied upon by the
Regional Trial Court to refuse to recognize and/or

96
enforce, vacate and/or set aside an award. (Rule resolution sought to be annulled or set aside. No
19.24) extension of time to file the petition shall be allowed.
(Rule 19.28)
Note: Any such inquiry into a question of fact shall
NOT be resorted to for the purpose of substituting Note: Arbitral tribunal is a nominal party in the
the court‘s judgment for that of the arbitral tribunal petition for certiorari. (Rule 19.29) Arbitral tribunal
as regards the latter‘s ruling on the merits of the should not be included even as a nominal party in
controversy. (Rule 19.24) petitions relating to the recognition and enforcement
of a foreign arbitral award. (Rule 19.29)
Party appealing decision of court confirming
arbitral award required to post bond Court to dismiss petition
The Court of Appeals shall within 15 days from The court shall dismiss the petition if:
receipt of the petition require the party appealing 1. It fails to comply with Rules 19.27 and 19.28
from the decision or a final order of the Regional above; or
Trial Court, either confirming or enforcing an arbitral 2. If, upon consideration of the ground alleged and
award, or denying a petition to set aside or vacate the legal briefs submitted by the parties, the
the arbitral award to post a BOND executed in favor petition does not appear to be prima facie
of the prevailing party equal to the amount of the meritorious. (Rule 19.30)
award. (Rule 19.25) Failure of the petitioner to post
such bond shall be a ground for the Court of Arbitration may continue despite petition for
Appeals to DISMISS the petition. (Rule 19.25) certiorari
A petition for certiorari to the court from the action of
D. SPECIAL CIVIL ACTION FOR CERTIORARI the appointing authority or the arbitral tribunal
allowed under this Rule shall NOT prevent the
Certiorari to the Court of Appeals arbitral tribunal from continuing the proceedings and
When the Regional Trial Court, in making a ruling rendering its award. Should the arbitral tribunal
under the Special ADR Rules, has acted without or continue with the proceedings, the arbitral
in excess of its jurisdiction, or with grave abuse of proceedings and any award rendered therein will be
discretion amounting to lack or excess of subject to the final outcome of the pending petition
jurisdiction, and there is no appeal or any plain, for certiorari. (Rule 19.32)
speedy, and adequate remedy in the ordinary
course of law, a party may file a special civil action Prohibition against injunctions
for certiorari to annul or set aside a ruling of the The Court of Appeals shall not, during the pendency
Regional Trial Court. of the proceedings before it, prohibit or enjoin the
commencement of arbitration, the constitution of the
A special civil action for certiorari may be filed arbitral tribunal, or the continuation of arbitration.
against the following orders of the court: (Rule 19.33)
1. Holding that the arbitration agreement is
inexistent, invalid or unenforceable; E. APPEAL BY CERTIORARI TO THE SUPREME
2. Reversing the arbitral tribunal‘s preliminary COURT
determination upholding its jurisdiction;
3. Denying the request to refer the dispute to Review discretionary
arbitration; A review by the Supreme Court is not a matter of
4. Granting or refusing an interim relief; right, but of sound judicial discretion, which will be
granted only for serious and compelling reasons
5. Denying a petition for the appointment of an resulting in grave prejudice to the aggrieved party.
arbitrator;
6. Confirming, vacating or correcting a domestic The following, while neither controlling nor fully
arbitral award; measuring the court's discretion, indicate the
7. Suspending the proceedings to set aside an serious and compelling, and necessarily, restrictive
international commercial arbitral award and nature of the grounds that will warrant the exercise
referring the case back to the arbitral tribunal; of the Supreme Court‘s discretionary powers, when
8. Allowing a party to enforce an international the Court of Appeals:
commercial arbitral award pending appeal; 1. Failed to apply the applicable standard or test
9. Adjourning or deferring a ruling on whether to for judicial review prescribed in these Special
set aside, recognize and or enforce an ADR Rules in arriving at its decision resulting in
international commercial arbitral award; substantial prejudice to the aggrieved party;
10. Allowing a party to enforce a foreign arbitral 2. Erred in upholding a final order or decision
award pending appeal; and despite the lack of jurisdiction of the court that
11. Denying a petition for assistance in taking rendered such final order or decision;
evidence. (Rule 19.26) 3. Failed to apply any provision, principle, policy or
rule contained in these Special ADR Rules
When to file petition; no extension of time resulting in substantial prejudice to the
The petition must be filed with the Court of Appeals aggrieved party;
within 15 days from notice of the judgment, order or

97
4. Committed an error so egregious and harmful to J. INTERVENTION
a party as to amount to an undeniable excess of (Rule 19)
jurisdiction; and
5. Ground closely analogous thereto. (Rule 19.36)

Note: The mere fact that the petitioner disagrees

with the Court of Appeals‘ determination of
questions of fact, of law or both questions of fact 1. REQUISITES FOR
and law, shall not warrant the exercise of the INTERVENTION
Supreme Court‘s discretionary power. (Rule 19.36)
2. TIME TO INTERVENE
Filing of petition with Supreme Court 3. REMEDY FOR THE DENIAL OF
A party desiring to appeal by certiorari from a MOTION TO INTERVENE
judgment or final order or resolution of the Court of
Appeals issued pursuant to these Special ADR INTERVENTION
Rules may file with the Supreme Court a verified A legal proceeding by which a person who is NOT a
petition for review on certiorari. The petition shall party to the action is permitted by the court to
raise only QUESTIONS OF LAW, which must be become a party by intervening in a pending action
distinctly set forth. (Rule 19.37) after meeting the conditions and requirement set by
the Rules of Court.
Time for filing
The petition shall be filed within 15 days from notice Its main purpose is to settle in one action and by a
of the judgment or final order or resolution appealed single judgment all conflicting claims of, or the
from, or of the denial of the petitioner's motion for whole controversy among, the persons involved.
new trial or reconsideration filed in due time after (Office of the Ombudsman vs. Maximo Sison, G.R.
notice of the judgment. (Rule 19.38) 185954, 2010)
Extension to file Who May Intervene
On motion duly filed and served, with full payment 1. Has a legal interest in the matter in litigation;
of the docket and other lawful fees and the deposit 2. Has legal interest in the success of either of the
for costs before the expiration of the reglementary parties;
period, the Supreme Court may for justifiable 3. Has an interest against both parties; or
reasons grant an extension of thirty (30) days only 4. A party that is so situated as to be adversely
within which to file the petition. (Rule 19.38) affected by a distribution or other disposition of
property in the custody of the court or of an
Docket and other lawful fees; proof of service of officer thereof.
petition
Unless he has theretofore done so or unless the Legal Interest
Supreme Court orders otherwise, the petitioner One that is actual and material, direct and of an
shall pay docket and other lawful fees to the clerk of immediate character, not merely contingent or
court of the Supreme Court of P3,500.00 and expectant.
deposit the amount of P500.00 for costs at the time
of the filing of the petition. Proof of service of a copy Intervention is NOT an absolute right (nor is it
thereof on the lower court concerned and on the compulsory or mandatory), as it is within the court‘s
adverse party shall be submitted together with the discretion to grant it.
petition. (Rule 19.39)
Intervention is an ancillary and supplemental
Dismissal or denial of petition proceeding to an existing litigation. Thus, the final
Grounds: dismissal of the principal action results in the denial
1. Failure to comply with any of the requirements of the motion to intervene.
regarding the payment of the docket and other
lawful fees, deposit for costs, proof of service of A law firm whose services were unjustly terminated
the petition, and the contents of and the was allowed to intervene in the case despite the
documents which should accompany the compromise agreement between the parties.
petition; or (Czarina Malvar vs Kraft Foods [G.R. 183952,
2. Appeal is without merit, or is prosecuted 2013)
manifestly for delay, or that the questions raised
therein are too insubstantial to require A complaint-in-intervention can‘t be treated as an
consideration. (Rule 19.41) independent action as it is merely ancillary to and a
supplement upon the principal action. The
END OF TOPIC complaint-in-intervention essentially latches on the
complaint for its legal efficacy so much so that the
dismissal of the complaint leads to its concomitant
dismissal. (Sta. Rita Co vs Angeline Gueco, G.R.
193087, 2013)

98
The trial court must not only determine if the
requisite legal interest is present, but also take into
consideration the delay and the consequent
prejudice to the original parties that the intervention K. SUBPOENA
will cause. Both requirements must concur, as the (Rule 21)
first requirement on legal interest is not more
important than the second requirement that no
delay and prejudice should result. To help ensure
that delay does not result from the granting of a
motion to intervene, the Rules also explicitly say
that intervention may be allowed only before
rendition of judgment by the trial court. (Lorenza C. 1. SUBPOENA DUCES TECUM
Ongco vs Valeriana Ungco Dalisay, G.R. No.
190810, 2012)
2. SUBPOENA AD TESTIFICANDUM
3. SERVICE OF SUBPOENA
1. REQUISITES FOR 4. COMPELLING ATTENDANCE OF
INTERVENTION WITNESSES; CONTEMPT
5. QUASHING OF SUBPOENA
1. There must be a motion for intervention filed
BEFORE rendition of judgment. 1. SUBPOENA DUCES TECUM
2. Movant must show in his/her motion that he/she
has legal interest in the matter in litigation, in
A process directed to a person requiring him to
the success of either of the parties in the action,
bring with him books, documents, or other things
or against both parties.
under his control at a scheduled hearing.
3. The movant must show that he/she is situated
as to be adversely affected by a distribution or
other disposition of property in the custody of the 2. SUBPOENA AD TESTIFICANDUM
court.
4. Intervention must not unduly delay or A process directed to a person, requiring him to
prejudice the adjudication of the rights of the attend and to testify at a hearing or trial of an action,
original parties. or at any investigation conducted by a competent
5. Intervenor‘s rights may not be fully protected in authority, or for the taking of his deposition.
a separate proceeding.

3. SERVICE OF SUBPOENA
2. TIME TO INTERVENE
A subpoena:
General Rule: May only be filed BEFORE judgment 1. Shall state the name of the court and the title of
is rendered by the trial court. the action or investigation;
2. It shall be directed to the person whose
Exceptions: attendance is required; and
1. With respect to indispensable parties, 3. In a subpoena duces tecum, it shall contain a
intervention may be allowed even on appeal. reasonable description of the books, documents
2. When the intervenor is the Republic. or things demanded which must appear to the
3. Where intervention is necessary to protect some court prima facie relevant.
interest which cannot otherwise be protected,
and for the purpose of preserving the By Whom Issued
intervenor‘s right to appeal. A subpoena may be issued by:
1. The Court before whom the witness is required
3. REMEDY OF DENIAL OF MOTION to attend
TO INTERVENE 2. The Court of the place where the deposition is to
be taken
3. The Officer or Body authorized by law to issue a
Denial of a motion to intervene DOES NOT subpoena in connection with investigations
constitute res judicata. Remedy of the intervenor is conducted by said officer of body
to file a SEPARATE ACTION. 4. Any Justice of the Supreme Court or of the
Court of Appeals in any case or investigation
The intervenor can also APPEAL or file for pending within the Philippines
MANDAMUS if there is grave abuse of discretion.
A Subpoena is Served:
If there is improper grant of intervention, remedy of 1. In the same manner as personal or substituted
the party is CERTIORARI. service of summons
2. The original must be exhibited and a copy
END OF TOPIC delivered to the person on whom it is served

99
3. The fees for one day attendance and
kilometrage allowed by the Rules shall be
tendered to such person 5. QUASHING A SUBPOENA
4. Service must be made as to allow the witness a
reasonable time for preparation and travel to the Grounds to Quash a Subpoena Ad
place of attendance Testificandum
5. The reasonable cost of producing the books, 1. The witness is not bound by such subpoena
documents or things demanded shall be 2. When the witness fees and kilometrage allowed
tendered if it is a subpoena duces tecum. by the Rules were not tendered when the
subpoena was served
A Subpoena May be Served By:
1. Sheriff; Grounds to Quash a Subpoena Duces Tecum
2. Deputy sheriff; UPON MOTION Promptly Made
3. Other proper court officer; or 1. It is unreasonable and oppressive
4. For any justifiable reason, by any suitable 2. Relevancy of the books, documents or things
person authorized by the court issuing the does not appear
subpoena
FORMS AND CONTENTS
A subpoena shall:
4. COMPELLING ATTENDANCE OF 1. State the name of the court;
WITNESSES; CONTEMPT 2. State the title of the action or investigation;
3. Be directed to the person whose attendance is
In Case of Failure of a Witness to required; and
Attend 4. In the case of a subpoena duces tecum, it shall
The court which issued the subpoena may issue a also contain a reasonable description of the
warrant to arrest the witness upon proof of service books, documents or things demanded which
of such subpoena. must appear to the court prima facie relevant.

Witness to pay cost of warrant and seizure if failure SUBPOENA FOR DEPOSITIONS
is willful and without just excuse. Proof of service of a notice to take a deposition, as
provided in Sections 15 and 25 of Rule 23, shall
Contempt constitute sufficient authorization for the issuance of
If the subpoena was issued by a court subpoenas for the persons named in said notice by
– failure by any person without adequate cause to the clerk of the court of the place in which the
obey a subpoena served on him shall be deemed deposition is to be taken.
contempt of the court from which the subpoena is
issued; The clerk shall not, however, issue a
subpoena duces tecum to any such person without
If subpoena is NOT issued by a court an order of the court.
– the disobedience shall be punished in accordance
with applicable law PERSONAL APPEARANCE IN COURT
A person present in court before a judicial officer
Exceptions may be required to testify as if he/she were in
1. Witness resides more than 100 km away from attendance upon a subpoena issued by such court
the place where he is to testify. or officer.
2. Witness is a detention prisoner and there was
no permission obtained from the court in which END OF TOPIC
the case is pending.

Only a judicial officer and quasi-judicial officer

specifically authorized by law can exercise the COMPUTATION OF TIME
power of contempt in relation to subpoena. (Rule 22)
(Nazareno v. Barnes, G.R. No. L-59072, 1984)
Section 1, Rule 22 provides that when the last day
The failure of a server to pursue substituted service
on which a pleading is due falls on a Saturday,
after a frustrated attempt to personally serve the
Sunday, or legal holiday, time shall not run until the
complainant a copy of the subpoena constitutes
next working day. This rule speaks only of "the last
simple neglect of duty. (Macaspec v. Flores, A.M.
day of the period," so that when a party seeks an
No. P-05-2072, 2008)
extension and the same is granted, the due date
ceases to be the last day and hence, the provision
3. No advance of reasonable cost of production of no longer applies. Any extension of time to file the
such books and documents was made. required pleading should therefore be counted from
4. Witness fees and kilometrage allowed by the the expiration of the period regardless of the fact
rules were not tendered when the subpoena that said due date is a Saturday, Sunday or legal
was served.

100
holiday. (Reinier Pacific International Shipping, Inc. Deposition for use in a pending trial action. (Rule
v. Guevarra, G.R. No. 157020, June 13, 2013) 23)

DEPOSITION IN PERPETUAM REI MEMORIAM

Deposition for use in future proceedings as in the
case where it is sought before the existence of an
L. MODES OF DISCOVERY action or for cases on appeal. (Rule 24)

NATURE OF DEPOSITIONS
1. DEPOSITIONS PENDING ACTION; Who May Petition (DEPOSITION BEFORE
ACTION)
DEPOSITIONS BEFORE ACTION OR
1. Any person who wants to perpetuate his/her
PENDING APPEAL own testimony; or
a. Meaning of Deposition 2. Any person who wants to perpetuate the
b. Uses; Scope of Examination testimony of another person.
c. When May Objections to Admissibility
be made A non-resident foreign corporation may request for
d. When May Taking of Deposition be depositions, whether oral or written. (San Luis v.
Terminated or Its Scope limited Rojas G.R. No. 159127, 2008)
2. WRITTEN INTERROGATORIES TO
ADVERSE PARTIES In criminal cases, filing a Motion for Leave to Take
a. Consequences of Refusal to Answer Deposition is a voluntary appearance and he
b. Effect of Failure to Serve Written subjects himself to the jurisdiction of the court.
Interrogatives (Disini v. Sandiganbayan, G.R. No. 175730, 2010)
3. REQUEST FOR ADMISSION
a. Implied Admission by Adverse Party Before Whom Taken (DEPOSITIONS PENDING
b. Consequences of Failure to Answer ACTION)
Request for Admission 1. IF WITHIN the Philippines – deposition may be
c. Effect of Admission taken before
d. Effect of Failure to File and Serve a) Judge;
Request for Admission b) Notary public; or
c) Before any person authorized to administer
4. PRODUCTION OR INSPECTION OF oaths if the parties so stipulate in writing.
DOCUMENTS OR THINGS 2. IF OUTSIDE the Philippines – deposition may
5. PHYSICAL AND MENTAL be taken before
EXAMINATION OF PERSONS a) A secretary of an embassy or legation,
6. CONSEQUENCES OF REFUSAL TO consul general, consul, vice-consul or
consular agent of the Republic of the
COMPLY WITH MODES OF Philippines;
DISCOVERY b) Such person or officer as may be appointed
by commission or letters rogatory;
1. DEPOSITIONS PENDING ACTION; c) A person authorized to administer oaths by
written stipulation of the parties.
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL Difference Between Letters Rogatory and
Commission
a. MEANING AND PURPOSE OF DEPOSITION LETTERS COMMISSION
ROGATORY
DEPOSITION
Request to a FOREIGN An instrument issued by
Taking of the testimony of any person, whether COURT to give its aid, a court of justice or other
he/she be a party or not, but at the instance of a backed by its power, to competent tribunal
party to the action. This testimony is taken out of secure desired DIRECTED TO A
court and it may either be an oral examination or a information. MAGISTRATE by his
written interrogatory. official designation OR
TO AN INDIVIDUAL BY
It is a testimony of a witness, taken in writing, under NAME, authorizing him
oath or affirmation, before some judicial officer in to take the depositions of
answer to questions or interrogatories. (People v. the witness.
Webb G.R. No. 132577, 1999)

It is a way for either party to compel the other to

disgorge whatever facts he has in his possession.
(Republic v. Sandiganbayan G.R. No. 90478, 1991)

DEPOSITION DE BENNE ESSE

101
Methods of procedure Taken in accordance
are under the control of with the rules laid down used by any party for any purpose if the court
the foreign tribunal. by the court issuing the finds that:
commission. a) The witness is dead; or
b) The witness resides at a distance more than
one hundred (100) kilometers from the place
of trial or hearing, or is out of the Philippines
(Dulay v. Dulay, G.R. No. 158857, 2005) (UNLESS it appears that his/her absence
was procured by the party offering the
When DEPOSITIONS PENDING ACTION Are deposition); or
Taken c) The witness is unable to attend or testify
1. After jurisdiction has been obtained over the because of age, sickness, infirmity or
defendant or property subject of the action and imprisonment; or
BEFORE answer has been filed – WITH leave of d) The party offering the deposition has been
court; unable to procure the attendance of the
2. After jurisdiction has been obtained and AFTER witness by subpoena; or
an answer has been served – WITHOUT leave e) Upon application and notice, that such
of court; exceptional circumstances exist as to make it
3. DEPOSITION OF PRISONER – only with leave desirable, in the interest of justice to allow
of court and upon such terms as the court may the deposition to be used.
prescribe.
Scope of Examination
There is no rule that limits deposition-taking only to May be any matter not privileged and which is
the period of pre-trial or before it, neither against the relevant to the subject of the pending action,
taking after pre-trial. (Jonathan Landoil International including:
Co., Inc. v. Mangudadatu G.R. No. 155010, 2004) 1. Claim or defense of any other party;
2. Existence, description, nature, custody,
b. USES AND SCOPE OF EXAMINATION condition and location of any books, documents,
or other tangible things; and
A party shall NOT be deemed to make a person 3. Identity and location of persons having
his/her own witness for any purpose by taking knowledge of relevant facts.
his/her deposition (Rule 23, Section 7) EXCEPT
when the deposition is introduced in evidence, then In civil cases, a person may not use the right
he/she will be deemed to have made the deponent against self-incrimination as an objection to make a
his/her witness (Rule 23, Section 8). deposition. Only when an incriminating question is
asked can a person invoke the right. (Rosete v. Lim
The exception will NOT apply if the deposition used G.R. No. 136051, June 8, 2006)
is that of an opposing party or the deposition is
used to impeach or contradict the deponent – c. WHEN MAY OBJECTIONS TO
Deponent still NOT a witness of the party taking the ADMISSIBILITY BE MADE
deposition.
Objections may be made at the trial or hearing to
A deposition is not to be used when the deponent is receive in evidence any deposition or part thereof.
at hand. (Sales v. Sabino G.R. No. 133154, 2005)
Any reason that would require the exclusion of the
Any Part or All of the Deposition, So Far as evidence if the witness were then present and
Admissible under the Rules of Evidence, May be testifying may be used as a reason for objection.
Used
1. Against any party who was present or All objections made at the time of the examination
represented at the taking of the deposition; or to the qualifications of the officer taking the
2. Against one who had due notice of the deposition, manner of taking it, to evidence
deposition. presented, conduct of any party and any other
objection to the proceedings shall be NOTED by the
The Deposition May be Used for the Following officer taking the deposition. He/she has NO
Purposes authority to rule on such objections. (Riano, Civil
nd
1. For the purpose of contradicting or impeaching Procedure: A Restatement for the Bar, 2 ed. 2009)
the testimony of the deponent as witness by
any party; d. WHEN THE TAKING OF DEPOSITION MAY
2. If the deponent is a party or anyone who was BE TERMINATED OR ITS SCOPE LIMITED
at the time of the deposition was an officer,
director, or managing agent of a public or private The Taking of Deposition may be terminated or
corporation, partnership or association which is Its Scope Limited at ANY TIME DURING the
a party, his/her deposition can be used by an Taking of the Deposition
adverse party for any purpose. 1. Upon motion or petition of any party or of the
3. If the deponent is a witness, whether or not a deponent; and
party to the case, his/her deposition may be 2. Upon showing that the examination is being
conducted in bad faith or in such manner as

102
 Seeks the disclosure of Designed to seek for a
unreasonably to annoy, embarrass or oppress all material and relevant more definite statement
the deponent or party. facts from a party or for particulars of any
matter not averred with
2. WRITTEN INTERROGATORIES sufficient definiteness in
TO ADVERSE PARTIES a pleading

WRITTEN INTERROGATORIES
Its purpose is to elicit material and relevant facts
from any adverse party.

Unless thereafter allowed by the court for good Interrogatories to Written Interrogatories
cause shown and to prevent a failure of justice, a Parties in a Deposition
party not served with written interrogatories may not
be compelled by the adverse party to give testimony
in open court, or to give a deposition pending Directed to an Adverse Not served upon the
appeal. (Sps. Afulugencia v. Metrobank, G.R. No. Party adverse party directly;
185145, February 5, 2014) delivered to the officer
designated in the notice
Since the calling party is deemed bound by the
adverse party‘s testimony, compelling the adverse
party to take the witness stand may result in the The service of written interrogatories is a mode of
calling party damaging its own case. … Another deposition separate and distinct from interrogatories
reason for the rule is that by requiring prior written to parties. (Riano, 2014, p.520)
interrogatories, the court may limit the inquiry to
what is relevant, and thus prevent the calling party a. CONSEQUENCES OF REFUSAL TO
from straying or harassing the adverse party when it ANSWER WRITTEN INTERROGATORIES
takes the latter to the stand. (Sps. Afulugencia v.
Metrobank, G.R. No. 185145, February 5, 2014 The Court, ON MOTION and NOTICE May
1. Strike out all or any part of any pleading of that
A Party Shall FILE AND SERVE Written party; or
Interrogatories 2. Dismiss the action or proceeding or any part
1. After jurisdiction has been obtained over the thereof made if it was the PLAINTIFF who
defendant or property subject of the action and refused to answer;
BEFORE answer has been filed – WITH leave of 3. Enter judgment by default against the
court; or defendant, if it was the DEFENDANT who
refused to answer;
2. After jurisdiction has been obtained and AFTER 4. Order that party who refused to answer to pay
an answer has been served – WITHOUT leave of reasonable expense incurred by the other party
court and attorney‘s fees (Section 5, Rule 29 of the
The interrogatories shall be ANSWERED FULLY in Rules of Court)
writing and shall be signed and sworn to by the If a party refuses to answer the WHOLE written
person making them. Such answer shall be filed interrogatory, Section 5, Rule 29 shall apply.
and served to the party submitting the interrogatory However, where a party refuses only to answer a
within fifteen (15) days from service of such PARTICULAR question, Section 3 [c], Rule 19 shall
interrogatories UNLESS the court on motion and for apply (the main difference being that in Section 3[c],
good cause extends or shortens the time. there is no provision on payment of reasonable
expenses/ penalty)
OBJECTIONS to the interrogatory may be
presented to the court within ten (10) days after b. EFFECT OF FAILURE TO SERVE WRITTEN
service thereof. INTERROGATORIES
General Rule: A party not served with written
NO party may serve MORE THAN ONE set of interrogatories may NOT be compelled by the
interrogatories to be answered by the same party adverse party to give testimony in open court, or to
WITHOUT LEAVE OF COURT. (Riano, 2014, p. give a deposition pending appeal.
520) Exception: When allowed by the court for good
cause and to prevent a failure of justice.
Difference between interrogatories to parties
and bill of particulars
3. REQUEST FOR ADMISSION
Interrogatories to Bill of Particulars
Parties
A Written Request for Admission Filed and
Served Upon Any Other Party May Include
Directed to an Adverse Directed to a Pleading
Party 1. Request for the admission of the genuineness of
any material and relevant document described in
and exhibited with the request;

103
2. Request for the admission of the truth of any
material and relevant matter of fact set forth in the A party should not be compelled to admit matters of
request. fact already admitted by his pleading and
Objections to any request for admission shall be concerning which there is no issue, nor should he
submitted to the court WITHIN the period for and be required to make a second denial of those
PRIOR to the filing of the sworn statement - Fifteen already denied in his answer to the complaint. [xxx]
(15) days after service of request. A request for admission is not intended to merely
Such objections will defer compliance until such reproduce or reiterate the allegations of the
have been resolved by the court. requesting party's pleading but should set forth
relevant evidentiary matters of fact, or documents
a. IMPLIED ADMISSION BY ADVERSE described in and exhibited with the request, whose
PARTY purpose is to establish said party's cause of action
There is an IMPLIED ADMISSION if the party to ordefense.
whom the request is made does NOT file and serve
a sworn statement EITHER a) denying specifically [xxx] Unless it serves that purpose, it is, as correctly
the matters of which an admission is requested OR observed by the Court of Appeals, "pointless,
b) setting forth the reasons why he cannot either useless," and "a mere redundancy.‖ (Po v CA, GR
admit or deny those matters within fifteen (15) No. L-34341, 1988)
days after service thereof or with such further time
as the court may allow on motion
4. PRODUCTION AND INSPECTION
b. CONSEQUENCE OF FAILURE TO OF DOCUMENTS OR THINGS
ANSWER REQUEST FOR ADMISSION
The matters of which admission is requested shall UPON MOTION, a party may seek the production of
be deemed admitted. documents, papers, books, accounts, letters,
photographs, objects or tangible things OR to order
c. EFFECT OF ADMISSION any party to permit entry upon designated land or
Any admission made pursuant to such request is for other property in his possession or control.
the purpose of the pending action only. The
admission may NOT be used against the party who Purpose
gave it in any other proceeding. 1. To allow a party to seek an order from the court
in which the action is pending to:
d. EFFECT OF FAILURE TO FILE AND (a) Order any party to produce and permit the
SERVE REQUEST FOR ADMISSION inspection and copying or photographing... of
any designated document... NOT privileged,
The party who fails to request for admission of which constitute or contain evidence material to
material and relevant facts which are or ought to be any matter
within the personal knowledge of such party shall (b) Order any party to permit entry upon
NOT be permitted to present evidence on such designated land or other property in his
facts UNLESS allowed by the court for good cause possession or control
shown and to prevent a failure of justice. (Riano, 2. This mode of discovery is not only for the
page522, 2014) benefit of a party, but also for the court and for
it to discover all relevant and material facts in
Withdrawal of Admission connection with the case before it. (Riano,
1.Admissions made in this mode of discovery, 2014, p. 524)
whether express or implied, are NOT final and
irrevocable. The scope of discovery under this mode is to be
2.The court may allow the party making the liberally construed so as to provide the litigants with
admission to withdraw or amend the information essential to the fair and amicable
admission upon such terms as may be just. settlement or expeditious trial of the case. While the
3.To effect the withdrawal, the admitting party grant of a motion for the production of a document
should file a motion to be relieved of the is admittedly discretionary on the part of the trial
effects of his admission. (Riano, page 523, court judge, nevertheless, it cannot be arbitrarily or
2014) unreasonably denied because to do so would bar
access to relevant evidence that may be used by a
That the Comment was not under oath is not a party-litigant. The test to be applied by the trial
substantive, but merely a formal, defect which can judge in determining the relevancy of the
be excused in the interest of justice conformably to documents is one of reasonableness and
the well-entrenched doctrine that all pleadings practicability. (Eagleridge Development Corporation
should be liberally construed as to do substantial v Cameron Granville 3 Asset Management Inc., GR
justice. The filing of such Comment substantially No. 204700, 2013)
complied with Rule 26. Consequently, the DBP
cannot be deemed to have impliedly admitted the This remedial measure is intended to assist in the
matters set forth in the Request for Admission for administration of justice by facilitating and
the mere reason that its Comment was not under expediting the preparation of cases for trial and
oath. (DBP v CA, GR No. 153034, 2005) guarding against undesirable surprise and delay;

104
and it is designed to simplify procedure and obtain the production or inspection of documents and
admissions of facts and evidence, thereby things, and the motion must show good cause
shortening costly and time-consuming trials. It is supporting the same.
based on ancient principles of equity. 2. The order shall specify the time, place and
manner of making the inspection and taking
More specifically, the purpose of the statute is to copies and photographs, and may prescribe
enable a party-litigant to discover material such terms and conditions as are just.
information which, by reason of an opponent's
control, would otherwise be unavailable for judicial This is essentially a mode of discovery limited to the
scrutiny, and to provide a convenient and summary parties to the action. This is to be differentiated from
method of obtaining material and competent a subpoena duces tecum which is a means to
documentary evidence in the custody or under the compel the production of evidence which may be
control of an adversary. directed to a person who may or may not be a party
to the action. (Riano, 2014, p.525)
It is a further extension of the concept of pretrial.
Rule 27 of the Revised Rules of Court permits Documents to be Produced
"fishing" for evidence, the only limitation being that 1. It should NOT be privileged;
the documents, papers, etc., sought to be produced 2. It should constitute or contain evidence material
are not privileged, that they are in the possession of to any matter involved in the action; and
the party ordered to produce them and that they are 3. It must be within the party‘s possession, custody
material to any matter involved in the action. or control.
However, Fishing for evidence that is allowed under
the rules is not without limitations. In Security Bank Privileged Documents under Rule 130, Sec. 24
Corporation v. Court of Appeals, the Court 1. Communication between Husband and Wife
enumerated the requisites in order that a party may 2. Communication between Attorney and Client
compel the other party to produce or allow the 3. Communication between Physician and Patient
inspection of documents or things, viz.: 4. Communication between Priest and Penitent
(a) The party must file a motion for the production 5. Communication of Public Officers involving
or inspection of documents or things, showing public interest
good cause therefor;
(b) Notice of the motion must be served to all other Others not mentioned by Rule 130:
parties of the case; 1. Editors may not be compelled to disclose the
(c) The motion must designate the documents, source of published news
papers, books, accounts, letters, photographs, 2. Voters may not be compelled to disclose for
objects or tangible things which the party whom they voted
wishes to be produced and inspected; 3. Trade secrets
(d) Such documents, etc., are not privileged; 4. Information contained in tax census returns
(e) Such documents, etc., constitute or contain 5. Bank Deposits (Riano, page 525-526, 2014)
evidence material to any matter involved in the
action, and 5. PHYSICAL AND MENTAL
(f) Such documents, etc., are in the possession,
custody or control of the other party. EXAMINATION OF PERSONS

However, Solidbank‘s motion was fatally defective When the mental or physical condition of a party is
and must be struck down because of its failure to in controversy, the court, UPON MOTION FOR
specify with particularity the documents it required GOOD CAUSE SHOWN, may order the party to
Gateway to produce. Solidbank‘s motion for submit to a physical or mental examination by a
production and inspection of documents called for a physician.
blanket inspection. Solidbank‘s request for
inspection of "all documents pertaining to, arising The party examined MAY request the party causing
from, in connection with or involving the Back-end the examination to be made to deliver to him a copy
Services Agreement‖ was simply too broad and too of a detailed report of the examining physician.
generalized in scope.
Waiver of Privilege
A motion for production and inspection of By requesting and obtaining a report of the
documents should not demand a roving inspection examination OR by taking the deposition of the
of a promiscuous mass of documents. The examiner, the party examined WAIVES any
inspection should be limited to those documents privilege he may have in that action or any other
designated with sufficient particularity in the motion, involving the same controversy regarding the
such that the adverse party can easily identify the testimony of every other person who has examined
documents he is required to produce. (Solidbank or may thereafter examine him.
Corporation v Gateway Electronics Corporation, GR
No. 164805, April 30, 2008)
6. CONSEQUENCES OF REFUSAL TO
Filing of a Motion; Order of the Court COMPLY WITH THE MODES OF
1. The motion must be filed by the party seeking DISCOVERY

105
 4. In addition to any of the above orders, an order
For Party or Deponent who Appears But directing the arrest of any party or agent of a
REFUSES TO ANSWER Any Question Upon Oral party for disobeying any of such orders.
Examination Or Interrogatory:
For Failure to Appear to Serve Answer to
1. The proponent may apply for a court order to
Written Interrogatories the Court, on Motion,
compel an answer:
May:
a) If the motion is GRANTED– the court shall
1. Strike out all or any part of any pleading by that
require the refusing party to answer. If the
party;
refusal to answer was without
2. Dismiss the action or proceeding or any part
SUBSTANTIAL JUSTIFICATION, it may
thereof; or enter a judgment by default against
require the refusing party or deponent or the
that party;
counsel advising the refusal, or both of them,
3. At the court‘s discretion, order the party to pay
to pay the proponent the amount of the
reasonable expenses incurred by the other,
reasonable expenses incurred in obtaining
including attorney‘s fees.
the order, including attorney's fees.
b) If the motion is DENIED - and the court finds
Contempt of court
that it was filed WITHOUT SUBSTANTIAL
If a party or other witness refuses to be sworn or
JUSTIFICATION, the court may require the
refuses to answer any question after being directed
proponent or the counsel advising the filing
to do so by the court of the place in which the
of the application, or both of them, to pay to
deposition is being taken, the refusal may be
the refusing party or deponent the amount of
considered contempt of that court.
the reasonable expenses incurred in
opposing the application, including attorney's
Other consequences
fees
If party refuses to obey:
2. If despite the court order, the party or deponent
still refuses to answer, the refusal may be 1. An order made under section 1 of this Rule
considered contempt of that court or the court requiring him to answer designated
may make such order as are just under Section questions, or
3, Rule 29 of the Rules of Court. 2. An order under Rule 27 to produce any
document or other thing for inspection,
If the Adverse Party Makes a Wrongful Denial of copying, or photographing or to permit it to
the Genuineness of Documents or Truth of Any be done, or to permit entry upon land or
Matter of Fact other property or an order made under
The other party who proves the genuineness may Rule 28 requiring him to submit to a
apply to the court for an order requiring the other physical or mental examination,
party to pay him reasonable expenses incurred in The court may make such orders in regard to the
making such proof, including attorney‘s fees. refusal as are just, and among others the following:
a. An order that the matters regarding which
If a Party Refuses an Order To produce any the questions were asked, or the character
document or Other Thing Under Rule 27 OR If a or description of the thing or land, or the
Person Refuses to Submit to a Physical or contents of the paper, or the physical or
Mental Examination Under Rule 28 OR If a mental condition of the party, or any other
Person Refuses to Answer Particular Questions designated facts shall be taken to be
Under Rule 25: established for the purposes of the action
The court may make such orders in regard to the in accordance with the claim of the party
refusal as are just, and among others, also issue obtaining the order;
the following- b. An order refusing to allow the
1. An order that the matters regarding which the disobedient party to support or oppose
questions were asked shall be TAKEN TO BE designated claims or defenses or
ESTABLISHED for the purposes of the action in prohibiting him from introducing in
accordance with the claim of the party obtaining evidence designated documents or things
the order. or items of testimony, or from introducing
2. An order evidence of physical or mental condition;
a) Prohibiting the disobedient party to support
c. An order striking out pleadings or parts
or oppose claims or defenses, or
thereof, or staying further proceedings
b) Prohibiting such disobedient party from
until the order is obeyed, or dismissing the
introducing in evidence designated
action or proceeding or any part thereof, or
documents or things or items of testimony.
rendering a judgment by default against the
3. An order
disobedient party; and
a) Striking out pleadings or parts thereof, or
b) Staying further proceedings until the order is d. In lieu of any of the foregoing orders or in
obeyed, or addition thereto, an order directing the
c) Dismissing the action or proceeding or any arrest of any party or agent of a party for
part thereof, or disobeying any of such orders except an
d) Rendering a judgment by default against the order to submit to a physical or mental
disobedient party. examination.

106
 b. For illness of party or counsel
Expenses on refusal to admit 3. AGREED STATEMENT OF FACTS
If a party after being served with a request under 4. ORDER OF TRIAL; REVERSAL OF
Rule 26 to admit the genuineness of any document
or the truth of any matter of fact serves a sworn ORDER
denial thereof and if the party requesting the 5. CONSOLIDATION OR SEVERANCE
admissions thereafter proves the genuineness of OF HEARING OR TRIAL
such document or the truth of any such matter of 6. DELEGATION OF RECEPTION OF
fact, he may apply to the court for an order requiring
the other party to pay him/her the reasonable
EVIDENCE
expenses incurred in making such proof, including 7. TRIAL BY COMMISSIONERS
attorney's fees. a. Reference by consent or ordered on
Unless the court finds that there were good motion
reasons for the denial or that admissions sought b. Powers of Commissioner
were of no substantial importance, such order shall c. Commissioner’s Report; Notice to
be issued. Parties and Hearing on the Report

For FAILURE TO APPEAR TO SERVE ANSWER TRIAL

to Written Interrogatories the Court, on Motion, Trial is the judicial process of investigating and
May: determining the legal controversies, starting with the
1. Strike out all or any part of any pleading by that production of evidence by the plaintiff and ending
party; with his closing arguments.
2. Dismiss the action or proceeding or any part
thereof; or enter a judgment by default against HEARING
that party; Hearing is a broader term. It is not only confined to
3. At the court‘s discretion, order the party to pay the trial and presentation of evidence but it also
reasonable expenses incurred by the other, includes pre-trial, determination of granting or
including attorney‘s fees. denying a motion and several stages of litigation.

Expenses against the Republic of the When Trial is Unnecessary

Philippines 1. Judgment on the Pleadings
Expenses and attorney's fees are not to be imposed 2. Summary Judgment
upon the Republic of the Philippines under this 3. Judgment on Compromise
Rule. 4. Dismissal of Complaint WITH Prejudice
5. Summary Procedure Cases
In Zepeda v. Chinabank, G.R. No. 172175, 2006, 6. Judgment on Facts Stipulated/Agreed Upon
the Supreme Court ruled that the consequences
enumerated in Section 3(c) of Rule 29 would only 1. ADJOUNMENTS AND
apply where the party upon whom the written
interrogatories is served, refuses to answer a
POSTPONEMENTS
particular question in the set of written
interrogatories and despite an order compelling him A court may adjourn a trial from day to day and to
to answer the particular question, still refuses to postpone it to any stated time
obey the order. If such party refuses to answer the
whole set of written interrogatories and not just a General Rule: A court does not have power to
particular question, the opposing party should have adjourn trial for a longer period than one (1) month
filed a motion based on Section 5 and not Section for each adjournment and not for more than three
3(c) of Rule 29. (3) months total for all adjournments

Exception: When authorized in writing by the Court

END OF TOPIC
Administrator, Supreme Court.

2. REQUISITES OF MOTION TO
M. TRIAL POSTPONE TRIAL
(Rule 30) Postponement is NOT a matter of right. It is
addressed to the sound discretion of the court.

a. MOTION TO POSTPONE TRIAL FOR

1. ADJOURNMENTS AND ABSENCE OF EVIDENCE
POSTPONEMENTS
Requisites:
2. REQUISITES OF MOTION TO 1. Affidavit showing the materiality or relevancy for
POSTPONE TRIAL such evidence; and
a. For absence of evidence

107
2. Due diligence has been used to procure 8. Case deemed submitted for decision.
evidence.
Reversal or Modification of Order
If the adverse party admits the facts in evidence, If the defendant relies upon an affirmative defense
trial shall not be postponed even if such adverse in his answer, then the order of the trial may be
party objects or reserves the right to object to the properly reversed. This is because the plaintiffs
admissibility of the evidence need not present evidence as judicial admissions
do not require proof.
b. MOTION TO POSTPONE TRIAL ON THE
GROUND OF ILLNESS OF A PARTY OR Defendant in this case will present evidence ahead
COUNSEL of plaintiff.

Requisites 5. CONSOLIDATION OR SEVERANCE

1. Affidavit or sworn certification showing that the OF HEARING OR TRIAL
presence of such party or counsel at the trial is
indispensable; and
2. The character of the illness is such as to render Consolidation is Proper When
the non-attendance excusable. 1. There are actions involving a common question
of law or fact; and
3. AGREED STATEMENT OF FACTS 2. The actions are pending before the same court.
[STIPULATION OF FACTS] Court May Order Actions to be Consolidated By
1. A joint hearing or trial of any and all matters or
Parties to ANY action may agree upon the facts issue in the action; or
involved in the litigation 2. Consolidation of all actions; or
3. Such order concerning proceedings therein as
Such agreement must be in WRITING and upon may tend to avoid unnecessary costs or delay.
facts involved in the litigation. The case will then be
submitted for judgment on the facts agreed upon Civil cases MAY now be consolidated with criminal
WITHOUT need for introduction of evidence. cases. (Rule 111, Section 2[a])
If the parties agree only on some of the facts, trial Consolidation is a matter of discretion with the
shall be held as to the disputed facts court. Consolidation becomes a matter of right
only when the cases sought to be consolidated
In CIVIL cases, such agreement MAY be made involve similar questions of fact and law,
orally, in open court. However, in CRIMINAL provided certain requirements are met. An
CASES, such agreement must always be in writing. essential requisite of consolidation is that the
court must have jurisdiction over all the cases
4. ORDER OF TRIAL; REVERSAL OF consolidated before it. In this case, since the
ORDER Sandiganbayan does not have jurisdiction over
the collection case, the same cannot be
consolidated with the criminal cases even if
Order of Trial these cases involve similar questions of fact
and law. (Republic v. Court of Appeals (G.R.
The trial shall be LIMITED to the issues stated in No. 116463, June 10, 2013)
the PRE-TRIAL ORDER and shall proceed as
follows: Under the Rules of Court, the consolidation of
1. Plaintiff shall adduce evidence is support of cases for trial is permissive and a matter of
his complaint; judicial discretion. This is because trials held in
2. Defendant shall then adduce evidence in the first instance require the attendance of the
support of his defense, counterclaim, cross- parties, their respective counsel and their
claim or third-party complaint; witnesses, a task that surely entails an expense
rd
3. Third (3 ) party defendant shall adduce that can multiply if there are several proceedings
evidence in support of his defense, upon the same issues involving the same
counterclaim, cross-claim, fourth-party parties. At the trial stage, the avoidance of
complaint; unnecessary expenses and undue vexation to
4. Fourth (4th) party and so on shall adduce the parties is the primary objective of
evidence of the material facts pleaded by him; consolidation of cases.
5. The parties against whom any counterclaim But the permissiveness of consolidation does
or cross-claim has been pleaded, shall not carry over to the appellate stage where the
adduce evidence in support of their defense, in primary objective is less the avoidance of
the order prescribed by the court; unnecessary expenses and undue vexation than
6. Parties may then adduce rebutting evidence it is the ideal realization of the dual function of all
only, unless the court permits them to adduce appellate adjudications.
evidence upon their original case;
7. Oral argument or submission of memoranda;

108
In the appellate stage the rigid policy is to make The Court May Direct Reference to a
the consolidation of all cases and proceedings Commissioner Either
resting on the same set of facts, or involving 1. Upon motion of either party, or
identical claims or interests or parties mandatory. 2. Upon the court‘s own motion, when the parties
Such consolidation should be made regardless of do not consent.
whether or not the parties or any of them
requests it. (In re: Fabiana (A.M. No. CA-12-51- Reference to a Commissioner May be Made In
J, July 2, 2013) the Following Cases
1. When the trial of an issue of fact requires the
Severance, When Proper examination of a long account on either side
The court, in furtherance of convenience or to avoid 2. When the taking of an account is necessary
prejudice, may order a separate trial of any claim, for the information of the court before judgment;
cross-claim, counterclaim, or third-party complaint, 3. Carrying a judgment or order into effect;
or of any separate issue or of any number of claims, 4. When a question of fact, other than upon the
cross-claims, counterclaims, third-party complaints pleadings, arises upon motion or otherwise, in
or issues any stage of the case.

b. POWERS OF THE COMMISSIONER

6. DELEGATION OF RECEPTION OF
EVIDENCE The Commissioner has the Power to:
1. Regulate the proceedings before him,
General Rule: The JUDGE of the court where the 2. Issue subpoena and subpoena duces tecum,
case is pending shall personally receive the 3. Swear in witnesses,
evidence to be adduced by the parties. 4. Rule on the admissibility of evidence,
5. Do all acts and take all measures necessary or
Exception: The court may delegate the reception of proper, for the efficient performance of his
evidence to its CLERK OF COURT (who is a duties.
member of the bar) in:
1. Default or Ex Parte hearings; The powers of the commissioner are subject to the
2. Any case where the parties so agree in writing. restrictions contained in the court Order of
Reference appointing him as Commissioner.
The CLERK OF COURT has the duty to submit his
report, objections, and transcripts of the c. COMMISSIONER’S REPORT; NOTICE TO
proceedings within ten (10) days from the PARTIES AND HEARING ON THE REPORT
termination of hearing.
Commissioner’s Report
The CLERK OF COURT shall have NO power to Upon completion of trial or hearing or proceeding
rule on objections to any question or to the before the Commissioner, the Commissioner shall
admission of exhibits. Such power shall remain with file a report in writing showing the matters
the JUDGE who shall resolve such objection within submitted to him in the Order of Reference.
ten (10) days from the termination of
He shall set forth in his report findings of fact and
hearing. conclusions of law. He shall also attach all exhibits
affidavits, depositions, papers and the transcript of
7. TRIAL BY COMMISSIONERS testimonial evidence presented before him.

a. REFERENCE BY CONSENT OR ORDERED Notice to Parties

ON MOTION Upon filing of the Commissioner‘s Report, the Clerk
of Court shall notify the parties.
Court may order the trial of any or all of the issues
in a case to be referred to a COMMISSIONER. Parties are allowed ten (10) days from such notice
to signify grounds for objections to the findings.
COMMISIONER – a person to whom a case
pending in court is referred, for him to take Objections to the report based upon grounds which
testimony, hear the parties and report thereon to the were available to the parties during the proceedings
court, and upon whose report, if confirmed, before the commissioner, other than objections to
judgment is rendered. It includes a referee, an the findings and conclusions therein set forth, shall
auditor or an examiner. not be considered by the court UNLESS they were
made before the commissioner.
The Commissioner is either:
1. Agreed upon by written consent of both Hearing on the Report
parties; After the expiration of the ten (10) day period after
2. Appointed by the Court (e.g. Expropriation, notice to file an objection, a hearing shall be set on
Partition, Settlement of Estate of a Deceased the report.
Person).

109
After hearing the court shall issue an order and the law. The ―facts‖ referred to here include
adopting, modifying or rejecting the Commissioner‘s judicial admissions, matters of judicial notice,
Report. stipulations made during the pre-trial and trial,
admissions, and presumptions, the only exclusion
When the parties stipulate that a commissioner's being the defendant’s evidence. (Casent Realty
findings of fact shall be final, only questions of law v. Philbanking G.R. No. 150731, 2007)
shall thereafter be considered.
MOTION TO DISMISS MOTION TO DISMISS
UNDER RULE 16 UNDER RULE 33
END OF TOPIC (DEMURRER TO
EVIDENCE)

Grounded on Based on insufficiency of

N. DEMURRER TO EVIDENCE preliminary objections evidence (No right of
(Rule 33) relief based on the facts
and law presented)

Maybe filed by Maybe filed only by the

1. GROUND defending party against defendant against the
2. EFFECT OF DENIAL whom a claim is complaint of the plaintiff
3. EFFECT OF GRANT asserted in the action
4. WAIVER OF RIGHT TO PRESENT
EVIDENCE Should be filed within May be filed only after
5. DEMURRER TO EVIDENCE IN CIVIL the time for, but prior to the plaintiff has
CASE VERSUS DEMURRER TO the filing of an answer, completed the
EVIDENCE IN A CRIMINAL CASE of the defending party presentation of his
to the pleading evidence.
asserting the claim
1. GROUND against him

DEMURRER TO EVIDENCE
After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal IF DENIED - defendant IF DENIED - defendant
on the ground that upon the facts and the law, the must file an answer, may present evidence
plaintiff has shown NO RIGHT TO RELIEF. else be declared in
default IF GRANTED - plaintiff
Note: The evidence contemplated by the rule on appeals and the order of
demurrer is that which pertains to the merits of the IF GRANTED - plaintiff dismissal is reversed, the
case, excluding technical aspects such as capacity may appeal or re-file defendant loses his right
to sue. [Celino v. Heirs of Alejo and Teresa case (if subsequent to present evidence.
Santiago G.R. No. 161817, July 30, 2004] case is not barred)
Demurrer to evidence authorizes a judgment on
the merits of the case without the defendant
having to submit evidence on his part as he
would ordinarily have to do, if it is shown by
plaintiff’s evidence that the latter is not entitled
to the relief sought. A demurrer to evidence is
likewise sustainable when, admitting every proven 2. EFFECT OF DENIAL
fact favorable to the plaintiff and indulging in his
favor all conclusions fairly and reasonably inferable Defendant CAN present his evidence as a matter of
therefrom, the plaintiff has failed to make out one or right EVEN IF he did NOT obtain leave of court or
more of the material elements of his case, or when reserve his right to do so.
there is no evidence to support an allegation
necessary to his claim. It should be sustained
EFFECT OF EFFECT OF DENIAL IN
where the plaintiff‘s evidence is prima facie
DENIAL IN CIVIL CRIMINAL CASE
insufficient for a recovery. [Heirs of Santioque v.
CASE
Heirs of Calma G.R. No. 160832, Oct. 27, 2006]

What should be resolved in a motion to dismiss

based on a demurrer to evidence is whether the
plaintiff is entitled to the relief based on the facts

110
The defendant will If demurrer was (Radiowealth Finance Corporation v. Del Rosario,
present his with express leave of 335 SCRA 228, 2000)
evidence court, accused may
present evidence.
5. DEMURRER TO EVIDENCE IN
If demurrer was without CIVIL CASES VERSUS DEMURRER
express leave of court, TO EVIDENCE IN A CRIMINAL
accused can NO longer CASE
present evidence and the
case is submitted for
decision based on CIVIL CASE CRIMINAL CASE
prosecution‘s evidence. NO need for leave of Leave of court is
court for defendant to NECESSARY so that the
file demurrer to accused could present
evidence his evidence if his
demurrer is denied

If court finds plaintiff‘s If court finds

An order denying a demurrer to the evidence is evidence insufficient, prosecution‘s evidence
INTERLOCUTORY and is therefore NOT demurrer will be insufficient, demurrer will
appealable. It can be the subject of a Petition for granted and complaint be granted and judgment
Certiorari in case of grave abuse of discretion or an will be dismissed. This will be rendered
oppressive exercise of judicial authority. (Katigbak dismissal is acquitting the accused.
v. Sandiganbayan, G.R. No. 140183, 2003) appealable. The judgment is not
appealable.
3. EFFECT OF GRANT

Court will render judgment on demurrer to evidence

by DISMISSING the case. This order is
APPEALABLE. If plaintiff appeals and Judgment is NOT
the judgment is appealable by reason of
reversed, the appellate the double jeopardy rule.
EFFECT OF GRANT IN EFFECT OF GRANT IN
court will decide the
CIVIL CASE CRIMINAL CASE
case on the basis of
plaintiff‘s evidence and
the defendant loses his
The complaint will be The accused will be right to present
dismissed acquitted. Judgment of evidence.
acquittal is NOT
appealable
If court denies If court denies demurrer,
demurrer, defendant either of the following will
will present his happen:
evidence
1. If demurrer was WITH
express leave of court,
accused may present
evidence;
4. WAIVER OF RIGHT TO PRESENT
2. If demurrer was
EVIDENCE WITHOUT leave of court,
accused can no longer
If on appeal, the order granting the motion for present evidence and the
demurrer is REVERSED, the defendant LOSES his case is submitted for
right to present evidence. decision based on
prosecution‘s evidence.
Judgment shall be rendered on the basis of the
evidence submitted by the PLAINTIFF.

NOTE: The appellate court reversing the order

granting the demurrer MUST NOT REMAND the
case to the trial court for further proceedings. The
appellate court should render judgment on the basis
of the evidence submitted by the plaintiff.

111
The court cannot, on its The court may make a
own make a demurrer. demurrer on its own. A decision rendered in a full-blown trial. Examples
(Rule 119, Section 23) include judgment by confession and judgment upon
a compromise.

2. CONTENTS OF A JUDGMENT
Similarities of Both Demurrer in a Civil case and
a Criminal Case
Parts of a Judgment
Both are based on insufficiency of evidence
presented by the plaintiff or the prosecution to 1. Opinion of the court (findings of fact and
warrant the grant of affirmative relief in favor of the conclusions of law) – Ratio Decidendi;
plaintiff nor conviction of accused; 2. Disposition of the case (dispositive portion) -
Fallo;
3. Signature of the judge.
In both, the motion is filed after the plaintiff or the
prosecution has presented evidence and closed his
or its case. When there is a conflict between the dispositive
portion and the body of the decision, the FALLO
END OF TOPIC controls.

A Judgment of CONVICTION Must Contain

1. The legal qualifications of the offense
constituted by the acts committed by the
O. JUDGMENTS AND FINAL accused and the aggravating and mitigating
ORDERS circumstances which attended its commission.
2. Participation of the accused either as principal,
(Rule 34) accomplice or accessory.
3. Penalty imposed on the accused.
4. Civil liability or damages, if any, unless a
separate civil action has been reserved or
waived.
1. JUDGMENT WITHOUT TRIAL
2. CONTENTS OF A JUDGMENT A Judgment of ACQUITTAL Must Contain
3. JUDGMENT ON THE PLEADINGS 1. Whether the evidence absolutely failed to prove
the guilt of the accused or merely failed to prove
4. SUMMARY JUDGMENTS it beyond reasonable doubt
a. For the claimant
2. If the act or omission from which civil liability
b. For the defendant
may arise did not exist
c. When the case not fully adjudicated
d. Affidavits and attachments
5. JUDGMENT ON THE PLEADINGS 3. JUDGMENT ON THE PLEADINGS
VERSUS SUMMARY JUDGMENTS
A judgment rendered by the court upon motion of
6. RENDITION OF JUDGMENTS AND the claimant OR plaintiff on the ground that an
FINAL ORDERS ANSWER fails to tender an issue, OR otherwise
7. ENTRY OF JUDGMENTS AND admits the material allegations of the adverse
FINAL ORDER party‘s pleading.

Note: The concept of a judgment on the pleadings

JUDGMENT
will not apply when no answer is filed. (Riano, Civil
A judicial act which settles the issues, fixes the
Procedure: The Bar Lecture Series, Vol. 1, Bantam
rights and liabilities of the parties, and determines
Ed, 2014)
the proceeding, and is regarded as the sentence of
the law pronounced by the court on the action or
General Rule: A judgment on the pleadings must
question before it.
be UPON MOTION of the claimant.
Requisites:
Exception: If at pre-trial, the court finds that a
1. In writing in the official language;
judgment on the pleadings is proper, it MAY render
2. Personally and directly prepared by the judge;
such judgment motu proprio. (Rule 18, Section 2
3. State clearly and distinctly the facts and the law
[g])
on which it is based;
4. Contains a dispositive portion;
Judgment on the pleadings is proper when an
5. Signed by the judge; and
answer fails to tender an issue, or otherwise admits
6. Filed with the clerk of court.
the material allegations of the adverse party‘s
pleading. An answer fails to tender an issue if it
1. JUDGMENT WITHOUT TRIAL does not comply with the requirements of a specific
denial as set out in Sections 8 (actionable
JUDGMENT WITHOUT TRIAL document denial under oath) and 10 (specific

112
denial). Failure to deny such would result in the admission of the material allegations of the adverse
admission of the material allegations of the adverse party‘s pleadings. [Asian Construction v.
party‘s pleadings. [Asian Construction v. Sanneadle, G.R. No. 181676, June 11, 2014]
Sanneadle, G.R. No. 181676, June 11, 2014]
Sham denials, consisting of an avowed lack of
Sham denials, consisting of an avowed lack of knowledge of facts which could not but be clearly
knowledge of facts which could not but be clearly known by them, in effect tender no issue, or
known by them, in effect tender no issue, or otherwise admit the allegations of the complaint
otherwise admit the allegations of the complaint material to a valid decision. [Manufacturer’s Bank v.
material to a valid decision. [Manufacturer’s Bank v. Diversified, G.R. No. 33695, May 15, 1989]
Diversified, G.R. No. 33695, May 15, 1989]
Judgment on the pleadings is proper when an
Judgment on the pleadings is proper when an answer fails to tender an issue, or otherwise admits
answer fails to tender an issue, or otherwise admits the material allegations of the adverse party‘s
the material allegations of the adverse party‘s pleadings. The defense of the defendant was that
pleadings. The defense of the defendant was that plaintiff was in bad faith. The courts ruled that the
plaintiff was in bad faith. The courts ruled that the answer in fact tendered an issue hence judgment
answer in fact tendered an issue hence judgment on the pleadings would be inapplicable. Summary
on the pleadings would be inapplicable. Summary judgment also cannot apply because the
judgment also cannot apply because the requirement for such is that there must not be a
requirement for such is that there must not be a genuine issue. The plaintiff, in this case, prayed for
genuine issue. The plaintiff, in this case, prayed for an accounting which required a full blown trial
an accounting which required a full blown trial (requires presentation of evidence on partial
(requires presentation of evidence on partial payment) hence there was a genuine issue in the
payment) hence there was a genuine issue in the case at bar. [Sps. Ong v. Roban Lending, G.R. No.
case at bar. [Sps. Ong v. Roban Lending, G.R. No. 172592, July 9, 2008]
172592, July 9, 2008]
Judgment on the pleading is a judgment on the
Judgment on the pleading is a judgment on the facts pleaded, and based exclusively upon the
facts pleaded, and based exclusively upon the allegations appearing in the pleadings and the
allegations appearing in the pleadings and the annexes. The trial court has the discretion to grant a
annexes. The trial court has the discretion to grant a motion for judgment on the pleadings filed by a
motion for judgment on the pleadings filed by a party if there is no controverted matter in the case
party if there is no controverted matter in the case after the answer is filed. This case was peculiar
after the answer is filed. This case was peculiar because the defendant was the one who moved for
because the defendant was the one who moved for judgment on pleadings without offering proof as to
judgment on pleadings without offering proof as to the truth of her allegations and without giving the
the truth of her allegations and without giving the plaintiff opportunity to introduce evidence, the
plaintiff opportunity to introduce evidence, the defendant is deemed to have admitted the material
defendant is deemed to have admitted the material and relevant matters of the complaint. (Usually, it is
and relevant matters of the complaint. (Usually, it is the plaintiff who files a judgment on pleadings)
the plaintiff who files a judgment on pleadings) [Sunbanun v. Go, G.R. No. 163280, Feb. 2, 2010]
[Sunbanun v. Go, G.R. No. 163280, Feb. 2, 2010]
One who prays for judgment on the pleadings
without offering proof as to the truth of his own
Judgment on the pleadings is appropriate when an allegations and without giving the opposing party an
answer fails to tender an issue, or otherwise admits opportunity to introduce evidence, must be
the material allegations of the adverse party‘s understood to admit all material and relevant
pleading. An answer fails to tender an issue if it allegations of the opposing party and to rest his
does not comply with the requirements of a specific motion for judgment on those allegations taken
denial as set out in Sections 8 and 10, Rule 8 of the together with such of his own as are admitted in the
Rules, resulting in the admission of the material pleadings. [Falcasantos v. How Suy Ching, GR No.
allegations of the adverse party‘s pleadings. As L-4229, May 29, 1952]
such, it is a form of judgment that is exclusively
based on the submitted pleadings without the A Motion for Judgment on the Pleadings is one that
introduction of evidence as the factual issues is considered ex parte because upon particular
remain uncontroverted. [GSIS v. Prudential, G.R. facts thus presented, the plaintiff is entitled to
No. 165585, Nov. 20, 2013] judgment, or motu proprio under Section 2 [g] of
Judgment on the pleadings is proper when an Rule 18 of the Rules of Court. [Dino v. Valencia,
answer fails to tender an issue, or otherwise admits G.R. No. L-43886, July 19, 1989]
the material allegations of the adverse party‘s
pleading. An answer fails to tender an issue if it Judgment on the pleadings is appropriate when an
does not comply with the requirements of a specific answer fails to tender an issue, or otherwise admits
denial as set out in Sections 8 (actionable the material allegations of the adverse party‘s
document denial under oath) and 10 (specific pleading. An answer fails to tender an issue if it
denial). Failure to deny such would result in the does not comply with the requirements of a specific

113
denial as set out in Sections 8 and 10, Rule 8 of the motion for judgment on those allegations taken
Rules, resulting in the admission of the material together with such of his own as are admitted in the
allegations of the adverse party‘s pleadings. As pleadings. [Falcasantos v. How Suy Ching, GR No.
such, it is a form of judgment that is exclusively L-4229, May 29, 1952]
based on the submitted pleadings without the
introduction of evidence as the factual issues A Motion for Judgment on the Pleadings is one that
remain uncontroverted. [GSIS v. Prudential, G.R. is considered ex parte because upon particular
No. 165585, Nov. 20, 2013] facts thus presented, the plaintiff is entitled to
judgment, or motu proprio under Section 2 [g] of
Judgment on the pleadings is proper when an Rule 18 of the Rules of Court. [Dino v. Valencia,
answer fails to tender an issue, or otherwise admits G.R. No. L-43886, July 19, 1989]
the material allegations of the adverse party‘s
pleading. An answer fails to tender an issue if it Judgment on the pleadings is appropriate when an
does not comply with the requirements of a specific answer fails to tender an issue, or otherwise admits
denial as set out in Sections 8 (actionable the material allegations of the adverse party‘s
document denial under oath) and 10 (specific pleading. An answer fails to tender an issue if it
denial). Failure to deny such would result in the does not comply with the requirements of a specific
admission of the material allegations of the adverse denial as set out in Sections 8 and 10, Rule 8 of the
party‘s pleadings. [Asian Construction v. Rules, resulting in the admission of the material
Sanneadle, G.R. No. 181676, June 11, 2014] allegations of the adverse party‘s pleadings. As
such, it is a form of judgment that is exclusively
Sham denials, consisting of an avowed lack of based on the submitted pleadings without the
knowledge of facts which could not but be clearly introduction of evidence as the factual issues
known by them, in effect tender no issue, or remain uncontroverted. [GSIS v. Prudential, G.R.
otherwise admit the allegations of the complaint No. 165585, Nov. 20, 2013]
material to a valid decision. [Manufacturer’s Bank v.
Diversified, G.R. No. 33695, May 15, 1989]
One who prays for judgment on the pleadings
Judgment on the pleadings is proper when an without offering proof as to the truth of his own
answer fails to tender an issue, or otherwise admits allegations and without giving the opposing party an
the material allegations of the adverse party‘s opportunity to introduce evidence, must be
pleadings. The defense of the defendant was that understood to admit all material and relevant
plaintiff was in bad faith. The courts ruled that the allegations of the opposing party and to rest his
answer in fact tendered an issue hence judgment motion for judgment on those allegations taken
on the pleadings would be inapplicable. Summary together with such of his own as are admitted in the
judgment also cannot apply because the pleadings. (Falcasantos v. How Suy Ching, GR No.
requirement for such is that there must not be a L-4229, 1952)
genuine issue. The plaintiff, in this case, prayed for
an accounting which required a full blown trial A Motion for Judgment on the Pleadings is one that
(requires presentation of evidence on partial is considered ex parte because upon particular
payment) hence there was a genuine issue in the facts thus presented, the plaintiff is entitled to
case at bar. [Sps. Ong v. Roban Lending, G.R. No. judgment, or motu proprio under Section 2 [g] of
172592, July 9, 2008] Rule 18 of the Rules of Court. (Dino v. Valencia,
G.R. No. L-43886, 1989)
Judgment on the pleading is a judgment on the
facts pleaded, and based exclusively upon the Grounds
allegations appearing in the pleadings and the 1. Answer fails to tender an issue because of:
annexes. The trial court has the discretion to grant a a) General denial of the material allegations of
motion for judgment on the pleadings filed by a the complaint;
party if there is no controverted matter in the case b) Insufficient denial of the material allegations
after the answer is filed. This case was peculiar of the complaint; or
because the defendant was the one who moved for 2. Answer admits the material allegations of the
judgment on pleadings without offering proof as to adverse party‘s pleading.
the truth of her allegations and without giving the
plaintiff opportunity to introduce evidence, the By moving for judgment on the pleading, plaintiff
defendant is deemed to have admitted the material WAIVES his claim for unliquidated damages. Claim
and relevant matters of the complaint. (Usually, it is for such damages must be alleged and proved.
the plaintiff who files a judgment on pleadings)
[Sunbanun v. Go, G.R. No. 163280, Feb. 2, 2010] No Judgment on the Pleadings in Actions for
1. Declaration of Nullity of Marriage;
One who prays for judgment on the pleadings 2. Annulment of marriage; and
without offering proof as to the truth of his own 3. Legal Separation
allegations and without giving the opposing party an In actions for declaration of nullity or annulment of
opportunity to introduce evidence, must be marriage or for legal separation, the material facts
understood to admit all material and relevant alleged in the complaint shall always be proved
allegations of the opposing party and to rest his

114
(see Articles 48 and 60 of the Family Code). The defending party or claimant, as the case may be,
purpose is to prevent collusion between the parties. must invoke the rule on summary judgment by filling
a motion. The adverse party must be notified of the
Difference between motion to dismiss and motion for summary judgment and furnished with
motion for judgment on the pleadings supporting, affidavits, depositions or admissions
MOTION TO DISMISS MOTION FOR before hearing is conducted. (Pineda v. Heirs of
JUDGMENT ON Eliseo Guevara, G.R. No. 143188, February 14,
PLEADINGS 2007)

Under Section 3, Rule 35 of the Rules of Court, a

Filed by defendant to a Filed by the claimant summary judgment MAY NOT be rendered on the
complaint, counterclaim, amount of damages, although such judgment may
cross-claim, or third- be rendered on the issue relating to the existence of
party complaint. the right to damages. In this case, the Court
distinguished between the determination of the
amount of damages and the issue of the right to
damages itself in case of a summary judgment.
(Ybiernas v. Tanco-Gabaldon, G.R. No. 178925,
4. SUMMARY JUDGMENT 2011)

An action for annulment of marriage cannot be

Nature of summary judgment decided by summary judgment proceeding (Roque
1. A summary judgment, also called accelerated v. Encarnacion, G.R. No. L-6505, ] 1954)
judgment, is proper where, upon a motion filed
after the issues had been joined and on the Summary judgments are made specifically
basis of the pleadings and papers filed, the applicable to a special civil action for Declaratory
court finds that there is no genuine issue as to Relief (Rule 63).
any material fact except as to the amount of
damages. The motion shall be served at least ten (10) days
2. What triggers a summary judgment is the before the time specified for the hearing. The
absence of a genuine factual issue. It is adverse party may serve opposing affidavits,
not proper where there are factual issues depositions, or admissions at least three (3) days
to be resolved by the presentation of before the hearing. (Section 3, Rule 35)
evidence. Even if there is a complicated
question of law if there is no issue as to After the hearing, the judgment sought shall be
the facts, a summary judgment is not rendered forthwith if the pleadings, supporting
barred. (Velasco v. Court of Appeals, 329 affidavits, depositions, and admissions on file, show
SCRA 392). that, EXCEPT as to the amount of damages, there
is no genuine issue as to any material fact and that
One granted by the court, UPON MOTION, for the the moving party is entitled to a judgment as a
prompt disposition of civil actions wherein it clearly matter of law. (Section 3, Rule 35)
appears that there exists NO GENUINE ISSUE or
controversy as to any material fact, EXCEPT as to If on motion for Summary Judgment, judgment is
the amount of damages. NOT rendered upon the whole case or for all reliefs
sought and a trial is necessary, the court at the
It is granted AFTER the issues have been joined hearing of the motion, by examining the pleadings
and on the basis of pleadings, depositions, and the evidence before it and by interrogating
admissions and affidavits, there exists NO genuine counsel, shall ascertain what material facts exist
factual issue. It is available to BOTH plaintiff and without substantial controversy and what are
defendant. actually and in good faith controverted. (Section 4,
Rule 35)
A genuine issue is an issue of fact which requires
the presentation of evidence as distinguished from It shall thereupon make an order specifying the
a sham, fictitious, contrived or false claim. When the facts that appear without substantial controversy,
facts as pleaded appear uncontested or undisputed, including the extent to which the amount of
then there is no real or genuine issue or question as damages or other relief is not in controversy, and
to the facts, and summary judgment is called for. directing such further proceedings in the action as
The party who moves for summary judgment has are just. The facts so specified shall be deemed
the burden of demonstrating clearly the absence of established, and the trial shall be conducted on the
any genuine issue of fact, or that the issue posed in controverted facts accordingly. (Section 4, Rule 35)
the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. (Philippine Bank a. FOR THE CLAIMANT
of Communications v. Go 642 SCRA 693, 2011)
A party seeking to recover upon a claim,
The trial court cannot motu proprio decide that counterclaim, or cross-claim or to obtain a
summary judgment on an action is in order. The declaratory relief may, at any time AFTER the

115
pleading in answer thereto has been served, move issues tendered are not genuine, are sham,
with supporting affidavits, depositions or admissions fictitious, contrived, set up in bad faith, and patently
for summary judgment in his favor upon all or any unsubstantial. (Vergara v. Suelto, G.R. No. L-
part thereof. (Section 2, Rule 35) 74766, 1987)

b. FOR THE DEFENDANT Affidavits in Bad Faith

It should it appear that the affidavits are:
A party against whom a claim, counterclaim, or 1. Presented in bad faith; or
cross-claim is asserted or a declaratory relief is 2. Solely for the purpose of delay.
sought may, at ANY TIME, move with supporting
affidavits, depositions or admissions for summary The court shall order the offending party or counsel
judgment in his favor upon all or any part thereof. to pay to the other party the amount of reasonable
(Section 3, Rule 35). expenses, which the filing of the affidavits caused
him to incur, including attorney‘s fees. It may, after
c. WHEN THE CASE NOT FULLY hearing, further adjudge the offending party or
ADJUDICATED ON MOTION counsel guilty of contempt. (Section 6, Rule 35)

This authorizes rendition of PARTIAL summary 5. JUDGMENT ON THE PLEADINGS

judgment but such is interlocutory in nature and is
NOT a final and appealable judgment. VERSUS SUMMARY JUDGMENT

The court shall make an order specifying the facts JUDGMENT ON THE SUMMARY
that appear without substantial controversy. The PLEADINGS JUDGMENT
facts so specified shall be deemed established.
Solely based on the Based on the pleadings,
pleadings depositions, admissions,
The trial shall be conducted on the controverted
and affidavits
facts only and judgment shall be rendered on the
facts that appear without substantial controversy.

The test is whether or not the pleadings, affidavits General Rule - Available Available to BOTH
and exhibits in support of the motion are sufficient only to a claiming party plaintiff and defendant
to overcome the opposing papers and to justify the like a plaintiff or a
finding that, as a matter of law, there is no defense counterclaimant
to the action or claim clearly meritorious. [Estrada v.
Consolacion, G.R. No. L-40948, June 29, 1976] Exception - Defendant
presents a counterclaim
d. AFFIDAVITS AND ATTACHMENTS

Requisites of affidavits:
1. Based on personal knowledge;
2. Set forth facts as would be admissible in There is an absence of There is an issue only
evidence; a factual issue in the as to the amount of
3. Show affirmatively that the affiant is competent to
case because the damages but not as to
testify to the matters stated therein. answer tenders no issue any material fact
at all. or there is an
Bases of Summary Judgment
admission of material
1. Affidavits made on personal knowledge, set forth
allegations
such facts as would be admissible as evidence
and show affirmatively that the affiant is
competent to testify on matters stated therein
(Section 5, Rule 35);
2. Depositions of the adverse party or a third party Notice required before Notice required before
under Rule 23; hearing: Three (3) days hearing: Ten (10) days.
3. Admissions of the adverse party under Rule 26; The adverse party in
or turn may serve
4. Answers to interrogatories under Rule 25; all opposing affidavits,
intended to show that: depositions or
a) There is no genuine issue as to any material admissions at least
fact, EXCEPT damages which must always three days before the
be proved; and hearing.
b) The movant is entitled to a judgment as a
matter of law.

Even if the answer does tender an issue, and On the merits May be interlocutory or
therefore a judgment on the pleadings is not proper, on the merits
a summary judgment may still be rendered if the

116
There is already an If filed by the
answer filed PLAINTIFF, it must be Enterprises v. IAC G.R. No. 72019, December 20,
filed at any time after an 1990)
answer is served;
JUDGMENT ON THE MERITS
If filed by DEFENDANT, Judgment rendered after consideration of the
it may be filed at any evidence submitted by the parties during the trial of
time even before there the case.
is an answer
JUDGMENT NON PROTUNC
A judgment intended to enter into the records acts
which had already been done, but which do not
appear in the records.

JUDGMENT SIN PERJUICIO

6. RENDITION OF JUDGMENTS AND A dismissal of a case without prejudice to it being
FINAL ORDERS refilled. It is one which contains only the dispositive
portion of the decision and reserves the making of
Rendition of a judgment findings of fact and conclusions of law in a
The filing of the signed decision with the clerk of subsequent judgment.
court. (Riano, 2014, p. 583)
PROMULGATION
NOTE: It is not the writing or signing of the The process by which a decision is published,
judgment which constitutes rendition of the officially announced, made known to the public or
judgment. (Castro v. Malazo, 99 SCRA 164) delivered to the clerk of court for filing, coupled with
notice to the parties or their counsel.
A case is deemed SUBMITTED FOR
RESOLUTION upon the filing of the last pleading, MEMORANDUM DECISION
brief or memorandum required by the Rules of The judgment or final resolution of the appellate
Court or by the court. court may adopt by reference the findings of facts
and conclusions of law contained in the decision of
Even if the judgment has already been put in writing the trial court.
and signed, it is STILL subject to amendment if it
has not yet been filed with the Clerk of Court. 7. ENTRY OF JUDGMENT AND FINAL
ORDER
A judgment is considered RENDERED upon the
FILING of the signed decision with the Clerk of
Court. This includes an amended decision because If no appeal or motion for new trial or
an amended decision is a distinct and separate reconsideration is filed within the reglementary
judgment and must follow the established period, the judgment or final order shall be entered
procedural rule. by the Clerk in the Book of Entries of Judgment.

For a Judgment to be Valid Date of the finality of the judgment or final order
1. In writing, personally and directly prepared by shall be deemed to be the DATE OF ITS ENTRY.
the Judge
2. State clearly and distinctly the facts and law on Judgment is deemed FINAL when it disposes of a
which it is based case in a manner that leaves NOTHING more to be
3. Signed by judge and filed with clerk of court done by the court in respect thereto. (Rule 36,
(Rule 36, Section 1) Section 1)

Sec. 2 of Rule 36 clearly provides that ―The date of

JUDGEMENT BY CONFESSION finality of the judgment or final order shall be
Rendered by the court after a party expressly deemed to be the date of its entry.‖
agrees to the other party‘s claim or acknowledges
the validity of the claim against him. General Rule: After judgment has become final and
executory, the court cannot amend the same.
JUDGMENT UPON A COMPROMISE
Judgment rendered by the court on the basis of a Exceptions:
compromise agreement entered into between the Amendment May Be Possible in the Following
parties to the action. It has the force of law and is Instances:
conclusive between parties. It is NOT appealable. 1. To make corrections of clerical errors but not
substantial amendments;
Judgment upon a compromise is immediately 2. To clarify an ambiguity which is borne out by
executory upon the signing of the compromise and justifiable in the context of the decision; and
agreement in the absence of a motion to set aside 3. In judgments for support, which can always be
on the ground of fraud, mistake, etc. Hence, it has amended from time to time.
the effect of res judicata. (World Machine

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Entry of judgment or final order is important for the Before Finality
reckoning of reglementary periods such as the 5- 1. Motion for Reconsideration
year period for execution by motion or the 6-month 2. Motion for New trial
period for a petition for relief (Regalado, Remedial 3. Appeal
th
Law Compendium, 9 Ed.)
After Finality
The judgment or final order has the effect of RES 1. Relief from Judgment or Final Order
JUDICATA between the two parties. 2. Annulment of Judgment
3. Petition for Certiorari
RES JUDICATA has Two Aspects 4. Collateral Attack of a Judgment
1. Bar by Prior Judgment – the judgment or final
order is a bar to the prosecution of a subsequent Judgment against Entity without Juridical
action based on the same claim or cause of Personality
action. When judgment is rendered against two or more
2. Conclusiveness of Judgment – the judgment persons sued as an entity without juridical
or final order precludes the re-litigation of personality, the judgment shall set out their
particular issues or facts on a different demand individual or proper names, if known. (Rule 36,
or cause of action. Section 6)

Judgment For or Against One or More of Several END OF TOPIC

PartiesJudgment MAY be given for or against one
or more of several plaintiffs, and for or against one
or more of several defendants.

When justice so demands, the court may require P. POST-JUDGMENT REMEDIES

the parties on each side to file adversary pleadings
as between themselves and determine their
ultimate rights and obligations. (Rule 36, Section 3)

SEVERAL JUDGMENTS 1. MOTION FOR NEW TRIAL OR

Judgment rendered by a court, when proper, RECONSIDERATION
against one or more defendants and NOT against a. Grounds
all of them leaving the action to proceed against the b. When to File
others. (Rule 36, Section 4) c. Denial of the motion; effect
d. Grant of the motion; effect
Several judgments is proper where e. Remedy when motion is denied; fresh
1. The liability of each party is clearly separable 15-day period rule
and distinct from his co-parties such that the 2. APPEALS IN GENERAL
claims against each of them could have been a. Judgments and final orders subject to
the subject of separate suits, and appeal
2. The judgment for or against one of them will not
necessarily affect the other. (Fernandez v. Sta. b. Matters not appealable
Maria, G.R. No. 160730, 2004) c. Remedy against judgments and orders
which are not appealable
It is NOT proper in actions against solidary debtors. d. Modes of appeal
(Fernandez v. Sta. Maria, G.R. No. 160730, 2004) i. Ordinary appeal
ii. Petition for review
SEPARATE JUDGMENT
Judgment rendered to dispose of one of the several
iii. Petition for review on
certiorari
claims for relief presented in an action. (Rule 36,
Section 5) e. Issues to be raised on appeal
f. Period of appeal
Separate Judgments are Made on One or g. Perfection of appeal
Several Claims h. Appeal from judgments or final orders
1. At any stage; of the MTC
2. Upon a determination of the issues material to a i. Appeal from judgments or final orders
particular claim and all counterclaims arising out of the RTC
of the transaction, or occurrence which is the
subject matter of the claim; j. Appeal from judgments or final orders
3. Such judgment terminates the claim, leaving the of the CA
action to proceed as to the remaining claims. k. Appeal from judgments or final orders
of the CTA
REMEDIES AGAINST JUDGMENTS OR FINAL l. Review of final judgments or final
ORDERS (Riano 2015 p. 630) orders of the COMELEC

118
 MOTION FOR MOTION FOR
m. Review of final judgments or final NEW TRIAL RECONSIDERATIO
orders of the Ombudsman N
n. Review of final judgments or final
orders of the NLRC
o. Review of final judgments or final
orders of quasi-judicial agencies
3. RELIEF FROM JUDGMENTS,
ORDERS AND OTHER
PROCEEDINGS
a. Grounds for availing of the remedy
b. Time to file petition
c. Contents of petition
4. ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
a. Grounds for annulment
b. Period to file action
c. Effects of judgment of annulment
5. COLLATERAL ATTACK OF
JUDGMENT

1. MOTION FOR NEW TRIAL OR

RECONSIDERATION (Rule 37)

Motion for New Trial (MNT)

One that moves for a re-opening of trial for new or
additional presentation of evidence in a case
already decided by the court but before the
judgment rendered thereon becomes final and
executory. Errors of law or irregularities are
expunged from the record, or new evidence is
introduced, or both steps are taken.

Motion for Reconsideration (MR)

One that is directed against a final judgment or a
final order, filed within the period for appeal, i.e.
within fifteen (15) days after notice to the appellant
of the judgment or final order appealed from. (Sec.
2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule 45, Rules
of Court).

It does not refer to a motion for reconsideration of

an interlocutory order which, for instance, precedes
a petition for certiorari. (Rule 37, Section 1)

A motion for reconsideration of a judgment is a

prohibited motion in a case that falls under
summary procedure (Sec. 19[c], TV, Rules on
Summary Procedure; Bar
1989,1990).

The motion is likewise prohibited under Sec. 14(c)

of the Rule of Procedure in Small Claims Cases
(A.M. No. 08-8-7- SC).
Effect of the filing of the motion on the period to
appeal
The filing of a timely motion for reconsideration
interrupts the period to appeal (Sec. 2, Rule 40;
Sec. 3, Rule 41, Rules of Court).

REQUIREMENTS

119
 1. Must be in 1. Must be in Affidavit of Merit (for MNT)
writing; writing; One which recites the nature and character of
2. Affidavit of 2. Must point FAME on which the motion for new trial is based. It
the existence of out specifically must state the movant‘s good and substantial cause
fraud, accident, the conclusion of action or defense and the evidence he/she
mistake, or of judgment or intends to present if the motion is granted which
excusable conclusions of evidence should be as such as to warrant
negligence (FAME) the judgment or reasonable belief that the result of the case would
or newly discovered final order; probably be otherwise.
evidence (NDE); 3. Grounds:
3. If ground a. Excessive
is FAME: Effect of Motion for New Trial or
damages
Affidavit of merit setting Reconsideration and Notice Thereof
b. Insufficient A motion suspends or tolls the running of the
forth the particular facts evidence
claimed to constitute a reglementary period to appeal EXCEPT when it is
(factual pro-forma.
meritorious cause of
action;
c. Contrary to
law (legal) PRO-FORMA MOTION (Rule 37, Section 2)
If ground is NDE:
(Rule 37, A motion that does NOT comply with Rule 15
a. Affidavit of Section 1) (mandatory requirement of notice and hearing) and
new witnesses; and
4. Specific Rule 37 (requirement that the motion must point out
b. Duly assignment of specifically the findings or conclusions of the
authenticated trial court judgment as are contrary to law, fails to make
documents to be findings that express reference to the testimonial or documentary
introduced. are challenged evidence or to the provisions of law alleged to be
4. Written notice to with express contrary to such findings or conclusions, and is
adverse party reference to merely intended to delay the proceedings or if there
(Rule 37, Section 2) testimonial or is no affidavit of merit).
documentary
Exception: evidence or to A pro forma motion is a worthless piece of paper
The allegations contained in provisions of which the clerk of court has no right to receive and
an affidavit of merit required law; which the court has no authority to act upon.
to be attached to a motion to 5. Written
lift an order of default or for a notice to A motion for reconsideration is NOT pro forma just
new trial need not be adverse party because it reiterated the arguments earlier passed
embodied in a separate (Rule 37, upon and rejected by the appellate court. This is
document but may be Section 2) because a movant may raise the same arguments,
incorporated in the petition precisely to convince the court that its ruling was
itself. Otherwise stated, when erroneous. (Security Bank v. Cuenca, GR No.
a motion to lift an order of 151914, 2002)
default contains the reasons
for the failure to answer as Moreover, the rule (that a motion is pro forma if it
well as the facts constituting only repeats the arguments in the previous
the prospective defense of pleadings) will NOT apply if said arguments were
the defendant and it is sworn not squarely passed upon and answered in the
to by said defendant, neither decision sought to be reconsidered. (Ong Yong v.
a formal verification nor a Tiu, GR No. 144476, 2003)Where the
separate affidavit of merit is circumstances of a case do not show an intent on
necessary. (Capuz vs. CA, the part of the pleader to merely delay the
G.R. No. 112795, 1994) proceedings, and his motion reveals a bona fide
effort to present additional matters or to reiterate his
arguments in a different light, the courts should be
slow to declare the same outright as pro forma. The
doctrine relating to pro forma motions has a direct
bearing upon the movant‘s valuable right to appeal.
It would be in the interest of justice to accord the
appellate court the opportunity to review the
decision of the trial court on the merits than to abort
the appeal by declaring the motion pro forma, such
that the period to appeal was not interrupted and
had consequently lapsed (Philippine National Bank
v. Paneda, 515 SCRA 639, 649.

A motion for reconsideration is deemed pro forma if

the same does not specify the findings or
conclusions in the judgment which are not

120
supported by the evidence or contrary to law, have guarded against and by reason of which the
making express reference to the pertinent evidence party applying has probably been impaired in this
or legal provisions. It is settled that although a rights. (De Leon, Appellate Remedies, 2013, p.21)
motion for reconsideration may merely reiterate
issues already passed upon by the court that by 2. ACCIDENT – An event that takes place without
itself does not make it pro forma and is immaterial one‘s reasonable foresight or expectation.
because what is essential is compliance with the
requisites of the Rules. 3. MISTAKE – The general rule is that only
mistakes of ―fact‖ (as opposed to mistake of
a. GROUNDS ―law‖) may be a ground for new trial.

Thus, the petitioner‘s claim of having

MOTION FOR MOTION FOR committed an ―honest mistake‖ in not filing an
NEW TRIAL RECONSIDERATION answer to respondent‘s petition for prohibition
and declaratory relief because of its belief that
the RTC did not acquire jurisdiction over it was
held to be a ―mistake of law‖ which cannot be
The Grounds Are The Grounds Are: a ground for new trial. (De Leon, Appellate
Remedies, 2013, p.21, citing Viking Industrial
1. Fraud 1. The damages Corporation v. CA GR No. 143794, 2004)
(Extrinsic), awarded are
Accident, Mistake excessive; However, the Supreme Court has on occasion
or Excusable recognized a mistake in ―law‖, made in good
Negligence 2. The evidence faith, and where such mistake misled a party,
(FAME); or is insufficient to as a ground for new trial. Regalado gives as
justify the decision examples of mistake of ―law‖ a mistake as to
2. Newly or final order the scope and extent of the coverage of an
discovered (factual question); ordinance (citing City of Iloilo vs. Pinzon, L-
evidence (NDE), or 7552, May 31, 1955) and a mistake of a
which could not, defendant who failed to file an answer to the
with reasonable 3. The decision complaint (and consequently declared in
diligence, have or final order is default) because the defendant relied on a
been discovered contrary to law compromise agreement with the plaintiff. The
and produced at (legal question). defendant failed to properly appreciate the
the trial, and which, effect of the compromise agreement on the
if presented, would pending case. (Salazar vs. Salazar, 8 Phil. 183)
probably alter the
result. 4. EXCUSABLE NEGLIGENCE – Depends upon
the circumstances of the case.

Note: The test of excusable negligence is whether

GROUNDS FOR NEW TRIAL
a party has acted with ordinary prudence while
transacting important business. (Philippine
1. EXTRINSIC FRAUD – Extrinsic or collateral
Phosphate Fertilizer Corporation v. Commissioner
fraud, as distinguished from intrinsic fraud,
of Internal Revenue G.R. No. 141973, 2005)
connotes any fraudulent scheme executed by a
prevailing litigant outside the trial of a case
GENERAL RULE: Negligence of counsel is binding
against the defeated party, or his agents,
upon the client.
attorneys or witnesses, whereby said defeated
party is prevented from presenting fully and
EXCEPTION: Such negligence of counsel may
fairly his side of the case. (Libudan vs. Gil, G.R.
be a ground for new trial if it was so great that
No. L-21163, 1972)
the party was prejudiced and prevented from
(Example: preventing a witness from testifying).
fairly presenting his/her case, viz:
Note: Compare with intrinsic fraud –
a) Where the gross negligence of
Intrinsic fraud takes the form of acts of a
counsel deprives the client of due process
party in a litigation during the trial which
of law;
did not affect the presentation of the case,
b) When the application of the rule
but did prevent a fair and just detemination
will result in the outright deprivation of
of the case. (Libudan vs. Gil, G.R. No. L-
client‘s liberty or property; or
21163, 1972)
c) Where the interest of justice so
(Example: use of forged instruments or
requires. (Redena vs. CA, G.R. No.
perjured testimony).
146611, 2007)
d) Where gross negligence of
For the next three grounds: The ACCIDENT,
counsel will deprive or has deprived the
MISTAKE, and EXCUSABLE NEGLIGENCE must
party of his substantial rights.
be something which ordinary prudence could not

121
For a claim of counsel‘s negligence to prosper, As a rule, a motion for reconsideration seasonably
nothing short of clear abandonment of the client‘s filed in the Court of Appeals will NOT necessarily
cause must be shown. (Multi-trans Agency v. preclude a motion for new trial as long as it was
Oriental Assurance GR No. 180817, 2009) also filed on time. Further, a denial of a motion for
reconsideration entitles the party who filed said
5. NEWLY DISCOVERED EVIDENCE motion another 15 days to appeal by certiorari – the
Requisites to be Considered as Newly same period within which a motion for new trial may
Discovered Evidence: be filed. (Tiongco v. Deguma, GR No. 133619,
1. The evidence was discovered after trial; 1990)
2. Such evidence could not have been
discovered and produced at trial despite Note: MOTIONS FOR EXTENSION OF TIME to file
the exercise of reasonable diligence; and a motion for reconsideration may be filed only in
3. It is material, not merely cumulative, connection with cases pending before the Supreme
corroborative or impeaching; and Court, which may in its sound discretion either
4. It is of such weight that, if admitted, will grant or deny the extension requested. (Habaluyas
probably change the judgment. (Tumang v. Enterprises v Japson, GR No. 70895, 1986)
Court of Appeals G.R. Nos. 82346-47,
1989) The Habaluyas ruling applies even if the motion is
filed before the expiration of the reglementary
Otherwise, it is barred and called FORGOTTEN period. (Fernandez v. CA, GR No. 131094, 2005)
EVIDENCE.
b. WHEN TO FILE
Newly discovered evidence need not be newly
created evidence. It may and does commonly refer WHEN AND WHERE TO FILE
to evidence already in existence prior or during trial.
(Tumang v. Court of Appeals G.R. Nos. 82346-47, MOTION FOR MOTION FOR
1989) NEW TRIAL RECONSIDERATION

If the documents belatedly submitted are public

records, they cannot be considered as ―newly WHEN TO FILE
discovered‖ since these could be secured during
trial. (Heirs of Emilio Santioque v. Heirs of Emilio Within the period for Within the period for taking
Calma, GR No. 160832, 2006) taking an appeal. an appeal. This is within
This is within 15 days 15 days (or 30 days if a
Important: MOTIONS FOR EXTENSION OF TIME (or 30 days if a record record on appeal is
to file a motion for new trial may be filed only in on appeal is required) required) after receipt of
connection with cases pending before the Supreme after receipt of notice notice to the appellant of
Court, which may in its sound discretion either to the appellant of the the judgment or final order
grant or deny the extension requested. (Marcelo v. judgment or final appealed from.
PCIB, GR No. 182735, 2009) order appealed from.
No motion for extension may be filed before any
lower courts, as stated in Sec. 2(2), Rule 40 and WHERE TO FILE
Sec. 2, Rule 41.
With the trial court With the trial court which
GROUNDS FOR MOTION FOR
which rendered the rendered the questioned
RECONSIDERATION
questioned judgment judgment or final order
1. Damages awarded are excessive;
sought to be reconsidered
2. Evidence is insufficient to justify the decision or
final order; and
3. Decision or final order is contrary to law.

A motion for reconsideration must point out c. DENIAL OF THE MOTION; EFFECT
specifically the findings or conclusions of the
judgment or final order which are not supported by EFFECT OF DENIAL OF MOTION
evidence or which are contrary to law, making MOTION FOR MOTION FOR
specific reference to the testimonial or NEW TRIAL RECONSIDERATION
documentary evidence presented or to the
provisions of law alleged to be violated. (Cansino v.
CA GR No. 125799, 2003)

A winning litigant may also move for reconsideration

of a part or parts of a decision or final order.
(Balanoba v. Madriaga, GR No. 160109, 2005)

122
If denied, not If denied, not appealable; Partial new trial is Partial reconsideration is
appealable; will have to remedy is to appeal from allowed where less allowed. If the court finds
wait for the judgment the judgment or final than all of the issues that a motion affects the
and appeal therefrom. order. (Rule 37, Section are ordered retried. issues of the case as to
remedy is to appeal 9) The court may either only a part, or less than all
from the judgment or enter a judgment or of the matters in
final order. (Rule 37, This means that if the final order as to the controversy, or only one,
Section 9) motion is denied, the rest or stay the or less than all, of the
movant has a ―fresh enforcement of such parties to it, the order may
This means that if the period‖ of 15 days from judgment or final order grant a reconsideration as
motion is denied, the receipt or notice of the until after new trial. to such issues if severable
movant has a ―fresh order denying or without interfering with the
period‖ of 15 days from dismissing the motion for final judgment or order
receipt or notice of the reconsideration from upon the rest.
order denying or which to file a notice of
dismissing the motion appeal. (Neypes v.
for new trial from which Court of Appeals, 469
to file a notice of SCRA 633).
appeal. e. REMEDY WHEN MOTION IS DENIED,
FRESH 15-DAY PERIOD

A party shall have a FRESH PERIOD of 15 days to

file a notice of appeal to the RTC from receipt of the
d. GRANT OF THE MOTION; EFFECT order denying a motion for new trial or motion for
reconsideration. This rule shall apply to Rules 40,
EFFECT OF GRANT OF MOTION 41, 42, 43 and 45 (Neypes vs. CA, G.R. No.
MOTION FOR MOTION FOR 141524, 2005) and in criminal cases under Section
NEW TRIAL RECONSIDERATION 6 of Rule 122 of the Revised Rules of Criminal
Procedure. (Yu vs. Tatad, G.R. No. 170979, 2011)

Note: The period is 30 days if record on appeal is

GRANT OF MOTION required.
(Rule 37, Section 6)
Recall:
1. Rule 40 – Appeals from MTC to RTC
If a new trial is If the court finds that 2. Rule 41 – Appeals from RTC to CA from
granted, the trial court excessive damages have decisions rendered by the RTC in the exercise
will set aside the been awarded or that the of its original jurisdiction
judgment or final judgment or final order is 3. Rule 42 – Petitions or review from RTC to CA
order. The case contrary to the evidence or from decisions of the RTC in the exercise of its
stands for trial de law, it may amend such appellate jurisdiction
novo and will be tried judgment or final order 4. Rule 43 – Appeals from Quasi-Judicial
anew. accordingly. Agencies to CA
5. Rule 45 – Appeals by certiorari to SC

The fresh period does NOT refer to the period

within which to appeal from the order denying the
PARTIAL GRANT OF MOTION motion for reconsideration BUT to the period within
(Rule 37, Section 7) which to appeal from the judgment itself
because an order denying a motion for
reconsideration is not appealable.

2. APPEALS IN GENERAL

a. JUDGMENTS AND FINAL ORDERS

SUBJECT TO APPEAL

The right to appeal is not a natural or inherent right;

it is not a part of due process but a mere statutory
privilege that has to be exercised only in the
manner and in accordance with law.

An appeal may be taken only from judgments or

final orders that completely dispose of the case.

123
An interlocutory order is NOT appealable until after a. ISSUES TO BE RAISED ON APPEAL
a judgment on the merits has been rendered.
NOTE: The issues that may be raised on appeal
b. MATTERS NOT APPEALABLE depend on the kind of appeal filed.

NO Appeal May be Taken From: 1) Questions of FACT – exists when the doubt or
1. An order denying a petition for relief or any difference arises as to the truth or the
similar motion seeking relief from judgment; falsehood of alleged facts; or when the query
2. An interlocutory order; necessarily invites calibration of the whole
Note: An interlocutory order does NOT dispose evidence considering mainly the credibility of
of the entire case; it does not put an end to a witnesses, existence and relevancy of specific
case before the court. surrounding circumstances, their relation to
3. An order disallowing or dismissing an appeal; each other and to the whole and the
4. An order denying a motion to set aside a probabilities of the situation (Sesbreno vs. CA,
judgment by consent, confession or compromise G.R. No. 84096, 1995); (Cirtek Employees
on the ground of fraud, mistake or duress, or Labor Union vs. Cirtek Electronics, Inc., G.R.
any other ground vitiating consent; No. 190515, 2011)
5. An order of execution;
6. A judgment or final order for or against one or 2) Questions of LAW – exists when the
more of several parties or in separate claims, doubt or difference arises as to what the law is
counterclaims, cross-claims, and third party on certain state of facts (Sesbreno vs. CA, G.R.
complaints, while the main case is ending, No. 84096, 1995); (Cirtek Employees Labor
unless the court allows an appeal therefrom; and Union vs. Cirtek Electronics, Inc., G.R. No.
7. An order dismissing an action without prejudice. 190515, 2011) It also pertains to the legal
(Rule 41, Section 1) consequences or effects of the law on a given
set of facts.
c. REMEDY AGAINST JUDGMENTS AND
ORDERS WHICH ARE NOT APPEALABLE 3) MIXED Questions of Fact and Law
In those instances where the judgment or final order
is not appealable, the aggrieved party may file the MODE OF APPEAL
appropriate special civil action under Rule 65. (Rule and
41, Section 1) ISSUES TO BE RAISED

d. MODES OF APPEAL QUESTIONS OF FACT, OR LAW, OR BOTH

(i) ORDINARY APPEAL

An appeal taken by filing a notice of appeal (and a

1) Rule 40 - Appeal from MTC to RTC
record on appeal, when proper) from a judgment • Notice of Appeal filed with the MTC and
or final order of a lower court on questions of fact payment of fees
and law.
2) Rule 41 - Appeal from RTC (exercising original
RULE 40 – APPEAL FROM MTC TO RTC jurisdiction) to CA
RULE 41 – APPEAL FROM RTC from decisions • Notice of Appeal filed with the RTC and
rendered by the RTC in the exercise of its original payment of fees
jurisdiction
3) Rule 42 - Appeal from RTC (exercising
(ii) PETITION FOR REVIEW (Rule 42) appellate jurisdiction) to CA
• Petition for Review filed with RTC with
An appeal from the judgment or final order of the payment of fees
Regional Trial Court to the Court of Appeals
decided by the Regional Trial Court in the exercise
of its appellate jurisdiction on questions of fact, of
4) Rule 43 - Appeal from QJA to CA
law or of fact and law. • Petition for Review filed with CA with
payment of fees
(iii) PETITION FOR REVIEW ON
CERTIORARI (Rule 45)

An appeal from a judgment or final order of the

Regional Trial Court in the exercise of its original Generally, QUESTION OF LAW only
jurisdiction but ONLY on questions of law. It also
pertains to an appeal from the judgment, final order
or resolutions of the Court of Appeals,
Sandiganbayan, Court of Tax Appeals en banc.

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Rule 45 - Appeal from CA, CTA en banc, Rule 38 - Within 60 days after
Sandiganbayan, and RTC, on pure questions of Petition for knowledge but not more
law Relief from than 6 months after entry of
Judgment judgment (date of finality)
• Petition for Review on Certiorari filed
with the SC with payment of fees - Non-extendible;
uninterrupted
General Rule: Pure questions of law
Rule 40 Appeal - 15 days or 30 days (if
Exceptions based on SC Circulars: from MTC to record on appeal is
(a) Writ of Amparo RTC required) from notice of final
(b) Writ of Habeas Data judgment or final order
(c) Writ of Kalikasan - Full payment of appeal fees
within the period to appeal
Exceptions based on Jurisprudence: - Non-extendible, but
(a) When the factual findings of the Court of MR/MNT will trigger fresh
Appeals and the trial court are contradictory; (2) period from receipt of order
when the conclusion is a finding grounded of denial
entirely on speculation, surmises, or
conjectures;
(b) When the inference made by the Court of
Appeals from its findings of fact is manifestly Rule 41 Appeal - GR: 15 days or 30 days (if
mistaken, absurd, or impossible; from RTC record on appeal is
(c) When there is a grave abuse of discretion in (original) to CA required) from notice of final
the appreciation of facts; judgment or final order
(d) When the Appellate Court, in making its - EXC: 48 hours for habeas
findings, went beyond the issues of the case corpus cases
and such findings are contrary to the - Full payment of appeal fees
admissions of both appellant and appellee; within the period to appeal
(e) When the judgment of the Court of Appeals is - Non-extendible, but
premised on a misapprehension of facts; MR/MNT will trigger fresh
(f) When the Court of Appeals failed to notice period from receipt of order
certain relevant facts which, if properly of denial
considered, would justify a different
conclusion;
(g) When the findings of fact are themselves
conflicting; Rule 42 Petition - 15 days from notice of
(h) When the findings of fact are conclusions for Review from decision
without citation of the specific evidence on RTC (appellate) - Extendible for 15 days upon
which they are based; and to CA proper motion and payment
(i) When the findings of fact of the Court of of the full amount of docket
Appeals are premised on the absence of and other lawful fees and
evidence but such findings are contradicted by deposit for costs before the
the evidence on record. (Local Superior vs. expiration of the
Jody King, G.R. No. 141715, 2005) reglementary period
- Extendible for another 15
days for the most
compelling reasons
f. PERIOD OF APPEAL
Period of Remedies
REMEDY PERIOD
Rule 37 - 15 days or 30 days (if
MR/MNT record on appeal is
required) from notice of final
judgment or final order
- No extension allowed
nd
- 2 MR not allowed (Rule
37, Section 5)

125
Rule 43 - 15 days from notice of the RULE 64 - 30 days from notice of the
Appeals from award, judgment, final order Review of judgment or final order or
QJA to CA or resolution, or from the Judgments and resolution sought to be
date of its last publication, if Final Orders or reviewed.
publication is required by Resolutions of - MR or MNT, if allowed
law for its effectivity, or of COMELEC and under the procedural rules
the denial of petitioner's the COA of the Commission
motion for new trial or concerned, shall interrupt
reconsideration duly filed in the period herein fixed (no
accordance with the fresh period!)
governing law of the court - If the motion is denied, the
or agency a quo aggrieved party may file the
- Only one (1) motion for petition within the remaining
reconsideration shall be period, but which shall not
allowed be less than 5 days in any
- Extendible for another 15 event, reckoned from
days for the most notice of denial.
compelling reasons with full
payment of docket fees

Rule 65 – - 60 days from notice of the

Certiorari, judgment, order or
Rule 45 Appeal - 15 days from notice of the Prohibition, resolution
by certiorari judgment or final order or Mandamus - MR/MNT will trigger fresh
[from RTC, CA, resolution appealed from, or period from receipt of order
CTA En Banc, of the denial of the of denial
on pure petitioner's motion for new
questions of trial or reconsideration
law, to the SC - Extendible for 30 days on g. PERFECTION OF APPEAL
justifiable reasons upon
motion duly filed and RULES 40 and 41
served, with full payment of 1. If by notice of appeal:
the docket and other lawful - Appeal is deemed perfected as to
fees and the deposit for the party appealing upon the filing of the
costs before the expiration notice of appeal and full payment of
of the reglementary period appeal fees in due time.

2. If by record on appeal:
- Appeal is deemed perfected as to
the party appealing upon the approval of
Rule 47 - Extrinsic fraud: 4 years from the record on appeal filed in due time.
Annulment of discovery (Rule 41, Section 9)
Judgments - Lack of jurisdiction: before
barred by laches or
NOTICE OF APPEAL RECORD ON
estoppel
APPEAL

An appeal by notice of The record on appeal

appeal is a mode that enables the trial court
envisions the elevation to CONTINUE with the
of the original records rest of the case
to the appellate court because the original
as to thereby records remain with
OBSTRUCT the trial the trial court even as
court in its further it affords the appellate
proceedings regarding court the full
the other parts of the opportunity to review
case. and decide the
appealed matter.
(De Leon, Appellate Remedies, 2013, p. 53, citing
Lebin vs. Mirasol, G.R. No. 164255, September 7,
2011)

RULE 42
Appeal is perfected as to petitioner upon timely:

126
1. Filing of a petition for review; and 2. Include:
2. Payment of the corresponding docket and a. Judgment or final order from
other lawful fees. (Rule 42, Section 8) which the appeal is taken.
b. In chronological order, copies of
h. APPEAL FROM JUDGMENTS OR FINAL such pleadings, petitions, motions, and all
ORDERS OF THE MTC (Rule 40) interlocutory orders as are related to the
appealed judgment or final order for the
Where to Appeal proper understanding of the issue
An appeal from a judgment or final order of an involved; and
Municipal, Metropolitan, Municipal Circuit Trial c. Such data as will show that the
Court may be taken to the Regional Trial Court appeal was perfected on time.
exercising jurisdiction over the area to which the 3. Contain a subject index, if it exceeds 20 pages.
former pertains.
Copies of the notice of appeal and the record on
The title of the case shall remain as it was in the appeal (when required) shall be served on the
court of origin, but the party appealing shall be adverse party.
further referred to as the appellant and the adverse
party, the appellee. MATERIAL DATA RULE
The requirement for ―material dates showing the
After an appeal to the RTC has been perfected, the timeliness of the appeal‖ is the same as the
MTC loses jurisdiction over the case and any ―material data rule‖ applicable to records on appeal
motion for the execution of the judgment should be with respect to the contents thereof.
filed with the RTC (Rule 40, Section 1), subject to
the MTC‘s residual jurisdiction under Rule 41, Appellate Court Docket and Other Lawful Fees
Section 9 in relation to Rule 40, Section 4. Within the period for taking an appeal, the
appellant shall pay to the Clerk of the Court which
MODE OF APPEAL: Notice of Appeal rendered the judgment or final order appealed from,
the full amount of the appellate court docket and
The notice of appeal does not require the approval other lawful fees. (Rule 40, Section 5)
of the court. The function of the notice of appeal is
merely to notify the trial court that the appellant was Proof of payment shall be transmitted to appellate
availing of the right to appeal, and not to seek the court together with the original record or the record
court‘s permission that he be allowed to pose an on appeal, as the case may be.
appeal. (Crisologo v. Daray A.M. No. RTJ-07-2036,
2006) Note: It is the responsibility of the MTC clerk of
court to attach appellant‘s proof of payment to the
How to Appeal original record. Whatever omission or negligence
1. FILE a notice of appeal within 15/30 days from on the part of such clerk of court should not
notice of judgment or final order with the court adversely affect the appellant. (De Leon, Appellate
that rendered it, and SERVE upon the adverse Remedies, 2013, p. 42)
party.
2. PAY the full amount of the appellate court Payment of docket fees within the period to appeal
docket and other legal fees to the clerk of the is MANDATORY for the perfection of an appeal.
court which rendered the judgment or final Without such payment, the appellate court does not
order. (BUT, failure to pay warrants only acquire jurisdiction over the subject matter of the
discretion to dismiss the appeal.) (Rule 40, action and the decision sought to be appealed
Section 3) becomes final and executory. (Alfonso vs. Andres,
G.R. 139611, 2002). The payment of the appellate
NOTICE OF APPEAL should indicate: docket fee is not a mere technicality of law or
1. Parties to the appeal. procedure but an essential requirement for the
2. Date of judgment or final order or part thereof perfection of an appeal (Enriquez vs. Enriquez,
appealed from. G.R. No. 139303, 2005) and without which the
3. Court to which the appeal is being taken; and decision or final order appealed from would become
4. Material dates showing the timeliness of the final and executory as if no appeal was filed at all.
appeal (i.e., when the judgment or final order (Sps. Manalili vs. Sps. De Leon, G.R. No. 140858,
was received, when the motion for 2001)
reconsideration or new trial was filed, and when
denial of the motion for reconsideration or Note: While, in appealed cases, the full payment of
motion for new trial was received). the appellate docket fees within the prescribed
period is mandatory, even jurisdictional, the failure
RECORD ON APPEAL, which is required only in to pay warrants only discretionary as opposed to
a.) Certain kinds of special proceedings; or automatic dismissal of the appeal. (De Leon,
b.) Other cases of multiple or separate appeals, Appellate Remedies, 2013, p. 41)
shall:
1. State the full names of the parties to the GENERAL RULE
proceedings in its caption

127
The court will dismiss the appeal when there is no
full payment of appellate docket fees within the RESIDUAL JURISDICTION of the Court
prescribed period to appeal. Prior to the transmittal of the original record or
EXCEPTIONS which warrant a relaxation of the record on appeal, the court may: (IAPOA)
application of rules on payment of docket fees: 1. Issue orders for the protection and preservation
1. Most persuasive and weighty of the rights of the parties which do not involve
reasons. any matter litigated by the appeal.
2. To relieve a litigant from an 2. Approve compromises.
injustice not commensurate with his/her 3. Permit appeals of indigent litigants.
failure to comply with the prescribed 4. Order execution pending appeal in accordance
procedure. with Sec. 2, Rule 39; and
3. Good faith of the defaulting party 5. Allow withdrawal of the appeal.
by immediately paying within a reasonable
time from the time of default. Note: Reckoning point for the exercise of residual
4. The existence of special or jurisdiction is the transmittal of records to the
compelling circumstances. appellate court.
5. The merits of the case.
6. A cause not entirely attributable Procedure in the Regional Trial Court
to the fault or negligence of the party 1. Upon receipt of the complete record or the
favored by the suspension of the rules. record on appeal, the clerk of court of the RTC
7. A lack of any showing that the shall notify the parties of such fact.
review sought is merely frivolous and 2. Within fifteen (15) days from notice, it shall be
dilatory. the duty of the appellant to submit a
8. The other party will not be MEMORANDUM OF APPEAL to briefly discuss
unjustly prejudiced thereby. the errors imputed to the lower court, and a
9. Fraud, accident, mistake or copy shall be furnished by him/her to the
excusable negligence without appellant‘s adverse party.
fault. 3. Within fifteen (15) days from receipt of the
10. Peculiar legal and equitable appellant‘s memorandum, the appellee may
circumstances attendant to each case. file his/her MEMORANDUM OF APPEAL; and
11. In the name of substantial justice 4. Upon filing of the memorandum of the appellee,
and fair play. OR the expiration of the period to do so, the
12. Importance of the issues case shall be considered SUBMITTED FOR
involved; and DECISION. (Rule 40, Section 7)
13. Exercise of sound discretion by
the judge guided by all the attendant The RTC shall decide the case on the basis of the
circumstances. entire record of the proceedings in the court of
(Villena v. Rupisan, GR No. 167620, 2007) origin and such memoranda as are filed.

IMPORTANT when invoking liberality: Failure of the APELLANT to file a memorandum

The party invoking liberality should adequately shall be a ground for the dismissal of the appeal.
explain his failure to abide by the rules. (Navarro vs. The requirement for the submission of appellant‘s
Metrobank, G.R. No. 138031, 2004) Anyone memorandum is a mandatory and compulsory rule.
seeking an exemption has the burden of proving Non-compliance therewith authorizes the dismissal
that exceptionally meritorious instances exist which of the appeal.
warrant departure from the Rule (RP vs. CA, G.R.
No. 129846, 2000). Where the party has appealed by counsel in the
inferior court, the notice should be sent to his
Duty of the Clerk of Court attorney; BUT if the notice is sent to the party
Within fifteen (15) days from the perfection of the himself/herself and he/she actually received the
appeal, the clerk of court or the branch clerk of same, such notice is valid and binding.
court of the lower court shall transmit the original
record on appeal, together with the transcripts and The notice to be sent to the parties cannot be
exhibits, which he/she shall certify as complete, to downplayed as a mere formality, for it is such notice
the proper RTC. which sets in motion the appellate procedure before
the RTC and the running of the prescriptive period
A copy of his/her letter of transmittal of the records within which the appellant must file his/her appeal
shall be furnished the parties. (Rule 40, Section 6) memorandum. Moreover, the notice must be
categorical enough in stating that the RTC has
Note: Still, it must be emphasized that the already received the records of the case. If there is
reckoning point for the RTC to acquire jurisdiction no such notice or the notice is defective in that it
over the appeal is NOT the receipt of the letter of does not contain a statement that the RTC is
transmittal and of the notice of appealed case, but already in possession of the records of the case,
the timely filing of the notice of appeal in the appellant stands to lose his/her right to seek a
accordance with Sec. 9, Rule 41. (De Leon, judicial review of his/her case. Thus, a notice to the
Appellate Remedies, 2013, p. 44) effect that a case under appeal ―is entered in the

128
Docket Book of the RTC‖ was deemed insufficient 1. APPEAL FROM THE REGIONAL TRIAL
to commence the appeal before the RTC and the COURTS (Rule 41)
running of the 15-day period within which the
appellant must file his appeal memorandum. (De Subject of Appeal
Leon, Appellate Remedies, 2013, p. 45) The right to appeal is not part of due process but a
mere statutory privilege that has to be exercised
The RTC presently decides all appeals from the only in the manner and in accordance with law.
MTC based on the entire record of the
proceedings had in the court of origin and such An appeal may be taken only from judgments or
memoranda or briefs as may be submitted by the final orders that completely dispose of the case.
parties or required by the RTC. As a consequence,
the RTC, in exercising its appellate jurisdiction, is An interlocutory order is NOT appealable until after
not limited to errors assigned in the appeal judgment on the merits has been rendered.
memorandum. Thus, in Macaslang v. Zamora, it
was held that the RTC, as an appellate court, could In those instances where the judgment or final order
rule on the failure of the complaint to state a cause is not appealable because it is interlocutory, the
of action and the lack of demand to vacate even if aggrieved party may file the appropriate special civil
not assigned in the appeal. (De Leon, Appellate action under Rule 65.
Remedies, 2013, p. 49)
Section 1 Rule 41 of the Rules of Court Provides
Appeal from Orders Dismissing Case Without That NO Appeal May be Taken From:
Trial; Lack of Jurisdiction 1. An order denying a petition for relief or any
If an Appeal is Taken from an Order of the Lower similar motion seeking relief from judgment.
Court (i.e., MTC) Dismissing the Case WITHOUT 2. An interlocutory order.
TRIAL on the Merits – The Regional Trial Court 3. An order disallowing or dismissing an appeal.
May 4. An order denying a motion to set aside a
1. If AFFIRMED - and the ground of the dismissal judgment by consent, confession or compromise
is lack of jurisdiction over the subject matter, on the ground of fraud, mistake or duress, or
the Regional Trial Court, if it has jurisdiction, any other ground vitiating consent.
SHALL TRY the case on the merits AS IF the 5. An order of execution.
case was originally filed with it. 6. A judgment or final order for or against one or
2. If REVERSED - the case shall be remanded to more of several parties or in separate claims,
the MTC for further proceedings. counterclaims, cross-claims, and third party
complaints, while the main case is ending,
If the Case WAS TRIED on the Merits by the Lower unless the court allows an appeal therefrom; and
Court (i.e., MTC) Without Jurisdiction over the 7. An order dismissing an action without prejudice.
Subject Matter:
The RTC on appeal shall NOT dismiss the case if it Modes of Appeal
has original jurisdiction thereof, BUT shall decide
the case WITHOUT prejudice to the admission of ORDINARY APPEAL PETITION FOR
amended pleadings and additional evidence in the (Rule 41) REVIEW
interest of justice. (Rule 40, Section 8) (Rule 42)

Applicability of Rule 41 Appeal is not a right but Discretionary

The other provisions of Rule 41 shall apply to a statutory privilege,
appeals provided in this Rule. Thus, the inferior thus, appeal must be
courts also exercise residual jurisdiction in the made strictly in
same manner provided under paragraph 5, Section accordance with the
9 of Rule 41. (Rule 40, Section 9) provision set by law.
(Enriquez vs. Enriquez,
G.R. No. 139303, 2005)
i. APPEAL FROM JUDGMENTS AND
FINAL ORDERS OF THE RTC All the records are No records are elevated
elevated from the court unless the court decrees
Two Modes: of origin. it.
1. RULE 41 – Appeal by Notice of Appeal from
RTC, exercising original jurisdiction, to the CA. Notice and record on Filed with the Court of
2. RULE 42 – Petition for Review from RTC, appeal if required are Appeals.
exercising appellate jurisdiction, to the CA. filed with the court of
origin and payment of
fees

The case was decided The case was decided

by the RTC pursuant to by the RTC pursuant to
its original jurisdiction. its appellate jurisdiction.

129
Period to file is a matter Period to file is a matter 2. If a record on appeal is required, file notice of
of right but is NON- of right and is appeal and record on appeal within thirty (30)
EXTENDIBLE EXTENDIBLE days from notice of the judgment or final order.
3. In HABEAS CORPUS cases, forty-eight (48)
Modes of Appeal from RTC hours from notice of judgment or final order
appealed from.
ORDINARY PETITION FOR APPEAL BY
4. The period shall be interrupted by a timely
APPEAL REVIEW CERTIORARI Motion for New Trial or Motion for
(RULE 41) (RULE 42) (RULE 45)
Reconsideration.
5. No motion for extension of time to file a Motion
Appeal to the Appeal to the Appeal to the for Reconsideration or Motion for New Trial shall
Court of Court of Supreme Court be allowed (same rule as MTC-RTC appeals),
Appeals in Appeals in in all cases except in cases pending with the Supreme
cases decided cases decided decided by the Court. (Rule 41, Section 3)
by the Regional by the Regional Regional Trial
Trial Court in its Trial Court in Court where Period of Ordinary Appeal; Appeal in Habeas
original the exercise of only questions Data Cases (Section 19 of A. M. No. 08-1-16-SC)
jurisdiction its appellate of law are 1. The period of appeal shall be five (5) working
jurisdiction raised or days from the date of notice of the judgment or
involved final order.
2. Appeal shall be made directly to the Supreme
Court under Rule 45 where questions of fact or
By NOTICE OF By PETITION By PETITION
of law or both may be raised.
APPEAL with FOR REVIEW FOR REVIEW
the court which filed with the ON
Period of Ordinary Appeal; Appeal in Writ of
rendered the Court of CERTIORARI
Amparo Cases (Section 19 of A.M. No. 07-9-12-
judgment or Appeals in filed with the
SC)
final order accordance Supreme Court
1. The period of appeal shall be five (5) working
appealed from with Rule 42 in accordance
days from the date of notice of the adverse
(i.e., Regional and serving a with Rule 45
judgment.
Trial Court) and copy thereof and serving a
2. Appeal shall be made directly to the Supreme
serving a copy upon the copy thereof
Court under Rule 45 where questions of fact or
thereof upon adverse party upon the
of law or both may be raised.
the adverse adverse party
party
General Rule: Perfection of appeal within the
reglementary period is jurisdictional.
RECORD OF
APPEAL shall
Exception: When there has been extrinsic
be required
fraud, accident, mistake or excusable
only in:
negligence (FAME), resort to Petition for Relief
1. Special
from Judgment under Rule 38 may be had.
proceedings;
(Habaluyas v. Japson, G.R. No. 70895, 1986)
2. Multiple or
separate
Appellate Court Docket and Other Lawful Fees
appeals where
Within the period for taking an appeal, the
the law or the
appellant shall pay to the Clerk of the Court which
Rules so
rendered the judgment or final order appealed from,
require
the full amount of the appellate court docket and
other lawful fees.
Questions of Questions of Question of law
fact or mixed fact, of law, or only from Proof of payment shall be transmitted to appellate
questions of mixed judgment or court together with the original record or the record
fact and law questions of final order on appeal, as the case may be. (Rule 41, Section 4)
fact and law rendered by
RTC in the Note: Please see notes on General Rule and
exercise of its Exceptions with regard to Payment of Fees under
original Rule 40 in the previous section of this reviewer.
jurisdiction
Notice of Appeal
The notice of appeal must:
Period of Ordinary Appeal; Appeal in Habeas 1. Indicate the parties to the appeal.
Corpus Cases 2. Specify judgment or final order or part thereof
1. Fifteen (15) days from notice of the judgment or appealed from.
final order appealed from. 3. Specify the court to which the appeal is being
taken; and

130
4. State the material dates showing the timeliness the other parties.
of the appeal. (Rule 41, Section 5)
In either case, prior to the transmittal of the original
Record on Appeal record or the record on appeal, the court may issue
The Record on Appeal shall include: orders for the protection and preservation of the
1. Full names of all the parties to the rights of the parties which do not involve any matter
proceedings shall be stated in the caption litigated by the appeal, approve compromises,
2. The judgment or final order from which the permit appeals of indigent litigants, order execution
appeal is taken. pending appeal in accordance with Section 2 of
3. In chronological order, copies of only such Rule 39, and allow withdrawal of the appeal. (Rule
pleadings, petitions, motions and all 41, Section 9)
interlocutory orders as are related to the
appealed judgment or final order for the proper General Rule: A perfected appeal stays the
understanding of the issues involved; and challenged judgment or final order; such judgment
4. Together with such data as will show that or final order cannot yet be the subject of a motion
the appeal was perfected on time (Material for execution.
Data Rule). (Rule 41, Section 6)
Exception: If the Court of Appeals, the law, or the
Approval of Record on Appeal Rules provide otherwise.
Upon filing of the record on appeal for approval
AND if no objection is filed by the appellee within This is NOT applicable to civil cases under the Rule
five (5) days from receipt of the copy thereof the on Summary Procedure which provides that the
trial court (RTC) may: decision of the RTC in civil cases governed by said
1. Approve it as presented; OR Rule, including forcible entry and unlawful detainer
2. Upon its own motion or at the instance of the cases; shall be immediately executory without
appellee, may direct its amendment by the prejudice to a further appeal that may be taken
inclusion of any omitted matters which are therefrom.
deemed essential to the determination of the
issue of law or fact involved in the appeal. (Rule Duty of the Clerk of Court of the Lower Court
41, Section 7) upon Perfection of Appeal
Within thirty (30) days after perfection of all the
If the trial court orders the amendment thereof, the appeals in accordance with the preceding section, it
appellant shall redraft the record by including shall be the duty of the clerk of court of the lower
therein, in their proper chronological sequence, court:
such additional matters as the court may have
directed him/her to incorporate, and shall thereupon a. To verify the correctness of the original
submit the redrafted record for approval, upon record or the record on appeal, as the case
notice to the appellee, in like matter as the original may be, and to make a certification of its
draft. correctness;
b. To verify the completeness of the records
A record on appeal does not have to be set for that will be transmitted to the appellate court;
hearing in the trial court by the appellant, as it is
deemed submitted for approval upon its filing and c. If found to be incomplete, to take such
the rule merely requires the adverse party to file any measures as may be required to complete the
objection thereto within five (5) days. records, availing of the authority that he or the
court may exercise for this purpose; and
Joint Record on Appeal
Can be applied when both parties are appellants. d. To transmit the records to the appellate
(Rule 41, Section 8) court.

Perfection of Appeal; Effect thereof If the efforts to complete the records fail, he shall
Upon the timely filing of a notice of appeal and the indicate in his letter of transmittal the exhibits or
payment of the corresponding docket and other transcripts not included in the records being
lawful fees, the appeal is deemed perfected as to transmitted to the appellate court, the reasons for
the appealing party (appellant). their non-transmittal, and the steps taken or that
could be taken to have them available.
In appeals by notice of appeal, the court loses The clerk of court shall furnish the parties with
jurisdiction over the case upon the perfection of the copies of his letter of transmittal of the records to
appeals filed in due time and the expiration of the the appellate court. (Rule 41, Section 10)
time to appeal of the other parties.
Transcript
Upon perfection of the appeal, the clerk shall
In appeals by record on appeal, the court loses immediately direct stenographers concerned to
jurisdiction only over the subject matter thereof attach to the record of the case:
upon the approval of the records on appeal filed in 1. 5 copies of the transcripts of the testimonial
due time and the expiration of the time to appeal of evidence referred to in the record on appeal.

131
2. Transcription of such testimonial evidence. 3. Furnish the Regional Trial Court and adverse
3. An index containing the names of the party with a copy of the petition. (Rule 42,
witnesses and the pages where their Section 1)
testimonies could be found; and
4. List of exhibits and pages wherein they appear. Rule 41 Rule 42
(Rule 41, Section 11)
Refers to regular Governs appeals from
Transmittal
appeals from the the decision of the
The branch clerk of court of the RTC shall transmit
Regional Trial Court Regional Trial Court in
to the appellate court the original record or the
exercising original the exercise of its
approved record on appeal:
jurisdiction appellate jurisdiction
1. Within 30 days from the perfection of the
(Case originally filed
appeal.
with MTC)
2. With proof of payment of the appellate
court docket and other lawful fees. An appeal on pure Appeals to the Court of
3. A certified true copy of the minutes of the questions of law cannot Appeals from the
proceedings. be taken to the Court of Regional Trial Court
4. An order of approval. Appeals and such under this rule MAY be
5. A certificate of correctness. improper appeal will be made on questions of
6. Original documentary evidence; and dismissed pursuant to fact or of law or on
7. Original and three copies of the transcript. Section 2, Rule 50 of the mixed questions of fact
(Rule 41, Section 12) Rules of Court. and law
Dismissal of Appeal Note: An appeal taken to
PRIOR to the transmittal of the original record or the either the Supreme
record on the appeal to the appellate court, the trial Court or the Court of
court may, motu proprio or on motion, dismiss Appeals by the wrong or
the appeal for having been taken out of time OR for inappropriate mode shall
non-payment of the docket and other lawful fees be dismissed. No
within the reglementary period. (Rule 41, Section transfers of appeals
13) erroneously taken to the
Supreme Court or to the
The period to appeal is mandatory and Court of Appeals to
jurisdictional. whichever of these
Tribunals has
Failure to appeal on time makes the decision final appropriate appellate
and executory and deprives the appellate court of jurisdiction will be
jurisdiction. allowed; continued
ignorance or willful
However, in a few instances, the court has allowed disregard of the law on
due course to such appeals on strong and appeals will not be
compelling reasons of justice. (Note: This is tolerated. (SC Circular 2-
applicable to the Supreme Court only, NOT the trial 90, March 9, 1990)
courts.)

2. PETITION FOR REVIEW FROM THE Form and Contents

REGIONAL TRIAL COURT TO THE COURT File in 3 legible copies, with the original copy
OF APPEALS (Rule 42) intended for the court being indicated as such by
the petitioner. (per Efficient Use of Paper Rule, A.M.
How Appeal Taken Time for Filing No. 11-9-4-SC)
Requisites:
1. File a verified petition for review with the Court The Petition shall contain:
of Appeals within 15 days from notice of the 1. Full names of the parties, without impleading
decision or of the denial of Motion for the lower courts/judges thereof as petitioners or
Reconsideration/Motion for New Trial respondents.
a. The Court of Appeals may grant 2. Specific material dates to show it was filed on
an additional period of 15 days within time.
which to file the petition for review. No 3. A statement of the matters involved, the issues
further extension shall be granted except raised, the specification or errors of fact or law,
for the most compelling reason and in or both, allegedly committed by the Regional
no case to exceed 15 days. Trial Court, and the reasons or arguments
2. Pay docket and lawful fees and deposit relied upon for the allowance of the appeal.
P500.00 to the Clerk of Court of the Court of 4. Clearly legible duplicate originals or true copies
Appeals. of judgments of both lower courts, certified
correct by the RTC Clerk of Court.

132
5. Certificate of non-forum shopping. (Rule 42, of Section 2(d), Rule 42 of the Rules. In his
Section 2) petition before the appellate court, petitioner
attached only plain machine copies of the
The lower courts or judges that rendered the certified photocopies of the assailed decisions of
judgment or final order complained of should not the lower courts. Neither did he submit the
be impleaded as parties. The same prohibition is pleadings and other material portions of the
now provided in petitions for review on certiorari record to support his allegations. (Quintin Lee
under Rule 45, since these are petitions for vs. CA, G.R. No. 165918, 2008)
purposes of appeal and NOT petitions in original
actions. Purpose: To eliminate the causes of judicial
backlog and delay in light of the experience of the
Effect of Failure to Comply With Requirements appellate courts.
The failure of the petitioner to comply with any of
the following requirements shall be sufficient Action on the Petition
ground for the dismissal thereof: The Court of Appeals may:
1. Payment of the docket and other lawful fees. 1. Require the respondent to comment, not file a
2. Deposit for costs. motion to dismiss, within 10 days from notice,
Note: Before the Court of Appeals may grant the or
15-day extension to file a petition for review, 2. Dismiss the petition if it finds it to be:
Sec. 1, Rule 42 of the Rules of Court requires a. Patently without merit;
the payment of the full amount of the docket and b. Prosecuted manifestly for delay; or
other lawful fees and the deposit of the c. Questions raised are too insubstantial to
necessary amount for costs before the require consideration. (Rule 42, Section 4)
expiration of the reglementary period. (Heirs of
Esplana vs. CA, G.R. No. 155758, 2008) Contents of Comment
3. Proof of service of the petition; Requisites of the comment of the respondent:
Note: The service of judgment serves as the 1. File in 3 legible copies (per Efficient Use of
reckoning point to determine whether a decision Paper Rule, A.M. No. 11-9-4-SC).
had been appealed within the reglementary 2. Accompanied by certified true copies of
period or has already become final. (Mindanao material portions of records referred to.
Terminal and Brokerage vs. CA, G.R. No. 3. State whether or not he/she accepts the
163286, 2012); statement of matters involved in the petition.
Note: In Teh vs People, the Court of Appeals 4. Point out insufficiencies/inaccuracies as
correctly dismissed the petition for being he/she believes exist in petitioner‘s statement
insufficient in form, not being accompanied by of matters involved but without repetition; and
duplicate original or certified true copies of the 5. State reasons why petition should not be
documents and material parts of the record that given due course.
would support the allegations. Moreover, there
was no written explanation why service of the A copy of the comment shall be served on the
petition was not done personally. Teh vs. petitioner. (Rule 42, Section 5)
People, G.R. No. 141180, 2005); and
4. Contents of and the documents which should Due course
accompany the petition. (Rule 42, Section 3) If the Court of Appeals finds prima facie that the
Note: It is petitioner who knows best what lower court (RTC) committed an error of fact or
pleadings or material portions of the record of law that will warrant a reversal or modification of
the case would support the allegations in the the decision, it may give due course to the
petition. Petitioner‘s discretion in choosing the petition. (Rule 42, Section 6)
documents to be attached to the petition is
however not unbridled. The CA has the duty to Petition for review is not a matter of right but
check the exercise of this discretion, to see to it discretionary on the Court of Appeals. It may only
that the submission of supporting documents is give due course to the petition if it shows on its face
not merely perfunctory. The practical aspect of that the lower court has committed an error of fact
this duty is to enable the CA to determine at the and/or law that will warrant reversal or modification
earliest possible time the existence of prima of the decision or judgment sought to be reviewed.
facie merit in the petition. Moreover, Section 3 of
Rule 42 of the Rules of Court provides that if Elevation of Record
petitioner fails to comply with the submission of Whenever the Court of Appeals deems it
"documents which should accompany the necessary, it may require the RTC to elevate the
petition," it "shall be sufficient ground for the original records of the case within 15 days. (Rule
dismissal thereof." (Canton vs. City of Cebu, 42, Section 7)
G.R. No. 152898, 2007)
Note: In Quintin Lee vs. CA, the Court of Records remain with the trial court because it MAY
Appeals correctly dismissed petitioner's appeal still issue a writ of execution pending appeal and
not only because he purportedly employed the also because in some cases (e.g., ejectment and
wrong mode of appeal. It likewise found that those of Summary Procedure), the judgments are
petitioner failed to comply with the requirements immediately executory.

133
A REJOINDER (to the reply) is no longer required Being a summation of the parties‘ previous
under AM No. 99-2-04-SC (15 March 1999). pleadings, the Memoranda alone may be
considered by the CA in deciding or resolving the
Upon the Filing of the Reply, the Court Shall petition.
Resolve Either to:
1. Give due course to the petition; and The case shall be deemed submitted for decision
a) Consider the case submitted for decision upon the filing of the last pleading or memorandum
based on the pleadings; or required by these Rules or by the CA itself.
b) Require the parties to submit their respective
memoranda; or j. APPEAL FROM JUDGMENTS AND
2. Deny or dismiss the petition. FINAL ORDERS OF THE COURT OF
APPEALS
Perfection of Appeal; Effect thereof
The appeal is deemed perfected as to the Judgments, final orders or resolution of the Court of
petitioner upon the timely: Appeals can be raised on appeal to the Supreme
1. Filing of the petition for review; and Court via Appeal by Certiorari under Rule 45 on
2. Payment of docket and lawful fees. pure questions of law.
(Rule 42, Section 8)
Appeal by Certiorari under Rule 45
The RTC loses jurisdiction over the case upon: A party desiring to appeal by certiorari from a
1. The perfection of the appeals; and judgment, final order or resolution of the following
2. The expiration of the time to appeal of courts may file with the Supreme Court a verified
the other parties. petition for review on certiorari:
1. Court of Appeals.
However, before the Court of Appeals gives 2. Sandiganbayan.
due course to the petition, the Regional Trial 3. Regional Trial Court.
Court MAY still exercise residual powers (IAPOA): 4. Court of Tax Appeals (en banc).
1. Issue orders for the protection and 5. Other courts, whenever authorized by law
preservation of the rights of the parties
which do not involve any matter litigated The petition may include an application for a writ of
by the appeal. preliminary injunction or other provisional remedies
2. Approve compromises. and shall raise only questions of law which must
3. Permit appeals of indigent litigants. be distinctly set forth.
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39; and The petitioner may seek the same provisional
5. Allow withdrawal of the appeal. remedies by verified motion filed in the same
action or proceeding at any time during its
General Rule: A perfected appeal stays the pendency. (As amended by A.M. No. 07-7-12 SC,
challenged judgment or final order. Dec. 12, 2007)
Exception: If the Court of Appeals, the law, or The appeal under this Rule contemplates that the
the Rules provide otherwise. RTC rendered the judgment or final order or
resolution acting in its original jurisdiction.
This is NOT applicable to civil cases under the Rule
on Summary Procedure, which provides that the If the RTC rendered the same in the exercise of its
decision of the RTC in civil cases governed by said appellate jurisdiction, the remedy is to file a
Rule, including forcible entry and unlawful detainer Petition for Review either under Rules 42 or 43.
cases. It shall be immediately executory without The appeal shall be taken to the Court of Appeals
prejudice to a further appeal that may be taken even if only questions of law are raised by the
therefrom. petitioner.
Submission for Decision Although the term used in the second mode is
If the petition is given due course, the Court of ―Petition for Review,‖ just like in appeals from the
Appeals (CA) may: quasi-judicial agencies under Rule 43, it should not
1. Set the case for oral argument. and/or be confused with the ―Petition for Review on
2. Require the parties to submit memoranda Certiorari‖ under the third mode, which is a distinct
within a period of 15 days from notice. (Rule 42, procedure under Rule 45.
Section 9)
Nor should the use of the word ―Certiorari‖ in the
No new issues may be raised by a party in the latter be mistaken for the special civil action for
Memorandum. Certiorari in Rule 65, which is not a mode of appeal
but is an original action.
Issues raised by a party in previous pleadings but
not included in the Memorandum shall be deemed Certiorari as a Mode of Appeal (Rule 45) v.
waived or abandoned. Certiorari as an Original Special Civil Action

134
(Rule 65) The appellate court is in The higher court
the exercise of its exercises original
APPEAL BY CERTIORARI AS AN appellate jurisdiction and jurisdiction under its
CERTIORARI ORIGINAL ACTION power of review power of control and
(RULE 45) (RULE 65) supervision over the
proceeding of lower
Petition based on Petition raises the issue courts
questions of law only as to whether the lower The Supreme Court, in accordance with the liberal
which the appellant court acted without or in spirit pervading the Rules of Court and in the
desires the appellate excess of jurisdiction or interest of justice, may decide to treat a petition for
court to resolve with grave abuse of certiorari as having been filed under Rule 45,
discretion especially if it is filed within the reglementary
Involves review of the May be directed against period of the same. (Delsan v. CA G.R. 112288,
judgment, award or final an interlocutory order of 1997);
order on the merits the court prior to appeal
from the judgment or In the case of Cirtek, respondent indeed availed of
where there is no appeal the wrong remedy of certiorari under Rule 65. Due,
or any other plain, however, to the nature of the case, one involving
speedy or adequate workers‘ wages and benefits, and the fact that
remedy whether the petition was filed under Rule 65 or
appeal by certiorari under Rule 45 it was filed within
Must be made within the May be filed not later 15 days (the reglementary period under Rule 45)
reglementary period for than 60 days from notice from petitioner‘s receipt of the resolution of the
appeal of the judgment, order or Court of Appeals‘ Resolution denying its motion for
resolution sought to be reconsideration, the Court resolved to give it due
assailed, or 60 days course. As Almelor v. RTC of Las Piñas, et al.
from receipt of denial of restates: Generally, an appeal taken either to the
a motion for Supreme Court or the CA by the wrong or
reconsideration. Note inappropriate mode shall be dismissed. This is to
that, as a general rule, prevent the party from benefiting from one‘s neglect
before a party can file a and mistakes. However, like most rules, it carries
petition for certiorari certain exceptions. After all, the ultimate purpose of
under Rule 65, he/she all rules of procedures is to achieve substantial
must first file a motion justice as expeditiously as possible. (Cirtek
for reconsideration with Employees Labor Union vs. Cirtek Electronics, Inc.,
the lower court) G.R. No. 190515, 2011)

Stays the judgment, Does not stay the The Supreme Court cannot tolerate the practice of
award or order appealed challenged proceeding categorizing a petition to be ―both under Rule 65
from unless a writ of and Rule 45, Rules of Court,‖ as the petition cannot
preliminary injunction or be subsumed simultaneously under Rule 45 and
a temporary restraining Rule 65, and neither may petitioners delegate upon
order shall have been the court the task of determining under which rule
issued by the higher the petition should fall. Under Circular 2-90, wrong
court or inappropriate mode of appeal, merits an outright
dismissal. (Ybaňez v. CA, G.R. No. 117499, 1996)
The petitioner and The parties are the
respondent are the aggrieved party A special civil action for certiorari under Rule 65 lies
original parties to the (petitioner) against the only when there is no appeal or any plain, speedy
action, and the lower lower court or quasi- and adequate remedy in the ordinary course of law.
court or quasi-judicial judicial agency (public Thus, certiorari cannot be allowed when a party to a
agency is not to be respondent) and the case fails to appeal a judgment despite the
impleaded prevailing party in the availability of that remedy. Certiorari is not a
lower court (private substitute for a lost appeal. (Indoyon vs. CA, G.R.
respondent) No. 193706, 2013) (N.B.: In this case, the Petition
for Certiorari under Rule 65 was filed 35 days after
The prior filing of a A motion for notice of resolution, by which time petitioner had
motion for reconsideration is, as a therefore lost his appeal under Rule 45.)
reconsideration is not general rule, a condition
required precedent. The purpose There are cases when certiorari may be allowed
is to give the lower court despite the availability of appeal, such as: ―(a) when
an opportunity to correct public welfare and the advancement of public policy
itself dictates; (b) when the broader interest of justice so
requires; (c) when the writs issued are null and void;
and (d) when the questioned order amounts to an

135
oppressive exercise of judicial authority. (Vda. de (i) When the findings of fact are
Mendez vs. CA, G.R. No. 174937, 2012) conclusions without citation of the specific
evidence on which they are based; and
The remedies of appeal and certiorari are mutually
exclusive and not alternative or successive.
(h) When the findings of fact of the Court
of Appeals are premised on the absence of
Although it is true that the SC may treat a petition
evidence but such findings are contradicted
for certiorari (under Rule 65) as having been filed
by the evidence on record. (Local Superior
under Rule 45 to serve the higher interest of justice,
vs. Jody King, G.R. No. 141715, 2005)
it cannot be availed of when the petition is filed well
beyond the reglementary period for filing a petition
Time for filing; exceptions; extension
for review (under Rule 45) and without offering any
General Rule: The petition shall be filed within 15
reason therefor. (Banco Filipino v. CA, G.R. No.
days from the notice of the judgment appealed
132703, 2000)
from, or of the denial of the petitioner‘s motion for
new trial or reconsideration filed in due time after
To be sure, the distinctions between Rules 45 and
notice of the judgment.
65 are far and wide. However, the most apparent is
Exceptions:
that errors of jurisdiction are best reviewed in a
1. Writ of Amparo – 5 working days
special civil action for certiorari under Rule 65, while
2. Writ of Habeas Data – 5 working
errors of judgment can only be corrected by appeal
days
in a petition for review under Rule 45. This Court,
however, in accordance with the liberal spirit which
Within the fifteen (15) day period, the petitioner
pervades the Rules of Court and in the interest of
may, for good cause, file a motion for extension
justice may treat a petition for certiorari as having
of time to file his/her petition for review on
been filed under Rule 45, more so if the same was
certiorari. The petitioner must submit the requisite
filed within the reglementary period for filing a
proof of service of such motion on the respondents,
petition for review. (Nuñez v. GSIS Family Bank,
pay the docket and other lawful fees in full, as well
G.R. No. 163988, 2005)
as deposit the costs of suit.
General Rule: Only QUESTIONS OF LAW may be
The Supreme Court may, for justifiable reasons,
raised in a petition for review under Rule 45 of the
grant an extension of 30 days within which to file
Rules of Court.
the petition, provided the following requisites
Exceptions: QUESTIONS OF LAW AND FACT
concur:
may be determined.
Exceptions under the SC Circulars: 1. A motion duly filed and served (within the
original 15-day period); and
1. Appeals from Habeas Data cases
2. Full payment of the docket and other lawful
2. Appeals from Amparo cases
fees and the deposit for costs (within the
3. Appeals from Kalikasan cases
original 15-day period). (Rule 45, Section
Exceptions under Jurisprudence:
2)
(a) When the factual findings of the Court
of Appeals and the trial court are Docket and other lawful fees; proof of service of
contradictory; the petition
(b) When the conclusion is a finding Unless he/she has theretofore done so, the
grounded entirely on speculation, surmises, petitioner shall pay the corresponding docket and
or conjectures; other lawful fees to the clerk of court of the
(c) When the inference made by the Court Supreme Court and deposit the amount of P500.00
of Appeals from its findings of fact is for costs at the time of the filing of the petition. (Rule
manifestly mistaken, absurd, or impossible; 45, Section 3)
(d) when there is a grave abuse of
discretion in the appreciation of facts; The phrase ―unless he has theretofore done so‖
(e) when the Appellate Court, in making refers to the situation in the next preceding section
its findings, went beyond the issues of the wherein a motion for extension of time to file the
case and such findings are contrary to the petition for review was filed, in which case the
admissions of both appellant and appellee; petitioner had already paid the docket and other
lawful fees and made the deposit for costs as
(f) When the judgment of the Court of requisites therefore.
Appeals is premised on a misapprehension
of facts;
Although a copy of the petition is served upon the
(g) When the Court of Appeals failed to lower court concerned, it is only for the purpose of
notice certain relevant facts which, if giving notice that its judgment should not be
properly considered, would justify a entered since it is not yet executory because of the
different conclusion; pending petition for review thereof. The lower
(h) When the findings of fact are court does not become a party to the case since
themselves conflicting; Rule 45 provides a mode of appeal.

136
Proof of service of a copy thereof on the lower court 2. Deposit for costs.
concerned AND on the adverse party shall be 3. Proof of service of the petition; and
submitted together with the petition. 4. Contents of and the documents which should
accompany the petition.
Contents of petition
File in 11 copies for the Supreme Court en banc The Supreme Court may, on its own initiative, deny
and 5 copies for the SC division (per Efficient Use the petition on the following grounds:
of Paper Rule, A.M. No. 11-9-4-SC), with the 1. The appeal is without merit.
original intended for the court being indicated as 2. It is prosecuted manifestly for delay; or
such by the petitioner. 3. The questions raised therein are too
unsubstantial to require consideration. (Rule
The Verified Petition shall contain: 45, Section 5)
1. Full names of the appealing party as the
petitioner and the adverse party as respondent, Review discretionary
without impleading the lower courts/judges A review is not a matter of right, but of sound
thereof either as petitioners or respondents. judicial discretion and will be granted only when
2. Material dates showing: there are special and important reasons thereof.
a. When notice of the judgment or (Rule 45, Section 6)
final order or resolution subject thereof
was received. The following, while neither controlling nor fully
b. When a motion for new trial or measuring the court‘s discretion, indicate the
reconsideration, if any, was filed; and character of the reasons which will be considered:
c. When notice of the denial thereof 1. When the court a quo (the court ―from which‖)
was received. has decided a question of substance, not
3. A statement of the matters involved and the theretofore determined by the Supreme Court,
reasons or arguments relied on for the or has decided it in a way probably not in
allowance of the petition. accord with law or with the applicable decision
4. Clearly legible duplicate original, or a certified of the Supreme Court; or
true copy of the judgment or final order or 2. When the court a quo has so far departed from
resolution certified by the clerk of court of the the accepted and usual course of judicial
court a quo and the requisite number of plain proceedings, or so far sanctioned such
copies thereof, and such material portions of departure by a lower court, as to call for an
the record as would support the petition. exercise of the power of supervision.
5. Certificate of non-forum shopping. (Rule 45,
Section 4) Pleadings and documents that may be required;
sanctions
Rule 45, Section 4 of the Rules of Court indeed For the purposes of determining whether the
requires the attachment to the petition for review on petition should be dismissed or denied pursuant to
certiorari ―such material portions of the record as Section 5 of this rule, or where the petition is given
would support the petition.‖ However, such a due course under Section 8 hereof, the Supreme
requirement was not meant to be an ironclad rule Court may:
such that the failure to follow the same would merit 1. Require or allow the filing of pleadings,
the outright dismissal of the petition. In accordance briefs, memoranda or documents as it may
with Section 7 of Rule 45, ―the Supreme Court may deem necessary within such periods ad
require or allow the filing of such pleadings, briefs, under such conditions as it may consider
memoranda or documents as it may deem appropriate.
necessary within such periods and under such 2. Impose sanctions in the following cases:
conditions as it may consider appropriate.‖ More a. Non-filing of such pleadings or
importantly, Section 8 of Rule 45 declares that ―if documents.
the petition is given due course, the Supreme Court b. Unauthorized filing of such
may require the elevation of the complete record of pleadings or documents; or
the case or specified parts thereof within fifteen (15) c. Non-compliance with the
days from notice.‖ This pronouncement is likewise conditions therefor. (Rule 45,
in keeping with the doctrine that procedural rules Section 7)
should be liberally construed in order to promote
their objective and assist the parties in obtaining Due course; elevation of records
just, speedy, and inexpensive determination of If the petition is given due course, the Supreme
every action or proceeding. (F.A.T. Kee Computer Court may require the elevation of the complete
Systems, Inc. v. Online Networks International, Inc., record of the case or parts thereof within 15 days
G.R. No. 171238, 2011) from notice. (Rule 45, Section 8)

Dismissal or denial of petition Rule applicable to both civil and criminal cases
The failure of the petitioner to comply with any of The mode of appeal prescribed in this Rule shall be
the following requirements shall be sufficient applicable to both civil and criminal cases, except
ground for the dismissal thereof: in criminal cases where the penalty imposed is:
1. Payment of the docket and other lawful fees. 1. Death.

137
 2. Reclusion perpetua; or SPECIAL RULES when appealing from
3. Life imprisonment. (Rule 45, Section 9) judgments and final orders of CSC, DOJ, NLRC,
Office of the Ombudsman, and Secretary of
If only to ensure utmost circumspection before the Labor
penalty of death, reclusion perpetua or life Judgment or Final Orders REMEDY
imprisonment is imposed, the Court now deems it of:
wise and compelling to provide in these cases a
review by the Court of Appeals before the case CIVIL SERVICE General Rule:
is elevated to the Supreme Court. If the Court of COMMISSION (CSC) Rule 43 with the CA
Appeals should affirm the penalty of death,
reclusion perpetua or life imprisonment, it could Note: The petitioner‘s
then render judgment imposing the corresponding failure to state the
penalty as the circumstances so warrant, refrain date of receipt of the
from entering the judgment and elevate the entire copy of the October
records of the case to the SC for its final disposition. 10, 2011 CSC
(People v. Mateo, G.R. Nos. 147678-87, 2004) decision is not fatal to
her case since the
k. APPEAL FROM JUDGMENTS AND dates are evident
FINAL ORDERS OF THE COURT OF TAX from the records.
APPEALS Besides, we have
ruled that the more
A party adversely affected by a resolution of a important material
Division of the Court of Tax Appeals on a motion date which must be
for reconsideration or new trial may file a petition for duly alleged in the
review with the Court of Tax Appeals en banc. petition is the date of
receipt of the
A party adversely affected by a decision or ruling of resolution of denial of
the Court of Tax Appeals en banc may file with the motion for
the Supreme Court a verified petition for review on reconsideration,
certiorari pursuant to Rule 45. which the petitioner
has duly complied
l. REVIEW OF FINAL JUDGMENTS OR with. As to the failure
FINAL ORDERS OF THE COMELEC EN to state the notary
BANC public‘s office
address, the omission
A judgment, resolution or final order of the was rectified with the
Commission on Elections may be brought by the attachment in the
aggrieved party to the Supreme Court on certiorari motion for
under Rule 64. reconsideration of the
verification and
certification of non-
m. REVIEW OF FINAL JUDGMENTS OR forum shopping and
FINAL ORDERS OF THE OMBDUSMAN
of the affidavit of
service, with the
The Court of Appeals, under Rule 43, has
notary public‘s office
jurisdiction over orders, directives and decisions of address. (Barra vs.
the Office of the Ombudsman in administrative CSC, G.R. No.
cases only. It cannot therefore review orders, 205250, 2013)
directives or decisions of the Office of the
Ombudsman in criminal and non-administrative Exceptions:
cases. For criminal cases, the ruling of the
Rule 65 with the CA
Ombudsman should be elevated to the Supreme
Court by way of Rule 65. (Indoyon vs. CA, G.R. No. (a) When public
193706, 2013); (Tirol vs. Sandiganbayan, G. R. No. welfare and the
135913, 1999); (Fabian vs. Desierto, G.R. No. advancement of
129742, 1998) public policy
dictates;
n. REVIEW OF FINAL JUDGMENTS OR (b) When the
broader interest
FINAL ORDERS OF THE NLRC
of justice so
requires;
Judgments and final orders or resolutions of the
National Labor Relations Commission are now (c) When the
reviewable in the first instance, by the Court of writs issued are
Appeals on certiorari under Rule 65. (St. Martin null and void; or
Funeral Home v. NLRC, G.R. No. 130866, 1998) (d) When the
questioned order

138
amounts to an DEPARTMENT OF
oppressive JUSTICE (DOJ)
exercise of
judicial authority. Decisions/orders/
(DepEd vs. resolutions of the Secretary
Cunanan, G.R. of Justice on preliminary
No. 169013, investigations involving an
2008) offense punishable by: • Appeal to
OP, then Rule 43
• Reclusion with the CA
perpetua to death

• Less than
• Rule 65 with
the CA (Elma vs.
reclusion perpetua to
Jacobi, G.R. No.
death
155996, 2012)

NATIONAL LABOR MR with the NLRC,

RELATIONS then Rule 65 with the
COMMISSION (NLRC) CA. (St. Martin
Funeral Home v.
NLRC, G.R. No.
130866, 1998)

OFFICE OF THE
OMBUDSMAN

• Administrative General Rule:

disciplinary cases Rule 43 with the CA

Exception:
Rule 65 with the CA if
determination of
probable cause is
tainted with grave
abuse of discretion.
(Fabian vs. Desierto,
• Criminal cases G.R. No. 129742,
1998)

Rule 65 with the SC.

(Tirol vs.
Sandiganbayan, G. R.
No. 135913, 1999)

SECRETARY OF LABOR MR with the Secretary

(even if acting as voluntary of Labor, then Rule 65
arbitrator) with the CA.
(Philtranco v.
Philtranco Workers
Union, G.R. No.
180962 , 2014)

RTC as a Commercial Rule 43 with the CA

Court (China Banking Corp.
(formerly SEC) vs. Cebu Printing,
G.R. No. 172880,
2010)

o. REVIEW OF FINAL JUDGMENTS OR

FINAL ORDERS OF QUASI-JUDICIAL
AGENCIES (Rule 43)

139
Rule 43 shall apply to: r. Philippine Atomic Energy
1. Appeals from judgments or final orders of Commission.
the Court of Tax Appeals s. Board of Investments.
t. Construction Industry Arbitration
2. Appeals from awards, judgments, final Commission; and
orders, resolutions of or authorized by any u. Voluntary arbitrators authorized
quasi-judicial agency in the exercise of by law.
its quasi-judicial functions:
a. Civil Service Commission (see Note: The decision or award of the voluntary
Special Rules above) arbitrator or panel of arbitrators should likewise be
b. Central Board of Assessment appealable to the Court of Appeals, in line with the
Appeals. procedure outlines in Revised Administrative
c. Securities and Exchange Circular No. 1-95 (now embodied in Rule 43 of the
Commission. 1997 Rules of Civil Procedure), just like those of the
d. Office of the President. quasi-judicial agencies, boards and commissions
enumerated therein, and consistent with the original
Note: The parties may file a motion for purpose to provide a uniform procedure for the
reconsideration of the order, ruling, or decision of appellate review of adjudications of all quasi-judicial
the OP. Since the OP is essentially an entities. On some occasions, rules of procedure
administrative agency exercising quasi-judicial may be relaxed and on that basis the Court of
functions, its decisions or resolutions may be Appeals could have treated the petition for certiorari
appealed to the CA through a petition for review as a petition for review under Rule 43. (N.B.: In this
under Rule 43 of the Rules of Court. Rule 65 bars case, the petition was filed beyond the reglementary
its use as a mode of review when an appeal or any period for filing a petition for review under Rule 43.)
other remedy at law is available (subject to It is elementary in remedial law that the use of an
exceptions). It is absolutely incorrect to claim that erroneous mode of appeal is a cause for dismissal
Rule 43 does not allow an immediate remedy if that of the petition for certiorari and it has been
had been the result desired. Section 12 of Rule 43 repeatedly stressed that a petition for certiorari is
expressly allows the CA to order a stay of execution not a substitute for a lost appeal. (Samahan ng mga
upon such terms as are just. Separately from Manggagawa sa Hyatt vs. Bacungan, G.R. No.
Section 12, Rule 43 is Rule 58 on injunction as a 149050, 2009)
provisional remedy that could have been used, with
proper supporting justification, to stay the The enumeration of quasi-judicial agencies is NOT
implementation of the OP decision. (Philippine exclusive.
Basketball Association vs. Gaite, G.R. No. 170312,
2009) The Office of the Prosecutor is NOT a quasi-
judicial body and its action approving the filing of an
e. Land Registration Authority. information is not appealable to the Court of
f. Social Security Commission. Appeals under Rule 43.
g. Civil Aeronautics Board.
h. Bureau of Patents. An ERROR OF JUDGMENT is one which the court
i. Trademarks and Technology may commit in the exercise of its jurisdiction, and
Transfer. which error is reviewable only by an appeal (Rule
j. National Electrification 43/42). (Fortich v. Corona G.R. No. 131457, 1998)
Administration. It may be an error in appreciation of facts or
k. Energy Regulatory Board. interpretation of law.
l. National Telecommunications
Commission. An ERROR OF JURISDICTION is one where the
m. Dept. of Agrarian Reform under act complained of was issued by the court, officer or
R.A. No. 6657. a quasi-judicial body without or in excess of
jurisdiction, or with grave abuse of discretion which
Note: Sec. 1 of Rule XIV of the DARAB Revised is tantamount to lack or in excess of jurisdiction.
Rules of Procedure dwells on how appeals to This error is correctable only by the extraordinary
the DARAB Board from the decisions, resolutions or writ of certiorari (Rule 65). (Fortich v. Corona, G.R.
final orders of the Adjudicator are to be taken. How No. 131457, 1998)
petitioners could have been misled to file their
appeal from the DARAB‘s Decision to the Court of Appeals from awards, judgments, final orders or
Appeals via certiorari escapes comprehension. (Po resolutions of any quasi-judicial agency exercising
vs. Mutia, G.R. No. 173329, 2009) quasi-judicial functions, including the Office of the
President, may be taken to the Court of Appeals by
n. Government Service Insurance filing a verified petition for review within 15 days
System. from notice of the said judgment, final order or
o. Employees Compensation resolution, whether the appeal involves questions of
Commission. fact, of law, or mixed questions of fact and law.
p. Agricultural Invention Board.
q. Insurance Commission.

140
General Rule: Note: Rule 43, Section 4 specifically allows only
Cases not covered one motion for reconsideration to an appealing
This Rule shall not apply to judgments or final party; as such, the reckoning of the fifteen (15)-day
orders issued under the Labor Code of the period to perfect the appeal starts from the receipt
Philippines. (Rule 43, Section 2) of the resolution denying the motion for
Exception: reconsideration. (Yinlu Bicol Mining Corporation v.
Judgments and final orders or resolutions of the Trans-Asia Oil and Energy Development
National Labor Relations Commission are now Corporation, G.R. No. 207942, 2015)
reviewable in the first instance, by the Court of
Appeals on certiorari under Rule 65, but those of Upon proper motion and the payment of the full
the Employees Compensation Commission should amount of the docket fee before the expiration of
be brought to the CA through a petition for review the reglementary period, the Court of Appeals may
under this Rule. (St. Martin Funeral Homes v. grant an additional period of fifteen (15) days
NLRC, G.R. No. 130866, 1998) only within which to file the petition for review.

Special rules of procedure have also been adopted No further extension shall be granted except for the
for cases formerly within the jurisdiction and most compelling reason and in no case to exceed
adjudicatory processes of the Securities and 15 days.
th
Exchange Commission. (See Regalado 10 ed. P.
573) The Supreme Court issued A.M. No. 04-9-07- How appeal taken
SC as a clarification on the proper mode of appeal REQUISITES:
of cases which were formerly under the jurisdiction 1. A verified petition for review:
of the Securities and Exchange Commission, such a. File with the Court of Appeals in
as those cases involving corporate rehabilitation. seven 3 legible copies (per
Now, there is no more need to file a notice of Efficient Use of Paper Rule, A.M.
appeal and record on appeal. An appeal may now No. 11-9-4-SC).
be perfected by filing a petition for review within b. Attach proof of service of a copy
fifteen (15) days from notice of the decision or final thereof on the adverse party and
order of the trial court, directly to the CA under Rule on the court or agency a quo.
43 of the Rules of Court. (China Banking Corp. vs. 2. Pay to the Clerk of Court of the Court of
Cebu Printing, G.R. No. 172880, 2010) Appeals the docket and other lawful fees
and deposit P500.00 for costs.
Where to appeal a. Exemption from payment of
An appeal under this Rule may be taken to the docket and lawful fees may be
Court of Appeals within the period and in the granted by the Court of Appeals
manner herein provided, whether the appeal upon a verified motion setting
involves questions of fact, of law, or mixed forth the valid grounds therefor.
questions of fact and law. (Rule 43, Section 3) b. If the Court of Appeals denies the
motion, petitioner shall pay the
This is another instance where an appellate review docket and other lawful fees
solely on a question of law may be brought to the within 15 days from notice of
Court of Appeals instead of the Supreme Court. denial. (Rule 43, Section 5)
The same procedure obtains in appeals from the
Regional Trial Court where it decided the case in Regional Trial Court as Quasi-Judicial
the exercise of its appellate jurisdiction as regulated Appellate Court Agencies
by Rule 42. (Rule 42) (Rule 43)
The two (2) EXCEPTIONS to the general rule that
Decision is stayed by an Decision is immediately
appeals on pure questions of law are brought to the appeal executory, not stayed by
Supreme Court (Section 5[2][e], Art VIII) are Rules an appeal
42 and 43.
Factual findings not Factual findings are
Period of appeal conclusive upon the conclusive upon the
Within 15 days from: Court of Appeals Court of appeals if
Notice of the award, judgment, final order or supported by substantial
resolution; or evidence
Date of last publication, if publication is required by
law for its effectivity; or
Denial of petitioner‘s Motion for New Trial or Motion Contents of the petition
for Reconsideration duly filed in accordance The petition for review shall contain:
with the governing law of the court or agency a 1. Full names of the parties, without
quo. (Rule 43, Section 4) impleading the court/agencies either as
petitioners or respondents.
Only ONE (1) MR shall be allowed. 2. Concise statement of the facts and
issues involved and the grounds relied
upon for review.

141
 3. Clearly legible duplicate original or a The appellate court may also require the filing of a
certified true copy of the award, judgment, reply, but further submissions are governed by the
final order or resolution appealed from, resolution in A.M. No. 99-2-04.
together with:
4. Certified true copies of such material The appeal shall not stay the award, final order, or
portions of the record referred to therein. resolution sought to be reviewed UNLESS the Court
5. Other supporting papers; of Appeals shall direct otherwise upon such terms
6. Certificate of non-forum shopping. as it may deem just.
7. Material dates to show it was filed
within the period fixed therein. (Rule 43, Due course
Section 6) If from the records the Court of Appeals finds
prima facie that the court or agency committed
Sec. 6 of Rule 43 does not require that all of the errors of fact or law that would warrant a reversal
supporting papers or annexes accompanying the or modification of the decision sought to be
petition should be certified true copies or duplicate reviewed, it may give due course to the petition.
originals. What is mandatory is to attach the Otherwise, it shall dismiss the same.
clearly legible duplicate originals or certified true
copies of the judgment or final orders of the lower The findings of fact of the court or agency
courts. (Jaro v. CA, G.R. No. 127536, 2002) concerned, when supported by substantial
evidence, shall be binding on the Court of
Effect of failure to comply with requirements Appeals. (Rule 43, Section 10)
Failure of petitioner to comply with any of the
following requirements shall be sufficient ground Transmittal of record
for the dismissal thereof: Within 15 days from notice that the petition has
1. Payment of the docket and other lawful been given due course, the Court of Appeals may
fees. require the court or agency concerned to transmit
2. Deposit for costs. the record of the proceeding under review.
3. Proof of service of the petition; and
4. Contents of and the documents which The record to be transmitted may be abridged by
should accompany the petition. (Rule 43, the agreement of all parties to the proceeding.
Section 7)
The Court of Appeals may require or permit the
Action on the petition subsequent correction of or addition to the record.
The Court of Appeals may: (Rule 43, Section 11)
1. Require the respondent to file a
comment on the petition, not a motion to Effect of appeal
dismiss, within 10 days from notice; or General Rule: The appeal shall not stay the
2. Dismiss the petition if it finds it to be: award, final order, or resolution sought to be
a. Patently without merit. reviewed
b. Prosecuted manifestly for delay; Exception: When the Court of Appeals shall direct
or otherwise upon such terms as it may deem just.
c. The questions raised therein are (Rule 43, Section 12)
too unsubstantial to require
consideration. (Rule 43, Section Submission for decision
8) If the petition is given due course, the Court of
Appeals may:
Contents of comment Set the case for oral argument; and/or
Requisites of the comment of the respondent: Require the parties to submit memoranda within 15
1. File in 3 legible copies (per Efficient days from notice.
Use of Paper Rule, A.M. No. 11-9-4-SC).
2. Accompanied by clearly legible certified The case shall be deemed submitted for decision
true copies of such material portions of the upon the filing of the last pleading or memorandum
record referred to therein together with the required by these Rules or by the Court of Appeals.
supporting papers. (Rule 43, Section 13)
3. Point out insufficiencies or inaccuracies
in petitioner‘s statement of facts and 3. RELIEF FROM JUDGMENTS OR
issues. FINAL ORDERS AND RESOLUTIONS
4. State the reasons why the petition
should be denied or dismissed; and (Rule 38)
5. File within 10 days from notice. (Rule
43, Section 9) a. GROUNDS FOR AVAILING THE REMEDY
A Petition for Relief may be filed based on the
A copy thereof shall be served on the petitioner and following grounds:
proof of such service shall be filed with the Court of 1. When a judgment or final order is
Appeals. entered into, or any other proceeding is
thereafter taken against the petitioner in

142
 any court through fraud, accident, mistake proceedings.
or inexcusable negligence; or
2. When the petitioner has been prevented Grounds: Grounds:
from taking an appeal by fraud, accident, FAME; and FAME
mistake or inexcusable negligence. Newly discovered
evidence.
Who May File
Petition for Relief from judgment is a remedy Filed within the time to Filed within 60 days from
available ONLY to those PARTIES in the case. appeal. knowledge of the
judgment and within 6
This relief is only allowed in exceptional cases when months from entry of
there is NO OTHER AVAILABLE ADEQUATE judgment.
REMEDY. Thus, when a party has other available
remedies and he/she was not prevented by fraud, If denied, the order of If denied, the order of
accident, mistake or excusable negligence from denial is not appealable. denial is not appealable.
filing such motion or taking such appeal, such party The remedy is to appeal The remedy is a special
CANNOT avail of this remedy. from the judgment. civil action under Rule
65.
A party who has filed a motion for new trial but
which was denied, CANNOT file a petition for relief. Legal remedy Equitable remedy
These two remedies are to be EXCLUSIVE of each
other. The remedy is to appeal from the judgment. Motion need not be Petition must be verified.
(Francisco v. Puno, 108 SCRA 427, G.R. No. L- verified.
55694, 1981)
MODES OF ATTACKING FINAL AND
Note: ―any other proceeding taken thereafter‖ may EXECUTORY JUDGMENTS
include order of execution. (Cayetano v. Ceguerra,
G.R. No. L-18831, 1965) MODE GROUND

Where to File Petition for Relief When the judgment has

It shall be filed in such court and in the same case under Rule 38 been taken against the
from which the petition arose. (Redena v. CA, G.R. party through FAME
No. 146611, 2007) Action for Extrinsic fraud, lack of
annulment of jurisdiction, denial of due
Relief Sought judgment under process
It shall pray that the judgment, order or proceedings Rule 47
be set aside OR that the appeal be given due
course. Direct action, as Certiorari – when there
certiorari, OR is grave abuse of
A petition for relief from judgment is applicable in collateral attack discretion amounting to
special civil actions and all kinds of special under Rule 65 lack or excess of
proceedings, such as land registration, intestate jurisdiction. A challenged
settlement, and guardianship proceedings. judgment, void upon its
face, can be the subject
Relief from judgment is NOT authorized in summary of a collateral attack.
proceedings. (Section 19 Revised Rules on
Summary Procedures) (Feria and Noche, Civil Procedure Annotated, Vol.
2, 2013 Ed., p. 109)
A petition for relief is not a remedy available for
judgments, final orders, and other proceedings in Petition for Relief from Denial of Appeal
the Supreme Court. The phrase “any court” that is When a party, by FAME, has been prevented from
referred to in Rule 38 are Metropolitan or Municipal taking an appeal, he/she may file a petition in the
or Regional Trial Courts. (Sps. Mesina vs. Meer, court which rendered the judgment or final order
G.R. No. 146845, 2002) and in the same case praying that the appeal be
given due course.
NEW TRIAL OR PETITION FOR RELIEF Under this section, the petition for relief should be
RECONSIDERATION (RULE 38) directed against the order preventing the perfection
(RULE 37) of the appeal, and NOT against the judgment on the
merits. [Feria and Noche, Civil Procedure
Available before Available after judgment Annotated, Vol. 2, 2013 Ed., p. 112, citing
judgment becomes final becomes final and Bracamonte and Calderon, 92 PHIL 186 (952) and
and executory. executor. Rafanan v. Rafanan, 98 PHIL 162 (1955)]
Applies to judgments or Applies to judgments,
final orders only. final orders and other b. TIME FOR FILING PETITION

143
The petition shall be filed within sixty (60) days after Because a final and executory judgment is the
the petitioner learns of the judgment, final order or subject of a petition for relief, the judgment may be
proceeding, and NOT more than six (6) months subject to execution. A person who files a petition
after such judgment or final order was entered, or under Rule 38 may file a preliminary injunction to
such proceeding was taken. (Rule 38, Section 3) preserve the rights of the parties upon filing of a
bond.
Both periods are NOT extendible and never
interrupted. These two periods must CONCUR. The bond is conditioned upon the payment to the
(Quelnan v. VHF Philippines, G.R. No. 138500, adverse party of all damages and costs that may be
2005) awarded to such adverse party by reason of the
issuance of the preliminary injunction.
Note: The alternative phrase ―or such proceeding
was taken‖ in Sec. 3, Rule 38 could be taken to Such injunction shall not discharge any lien which
mean other proceedings which are NOT to be the adverse party may have acquired upon the
entered, such as a writ of execution and an order property of the petitioner. (Rule 38, Section 5)
approving a compromise agreement. In such
cases, the period must have to commence from the Proceedings after the Answer is Filed
date of occurrence because entry is either After the filing of the answer or the expiration of the
unnecessary or inconsequential. [Feria and Noche, period to file the answer, the court shall hear the
Civil Procedure Annotated, Vol. 2, 2013 Ed., p. 120, petition.
citing Dirige v. Binaraya, 17 SCRA 840 (1996)]
Thereafter, the court may either:
Petition for relief from a judgment based on a Dismiss the petition if it finds that the
compromise must be filed not later than 6 months allegations thereof are not true; or
from the date it was rendered (not date of entry), Set aside the judgment or final order or other
since such judgment becomes final and executory proceeding if it finds the allegations to be true.
immediately. (Republic v. Estenzo, 25 SCRA 122, The case shall then stand as if such judgment,
1945) final order or other proceeding had never been
rendered, issued, or taken. The court shall
Note: A motion to dismiss the petition for relief may hear and determine the case as if a timely
be filed on the ground of lack of jurisdiction, when motion for a new trial or reconsideration had
the latter is filed beyond the reglamentary period. been granted by it. (Rule 38, Section 6)
(Pacific Importing v. Tinio, 85 PHIL 239, 1949)
Instances when trial on the merits is NOT
c. CONTENTS OF PETITION necessary when the relief sought may be:
The allowance of an appeal after the expiration of
a. The petition must be verified; the reglamentary period.
b. It must be accompanied with affidavits The staying of immediate execution despite failure
showing the grounds relied upon; and to pay or deposit the rents due to FAME.
c. The facts constituting the petitioner‘s
good and substantial cause of action or IMPORTANT: An order GRANTING the petition for
defense (AFFIDAVIT OF MERIT). relief is interlocutory hence not immediately
appealable. However, certiorari lies if there is grave
Note: A separate affidavit is NOT necessary if such abuse of discretion or lack/excess of jurisdiction.
facts are alleged in the verified petition. [Feria and
Noche, Civil Procedure Annotated, Vol. 2, 2013 Ed., An order DENYING the petition for relief is now
p. 117, citing Fabar Incorporated, 79 SCRA 638 subject only to certiorari under Rule 65, as provided
(1997), and Samonte v. S.F. Naguiat, 75 PHIL 608 in Section 1(b) of Rule 41.
(1945)]
Procedure Where the Denial of an Appeal is Set
Order to File Answer Aside
If the petition is sufficient in form and substance, to The lower court shall be required to give due course
justify relief, the court in which it is filed, shall issue to the appeal and to elevate the record of the
an order requiring the adverse parties to answer appealed case as if a timely and proper appeal had
the same within fifteen (15) days thereof. The court been made. (Rule 38, Section 7)
should NOT issue summons. (Rule 38, Section 4)
4. ANNULMENT OF JUDMENTS AND
Note: If the petition is insufficient, as for example, FINAL ORDERS AND RESOLUTIONS
no affidavit of merit is attached, the court may
dismiss the petition outright. (Omandam v. Director (Rule 47)
of Lands, 95 PHIL 450, 1954)
Annulment of Judgment
Failure to file answer does not warrant declaration A remedy in law independent of the case where the
of default. judgment sought to be annulled was rendered.
Consequently, an action for annulment of judgment
Preliminary Injunction Pending Proceedings may be availed of even if the judgment to be

144
annulled had already been fully executed or 168882, 2007; Sps. Benatiro vs. Heirs of Cuyos,
implemented. (Bulawan v. Aquende, G.R. No. G.R. No. 161220, 2008)
182819, 2011)
b. PERIOD TO FILE ACTION
Coverage
This Rule shall govern the annulment by the Court If based on EXTRINSIC FRAUD – the action must
of Appeals of judgments or final orders and be filed within four (4) years from its
resolutions in civil actions of Regional Trial Courts discovery.
for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are If based on LACK OF JURISDICTION – the action
no longer available through no fault of the must be brought before it is barred by laches
petitioner. (Rule 47, Section 1) or estoppel.

The purpose is to set aside a final and executory If based on DENIAL OF DUE PROCESS – the
judgment, so that there would be a renewal of action does not prescribe. Lack of due
litigation. process renders the judgment void. An action
to declare the nullity of a void judgment does
This remedy is NOT available to decisions of quasi- not prescribe. (Sps. Benatiro vs. Heirs of
judicial bodies. It is only applicable to the Cuyos, G.R. No. 161220, 2008)
annulment of judgments or final orders of a
Municipal Trial Court by the Regional Trial Court or Filing and Contents of Petition
the annulment of the decisions of Regional Trial The action shall be commenced by filing a verified
Court by the Court of Appeal. petition alleging therein with particularity:
1. The facts and the law relied upon for
a. GROUNDS FOR ANNULMENT annulment;
2. Those supporting the petitioner‘s good and
1. Extrinsic fraud (Rule 47, Section 2) substantial cause of action or defense, as
One that prevents a party from having a trial or from the case may be.
presenting his/her entire case to the court, or where
it operates upon matters pertaining not to the The petition shall be filed in 3 clearly legible copies
judgment itself but to the manner in which it is (per Efficient Use of Paper Rule, A.M. No. 11-9-4-
procured. SC), together with:
1. Sufficient copies corresponding to the
Extrinsic Fraud exists when there is a fraudulent act number of respondents.
committed by a prevailing party outside of the trial 2. Affidavits of witnesses or documents
of the case, where the defeated party was supporting the cause of action; and
prevented from presenting fully his/her side of the 3. Certificate of non-forum shopping.
case by deception practiced on him/her by the
prevailing party. A certified true copy of the judgment or final order or
resolution shall be attached to the original copy of
Extrinsic fraud shall not be a valid ground if it was the petition intended for the court and indicated as
availed of, or could have been availed of, in a such by the petitioner. (Rule 47, Section 4)
motion for new trial or petition for relief.
We have consistently held that a person need not
Note: The petition need not categorically state the be party to the judgment sought to be annulled.
exact words extrinsic fraud; rather, the allegations in What is essential is that he can prove his allegation
the petition should be so crafted to easily point out that the judgment was obtained by the use of fraud
the ground on which it was based. and collusion and that he would be adversely
(Castigador vs. Nicolas, G.R. No. 184023, affected thereby. (Bulawan v. Aquende, G.R. No.
2013) 182819, 2011)

2. Lack of jurisdiction (Rule 47, Section 2) Action by the Court

Absolute lack of jurisdiction over the person of the The court may:
defending party OR over the subject matter of the Dismiss the petition outright, if it finds no
claim. substantial merit in the petition, with
specific reasons for such dismissal;
Note: In a petition for annulment of judgment based Give due course if the court finds prima facie
on lack of jurisdiction, petitioner must show not merit in the petition, in which case
merely an abuse of jurisdictional discretion, but an summons shall be served on the
ABSOLUTE lack of jurisdiction. (RP vs. respondent. (Rule 47, Section 5)
Technological Advocates, G.R. No. 165333, 2010)
Procedure
3. Denial of due process, as recognized A petition for annulment of judgment filed in the
by jurisprudence. (Intestate Estate of the Late Court of Appeals shall observe the procedure in
Nimfa Sian v. Philippine National Bank, G.R. No. ordinary civil actions. Should a trial be necessary,
the reception of the evidence may be referred to a

145
member of the Court or a Regional Trial Court province of collateral impeachment is void
judge. (Rule 47, Section 6) judgments. There and there alone can it meet with
any measure of success. Decision after decision
c. EFFECTS OF JUDGMENT OF bears this import: In every case the field of collateral
ANNULMENT inquiry is narrowed down to the single issue
concerning the void character of the judgment and
A judgment of annulment shall set aside the the assailant is called upon to satisfy the court that
questioned judgment or final order or resolution and such is the fact. To compass his purpose of
render the same null and void, without prejudice to overthrowing the judgment, it is not enough that he
the original action being re-filed in the proper court. show a mistaken or erroneous decision or a record
disclosing non-jurisdictional irregularities in the
However, where the judgment or final order or proceedings leading up to the judgment. He must
resolution is set aside on the ground of extrinsic go beyond this and show to the court, generally
fraud, the court may, on motion, order the trial court from the fact of the record itself, that the judgment
to try the case as if a timely motion for new trial complained of is utterly void. If he can do that his
had been granted therein. (Rule 47, Section 7) attack will succeed for the cases leave no doubt
respecting the right of a litigant to collaterally
Suspension of Prescriptive Period impeach a judgment that he can prove to be void.‖
The prescriptive period for the re-filing of the (I Freeman on Judgments, sec. 322, p. 642.);
aforesaid original action shall be deemed (Barretto vs. Barretto-Datu, G.R. No. L-5549, 1954)
suspended from the filing of such original action
until the finality of the judgment of annulment. Note: In the case of Sps. Benatiro, the CFI (RTC)'s
order being null and void, it may be assailed
However, the prescriptive period shall not be anytime, collaterally or in a direct action or by
suspended where the extrinsic fraud is attributable resisting such judgment or final order in any action
to the plaintiff in the original action. (Rule 47, or proceeding whenever it is invoked, unless barred
Section 8) by laches. Consequently, the compromise
agreement and the Order approving it must be
Relief available declared null and void and set aside. (Sps. Benatiro
The judgment of annulment may include: vs. Heirs of Cuyos, G.R. No. 161220, 2008)
1. Award of damages;
2. attorney‘s fees; and Direct attack distinguished from collateral
3. Other relief. attack

If the questioned judgment or final order or A DIRECT ATTACK against a judgment is made
resolution had already been executed, the court through an action or proceeding the main object of
may issue: which is to annul set aside, or enjoin the
1. Orders of restitution or enforcement of such judgment, if not yet carried into
2. Other relief as justice and equity may effect; or, if the property has been disposed of, the
warrant under the circumstances. (Rule aggrieved party may sue for recovery.
47, Section 9)
A COLLATERAL ATTACK is made when, in
Annulment of Judgments or Final Orders of another action to obtain a different relief, an attack
MTC on the judgment is made as an incident in said
An action to annul a judgment or final order of a action. This is proper only when the judgment, on its
Municipal Trial Court shall be filed in the Regional face, is null and void, as where it is patent that the
Trial Court having jurisdiction over the former. It court which rendered said judgment has no
shall be treated as an ordinary civil action and jurisdiction. (Co vs. CA, G.R. No. 93687, 1991)
sections 2, 3, 4, 7, 8, and 9 of this Rule shall be
applicable thereto. (Rule 47, Section 10) END OF TOPIC

5. COLLATERAL ATTACK OF
JUDGMENTS
Collateral attack of judgments
Q. EXECUTION, SATISFACTION
A collateral attack upon a judgment has been AND EFFECT OF JUDGMENTS
defined to mean any proceeding in which the
integrity of a judgment is challenged, except those
made in the action wherein the judgment is 1. DIFFERENCE BETWEEN FINALITY
rendered or by appeal, and except suits brought to OF JUDGMENT FOR PURPOSES OF
obtain decrees declaring judgments to be void ab APPEAL; FOR PURPOSES OF
initio. (15 R.C.L., 838); (Alviar vs. Carlos, G.R. No.
L-45291, 1937)
EXECUTION
2. WHEN EXECUTION SHALL ISSUE
In case of collateral attack, the principles that apply a. Execution as a matter of right
have been stated as follows: ―The legitimate b. Discretionary execution

146
3. HOW A JUDGMENT IS EXECUTED (Philippine Business Bank vs. Chua, G.R. No.
178899, 2010)
a. Execution by motion or by independent
action
Interlocutory order
b. Issuance and contents of a writ of
execution An interlocutory order does not finally dispose of the
c. Execution of judgments for money case, and does not end the Court's task of
d. Execution of judgments for specific adjudicating the parties' contentions and
acts determining their rights and liabilities as regards
e. Execution of special judgments each other, but obviously indicates that other things
f. Effect of levy on third persons remain to be done by the Court, is "interlocutory",
e.g., an order denying a motion to dismiss under
4. PROPERTIES EXEMPT FROM Rule 16 of the Rules. Unlike a final judgment or
EXECUTION order, which is appealable, an interlocutory order
5. PROCEEDINGS WHERE PROPERTY may not be questioned on appeal except only as
IS CLAIMED BY THIRD PERSONS part of an appeal that may eventually be taken from
a. In relation to third-party claims in the final judgment rendered in the case. (Philippine
attachment and replevin Business Bank vs. Chua, G.R. No. 178899, 2010)
6. RULES ON REDEMPTION FOR PURPOSES OF EXECUTION:
7. EXAMINATION OF JUDGMENT Execution of a final and executory judgment is a
OBLIGOR WHEN JUDGMENT IS matter of right. A judgment is final and executory
UNSATISFIED when the law/rules do not provide for an appeal or
8. EXAMINATION OF OBLIGOR OF the period to appeal has lapsed without an appeal
being taken.
JUDGMENT OBLIGOR
9. EFFECT OF JUDGMENT OR FINAL Final judgments distinguished from final and
ORDERS executory judgments
10. ENFORCEMENT AND EFFECT OF
Judgments are “FINAL” in a sense that they finally
FOREIGN JUDGMENTS OR FINAL dispose of, adjudicate, or determine the rights of the
ORDERS parties. But such judgments are not yet final and
executory pending the period of appeal. During that
1. DIFFERENCE BETWEEN FINAL period, execution of the judgment cannot be yet
JUDGMENT FOR PURPOSES OF demanded by the winning party as a matter of right.
APPEAL; FOR PURPOSES OF Judgments become “FINAL AND EXECUTORY”
EXECUTION by operation of law. Finality of judgment becomes a
fact upon the lapse of the reglementary period to
FOR PURPOSES OF APPEAL appeal if no appeal is perfected. In such a situation,
the prevailing party is entitled to a writ of execution,
General Rule: Final judgments dispose of, and issuance thereof is a ministerial duty of the
adjudicate, or determine the rights of the parties court. (Abrigo vs. Flores, G.R. No. 160786, 2013);
and leave nothing to be adjudicated upon. Only final (Feria and Noche, Civil Procedure Annotated, 2013
judgments can be the subject of an appeal. ed., vol. 2, p.127)

Final judgment or order distinguished from Doctrine of Immutability of judgments

interlocutory order A judgment that has acquired finality becomes
immutable and unalterable, and may no longer be
Final judgment or order modified in any respect even if the modification is
A final judgment or order is one that finally disposes meant to correct erroneous conclusions of fact or
of a case, leaving nothing more to be done by the law and whether it will be made by the court that
Court in respect thereto, e.g., an adjudication on the rendered it or by the highest court of the land.
merits which, on the basis of the evidence
presented at the trial, declares categorically what The doctrine of immutability and inalterability of a
the rights and obligations of the parties are and final judgment has a two-fold purpose:
which party is in the right; or a judgment or order 1. To avoid delay in the administration of justice and
that dismisses an action on the ground, for thus, procedurally, to make orderly the discharge of
instance, of res judicata or prescription. Once judicial business; and
rendered, the task of the Court is ended, as far as 2. To put an end to judicial controversies, at the risk
deciding the controversy or determining the rights of occasional errors, which is precisely why courts
and liabilities of the litigants is concerned. Nothing exist.
more remains to be done by the Court except to
await the parties' next move and ultimately, of
course, to cause the execution of the judgment Exceptions:
once it becomes "final" or, to use the established 1. Correction of
and more distinctive term, "final and executory." clerical errors;

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 2. Nunc pro 1. Judgment of lower court against defendant
tunc entries that cause no prejudice to any in forcible entry and unlawful detainer
party; (where the defendant fails to post a
3. Void judgments; supersedeas bond or deposit the rentals
and with the court, or where the appeal is from
4. Whenever a decision of the regional trial court against
circumstances transpire after the finality of the defendant).
the decision rendering its execution unjust 2. Judgment in action for injunction,
and inequitable. (Apo Fruits and Hijo receivership, accounting and support,
Plantation vs. CA, G.R. No. 164195, 2009) unless otherwise ordered by the court.
3. Award, judgment, final order, or resolution
Note: A supervening event, to be sufficient to stay of quasi-judicial bodies appealable to the
or stop the execution, must alter or modify the Court of Appeals. (Feria and Noche, Civil
situation of the parties under the decision as to Procedure Annotated, 2013 ed., vol. 2, p.
render the execution inequitable, impossible, or 127)
unfair. The supervening event cannot rest on
unproved or uncertain facts. (Abrigo vs. Flores, Section 1 of Rule 39 of the Revised Rules of Court
G.R. No. 160786, 2013) does not prescribe that a copy of the motion for the
execution of a final and executory judgment be
Doctrine of immutability of a final judgment may be served on the defeated party, like litigated motions
relaxed only to serve the ends of substantial justice such as a motion to dismiss (section 3, Rule 16), or
in order to consider certain circumstances like: motion for new trial (section 2, Rule 37), or a motion
1. Matters of life, liberty, honor or property; for execution of judgment pending appeal (section
2. Existence of special or compelling 2, Rule 39), in all of which instances a written notice
circumstances; thereof is required to be served by the movant on
3. Merits of the case; the adverse party in order to afford the latter an
4. Cause not being entirely attributable to the opportunity to resist the application.
fault or negligence of the party favored by
the suspension of the doctrine; Once the judgment has become final and
5. Lack of any showing that the review executory, the prevailing party (judgment obligee)
sought is merely frivolous and dilatory; may, by motion, ask for the issuance of a writ
6. Other party will not be unjustly prejudiced execution of the judgment in the court of origin.
by the suspension. (Abrigo vs. Flores, G.R. (Far Eastern Surety vs. Vda. de Hernandez, G.R.
No. 160786, 2013) No. L-30359, 1975) The prevailing party can have it
executed as a matter of right, and the judgment
2. WHEN EXECUTION SHALL ISSUE debtor need not be given advance notice of the
application for execution nor be afforded prior
NO appeal may be taken from an order of hearings thereon. (De Mesa vs. CA, G.R. No.
execution. A party desiring to assail an order of 109387)
execution may instead file an appropriate special
civil action under Rule 65 of the Rules of Court. Elementary is the rule that every motion must
contain the mandatory requirements of notice and
Requisites of a Writ of Execution hearing and that there must be proof of service
The writ must conform strictly to the decision or thereof. The rule, however, is NOT ABSOLUTE.
judgment; it cannot vary the terms of the judgment it There are motions that can be acted upon by the
seeks to enforce. court ex parte if these would not cause prejudice to
the other party. They are not strictly covered by the
a. EXECUTION AS A MATTER OF rigid requirement of the rules on notice and hearing
of motions. A motion for execution is such kind of
RIGHT motion. (Anama vs. CA, G.R. No. 187021, 2012)
When execution shall as a matter of right The issuance of the writ of execution is the
On motion: ministerial duty of the court. Thus, it is
Upon judgment or order that disposes of the action compellable by MANDAMUS.
or proceeding; Exceptions (When the Court May Refuse
Upon expiration of the period to appeal therefrom Execution):
and no appeal has been duly perfected; 1. Where the judgment turns out to
When appeal has been duly perfected and resolved be incomplete or conditional;
with finality. (Rule 39, Section 1) 2. Judgment is novated by the
parties (e.g. compromise);
Judgments and final orders which may be 3. Change in the situation of the
executed as a matter of right even BEFORE parties which would render
expiration of time to appeal: execution of judgment unjust;
(Note: Without need of advance notice or service of 4. Execution is enjoined (e.g., there
a motion for execution on defeated party) is a preliminary injunction);
5. Judgment has become dormant;

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 6. Execution is unjust or impossible. Requisites:
1. Motion for execution filed by the
Grounds for Quashing a Writ of Execution prevailing party;
1. When the writ of execution varies the 2. Notice of the motion to adverse party;
judgment; and
2. When there has been a change in the 3. Good reasons stated in a special
situation of the parties making the order after due hearing. (Rule 39,
execution inequitable or unjust; Section 2)
3. When execution is sought to be enforced
against property exempt from execution; On motion, WITH NOTICE to the adverse party, the
4. When it appears that the controversy has prevailing party may apply for a writ of execution of
never been submitted to the judgment of judgment or final order pending appeal.
the court;
5. When the terms of the judgment are not This must be done while trial court has
clear enough and there remains room for jurisdiction over the case and is in possession of
interpretation thereof; either the original record or record on appeal.
6. When it appears that the writ of execution The court may, in its discretion, order execution
has been improvidently issued; even before the expiration of the period for appeal.
7. When it appears that the writ of execution
is defective in substance, or is issued After the trial court has lost jurisdiction, the motion
against the wrong party or that the for execution pending appeal may be filed with the
judgment debt has been paid or otherwise appellate court.
satisfied, or the writ was issued without
authority. Note: Awards for MORAL and EXEMPLARY
damages CANNOT be the subject of execution
You can also file a petition for certiorari under Rule pending appeal. (International School, Inc. (Manila)
65 with prayer for TRO to restrain execution. v. CA, G.R. No. 131109, 1999) Unlike the actual
(Albano, Remedial Law Reviewer) damages for which the petitioners may clearly be
held liable if they breach a specific contract and the
When execution of final and executory amounts of which are fixed and certain, liabilities
judgments may be ENJOINED: with respect to moral and exemplary damages as
1. Upon filing of a petition for relief from well as the exact amounts remain uncertain and
judgment, the court in which the petition is indefinite pending resolution by the Intermediate
field may grant preliminary injunction for Appellate Court (now CA) and eventually the
the preservation of the rights of the parties Supreme Court. (Radio Communications v. Lantin,
pending the proceedings; G.R. No. L-59311, 1985)
2. In an attack against a judgment which is
void for lack of jurisdiction or was obtained Note: Execution pending appeal is NOT applicable
through fraud, the court in which the action in land registration proceedings.
for certiorari, injunction, or annulment is
filed may grant preliminary injunction; and What is a Good Reason
3. On equitable grounds. (Feria and Noche, Good reasons consist of compelling circumstances
Civil Procedure Annotated, 2013 ed., vol. justifying immediate execution lest judgment
2, p. 130) becomes illusory, or the prevailing party, after the
lapse of time, be unable to enjoy it, considering the
General Rule: The dispositive portion of the tactics of the adverse party who may have
decision is that part that becomes the subject of apparently no cause but to delay. (Archinet
execution. International, Inc. v. Beco Philippines, Inc. G.R. No.
Exceptions: 183753, 2009)
Where there is ambiguity, the body of the
opinion may be referred to for purposes of Examples of GOOD REASONS:
construing the judgment. (Mutual Security That the appeal was being taken for the purpose of
Insurance Corporation v. Court of Appeals delay. (Presbitero v. Roxas 73 Phil. 300, 1941)
G.R. No. L-47018, 1987)
Where extensive and explicit discussion Where the education of the person to be supported
and settlement of the issue is found in the would be unduly delayed. (Javier v. Lucero, et
body of the decision. (Wilson Ong Ching al. 94 Phil. 634, 1954)
Kian Chung, et al v. Chinese National
Cereals Oil and Foodstuffs Import and The insolvency of the judgment debtor. (Archinet
Export Corp, et al. G.R. No. 131502, June International, Inc. v. Becco Philippines, Inc.
8, 2000) G.R. No. 183753, 2009)

b. DISCRETIONARY EXECUTION However, when there are several defendants and

the co-defendant is not insolvent, insolvency of
A. Execution of a judgment or a final order a defendant is not a good reason for execution.
pending appeal

149
 (Philippine National Bank v. Puno G.R. No. modifying, restoring or granting the injunction,
76018 1989) receivership, accounting, or award of support.

B. Execution of several, separate or partial The stay of execution shall be upon such terms as
judgments. may be considered proper for the security or
Several separate or partial judgments MAY be protection of the rights of the adverse party.
executed under the SAME terms and
conditions as execution of judgment or final Effect of Reversal of Executed Judgment
order pending appeal. The trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and
Note: An award for actual/compensatory justice may warrant under the circumstances. (Rule
damages may be ordered executed pending 39, Section 5)
appeal, but not an award for moral or
exemplary damages. 3. HOW JUDGMENT IS EXECUTED
Stay of Discretionary Execution a. EXECUTION BY MOTION OR BY
Stayed upon approval by the proper court of a INDEPENDENT ACTION
sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the A Final and Executory Judgment or Order may
performance of the judgment or order allowed to be be executed:
executed in case it shall be finally sustained in 1. On motion, within five (5) years from
whole or in part. entry; or
2. By filing an independent action for
The supersedeas bond is filed by the petitioner revival of judgment after five (5) years
and approved by the court BEFORE the judgment but before ten (10) years from entry.
becomes final and executory. It guarantees the
satisfaction of the judgment in case of affirmation on The Revived Judgment may be enforced:
appeal. (Rule 38, Section 3) 1. By motion, within five (5) years from date
of its entry; or
Note: Section 3 (Stay of Discretionary Execution) 2. By action, after the lapse of five (5) years,
finds application in ordinary civil actions where the before it is barred by the statute of
interest of the prevailing party is capable of limitations. (Rule 38, Section 6)
pecuniary estimation, and consequently, of
protection, through the filing of a supersedeas bond. Suspension of the Five (5) Year Period for
Thus, the penultimate sentence of Section 3 states: Execution by Motion
―[T]he bond thus given may be proceeded against While the general rule is that a judgment can no
on motion with notice to the surety.‖ Consequently, longer be affected by mere motion after five (5)
it finds no application in election protest cases years from the date of entry, delays in the execution
where judgments invariably include orders which of the judgment that are ATTRIBUTABLE TO THE
are not capable of pecuniary estimation such as the DEBTOR has the effect of SUSPENDING the
right to hold office and perform its running of the prescriptive period for the
functions. (Navarosa vs. Comelec, G.R. No. enforcement of the judgment.
157957, 2003)
Execution by Independent Action – REVIVAL OF
Judgments NOT Stayed By Appeal JUDGMENT
General Rule: Judgment is stayed by appeal. If so A revived judgment is deemed a new judgment,
stayed, it is not yet executory. separate and distinct from the original judgment.
Exceptions: Instances when judgments are Hence, the five (5) year period to enforce the
immediately executory: judgment by motion and the ten (10) year period to
1. Injunction; enforce the judgment by action will run from the
2. Receivership; date of finality of the revived judgment and not of
3. Accounting; the original judgment.
4. Support;
5. Other judgments declared to be The action for revival of judgment need not
immediately executory as ordered necessarily be filed with the same court that
by the trial court. (Rule 39, decided the case; it shall be filed in the RTC as one
Section 4) incapable of pecuniary estimation.

These exceptions shall be enforceable after their

rendition and shall NOT be stayed by an appeal Revival of Judgment Revival of Judgment
taken therefrom UNLESS otherwise ordered by (Section 6) (Section 34)
the trial court.
An independent action Not an independent
assigned a new docket action; merely by motion
On appeal therefrom, the appellate court in its
number with payment of filed in court
discretion MAY make an order suspending,
filing fees, assigned to a

150
new court issuance of the writ, aside from the principal
obligation.
Assumes that there is no Assumes that a
execution within the first judgment is executed
Special sheriffs for the service of a writ of execution
five years within the first five years
are not authorized by law.
The party who files the The party who files the
action is the judgment motion is not the original An appeal is the remedy for an order denying the
creditor himself, or his judgment creditor but the issuance of a writ of execution.
assignee, or successor- highest bidder in the
in-interest public auction sale Issuance of the corresponding writ of execution
upon a final and executor judgment is a ministerial
Filed due to lapse of the Filed because movant is duty of the court to execute which is compellable by
five-year period deprived of the property mandamus (Ebero v. Cañizares, 79 Phil. 152 G.R.
purchased No. L-1397, 1947)

c. EXECUTION OF JUDGMENTS FOR

Execution in case of death or party MONEY
In case of death of the judgment obligee,
execution will issue upon the application of the A Judgment for Money is enforced by:
executor or administrator or successor-in-interest. 1. Immediate payment on demand;
2. Satisfaction by levy;
In case of death of judgment obligor: 3. Garnishment of debts and credits. (Rule
BEFORE levy: 39, Section 9)
1. Execution will issue if the action is for
the recovery of real or personal Immediate payment on demand
property or any lien thereon. Judgment obligor shall pay in cash, certified bank
2. Execution will not issue if the action is check payable to the judgment obligee, or any other
for the recovery of a sum of money. form of payment acceptable to the latter of the full
The judgment obligee must file a claim amount stated in the writ of execution.
against the estate of the judgment
obligor under Rule 86. Satisfaction by levy
LEVY is an act by which an officer sets apart or
AFTER levy: Execution will continue even in money appropriates a part of the whole property of the
judgment. The property may be sold for the judgment debtor for purposes of the execution sale.
satisfaction of the judgment obligation, and the
officer making the sale shall account to the Levy is a pre-requisite to the auction sale. In order
corresponding executor or administrator for any that an execution sale may be valid, there must be
surplus in his hands. (Rule 39, Section 7) a previous valid levy. A sale not preceded by a
valid levy is void and the purchaser acquires no
b. ISSUANCE AND CONTENTS OF A WRIT title. (Valenzuela v. De Aguila, G.R. No. L-18083-
OF EXECUTION 83, 1963)
WRIT OF EXECUTION The officer shall levy upon properties of the
A judicial writ issued to an officer authorizing judgment obligor not otherwise exempt from
him/her to execute the judgment of the court. execution.
Requisites: The judgment obligor exercises discretion to choose
1. Must strictly conform to the decision or which property to levy and if not exercised, the
judgment which gives it life; officer shall levy first on personal property, then on
2. Cannot vary the terms of judgment it real property.
seeks to enforce.
The sheriff shall sell only property sufficient to
The Writ must: satisfy the judgment and other lawful fees.
1. Be issued in the name of the Republic of
the Philippines from the court, which The levy on execution creates a lien in favor of the
granted the motion; judgment obligee over the right, title, and interest of
2. State the name of the court, the case the judgment obligor in such property at the time of
number and title, the dispositive part of the the levy, subject to liens and encumbrances then
subject judgment or order; and existing.
3. Require the sheriff or other proper officer
to enforce the writ according to its terms. Garnishment of debts and credits
GARNISHMENT is an act of appropriation by the
The motion for execution and the writ of execution court when the property of a debtor is in the hands
must state specifically the amount of interest, costs, of a third person. It is a species of attachment for
damages, rents, or profits due as of the date of reaching any property or credits pertaining or
payable to a judgment debtor.

151
 occupant therein. (Arcadio v. Ylagan, A.C. No.
Note: Garnishment is proper only when the 2734, July 30, 1986)
judgment to be enforced is one for payment of a
SUM OF MONEY. It cannot be employed to When the party refuses to comply, the court can
implement a special judgment such as that appoint some other person at the expense of the
rendered in a special civil action for mandamus. disobedient party and the act done shall have the
(National Home Mortgage vs. Alpajaro, G.R. No. same effect as if the disobedient party performed it.
166508, 2009)
e. EXECUTION OF SPECIAL
The sheriff may levy on debts due to the debtor, or JUDGMENTS
other credits, including bank deposits, financial
interests, royalties, commissions and other personal SPECIAL JUDGMENT
property, not capable of manual delivery in the One which can only be complied with by the
rd
possession or control of 3 parties. Notice must be judgment obligor because of his/her personal
rd
served to the 3 party. qualifications or circumstances.

Note: The unused balance of an overdraft account For example, a judgment granting a petition for
is not a credit subject to garnishment. (Feria and mandamus is a special judgment, since a writ of
Noche, Civil Procedure Annotated, 2013 ed., vol. 2, mandamus is a command directed to an inferior
p.181) court, tribunal, or board, or to some corporation or
person, requiring the performance of a particular
rd
The garnishee or the 3 person who is in duty, and which duty results from the official station
possession of the property of the judgment debtor is of the party to whom the writ is directed, or from
deemed a forced intervenor. operation of law. (National Housing Mortgage
Finance Corporation v. Abayari, G.R. No. 166508,
d. EXECUTION OF JUDGMENTS FOR 2009)
SPECIFIC ACTS
Requisites:
Conveyance, delivery of deeds, or other specific 1. The judgment requires performance of any
acts; vesting title. act other than payment of money, or the
If a party fails to comply within the time specified, sale or delivery of real or personal
the court may direct the act to be done at the cost of property.
the disobedient party. 2. A certified copy of the judgment shall be:
a. Attached to the writ of execution;
Sale of real or personal property and
The officer must sell such property, describing it, b. Served by the office upon:
and apply the proceeds in conformity with the 3. Party against whom the judgment is
judgment. rendered;
4. Any other person required by the judgment
Delivery or restitution of real property or by law to obey the writ. (Rule 39,
The officer shall demand the losing party to Section 11)
peaceably vacate the property within 3 working
days, and restore possession to judgment obligee; Failure to comply with special judgment under Rule
otherwise, the officer shall oust such disobedient 39, Section 11 is punishable by contempt by
party. imprisonment. This is an exception to the rule that
contempt is not a remedy to enforce a judgment.
Removal of improvements on property subject
of execution f. EFFECT OF LEVY ON THIRD PERSONS
Officer shall not destroy, demolish, or remove
improvements except upon special order of the A levy creates a lien in favor of the judgment
court. obligee over the right, title and interest of the
judgment obligor in such property at the time of the
Delivery of personal property levy, subject to liens and encumbrances then
The officer shall take possession of the same and existing.
forthwith deliver it to the party entitled to satisfy any
judgment for money as therein provided. (Rule 39, 4. PROPERTIES EXEMPT FROM
Section 10) EXECUTION
If the party refuses to vacate the property, the
Except as otherwise expressly provided by law, the
Sheriff must oust the party. But if demolition is following property, and no other, shall be EXEMPT
involved, there must be a special order. from execution:
1. Family home, or homestead, land
A writ of execution directing the sheriff to cause the
necessarily used in connection therewith.
defendant to vacate is in the nature of a habere
2. Ordinary tools and implements used in
facias possessionem and authorizes the sheriff to
trade, employment, or livelihood.
break open the premises where there is no

152
 3. Three (3) horses, cows, carabaos, or other shall report to the court and state the reason
beast of burden necessarily used in his/her therefor. (Rule 39, Section 4)
ordinary occupation.
4. Necessary clothing and articles for Lifetime of the Writ of Execution
ordinary personal use, except jewelry. The writ shall continue in effect during the period
5. Household furniture and utensils within which the judgment may be enforced by
necessary for housekeeping that is ≤ motion. (Rule 39, Section 4) Thus, the writ is
P100K. enforceable within the five (5) year period from
6. Provisions for individual or family use entry of judgment.
sufficient for 4 months.
7. Professional libraries and equipment. NOTICE OF SALE of Property on Execution
8. One fishing boat and accessories ≤ P100K If PERISHABLE property: By posting written
used in livelihood. notice of the time and place of the sale in three
9. Salaries, wages, or earnings as are (3) public places, preferably in conspicuous
necessary for support of family within 4 areas of the municipal or city hall, post office
months preceding levy. and public market where the sale is to take
10. Lettered gravestones. place, for such time as may be reasonable,
11. Monies, benefits, privileges, or annuities considering the character and condition of the
accruing out of any life insurance; and property.
12. Properties specially exempt from OTHER PERSONAL property: By posting similar
execution. notice in three (3) public places above-
mentioned for not less than five (5) days.
Other EXEMPTIONS: If REAL property: By posting for 20 days in three
1. Property mortgaged to DBP. (Section 26, (3) public places particularly describing the
C.A. 458) property and stating where the property is to be
2. Property taken over by Alien Property sold, and if the assessed value of the property
Administration. (Section 9[f], US Trading exceeds P50,000, by publishing a copy of the
With The Enemy Act) notice once a week for two (2) consecutive
3. Savings of national prisoners deposited weeks in one (1) newspaper selected by raffle
with the Postal Savings Bank. (Act 2489) (whether in English, Filipino, or any major
4. Backpay of pre-war civilian employees. regional language published, edited and
(R.A. 304) circulated or, in the absence thereof, having
5. Philippine Government backpay to general circulation in the province or city).
guerillas. (R.A. 897)
6. Produce, work animals, and farm In all cases, written notice of the sale shall be given
implements of agricultural lessees, subject to the judgment obligor, at least three (3) days
to limitations. (Section21, R.A. 6389) before the sale, except as provided in paragraph (a)
7. Benefits from private retirement systems of where notice shall be given at any time before the
companies and establishments, with sale. It shall specify the place, date and exact time
limitations. (R.A. 4917) of sale (between 9AM and 2PM). (Rule 39, Section
8. Labor wages, except for debts incurred for 15)
food, shelter, clothing, and medical
attendance. (Art. 1708, NCC) PLACE OF SALE
9. Benefit payments from the SSS. (Section 1. May be agreed upon by the parties; or
16 R.A. 1161 as amended by P.D.s 24, 65, 2. In the absence of such agreement, the
and 177) sale will be held in:
10. Copyrights and other rights in intellectual 1. Sale or Real or Personal
property under the former copyright law. Property NOT Capable of
(P.D. 49 cf. Section 239.3, R.A. 8293) Manual Delivery:
11. Bonds issued under R.A. 1000. (NASSCO Office of the Clerk of Court of
v. CIR G.R. No. L-17874, 31 August 1963; MTC or RTC which issued the
Regalado, F. Remedial Law Compendium writ or was designated by the
Vol. 1, 9th ed., pp. 481-482) appellate court
2. Sale of Personal Property
But no article or species of property mentioned in Capable of Manual Delivery:
this section shall be exempt from execution issued Place where property is located.
upon a judgment recovered for its price or upon a (Rule 39, Section 15)
judgment of foreclosure of a mortgage hereon.
5. PROCEEDINGS WHERE PROPERTY
Return of Writ of Execution IS CLAIMED BY THIRD PERSONS
The writ of execution shall be returnable to the court
immediately after the judgment has been satisfied
Who May File Third Party-Claims
in part or in full.
Any other person other than the judgment obligor or
his agent. (Third-part claimant)
If the judgment cannot be satisfied in full within
thirty (30) days after receipt of the writ, the officer Time to File a Third-Party Claim

153
 rd
The third (3 ) party claim (terceria) may be filed at a. IN RELATION TO THIRD-PARTY CLAIM
any time, so as long as the sheriff has the IN ATTACHMENT AND REPLEVIN
possession of the property levied upon, or before
the property is sold under execution. Proceedings where property is claimed by a third
person are the same as to a judgment obligee
Purpose of Third-Party Claim: (final and executory judgments), an attaching party
1. To recover the property levied on by the (attachment), and an applicant praying for
sheriff, although the claimant may recovery of possession of personal property
vindicate his claim by any proper action (replevin), EXCEPT that the amount of the
even if he has not filed a third-party claim. INDEMNITY BOND they file differs.
2. To hold the sheriff liable for damages for
the taking or keeping of such property, ATTACHMENT (Rule 57)
which action for damages, however, must To keep the property in the possession of the
be brought within 120 days from the date sheriff, the ATTACHING PARTY or his AGENT, on
of the filing of the bond. (Feria and Noche, demand of the sheriff, shall file a BOND approved
Civil Procedure Annotated, 2013 ed., vol. by the court to indemnify the third-party claimant in
2, p. 211) a sum not less than the value of the property
levied upon. (Rule 57, Section 14)
Procedure in Making a Third-Party Claim
rd
Third (3 ) Party Claimant should: Remedy: Nothing shall prevent a claimant or any
1. Make an affidavit of his/her title thereto, third person from vindicating his claim to the
or right of possession thereof, stating the property, or prevent the attaching party from
grounds of such right or title; and claiming damages against a third-party claimant
2. Serve such affidavit upon the sheriff and who filed a frivolous or plainly spurious claim, in the
a copy thereof upon the judgment SAME or a SEPARATE action. (Rule 57, Section
obligee. 14)

Effect: The Officer shall not be bound to keep the Replevin

property, UNLESS the Judgment Obligee, on To keep the property in the possession of the sheriff
demand the officer files an INDEMNITY BOND or to have the latter deliver the property to the
approved by the court to indemnify the third party applicant, the APPLICANT or his AGENT, on
claimant in a sum not less than the value of the demand of said sheriff, shall file a bond approved
property levied on. by the court to indemnify the third-party claimant in
a sum not less than double the value of the
In case of disagreement as to the value of the property as stated in the applicant‘s affidavit. (Rule
property, the Court issuing the writ shall determine 60, Section 7)
the same.
Remedy: Nothing shall prevent a claimant or any
The Officer shall not be liable for damages to any third person from vindicating his claim to the
third-party claimant if such bond is filed by the property, or prevent the applicant from claiming
judgment obligee for the taking or keeping of the damages against a third-party claimant who filed a
property. frivolous or plainly spurious claim, in the SAME or a
SEPARATE action. (Rule 60, Section 7)
Nothing herein contained shall prevent such
claimant or any third person from vindicating his EXECUTION SALE
claim to the property in a SEPARATE action. (Rule
39, Section 16) Penalty for selling without notice, or removing
or defacing notice
However, the judgment obligee can claim damages The following are liable for actual and punitive
against a third-party claimant who filed a frivolous or damages:
plainly spurious claim, and such judgment obligee 1. An officer selling without the notice
can institute proceedings therefor in the SAME or required under Section 15; and
SEPARATE action. 2. A person willfully removing or defacing the
notice posted, if done before the sale, or
When the writ of attachment is issued in favor of the before satisfaction of judgment if satisfied
Republic of the Philippines, or any officer duly before the sale.
representing it, the filing of such bond shall NOT be
required, and in case the sheriff is sued for Actual and punitive damages may be recovered by
damages as a result of the attachment, he shall be motion in the same action. (Rule 39, Section 17)
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the No Sale if Judgment and Costs Paid
court shall be paid by the National Treasurer out of At any time before the sale of property on
the funds to be appropriated for the purpose. (Rule execution, the judgment obligor may prevent the
39, Section 14) sale by paying the amount required by the
execution and the costs that have been incurred
therein. (Rule 39, Section 18)

154
 Without such written consent: The officer may
How property sold on execution; who may adjourn the sale from day to day if it becomes
direct manner and order of sale necessary to do so for lack of time. (Rule 39,
Sales of property under execution must be made: Section 22)
1. At public auction.
2. To the highest bidder. Conveyance to Purchaser of Personal Property
3. To start at the exact time fixed in the Capable of Manual Delivery
notice. When the purchaser pays the purchase price, the
officer making the sale must deliver the property to
After sufficient property has been sold to satisfy the the purchaser and, if desired, execute and deliver
execution, no more shall be sold and any excess to him/her a certificate of sale. (Rule 39, Section 23)
shall be promptly delivered to the judgment obligor
or his/her authorized representative, unless Conveyance to Purchaser of Personal Property
otherwise directed by the judgment or order of the NOT Capable of Manual Delivery
court. (Rule 39, Section 19) When the purchaser pays the purchase price, the
officer must execute and deliver a certificate of
Ordinary Sale on Sale in Judicial sale. The certificate conveys to the purchaser all
Execution Foreclosure of the rights which the judgment obligor had in the
Mortgage property as of the date of the levy on execution
or preliminary attachment. (Rule 39, Section 24)
No need for confirmation Must be confirmed by
of the court the court Note: The execution and delivery of a certificate of
sale is mandatory for personal property not capable
Right of redemption No right of redemption of manual delivery (unlike in conveyance of
exists when property is except by the mortgagor personal property capable of manual delivery). This
real where the mortgagee is constitutes symbolic delivery.
a bank or a banking
institution. (See Section Conveyance of Real Property; Certificate thereof
47 of General Banking Given to Purchaser and Filed with the Registry
Law of 2000) of Deeds
The officer must give to the purchaser a certificate
If the mortgagee is a of sale.
non-banking institution,
there is no right to Contents of CERTIFICATE OF SALE:
redeem. 1. A particular description of the real property
sold.
Title acquired after the Title acquired upon entry 2. The price paid for each distinct lot or
expiration of the period of the confirmation and parcel.
of redemption when the registration of the 3. The whole price paid by him/her.
final deed of conveyance foreclosure sale 4. A statement that the right of redemption
is executed expires 1 year from the date of the
registration of the certificate of sale. (Rule
Refusal of Purchaser to Pay 39, Section 25)
The officer may again sell the property to the
highest bidder and shall not be responsible for any Note: The certificate of sale in this case is merely
loss occasioned thereby. But the court may order provisional. No court confirmation is required.
the refusing purchaser to pay to the court the
amount of such loss with costs. The court may Certificate of Sale Where Property is Claimed by
punish him/her for contempt if he/she disobeys the Third Person
order. The officer may then reject any subsequent The certificate of sale must make express mention
bid of such purchaser who refuses to pay. (Rule 39, of the existence of such third-party claim. (Rule 39,
Section 20) Section 26)

If Judgment Obligee is Purchaser 6. RULES ON REDEMPTION

When the purchaser is the judgment obligee, and
no third party claim has been filed, he/she need not Right of redemption
pay the amount of the bid if it does not exceed the 1. Personal Property - no right because the
amount of his/her judgment. If it does, he/she shall sale is absolute.
pay only the excess. (Rule 39, Section 21) 2. Real Property - right is given.

Adjournment of Sale Who may redeem REAL property

With written consent of the judgment obligor and The JUDGMENT OBLIGOR; or his SUCCESSOR
obligee or their duly authorized representatives: The IN INTEREST in the whole or any part of the
officer may adjourn the sale to any date and time property;
agreed upon by them. A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or

155
 on some part thereof, subsequent to the lien The offer to redeem must be accompanied by a
under which the property was sold. Such bona fide tender of redemption price. But a formal
redeeming creditor is termed a offer to redeem with a tender is not necessary when
REDEMPTIONER. (Rule 39, Section 27) the right to redeem is exercised through the filing of
a complaint to redeem in the courts, within the
Period to redeem period to redeem.
Judgment Debtor:
Within one (1) year from the date of registration Certificate of Redemption
of the certificate of sale. The person to whom redemption is made must
Redemptioner: execute and deliver a certificate of redemption
Within one (1) year from the date of registration acknowledged before a notary public or other officer
of the certificate of sale if he/she is the first authorized to take acknowledgments of
redemptioner; and conveyances of real property. (Rule 39, Section 29)
Within 60 days from the last redemption, if
he/she is a subsequent redemptioner. Proof of redemption required by redemptioner
(Rule 39, Section 28) A redemptioner must produce to the officer, or
person from whom he/she seeks to redeem, and
Note: The periods for redemption are not extendible serve with his/her notice to the officer:
or interrupted. The parties may, however, agree on 1. A copy of the judgment or final order
a longer period. In such case, it would be a certified by the clerk of the court wherein
conventional redemption. (Lazo v. Republic Surety the judgment or final order is entered; or,
& Insurance Co., G.R. No. 27365, 1970) 2. If he/she redeems upon a mortgage or
other lien, a memorandum of the record
The judgment debtor has always one year from the thereof, certified by the registrar of deeds,
registration of the certificate of sale within which to or an original or certified copy of any
redeem, regardless of whether there have been any assignment necessary to establish his/her
prior redemptions and the date of such claim; and
redemptions; and the moment said judgment debtor 3. An affidavit executed by him/her or his/her
redeems, there shall be no further redemption. The agent, showing the amount then actually
redemptioner, on the other hand, must redeem due on the lien. (Rule 39, Section 30)
within the one-year period, if he is the first
redemptioner, and within 60 days from the last Manner of Using Premises Pending
redemption, if he is a subsequent redemptioner, Redemption; Waste Restrained
provided that the judgment debtor has not exercised Until the expiration of the time allowed for
his right of redemption. (Regalado, Remedial Law redemption, the court may, as in other proper
Compendium, Vol. I, Sixth Revised Edition, p. 457) cases, restrain the commission of waste on the
property by injunction, on the application of the
Redemption price purchaser or the judgment obligee, with or without
By the judgment obligor or first redemptioner: notice. (Rule 39, Section 31)
1. Purchase price.
2. 1%interest per month thereon, up to What is NOT Considered Waste that can be
the time of redemption. Restrained
3. Any amount of assessments or taxes It is NOT waste for a person in possession of the
which the purchaser may have paid property at the time of the sale, or entitled to
thereon after purchase and interest on possession afterwards, during the period allowed
such last named amount at the same for redemption:
rate. and To continue to use it in the same manner in which it
4. If the purchaser be also a creditor was previously used; or
having a prior lien to that of the To use it in the ordinary course of husbandry; or
redemptioner, other than the judgment To make the necessary repairs to buildings thereon
under which such purchase was while he/she occupies the property. (Rule 39,
made, the amount of such other lien, Section 31)
with interest.
By subsequent redemptioners: Rents, earnings and income of property pending
1. Amount paid on the last redemption. redemption
2. 2% interest per month thereon. All rents, earnings and income derived from the
3. Any amount of assessments or taxes property pending redemption shall belong to the
which the last redemptioner may have judgment obligor until the expiration of his/her
paid thereon after redemption by period of redemption. (Rule 39, Section 31)
him/her with interest on such last
named amount; and Deed and possession to be given at expiration
4. Amount of any liens held by said last of redemption period; by whom executed or
redemptioner prior to his/her own, with given
interest. 1. If NO redemption is made within one (1)
year from the date of the registration of the
certificate of sale - the purchaser is

156
 entitled to a conveyance and possession require the debtor to appear and his/her property or
of the property. income be examined. (Rule 39, Section 6)
2. If redeemed whenever sixty (60) days
have elapsed and no other redemption has Limitation
been made, and notice thereof given, and No judgment obligor shall be required to appear
the time for redemption has expired – the before a court or commissioner outside the
last redemptioner is entitled to the province or city in which such obligor resides or is
conveyance and possession. found.

In all cases the judgment obligor shall have the 8. EXAMINATION OF DEBTORS OF THE
entire period of one (1) year from the date of the JUDGMENT OBLIGOR
registration of the sale to redeem the property.
The court may order to be examined any person or
The deed shall be executed by:
corporation who has property of the debtor, or is
1. The officer making the sale; or
indebted to the debtor in order to bind the credits
2. His/her successor in office. due to debtor. (Rule 39, Section 37)
Recovery of price if sale not effective; revival of
Enforcement of Attendance and Conduct of
judgment
Examination
The purchaser may recover the purchase price if:
A party or other person may be compelled, by an
1. The purchaser or his/her successor-in-
order or subpoena, to attend before the court or
interest, fails to recover the possession
commissioner to testify as provided in Sections 36
thereof; or and 37. (Rule 39, Section 38)
2. Is evicted therefrom:
a. In consequence of irregularities in
the proceedings concerning the 9. EFFECT OF JUDGMENT AND FINAL
sale; or ORDERS
b. Because the judgment has been
reversed or set aside; or Effects of Judgments IN REM
c. Because the property sold was In case of a judgment or final order:
exempt from execution; or 1. Against a specific thing; or
d. Because a third person has 2. In respect to the probate of a will; or
vindicated his/her claim to the 3. The administration of the estate of a
property. deceased person; or
4. In respect to the personal, political, or
The purchaser may: legal condition or status of a particular
a. File a motion in the same action or in a person or his relationship to another
separate action to recover from the (Example: naturalization, adoption,
judgment obligee the price paid, with and annulment of marriage)
interest, or so much thereof as has not
been delivered to the judgment obligor, or The judgment or final order is CONCLUSIVE upon
b. File a motion to have the original judgment the title to the thing, the will or administration or the
revived in his/her name for the whole price condition, status or relationship of the person.
with interest, or so much thereof as has Exception: The probate of a will or granting of
been delivered to the judgment obligor. letters of administration shall only be PRIMA
(Rule 39, Section 34) FACIE evidence of the death of the testator or
intestate. (Rule 39, Section 47)
Note: The judgment so revived shall have the same
force and effect as an original judgment would have Effects of Judgments IN PERSONAM
as of the date of the revival and no more. In OTHER CASES, the judgment or final order is,
with respect to the matter directly adjudged or
Right to contribution or reimbursement as to any other matter that could have been
Contribution and reimbursement may be obtained in missed in relation thereto, CONCLUSIVE
a separate action, unless cross claims have been between the parties and their successors in
filed and adjudicated in the same action, in which interest, by title subsequent to the
case, execution may issue to compel contribution or commencement of the action or special
reimbursement. (Feria and Noche, Civil Procedure proceeding, litigating for the same thing and
Annotated, 2013 ed., vol 2) under the same title and in the same capacity.
(RES JUDICATA or BAR BY PRIOR
7. EXAMINATION OF JUDGMENT JUDMENT)
OBLIGOR WHEN JUDGMENT IS In ANY OTHER LITIGATION BETWEEN THE
SATISFIED SAME PARTIES OR THEIR SUCCESSORS
IN INTEREST, that only is deemed to have
Upon return of writ of execution, and judgment is been adjudged in a former judgment or final
still unsatisfied, the creditor may ask the court to order which appears upon its face to have been

157
 so adjudged, or which was actually and the grounds of want of jurisdiction, want of notice to
necessarily included therein or necessary the party, collusion, fraud, or clear mistake of law or
thereto. (ESTOPPEL BY JUDGMENT OR fact, have the opportunity to challenge the foreign
CONCLUSIVENESS OF JUDGMENT) judgment. (Feria and Noche, Civil Procedure
Annotated, 2013 ed., vol. 2, p. 288)
Judgment is deemed CONCLUSIVE when the
issues actually and directly resolved in a former suit END OF TOPIC
cannot again be raised in any future case between
the same parties involving a different cause of
action.

Res Judicata or Bar By Prior Judgment R. PROVISIONAL REMEDIES

A judgment or decree of a court of competent
jurisdiction concludes the litigation between the
parties and their successors or privies and bars a 1. Nature of provisional remedies
new action or suit involving the same cause of
action.
2. Jurisdiction over provisional
remedies
Estoppel by Judgment or Conclusiveness of 3. Preliminary attachment
Judgment a. Grounds for issuance of writ of
Any right, fact or matter in issue which has been attachment
directly adjudicated upon or is necessarily b. Requisites
involved in the determination of the action by a
competent court is conclusively settled by the c. Issuance and contents of order
judgment or final order and CANNOT be litigated of attachment; affidavit and
again by the parties and their privies. bond
d. Rule on prior or
10. ENFORCEMENT AND EFFECT OF contemporaneous service of
summons
FOREIGN JUDGMENTS OR FINAL
e. Manner of attaching real and
ORDERS personal property; when
property attached is claimed
In case of a judgment or final order UPON A by third person
SPECIFIC THING:
f. Discharge of attachment and
The judgment or final order is conclusive upon
the counter-bond
the title to the thing.
g. Satisfaction of judgment out of
In case of a judgment or final order AGAINST A property attached
PERSON: 4. Preliminary injunction
The judgment or final order is presumptive a. Definitions and differences:
evidence of a right as between the parties and preliminary injunction and
their successors in interest by a subsequent temporary restraining order;
title. status quo ante order
b. Requisites
In EITHER case, the judgment or final order may be c. Kinds of injunction
REPELLED by evidence of a:
1. Want of jurisdiction; d. When writ may be issued
2. Want of notice to the party; e. Grounds for issuance of
3. Collusion; preliminary injunction
4. Fraud; or f. Grounds for objection to, or for
5. Clear mistake of law or fact. the dissolution of injunction or
restraining order
ENFORCEMENT g. Duration of TRO
In order to enforce a foreign judgment in the h. In relation to R.A. 8975, ban on
Philippines, it is necessary to file an action based issuance of TRO or writ of
on said judgment. A foreign judgment is presumed injunction in cases involving
valid and binding in the country from which it government infrastructure
comes, until the contrary is show. (Feria and Noche, projects
Civil Procedure Annotated, 2013 ed., vol. 2, p. 287)
i. Rule on prior or
contemporaneous service of
RECOGNITION
summons in relation to
A defendant in a Philippine court may invoke a
attachment
foreign judgment as res judicata in his defense. It is
not necessary to institute a separate action or 5. Receivership
proceeding for recognition of the foreign judgment, a. Cases when receiver may be
as long as the parties opposed to the judgment on appointed

158
 b. Requisites the jurisdiction of the Regional Trial Court.
(Regalado, 2008)
c. Requirements before issuance
of an order
d. General powers of a receiver 3. PRELIMINARY ATTACHMENT (Rule
e. Three kinds of bonds 57)
f. Termination of receivership ATTACHMENT
6. Replevin Attachment is a provisional remedy by which the
a. When may writ be issued property of an adverse party is taken into legal
b. Requisites custody, either at the commencement of an action
c. Affidavit and bond; redelivery or at any time thereafter, as a security for the
bond satisfaction of any judgment that may be recovered
by the plaintiff or any proper party (Olib v. Pastoral,
G.R. No. 81120, 1990)
1. NATURE OF PROVISIONAL
REMEDIES The attachment of the property of the defendant
converts an ordinary action in personam into an
PROVISIONAL REMEDIES action quasi in rem.. In such case, jurisdiction over
Provisional remedies are temporary and ancillary the person of the defendant is not required as long
remedies to which party-litigants may resort for the as the court acquires jurisdiction over the res.
preservation or protection of their rights or interests, (Biaco v. Countryside Rural Bank, G.R. No. 161417,
and for no other purpose, during the pendency of 2007)
the principal action. (Feria and Noche, 2013)
Kinds of attachments
Purpose of provisional remedies 1. PRELIMINARY ATTACHMENT - issued at the
1. To protect the rights of a party during the commencement of the action or at any time
litigation before entry of judgment as security for the
2. To secure the judgment satisfaction of any judgment that may be
3. To preserve the subject matter of the recovered. The court takes custody of the
litigation property.
4. To preserve the status quo / status quo 2. GARNISHMENT - plaintiff reaches credit
ante belonging to the defendant and owing to him
5. To prevent very serious damage; or from a third person who is a stranger to the
6. To meet a very urgent need litigation. It does not involve actual seizure of the
property. It simply impounds the property in the
Other provisional remedies garnishee‘s possession and maintains the status
1. VAWC (R.A. 9282) quo until the main action is finally decided.
2. Marital cases (nullity, annulment, legal
separation) (A.M. 02-11-12-SC) 3. LEVY ON EXECUTION - the writ issued by the
3. Custody of minors (A.M. 03-04-04-SC) court after judgment by which the property of the
4. Special rules under Alternative Dispute judgment obligor is taken into custody of the
Resolution Act (R.A. 9285) court before the sale of the property on
5. Provisional remedies relative to the rule on execution. (Riano 2009 ed)
Writ of Amparo and Writ of Habeas Data
6. Rules of Procedure for Environmental Two Fold Purposes:
Cases (A.M. No. 09-6-8-SC) 1. To seize the property of the debtor before
final judgment and put the same in custodia
2. JURISDICTION OVER PROVISIONAL legis even while the action is pending for
REMEDIES the satisfaction of a later judgment (Insular
Bank of Asia and America v. Court of
The court which grants or issues a provisional Appeals, G.R. No. L-61011, 1990)
remedy is the court which has jurisdiction over the 2. To enable the court to acquire jurisdiction
main action. (Riano, 2009) over the res or the property subject of the
action in cases where service in person or
All inferior courts can grant all appropriate any other service to acquire jurisdiction
provisional remedies. The enforcement of said writs over the defendant cannot be effected
outside the territorial jurisdiction of the inferior court (Philippine Commercial International Bank
no longer requires the approval of the RTC. v. Alejandro, G.R. No. 175587, 2007)

In the case of the provisional remedy of support When it may be availed of:
pendent lite, however, jurisprudence has held that Filing of Application - An application for the
inferior courts cannot grant the same since the main issuance of a writ of attachment may be filed at the
case wherein this remedy may be involved is within commencement of the action or at any time before
entry of judgment;

159
It may be applied for by the plaintiff or a defendant
who filed a counterclaim, a cross-claim or a third- Removal of Property
party complaint. The execution of a mortgage in favor of another
creditor is not conceived by the Rules as one of the
How long does an order of preliminary means of fraudulently disposing of one‘s property.
attachment remain effective? By mortgaging a piece of property, a debtor merely
The lien continues until the debt is paid, or the sale subjects it to a lien but ownership is not parted with.
is had under execution issued on the judgment or (Adlawan v Torres, GR Nos. 65957-58, 1994)
until the judgment is satisfied, or the attachment
discharged or vacated in the same manner provided Upon Whom Summons May Be Served By
by law. (Lim v. Lazaro, G.R. No. 185734, 2013) Publication
Quote/summarize Rule 14, Sec. 15 and 16
a. GROUNDS FOR ISSUANCE OF (Extraterritorial service) instead.
PRELIMINARY ATTACHMENT
Note: Substituted service is the normal mode of
1. In an action for the recovery of a specified service of summons that will confer jurisdiction on
amount of money or damages, other than moral the court over the person of residents temporarily
and exemplary, on a cause of action arising from out of the Philippines. Hence, the court may acquire
law, contract, quasi-contract, delict, or quasi- jurisdiction over an action in personam by mere
delict against a party who is about to depart substituted service without need of attaching the
from the Philippines with the intent to defraud his property of the defendant. (PCIB v Alejandro, supra)
creditors;
REQUISITES
2. In an action for money or property embezzled or
fraudulently misapplied or converted to his own 1. Affidavit – To ensure that the applicant states
use by a public officer, or an officer of a the truth by requiring him to allege the presence
corporation, or an attorney, factor, broker, agent, of all the legal requirements under oath. The
or clerk, in the course of his employment as affidavit is the foundation of the writ and if none
such, or by any other person in a fiduciary be filed or one be filed wholly fails to set out
capacity, or for a willful violation of duty; some facts required by law to be stated therein,
there is no jurisdiction and the proceedings are
3. In an action to recover the possession of null and void.
property unjustly or fraudulently taken, detained
or converted, when the property, or any part Contents of the affidavit
thereof, has been concealed, removed or 1. A sufficient cause of action exists
disposed of to prevent its being found or taken 2. The case is one of those mentioned
by the applicant or an authorized person; in Sec. 1, Rule 57
3. There is no sufficient security for the
4. In an action against a party who has been guilty claim sought to be enforced by the
of a fraud in contracting the debt or incurring the action
obligation upon which the action is brought, or in 4. The amount due to the applicant is
the performance thereof; as much as the sum for which the
order is granted above all legal
5. In an action against a party who has removed or counterclaims. (Rule 57, Section 3)
disposed of his property, or is about to do so,
with intent to defraud his creditors; and It is not enough to state that a sufficient cause of
action exists. The applicant must state the facts
6. In an action against a party who does not reside showing cause of action.
in the Philippines, or on whom summons may be
served by publication. (Rule 57, Section 1, Rule To convince the court that the case is one of those
57) mentioned in Section 1 of the Rule, the applicant
must state facts, i.e. place, time, date, to illustrate
Note: In grounds 1-5, Fraud (in fraud of creditors, the grounds for attachment relied upon.
fraudulent detention or removal, embezzlement,
etc.) is an essential requirement. A bare allegation that an encumbrance of property
is in fraud of creditors does not suffice. Factual
Note: The fact that the applicant is willing to post bases for such conclusion must be clearly averred.
the attachment bond is not itself a ground for the (Adlawan v Torres, GR No. 65957-58, 1994)
issuance of the writ of attachment.
The amount due to the applicant must be as much
Example of Fraud as the sum for which the order is granted above all
As a security to the loan contracted, defendant legal counterclaims, because if the adverse party
offered a fake title and a vehicle heavily mortgaged. has a counterclaim against the applicant, this may
He subsequently sold the vehicle and his two condo off-set the claim.
units before the case was filed against him. (Liberty
Insurance v. CA, GR No. 104405, 1993)

160
2. Attachment Bond – Executed in favor of the 4. The action is one in rem or quasi in rem.
adverse party in an amount fixed by the court, (Rule 57, Section 5)
the bond is conditioned to pay all the costs
which will be adjudged the adverse party and THREE STAGES in the grant of Preliminary
all damages he may sustain if the court should Attachment
later rule that the applicant is not entitled to the 1. Court issues the order granting the application
attachment. 2. The writ of attachment is issued pursuant to an
order of the court granting the writ
The surety is liable for all damages and not 3. The writ is enforced/implemented
only for damages sustained during the appeal
as this is its commitment. (Phil. Charter Ins. v For 1 & 2, it is NOT necessary that jurisdiction over
CA, GR No. 88379, 1989) the person of the defendant be first obtained. But in
the third stage, the court must have acquired
The writ will not be issued if a real estate mortgage jurisdiction over the defendant, because without
exists to secure the obligation. (Salgado v. Court of such jurisdiction, the court has no power or
Appeals, G.R. No. 55381, 1994) authority to act in any manner against the
defendant.
c. ISSUANCE OF CONTENTS OF ORDER
OF ATTACHMENT; AFFIDAVIT OF BOND e. MANNER OF ATTACHING REAL AND
PERSONAL PROPERTY; WHEN PROPERTY
An order of attachment may be issued either ex ATTACHED IS CLAIMED BY THIRD PERSON
parte or upon motion with notice and hearing by the
court in which the action is pending, or by the Court The sheriff enforcing the writ shall without delay and
of Appeals or the Supreme Court. with all reasonable diligence attach, to await
judgment and execution in the action, only so much
The order must require the sheriff of the court to of the property in the Philippines of the party against
attach so much of the property in the Philippines of whom the writ is issued as may be sufficient to
the party against whom it is issued (must not be satisfy the applicant‘s demand. (Rule 57, Section 5)
exempt from execution) as may be sufficient to
satisfy the applicant‘s demand, UNLESS such party The sheriff executing the writ shall attach real and
makes a deposit or gives a bond, which may be the personal property in the following manner:
amount sufficient to satisfy the applicant‘s demand
or the value of the property attached, EXCLUSIVE 1. Real property
of costs. a. By filing with the registry of deeds a copy of
the order, together with a description of the
Several writs may be issued at the same time to the property attached and a notice that it is
sheriffs of the courts of different judicial regions. attached, or that such real property and any
(Rule 57, Section 2) interest therein held by or standing in the
name of such other person are attached; and
Ex parte grant of the writ is allowed because it is b. By having a copy of such order, description,
possible that during the course of the hearing, the and notice with the occupant of the property,
part against whom the writ is sought may dispose of if any, or with such other person or his agent
his property or abscond before the writ is issued. if found within the province.
(Filinvest v. Relova, G.R. No. L-50378, 1982) c. Where the property has been brought under
the operation of either the Land Registration
d. RULE ON PRIOR OR Act or the Property Registration Decree, the
CONTEMPORANEOUS SERVICE OF notice shall contain a reference to the
SUMMONS number of the certificate of title, the volume
and page in the registration book where the
General Rule: certificate is registered, and the registered
No levy on attachment pursuant to the writ issued owner or owners thereof.
under Section 2, Rule 57 shall be enforced unless it d. The registrar of deeds must index
is preceded, or contemporaneously accompanied, attachments filed under this section in the
by service of summons, together with a copy of the names of the applicant, the adverse party, or
complaint, the application for attachment, the the person by whom the property is held or in
applicant‘s affidavit and bond, and the order and whose name it stands in the records.
writ of attachment, on the defendant within the e. If the attachment is not claimed on the entire
Philippines. area covered by the certificate of title, a
Exceptions: description sufficiently accurate for the
1. Summons could not be served personally or identification of the land or interest to be
by substituted service despite diligent affected shall be included in the registration
efforts, of such attachment.
2. Defendant is a resident of the Philippines
temporarily absent therefrom, 2. Personal property capable of manual
3. Defendant is a non-resident of the delivery
Philippines, or

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 By taking and safely keeping it in his custody, 2. The interests of all the parties to the action will
after issuing the corresponding receipt therefor be subserved by the sale thereof

3. Stocks or shares The court may order that the property be sold at
By leaving with the president or managing agent public auction. The proceeds will be in custodia
thereof, a copy of the writ, and a notice stating legis. (Rule 57, Section 11)
that the stock or interest of the party against
whom the attachment is issued, is attached When property attached is claimed by a third
pursuant to the writ person
1. The sheriff shall not be bound to keep the
4. Debts and credits property under attachment UNLESS the
By leaving with the person owing such debts, or attaching party or his agent, on demand of the
having in his possession or under his control, sheriff, shall file a BOND approved by the court
such credits or other personal property, or with to indemnify the third-party claimant in a sum not
his agent, a copy of the writ, and notice that the less than the value of the property levied upon.
debts owing by him to the party against whom 2. In case of disagreement as to such value, the
the attachment is issued, and the credits and same shall be decided by the court issuing the
other personal property in his possession, or writ of attachment.
under his control, belonging to said party, are 3. No claim for damages for the taking or keeping
attached in pursuance of such writ of the property may be enforced against the
bond, unless the action therefor is filed within
5. The interest in the estate of the decedent one hundred twenty (120) days from the date of
By serving the executor or administrator or other the filing of the bond.
personal representative of the decedent with a 4. The sheriff shall not be liable for damages for
copy of the writ and notice that said interest is the taking or keeping of such property, to any
attached. such third-party claimant, if such bond shall be
filed.
A copy of said writ of attachment and of said 5. Nothing herein contained shall prevent such
notice shall also be filed in the office of the clerk claimant or any third person from vindicating his
of the court in which said estate is being settled claim to the property, or prevent the attaching
and served upon the heir, legatee, or devisee property claiming damages against a third-party
concerned. claimant who filed a frivolous or plainly spurious
claim, in the same or separate action.
6. Property in custodia legis
A copy of the writ of attachment shall be filed When the writ of attachment is issued in favor of the
with the proper court or quasi-judicial agency, Republic of the Philippines, or any officer duly
and notice of the attachment served upon the representing it, the filing of such bond shall not be
custodian of such property. (Rule 57, Section 7) required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be
Attachment of Debts, Credits, Similar Personal represented by the Solicitor General, and if held
Property liable therefor, the actual damages adjudged by the
Those who have in their possession or control any court shall be paid by the National Treasurer out of
credits or other similar personal property which the funds to be appropriated for the purpose. (Rule
belongs to the party against whom the attachment 57, Section 14)
is issued, or owing any debts to him, shall be liable
to the applicant for the amount of such credits, f. DISCHARGE OF ATTACHMENT AND
debts or other similar property. COUNTER-BOND

Such liability shall accrue from the time of service Preliminary attachment shall be discharged when it
upon him of the copy of the writ of attachment and is established that:
until the attachment is discharged, or any judgment 1. The debtor has posted a counterbond or has
recovered by him is satisfied, UNLESS such made the requisite cash bond (Rule 57, Section
property is delivered or transferred, or such debts 12);
are paid, to the clerk, sheriff, or other proper officer 2. The attachment was improperly or irregularly
of the court issuing the attachment. (Section 8, Rule issued as where there is no ground for
57 of the Rules of Court) attachment under Section 1 of this Rule (Rule
57, Section 13);
It is not necessary to serve summons upon the 3. The bond filed is defective or insufficient (Rule
garnishee to acquire jurisdiction upon him. All that is 57, Section 13)
required is service upon him of the writ of 4. The attachment is excessive, but the discharge
garnishment. shall be limited to the excess (Rule 57, Section
13)
When attached property may be sold after levy 5. The property attached is exempt from execution,
on attachment and before entry of judgment hence exempt from preliminary attachment
1. Property is perishable (Rule 57, Section 2 and 5); or

162
6. The judgment is rendered against the attaching party not exempt from execution. However, the
creditor (Rule 57, Section 19; Regalado, 2008 surety‘s liability is limited to the amount of the bond.
ed.)
g. SATISFACTION OF JUDGMENT OUT OF
Note: Attachment is IRREGULAR when any of the PROPERTY ATTACHED
six (6) grounds for attachment are present but
attachment was not made according to the rules. Satisfaction of judgment by sheriff
Attachment is IMPROPER when such was made on By paying to the judgment obligee the
a ground not among any of the six (6) grounds for proceeds of all sales of perishable or other
attachment. property sold in pursuance of the order of
the court, necessary to satisfy the
Counter-bond judgment;
When filed: after enforcement of the writ If any balance remain due, by selling so much
Purpose: To secure the payment of the judgment of the property, real or personal, as may be
due to the plaintiff. necessary to satisfy the balance;
Requirement: Discharge not automatic. There must By collecting from all persons having in their
be a hearing and an order issued by the court. possession credits belonging to the
judgment obligor, or owing debts to the
Filing of a counter-bond not a waiver to claim latter at the time of the attachment of such
damages credits or debts
The filing of a counter-bond does not relieve
applicant‘s attachment bond‘s liability for damages. Sheriff’s Return
Liability attaches if the plaintiff is not entitled to the The sheriff, after paying the obligee, shall make a
attachment because the requirements entitling him return in writing to the court of his proceedings and
to the writ are wanting, or if the plaintiff has no right furnish the parties with copies thereof. (Section 15,
to the attachment because the facts stated in his Rule 57 of the Rules of Court)
affidavit, or some of them are untrue. (Calderon v
IAC, GR No. 74696, 1987) The sheriff, upon reasonable demand, must return
to the judgment obligor the attached property
Discharge of Attachment Improperly Issued remaining in his hands, and any proceeds of the
How to obtain discharge: Motion and Hearing is sale of the property attached not applied to the
necessary (Rule 57, Sec. 12 and 13) judgment. (Section 16, Rule 57 of the Rules of
When filed: before or after levy or after release of Court)
attached property
Burden of proof: the attaching creditor must show Claim against the counter-bond (Section 17,
that the writ was properly issued. Rule 57 of the Rules of Court)
The surety becomes liable when the judgment
When discharge due to improper issuance not becomes final. Requisites for recovery include:
available: 1. A demand made upon the surety for the
satisfaction of the judgment;
When the ground for the issuance of the writ forms 2. The surety be given notice and
the core of the complaint, the writ cannot be summary hearing in the same actions as to
discharged until after trial on the merits. May a his liability for judgment under the counter-
party move for the discharge of the attachment on bond.
the ground of improper issuance even after he has
filed a counterbond? 4. PRELIMINARY INJUNCTION (Rule
58)
Yes. The filing of a counterbond is not a waiver to
question the impropriety of the writ. However, when
When the injunction sought is mandatory, a writ of
the ground for the issuance of the writ forms the
preliminary injunction tends to do more than to
core of the complaint, the writ cannot be discharged
maintain the status quo because it commands the
until after trial on the merits. This is because the
performance of specific acts and is issued only in
court cannot allow the litigation of the main issue of
cases of extreme urgency and where the right of the
the case prior to trial. (Liberty Insurance Corp. v CA,
applicant is clear. (Riano 2009 ed.)
GR No. 104405, 1993)
a. DEFINITIONS AND DIFFERENCES:
Is the liability of the attaching party on account
PRELIMINARY INJUNCTION AND
of improper, irregular or excessive attachment
TEMPORARY RESTRAINING ORDER;
limited to the amount of the bond?
STATUS QUO ANTE ORDER
NO. Should the bond or deposit given the by the
attaching party be insufficient or fails to fully satisfy PRELIMINARY INJUNCTION
the award, the rules do not prevent the party
It is an order granted at any stage of an action or
against whom attachment was issued from
proceeding before the judgment or final order,
recovering in the same action the damages
requiring a party or a court, agency or person to:
awarded to him from any property of the attaching
1. Refrain from a particular act or acts
(prohibitory injunction); or

163
 2. Perform a particular act or acts (mandatory 4. Meanwhile, the executive judge of a
injunction). (Section 1, Rule 58 of the multiple-sala court or the presiding judge
Rules of Court) of a single-sala court may issue ex parte a
TRO effective for seventy-two (72) hours
A preliminary mandatory injunction is more from issuance if:
cautiously regarded than a mere prohibitive a. The matter is of extreme urgency;
injunction since, more than its function of preserving and
the status quo between the parties, it also b. The applicant will suffer grave
commands the performance of an act. Thus, the injustice or irreparable injury.
issuance of a writ of preliminary mandatory (Rule 58, Section 5)
injunction is justified only in a clear case, free from
doubt or dispute. (Ngo v Allied Banking Corp, G.R. REQUISITES
No. 177420, 2010) 1. Verified application showing facts entitling the
applicant to the relief demanded
Status quo
The status quo is the last actual peaceful Application must be verified
uncontested situation (LAPUS) which precedes a The Sandiganbayan cannot validly issue a TRO on
controversy, and its preservation is the office of an the basis of a communication (letter) which is not
injunctive writ. (Verzosa v. CA, GR No. 119511-13, verified. (Republic v Sandiganbayan, GR No.
1998) It usually refers to the status of the parties 89553, 1993)
immediately before the filing of the complaint.
2. Injunction bond – in an amount fixed by the court.
What must be alleged
1. The invasion of the right is material and Purpose
substantial; To compensate the party against to whom the
2. The right of the complainant is clear and injunction is issued for all damages which may
unmistakable; sustain by reason of the injunction or temporary
3. There is urgent and paramount necessity restraining order if the court should finally decide
for the writ to prevent serious damage; and that the applicant was not entitled thereto.
4. Its effect would not be to create a new
relation between the parties which was The application for TRO shall be acted upon only
arbitrarily interrupted by the defendant. after a summary hearing conducted within twenty
(Regalado 2008 ed.) four (24) hours after the sheriff‘s return of service
and/or the records are received by the branch
Injunction is resorted to only when there is a selected by raffle and to which the records shall be
pressing necessity to avoid injurious consequences transmitted immediately.
which cannot be remedied under any standard
compensation. The sole objective of a writ of If filed in a multiple-sala court, the application shall
preliminary injunction is to preserve the status quo be raffled only after notice and in the presence of
until the merits of the case can be heard fully. the adverse party.
(Uniliver v CA, GR No. 119280, 2006)
Prior or contemporaneous service of summons
TEMPORARY RESTRAINING ORDER (TRO) Notice shall be preceded or contemporaneously
1. It is a temporary or provisional order to accompanied by service of summons, together with
maintain the subject of controversy in a copy of the complaint or initiatory pleading and
status quo until the hearing of an the applicant‘s affidavits and bond, upon the
application for a temporary injunction. adverse party in the Philippines.
2. Unlike the injunction, it is intended as a
restraint upon the defendant until the Exception: where the summons could not be served
propriety of granting an injunction personally or by substituted service despite diligent
pendente lite can be determined, and it efforts, or the adverse party is a resident of the
goes no further than to preserve the status Philippines temporarily absent therefrom or is a
quo until such determination. Accordingly, non-resident thereof. (Rule 58, Section 4)
the grant, denial, or lifting thereof does not
in any way pre-empt the court‘s power to STATUS QUO ANTE ORDER
decide the issue in the main action which An order that directs the maintenance of the
is the injunction suit. (Regalado 2008 ed.) condition prevailing before the promulgation of the
3. The court to which the application for assailed decision or the status quo ante.
preliminary injunction was made may issue
a TRO, effective for 20 days from notice to The Rules of Court do not sanction the issuance of
the party or person sought to be enjoined, a status quo ante order. But in cases where the
if it shall appear from facts shown by SQAO is issued by a court or agency other than the
affidavits or by the verified application that Supreme Court, the SQAO is deemed to have the
great or irreparable injury would result to ―nature of a temporary restraining order,‖ and thus
the applicant before the matter can be must comply with the requisites for a TRO in
heard on notice. applicable cases. Thus, it cannot exceed the 20

164
day term and cannot be ―indefinite.‖ Procedural (a) There must Same with If issued by the
requirements of hearing and notice must also be be a verified preliminary Supreme Court
complied with. (See Repol v. Comelec, GR application; injunction. –
161418, 2004; Llamzon v. PEZA Board of Inquiry, (b) The Where the
GR 167445, 2007) application must TRO shall be conservation of
show facts acted upon the status quo
The Supreme Court, in jurisprudence, may issue entitling the only after the is desirable or
SQAOs without restriction. applicant to the sheriff‘s return essential…
relief demanded; of service (Regalado,
The Supreme Court has issued a status quo order (c) A bond must and/or the Remedial Law
which, as the very term connotes, is merely be filed, unless records are Compendium
intended to maintain the last, actual, peaceable and exempted in the received by the vol. I, 734-35)
uncontested state of things which preceded the court where the branch
controversy. This was resorted to when the action is selected by If issued by a
projected proceedings in the case made the pending; and raffle. lower court –
conservation of the status quo desirable or (d) Prior notice must comply
essential, but the affected party neither sought such and hearing for with requisites
relief nor did the allegations in his pleading the for a TRO
sufficiently make out a case for a temporary party/persons under the
restraining order. The status quo order was thus sought to be Rules.
issued motu proprio or on equitable considerations. enjoined.
Also, unlike a temporary restraining order or a
When to File
preliminary injunction, a status quo order is more in
the nature of a cease and desist order, since it does
not direct the doing or undoing of acts as in the At any stage of When great or At any stage of
case of a prohibitory or mandatory injunctive relief. an action or irreparable an action or
The further distinction is provided by the present proceeding prior injury would proceeding
amendment in the sense that, unlike the amended to the judgment result to the prior to the
rule on restraining orders, a status quo order does or final order applicant judgment or
not require the posting of a bond. (Regalado, before the final order.
Remedial Law Compendium vol. I, 734-35) matter can be
heard on
COMELEC may issue a status quo ante order. notice.
(Dimayuga v. COMELEC, G.R. No. 174763, 2007)
When the
It is an interlocutory order. (Dimayuga v. matter is of
COMELEC, G.R. No. 174763, April 24, 2007) extreme
urgency and
The ―status quo‖ is the last actual peaceable the applicant
uncontested situation, which precedes a will suffer
controversy. (Philippine Economic Zone Authority v. grave injustice
Vianzon, G.R. No. 131020, 2000) and irreparable
injury, the
judge may
PRELIMINARY TEMPORARY STATUS QUO issue ex parte
INJUNCTION RESTRAINING ANTE ORDER a TRO
ORDER effective for 72
hours from
Purpose issuance.
To prevent To preserve To maintain the
future injury and the status quo status quo ante Where to File
maintain the ante until the or the condition
status quo for hearing of the prevailing
the duration of application for before the
the proceedings preliminary controversy
injunction until further
orders by the
Supreme
Court.

Requisites

165
RTC having territorial jurisdiction The Rules of continuance of the act or acts or
over the act sought to be enjoined Court do not confirming the preliminary mandatory
or the principal office of the state where to injunction. (Rule 58, Section 9)
corporation whose acts are file an
sought to be enjoined; Court of application for WHEN WRIT MAY BE ISSUED
Appeals; Supreme Court. status quo ante Preliminary injunction is granted at any stage of the
order. proceedings prior to the judgment or final order.
However, but (Section 1, Rule 58 of the Rules of Court)
from the
definition of Examples of when preliminary injunction may
status quo as be issued based on jurisprudence:
the last 1. In petitions for relief from
peaceable judgment entered through fraud,
uncontested accident, mistake, or excusable
status in the negligence;
case, when a 2. In actions for certiorari,
court issues a prohibition, and mandamus;
TRO to 3. In actions for annulment of
maintain the judgments obtained through
status quo, it fraud;
refers to the 4. In actions for annulment of
status quo judgments which are not patent
ante. nullities (i.e. want of jurisdiction,
lack of due process of law);
Period of Effectivity
5. To restrain continued breach of
valid negative obligation;
Until the final RTC – 20 Until the final 6. To enjoin repeated trespass of
disposition of days, non- disposition of land;
the principal extendible the principal 7. To restrain the city from
action (including the action or as proceeding with abatement of
original 72 may be nuisance per accidens before it
hours) directed by the has been judicially declared as
Supreme such;
CA – may be Court. 8. To restrain voting of disputed
effective for 60 shares of stocks; and
days from 9. To restrain the sheriff from selling
service on the property on execution not
party or person belonging to judgment debtor.
sought to be
enjoined Generally, a criminal prosecution may not be
restrained or stayed by injunction, preliminary
SC – may be or final, except:
effective until 1. To afford adequate protection to
further orders the constitutional rights of the
accused;
c. KINDS OF INJUNCTION 2. When necessary for the orderly
administration of justice or to
1. PRELIMINARY INJUNCTION - An order granted avoid oppression or multiplicity of
at any stage of an action or proceeding prior to the action;
judgment or final order: 3. Where there is a prejudicial
1. Requiring a party or a court, agency or a question which is sub judice;
person to refrain from a performance of a 4. When the acts of the officers are
particular act or acts (preventive or without or in excess of authority;
prohibitive injunction); or 5. When double jeopardy is clearly
2. Also requiring the performance of a apparent;
particular act or acts (mandatory 6. When the prosecution is under an
injunction). (Rule 58, Section 1); invalid law, ordinance, or
(Regalado 2008 ed.) regulation;
7. Where the court has no
2. FINAL INJUNCTION jurisdiction over the offense;
1. Granted if, after the trial of the action, it 8. Where it is a case of persecution
appears that the applicant is entitled to rather than prosecution;
have the act or acts complained of 9. Where charges are manifestly
permanently enjoined false and motivated by lust or
2. May perpetually restrain the party or vengeance; and
person enjoined from the commission or

166
 10. When there is clearly no prima The following requisites must be proved before a
facie case against the accused writ of preliminary injunction will issue:
and a motion to quash on that 1. T
ground has been denied (Brocka he applicant must have a clear and
v. Enrile, G.R. Nos. 69863-65, unmistakable right to be protected, that is, a
1990) right in esse;
2. T
Examples of when preliminary injunction here is a material and substantial invasion
was not issued: of such right;
1. To take property out of the 3. T
possession of one party and here is an urgent need for the writ to
place it in another whose title is prevent irreparable injury to the applicant;
not clearly established; and
2. When action for damages would 4. N
adequately compensate the o other ordinary, speedy, and adequate
injuries caused; remedy exists to prevent the infliction of
3. To prevent directors from irreparable injury. (Incorporators Of
discharging their office and Mindanao Institute Inc., et al v. The United
restoring former directors; and Church Of Christ In The Philippines, G.R.
4. To restrain criminal prosecution No. 171765, 2012)
where the Ombudsman had
authorized the special prosecutor Mere prima facie evidence is needed to establish
to conduct a preliminary the applicant‘s rights or interests in the subject
injunction or to file an injunction. matter of the main action. (Republic v. Evangelista,
5. To enjoin the collection of G.R. No. 156015, 2005)
national internal revenue taxes
but not local taxes (Angeles City Entitled to Relief Demanded
v. Angeles City Electric When there is a clear finding that the applicant is
Corporation, G.R. No. 166134, indeed the owner of the land in dispute – the
2010) applicant is entitled to the benefit of injunctive relief
to remove intruders (Sps. Dela Rosa v Heirs of
No court shall issue a temporary restraining order or Juan Valdez, GR No. 159101, 2011)
writ of injunction against any freeze order issued by
the Anti-Money Laundering Council except the The writ will not issue of documents show that the
Court of Appeals or the Supreme Court. (Section right of the applicant is disputed, i.e. existence of
10, RA 9160) lien on properties sought to be released from the
mortgage. (Ngo v Allied Banking Corp, supra.)
e. GROUNDS FOR ISSUANCE OF
PRELIMINARY INJUNCTION A writ of preliminary injunction cannot be issued
without a prior notice and hearing. It cannot be
A preliminary injunction may be granted when it is issued ex parte. (Rule 58, Section 5)
established:
1. That the applicant is entitled to the relief Injunction contemplates acts being committed or
demanded, and the whole or part of such about to be committed; thus, it does not lie against
relief consists in restraining the commission acts already consummated. (Regalado, 2008 ed.)
or continuance of the act or acts
complained of, or in requiring the It also neither protects contingent or future rights
performance of an act or acts, either for a nor lies to enforce an abstract right. (Cerenio v.
limited period or perpetually; Dictado G.R. No. 81550, 1988)
2. That the commission, continuance, or non-
performance of the act or acts complained f. GROUNDS FOR OBJECTION TO, OR
of during the litigation would probably work FOR THE DISSOLUTION OF INJUNCTION OR
injustice to the applicant; or RESTRAINING ORDER
3. That a party, court, agency or a person is
doing, threatening, or is attempting to do, or The application for injunction or restraining
is procuring or suffering to be done, some order:
act or acts probably in violation of the rights 1. May be denied upon a showing of its
of the applicant respecting the subject of the insufficiency;
action or proceeding, and tending to render 2. May be denied or, if granted, dissolved, on
the judgment ineffectual. (Section 3, Rule other grounds upon affidavits of the party or
58 of the Rules of Court) person enjoined, which may be opposed by
the applicant also by affidavits;
Requisites for the issuance of a writ of 3. May further be denied or, if granted,
preliminary injunction/TRO based on dissolved, if it appears after hearing that:
jurisprudence: a. Although the applicant is entitled to
the injunction or restraining order, the

167
 issuance or continuance thereof, as failure of the trial court to fix a period in the
the case may be, would cause temporary restraining order does not convert it to a
irreparable damage to the party or preliminary injunction. Where there is an omission
person enjoined while the applicant to fix the period, the twenty (20) day period is
can be fully compensated for such deemed incorporated in the order. (Bacolod City
damages as he may suffer; and Water District v. Labayen, G.R. No. 157494, 2004)
b. The former files a bond in an amount
fixed by the court conditioned that he 2. 72-hour TRO
will pay all damages which the It shall be granted if: (i) the matter is of extreme
applicant may suffer by the denial or urgency; and (ii) the applicant will suffer grave
dissolution of the restraining order. injustice and irreparable injury. It shall be granted
by the executive judge of a multiple-sala court or
If it appears that the extent of the preliminary the presiding judge of a single-sala court, who shall
injunction or restraining order granted is too great, it immediately comply with Sections 4 and 5, Rule 58
may be modified. (Rule 58, Section 6) as to service of summons and the documents to be
served therewith.
Examples of when TRO may not be issued
based on jurisprudence: The effectivity of the TRO starts from its issuance,
1. To take property out of the possession of one not service. Within this period, the judge before
party and place it in another whose title is not whom the case is pending shall conduct a summary
clearly established; hearing to determine whether the TRO shall be
2. When action for damages would adequately extended until the application for preliminary
compensate the injuries caused; injunction can be heard.
3. To prevent directors from discharging their
office and restoring former directors; and Effectivity of TRO
4. To restrain criminal prosecution where the In no case shall the total period of effectivity of the
Ombudsman had authorized the special TRO exceed twenty (20) days, including the original
prosecutor to conduct a preliminary seventy two (72) hours so provided.
injunction or to file an injunction.
5. To enjoin the collection of national internal In the event that the application for preliminary
revenue taxes but not local taxes. (Angeles injunction is denied or not resolved within the said
City v. Angeles City Electric Corporation, period, the TRO is deemed automatically vacated.
G.R. No. 166134, 2010) The effectivity of a TRO is not extendible without
6. National government projects covered by the need of any judicial declaration to the effect and no
Build-Operate-Transfer Law. court shall have authority to extend or renew the
same on the same ground for which it was issued.
g. DURATION OF A TEMPORARY
RESTRAINING ORDER (TRO) The TRO shall be effective for sixty (60) days if
issued by the CA or a member thereof.
2 Kinds of TRO:
1. 20-day TRO The TRO shall be effective until further notice if
It shall be granted if it shall appear from facts shown issued by the Supreme Court or a member thereof.
by affidavits or by the verified application that great (Rule 58, Section 5)
or irreparable injury would result to the applicant
before the matter can be heard on notice and When injury irreparable
hearing on the application for preliminary injunction. If it is of such constant and frequent recurrence
that no fair or reasonable redress can be had
It shall be granted by the court to which the therefor in a court of law (Gilchrist v. Cuddy,
application for preliminary injunction was made and G.R. No. L-9356, 1915); or
is effective for the said period, to be counted from Where there is no standard by which their
notice to the person or party sought to be enjoined. amount can be measured with reasonable
accuracy—that is, it is not susceptible of
Within this period, the court must mathematical computation. (Regalado 2008
1. Order said party or person to show ed.)
cause, at a specified time and place,
why the injunction should not be Respondents assert that foreclosure of their
granted; property may cause irreparable damage, thus
2. Determine within the same period justifying the issuance of the writ of preliminary
whether the preliminary injunction injunction. The SC held that foreclosure of
should be granted; and mortgaged property is not an irreparable damage
3. Accordingly issue the corresponding that will merit for the debtor-mortgagor the
order. extraordinary provisional remedy of preliminary
injunction as ―all is not lost for defaulting mortgagors
The rule against the non-extendibility of the twenty whose properties were foreclosed by creditors-
(20) day effectivity of a temporary restraining order mortgagees.‖ The respondents will not be deprived
is absolute if issued by a Regional Trial Court. The outrightly of their property, given the right of

168
redemption granted to them under the law.
Moreover, in extrajudicial foreclosures, mortgagors i. RULE ON PRIOR CONTEMPORANEOUS
have the right to receive any surplus in the selling SERVICE OF SUMMONS IN RELATION TO
price. Thus, if the mortgagee is retaining more of ATTACHMENT
the proceeds of the sale than he is entitled to, this
fact alone will not affect the validity of the sale but The application for a writ of preliminary injunction
will give the mortgagor a cause of action to recover may or may not be included in a complaint or any
such surplus. (Solid Builders, Inc v China Banking initiatory pleading. In any event, the notice of
Corporation, 695 SCRA 103, 2013) hearing on the said application shall be preceded or
contemporaneously accompanied by service of
h. IN RELATION TO RA 8975, BAN ON summons, together with a copy of the complaint or
ISSUANCE OF TRO OR WRIT OF initiatory pleading and the applicant‘s affidavits and
INJUNCTION IN CASES INVOLVING bond, upon the adverse party in the Philippines.
GOVERNMENT INFRASTRUCTURE
PROJECTS But, where the summons could not be served
personally or by substituted service despite diligent
Except for the Supreme Court, no court shall issue efforts, or the adverse party is a resident of the
any TRO, preliminary injunction, or preliminary Philippines temporarily absent therefrom or is a
mandatory injunction against the government, or non-resident thereof, the requirements of prior or
any of its subdivisions, officials, or any person or contemporaneous service of summons shall not
entity, whether public or private, acting under the apply. (Rule 58, Section 4)
government‘s discretion, to restrain, prohibit, or
compel the following acts: Duty of the court that issued the writ:
The trial court, the Court of Appeals, the
1. Acquisition, clearance, and development of Sandiganbayan or the Court of Tax Appeals that
the right-of-way and/or site or location of issued the writ of preliminary injunction against a
any national government project; lower court, board, officer, or quasi-judicial agency
2. Bidding or awarding of contract/project of shall decide the main case or petition six (6) months
the national government; from the issuance of the writ. (A.M. No. 07-7-12-SC,
3. Commencement, prosecution, execution, Effective December 27, 2007)
implementation, or operation of any such
contract or project; 5. RECEIVERSHIP (Rule 59)
4. Termination or rescission of any such
contract/project; and Purpose
5. The undertaking or authorization of any To protect and preserve the rights of the parties
other lawful activity necessary for such during the pendency of the main action, during the
contract/project. pendency of an appeal, or as an aid in the
execution of a judgment when the writ of execution
This prohibition shall apply in all cases, disputes, has been returned unsatisfied. (Rule 59, Section 1)
or controversies instituted by a private party,
including but not limited to cases filed by bidders or Receivership is aimed at the preservation of, and at
those claiming to have rights through such bidders making more secure, existing rights. It cannot be
involving such contract/project. used as an instrument for the destruction of those
rights. (Arranza v. B.F. Homes, Inc., 33 SCRA 799,
This prohibition shall not apply: 2000)
1. When the matter is of extreme urgency
involving a constitutional issue, such that Property subject of receivership must be under
unless a TRO is issued, grave injustice and litigation.
irreparable injury will arise; and
2. Upon the filing of a bond by the applicant, RECEIVER
the amount which is to be fixed by the court A receiver is a person appointed by the court in
and shall accrue in favor of the government behalf of all the parties to the action for the purpose
if the court should finally decide that the of preserving and conserving the property in
applicant was not entitled to the relief litigation and prevent its possible destruction or
sought. (Section 3 of R.A. 8975) dissipation, if it were left in the possession of any of
the parties. The appointment of a receiver is not a
Any TRO, preliminary injunction, or preliminary matter of absolute right. It depends upon the sound
mandatory injunction issued in violation of Sec. 3 is discretion of the court and is based upon the facts
void and of no force and effect. (Section 4 of R.A. and circumstances of each case. (Commodities
8975) Storage & Ice Plant Corporation v. Court of
Appeals, 274 SCRA 439)
Any judge who shall issue the same in violation of
Section 3 shall suffer the penalty of suspension of A receiver is not an agent or representative of any
at least 60 days without pay, in addition to any civil party to the action. He is an officer of the court
or criminal liabilities he or she may incur under exercising his functions in the interest of neither
existing laws. (Section 6 of R.A. 8975) plaintiff nor defendant, but for the common benefit

169
of all parties in the interest. He performs his duties
―subject to the control of the Court,‖ and every During the pendency of an appeal, the appellate
question involved in the receivership may be court may allow an application for the appointment
determined by the court taking cognizance of the of a receiver to be filed in and decided by the court
receivership proceedings. (Pacific Merchandising of origin and the receiver appointed to be subject to
Corporation v. Consolacion Insurance & Surety Co., the control of said court. (Rule 59, Section 1)
73 SCRA 564, 1976)
c. REQUIREMENTS BEFORE ISSUANCE
a. CASES WHEN RECEIVER MAY BE OF AN ORDER
APPOINTED
1. Verified application for the appointment
b. REQUISITES of a receiver based on any of the grounds
enumerated in Section 1, Rule 59; and
Upon a verified application, one or more receivers 2. Bond filed by the applicant and executed
of the property subject of the action or proceeding to the party against whom the application
may be appointed by the court where the action is is presented, in an amount to be fixed by
pending, or by the Court of Appeals or by the the court, to the effect that the applicant
Supreme Court, or a member thereof, in the will pay such party all damages the latter
following cases: may sustain by reason of the appointment
of such receiver in case the applicant
1. When it appears from the verified application should have procured the same without
and such other proof as the court may require, sufficient cause.
that the party applying for the appointment of a
receiver has an interest in the property or fund The court may, in its discretion, at any time after the
which is the subject of the action or proceeding, appointment, require an additional bond as further
and that such property or fund is in danger of security for such damages. (Rule 59, Section 2)
being lost, removed, or materially injured
unless a receiver be appointed to administer Procedure for Appointment of a Receiver
and preserve it; 1. A verified application must be filed by the
2. When it appears in an action by the mortgagee party applying for the appointment of a
for the foreclosure of a mortgage that the receiver.
property is in danger of being wasted or 2. The applicant must have an interest in the
dissipated or materially injured, and that its property or funds subject of the action.
value is probably insufficient to discharge the 3. The applicant must show that the property
mortgage debt, or that the parties have so or funds is in danger of being lost, removed,
stipulated in the contract of mortgage; materially altered, wasted or dissipated or there
3. After judgment, to preserve the property is a need to preserve or administer the
during the pendency of an appeal, or to property, or that all the grounds justifying the
dispose of it according to the judgment, or to appointment of a receiver exist.
aid execution when the execution has been 4. The application must be with notice and
returned unsatisfied or the judgment obligor set for hearing
refuses to apply his property to the satisfaction 5. The applicant must post a bond in favor of
of the judgment or otherwise carry the the party against whom the application is
judgment into effect; or presented before the court issues the
4. Whenever in other cases it appears that the appointment of a receiver.
appointment of a receiver is the most 6. Before entering upon his duties, the
convenient and feasible means of receiver must be sworn to perform his duties
preserving, administering, or disposing the faithfully and shall file a bond. (Regalado, 2012
property in litigation. ed.)

Sec. 1(d), Rule 59 of the Rules of Court is couched d. GENERAL POWERS OF A RECEIVER
in general terms and broad in scope, encompassing
instances not covered by the other grounds Subject to the control of the court in which the
enumerated under the said section. However, in action is pending, a receiver shall have the power
granting applications for receivership on the basis of to:
this section, courts must remain mindful of the basic 1. Bring and defend actions in his own name
principle that receivership may be granted only in his capacity as receiver;
when the circumstances so demand, either because 2. Take and keep possession of the property
the property sought to be placed in the hands of a subject of the controversy;
receiver is in danger of being lost or because they 3. Receive rents;
run the risk of being impaired, and that being a 4. Collect debts due to himself as receiver or
drastic and harsh remedy, receivership must be to the fund, property, estate, person, or
granted only when there is a clear showing of corporation of which he is the receiver;
necessity for it in order to save the plaintiff from 5. Compound for and compromise the same;
grave and immediate loss or damage. (Tantano v. 6. Make transfers;
Caboverde, G.R. No. 203585, 2013) 7. Pay outstanding debts;

170
8. Divide the money and other property that
shall remain among the persons legally entitled f. TERMINATION OF RECEIVERSHIP
to receive the same; and
9. Generally to do such acts respecting the Whenever the court, motu proprio or on motion of
property as the court may authorize. either party, shall determine that the necessity for a
But funds in the hands of a receiver may receiver no longer exists, it shall, after due notice to
be invested only by order of the court upon all interested parties and hearing:
the written consent of ALL the parties to 1. Settle the accounts of the receiver;
the action. 2. Direct the delivery of the funds, and other
property in his possession to the person
No action may be filed by or against a receiver adjudged to be entitled to receive them;
without leave of the court which appointed him. and
(Rule 59, Section 6) 3. Order the discharge of the receiver from
further duty as such.
Neither party to the litigation should be appointed as The court shall allow the receiver such reasonable
a receiver without the consent of the other. compensation as the circumstances of the case
(Alcantara v. Abbas, G.R. No. L-14890, 1963) warrant, to be taxed as costs against the defeated
party, or apportioned, as judgment requires. (Rule
e. THREE KINDS OF BONDS in 59, Section 8)
RECEIVERSHIP
6. REPLEVIN (Rule 60)
1. Applicant’s bond
Before issuing the order appointing a receiver, the REPLEVIN
court shall require the applicant to file a bond Replevin, broadly understood, is both a form of
executed to the party against whom the application principal remedy and of a provisional relief. It may
is presented, in an amount to be fixed by the court, refer either to the action itself, i.e. to regain the
to the effect that the applicant will pay such party all possession of personal chattels being wrongfully
damages he may sustain by reason of the detained from the plaintiff by another, or to the
appointment of such receiver in case the applicant provisional remedy that would allow the plaintiff to
shall have procured such appointment without retain the thing during the pendency of the action
sufficient cause. and hold it in pendente lite. (Tillson v. Court of
The court may, in its discretion, at any time after the Appeals, 197 SCRA 587, 1991)
appointment, require an additional bond as further
security for such damages. (Rule 59, Section 2) The action is primarily possessory in nature and
determines nothing more than the right of
2. Receiver’s bond possession. Replevin is so usually described as a
Before entering upon his duties, the receiver shall mixed action, being partly in rem and partly in
be sworn to perform them faithfully, and shall file a personam – in rem insofar as the recovery of
bond, executed to such person and in such sum as specific property is concerned, and in personam as
the court may direct, to the effect that he will regards to damages involved. As an ―action in rem‖
faithfully discharge his duties in the action and obey the gist of the replevin action is the right of the
the orders of the court. (Rule 59, Section 4) plaintiff to obtain possession of specific personal
property by reason of his being the owner or of his
3. Counterbond having a special interest therein. (BA Finance
The application may be denied, or the receiver Corporation v. Court of Appeals, 258 SCRA 102,
discharged, when the adverse party files a bond 1996)
executed to the applicant, in an amount to be fixed
by the court, to the effect that such party will pay the a. WHEN WRIT MAY BE ISSUED
applicant all damages he may suffer by reason of
the acts, omissions, or other matters specified in the b. REQUISITES
application as ground for such appointment. (Rule
59, Section 3, Rule 59) Must be applied for:
1. At the commencement of the action; or
Liability for refusal or neglect to deliver property 2. At any time before defendant files answer.
to receiver 3. Therefore, there can be no replevin before
A person who refuses or neglects, upon reasonable the appellate courts. (Rule 60, Section 1)
demand, to deliver property subject or involved in 4. The applicant need not be the owner of the
the action or proceeding, or in case of property. It is enough that he has a right to
disagreement, as determined and ordered by the its possession. (Yang v. Valdez, G.R. No.
court, may be punished for contempt and shall be 73317, 1989)
liable to the receiver for the money or the value of
the property and other things so refused or A chattel mortgagee may maintain an action for
neglected to be surrendered, together with all the replevin. Where the mortgage authorizes the
damages that may have been sustained by the mortgagee to take possession of the property on
party or parties entitled thereto as a consequence of default, he may maintain an action to recover
such refusal or neglect. (Rule 59, Section 7) possession of the mortgaged chattels from the

171
mortgagor or from any person in whose hands he applicant, if such delivery be
may find them. This is irrespective of whether the adjudged; and
mortgage contemplates a summary sale of the 2. For the payment of such sum to him
property or foreclosure by court action. (Agner v. as may be recovered against the
BPI Family Savings Bank, G.R. No. 182963, June adverse party; and
3, 2013) 3. By serving a copy of such bond on the
applicant.
c. AFFIDAVIT AND BOND; REDELIVERY
BOND d. SHERIFF’S DUTY IN THE
IMPLEMENTATION OF THE WRIT; WHEN
Affidavit and Bond PROPERTY IS CLAIMED BY THIRD PARTY
Application for replevin must be filed at the
commencement of the action or at any time before Upon receiving the order of the court, the sheriff
defendant answers. must serve a copy thereof on the adverse party,
Application must contain an affidavit executed by together with a copy of the application, affidavit, and
the applicant or some other person who personally bond.
knows of the facts the matters required under the
Rules, which shows: If the property is in the possession of the adverse
1. That the applicant is the owner of party or his agent, the sheriff must forthwith take it
the property claimed, particularly describing and retain it in his custody.
it, or is entitled to the possession thereof;
2. That the property is wrongfully If the property or any part thereof be concealed in a
detained by the adverse party, alleging the building or enclosure, the sheriff must demand its
cause of detention thereof according to the delivery, and if it not be delivered, he must cause the
best of his knowledge, information, and building or enclosure to be broken open and take the
belief; property into his possession.
3. That the property has not been
distrained or taken for a tax assessment or a After the sheriff has taken possession of the
fine pursuant to law, or seized under a writ of property, he must keep it in a secure place and shall
execution or preliminary attachment, or be responsible for its delivery to the party entitled
otherwise placed under custodia legis, or if thereto upon receiving his fees and necessary
so seized, that it is exempt or should be expenses for taking and keeping the same. (Rule 60,
released from such seizure or custody; and Section 4)
4. The actual market value of the
property. If within five (5) days after the taking of the property
Applicant must give a bond, executed to the by the sheriff, the adverse party:
adverse party and double the value of the property. 1. Does not object to the sufficiency of the bond, or
(Rule 60, Section 2) of the surety or sureties contained thereon; or
2. So objects, and the court affirms its approval of
The replevin bond is for the return of the property to the applicant‘s bond or approves a new bond; or
the adverse party if such return be adjudged, and 3. If the adverse party requires the return of the
payment to the adverse party of such sum as he property but his bond is objected to and found
may recover from the applicant in the action. insufficient and he does not forthwith file an
approved bond,the property shall be delivered to
Upon the filing of such affidavit and approval of the the applicant. (Rule 60, Section 6)
bond, the court shall issue an order and
corresponding writ of replevin describing the The rules provide that property seized under a writ of
personal property alleged to be wrongfully detained replevin is not to be delivered immediately to the
and requiring the sheriff forthwith to take such plaintiff. Under Section 6, Rule 60, the Sheriff should
property into his custody. (Rule 60, Section 3) have waited no less than 5 days in order to give the
complainant an opportunity to object to the
Redelivery bond sufficiency of the bond. (Hao v. Andres, A.M. No. P-
If the adverse party objects to the sufficiency of the 07-2384, 2008)
applicant‘s bond, or of the surety or sureties
thereon, he cannot immediately require the return of What is the effect of writ of replevin that has
the property. been improperly served?
Service of the writ upon the adverse party is
But if he does not so object, he may, at any time mandatory in line with the constitutional guaranty on
before the delivery of the property to the applicant, procedural due process and as safeguard against
require the return thereof, by filing with the court unreasonable searches and seizures. The writ or
where the action is pending a redelivery bond— order of replevin should comply with all the
that is, a bond executed to the applicant: requirements as to matters of form or contents
1. In double the value of the property as prescribed by the Rules of Court. The writ must also
stated in the applicant‘s affidavit for satisfy proper service in order to be valid and
the delivery of the property to the effective: i.e. it should be directed to the officer who
is authorized to serve it; and it should be served

172
upon the person who not only has the possession or
custody of the property involved but who is also a S. SPECIAL CIVIL ACTION
party or agent of a party to the action. Consequently,
a trial court is deemed to have acted without or in
excess of its jurisdiction with respect to the ancillary 1. NATURE OF SPECIAL CIVIL
action of replevin if it seizes and detains a personalty ACTIONS
on the basis of a writ that was improperly served, 2. ORDINARY CIVIL ACTIONS
such as what happened in this case.
VERSUS SPECIAL CIVIL ACTIONS
The proper remedy of the person being served with 3. JURISDICTION AND VENUE
the writ should be to file a motion to quash the writ of 4. INTERPLEADER
replevin or a motion to vacate the order of seizure. It a. Requisites for interpleader
now becomes imperative for the trial court to restore b. When to file
the parties to their former positions by returning the 5. DECLARATORY RELIEFS AND
seized property to petitioner and by discharging the
replevin bond filed by respondent. (Rivera v. Vargas,
SIMILAR REMEDIES
G.R. No. 165895, 5 June 2009, 588 SCRA 529) a. Who may file the action
b. Requisites of action for declaratory
Where property claimed by third person relief
If the property taken is claimed against whom c. When court may refuse to make
replevin had been issued or his agent, and such judicial declaration
person makes an affidavit of his title thereto, or right d. Conversion to ordinary action
to the possession thereof, stating the grounds of e. Proceedings considered as similar
such right or title, and serves such affidavit upon the remedies
sheriff while the latter has possession of the i. Reformation of an instrument
attached property, and a copy thereof upon the ii. Consolidation of ownership
applicant: iii. Quieting of title to real property
1. The sheriff shall not be bound to keep the 6. REVIEW OF JUDGMENTS AND
property under replevin, unless the applicant or FINAL ORDERS OR RESOLUTION
his agent, on demand of the sheriff, shall file a OF THE COMELEC AND COA
bond approved by the court to indemnify the a. Application of Rule 65 under Rule 64
third-party claimant in a sum not less than the b. Distinction in the application of Rule
value of the property under replevin as provided 65 to judgments of the Comelec and
in Section 2, Rule 60 of the Rules of Court. COA and the application of Rule 65 to
2. In case of disagreement as to such value, the other tribunals, persons and officers
court shall determine the same. 7. CERTIORARI, PROHIBITION AND
3. No claim for damages for the taking or keeping
of the property may be enforced against the MANDAMUS
bond, unless the action therefor is filed within a. Definitions and distinctions
120 days from the date of the filing of the bond. i. Certiorari distinguished from
4. The sheriff shall not be liable for damages, for appeal by certiorari
the taking or keeping of such property, to any ii. Prohibition and mandamus
such third-party claimant, if such bond shall be distinguished from injunction
filed. b. Requisites
5. Nothing herein contained shall prevent such c. When petition for certiorari,
claimant or any third person from vindicating his prohibition and mandamus is proper
claim to the property, or prevent the attaching d. Injunctive relief
property claiming damages against a third-party e. Exceptions to filing of motion for
claimant who filed a frivolous or plainly spurious reconsideration before filing petition
claim, in the SAME or SEPARATE action. f. Reliefs petitioner is entitled to
g. Actions/omissions of MTC/RTC in
When the writ of replevin is issued in favor of the election cases
Republic of the Philippines, or any officer duly h. When and where to file petition
representing it, the filing of such bond shall not be i. Effects of filing of an unmeritorious
required, and in case the sheriff is sued for damages petition
as a result of the replevin, he shall be represented 8. QUO WARRANTO
by the Solicitor General, and if held liable therefor, a. Distinguish from quo warranto in the
the actual damages adjudged by the court shall be omnibus election code
paid by the National Treasurer out of the funds to be b. When government commence an
appropriated for the purpose. (Rule 60, Section 7) action against individuals
c. When individual may commence an
END OF TOPIC action
d. Judgment in quo warranto action
e. Rights of a person adjudged entitled
to public office

173
9. EXPROPRIATION i. Resolving defense of ownership
j. How to stay the immediate execution
a. Matters to allege in complaint for
of judgment
expropriation
k. Summary procedure, prohibited
b. Two stages in every action for
pleadings
expropriation
c. When plaintiff can immediately enter 13. CONTEMPT
into possession of the real property, in a. Kinds of contempt
relation to R.A. 8974 b. Purpose and nature of each
d. New system of immediate payment of c. Remedy against direct contempt;
initial just compensation penalty
e. Defenses and objections d. Remedy against indirect contempt;
f. Order of expropriation penalty
g. Ascertainment of just compensation e. How contempt proceedings are
h. Appointment of commissioners; commenced
commissioner’s report; court action f. Acts deemed punishable as indirect
upon commissioner’s report contempt
i. Rights of plaintiff upon judgment and g. When imprisonment shall be imposed
payment h. Contempt against quasi-judicial
j. Effect of recording of judgment bodies
10. FORECLOSURE OF REAL
ESTATE MORTGAGE 1. NATURE OF SPECIAL CIVIL
a. Judgment on foreclosure for payment ACTIONS
or sale
b. Sale of mortgaged property; effect Being a civil action, a special civil action is one by
c. Disposition of proceeds of sale which a party sues another for the enforcement or
d. Deficiency judgment protection of a right, or the prevention or redress
e. Instances when court cannot render of a wrong. (Section 3(a), Rule 1 of the Rules of
deficiency judgment Court)
f. Judicial foreclosure versus
extrajudicial foreclosure Both are governed by the rules for ordinary civil
g. Equity of redemption versus right of actions. However, the fact that an action is subject
redemption to special rules other than those applicable to
11. PARTITION ordinary civil actions is what gives a civil action its
a. Who may file complaint; who should special character.
be made defendants
b. Matters to allege in the complaint for As a general rule, however, the rules governing
partition ordinary civil actions shall apply in special civil
c. Two stages in every action for actions insofar as they supplement or are not
partition inconsistent with the provisions governing the
d. Order of partition and partition by latter actions.
agreement
e. Partition by commissioners; 2. ORDINARY CIVIL ACTIONS AND
appointment of commissioners, SPECIAL CIVIL ACTIONS
commissioner’s report; court action DISTINGUISHED
upon commissioner’s report
f. Judgment and its effects
ORDINARY CIVIL SPECIAL CIVIL
g. Partition of personal property
ACTIONS ACTIONS
h. Prescription of action
Generally governed by
12. FORCIBLE ENTRY AND Governed by rules for
rules for ordinary civil
UNLAWFUL DETAINER ordinary civil actions
actions but subject to
a. Definitions and distinction special rules
b. Distinguished from accion publiciana
and accion reivindicatoria Not necessarily such
c. How to determine jurisdiction in as in certain special
accion publiciana and accion Must be based on a
civil actions:
cause of action
reivindicatoria 1. Declaratory relief –
d. Who may institute the action and meaning an act or
no actual violation of
when; against whom the action may omission has violated
rights
the rights of another
be maintained 2. Interpleader – no
e. Pleadings allowed interest in the subject
f. Action on the complaint matter
g. When demand is necessary
h. Preliminary injunction and preliminary
mandatory injunction

174
 There are some
May be filed initially in 4. The parties to be interpleaded must make
special civil actions
either the MTC or RTC effective claims. (Rule 62, Section 1)
which cannot be
depending upon the
commenced in the
jurisdiction amount or b. WHEN TO FILE
MTC, i.e. petitions for
the nature of the action
certiorari, prohibition
and mandamus The stakeholder should use reasonable diligence
Some special civil to hale the contending claimants to court—that is,
Ordinary civil actions actions are filed as the by filing the interpleader suit within a reasonable
are filed as complaints. same, but others are time after a dispute has arisen without waiting to
filed as petitions be sued by either of the contending parties.
Otherwise, he may be barred by laches or undue
Special civil actions initiated by a complaint delay.
[PIFEF]
1. Partition Pertinently, a stakeholder‘s action of interpleader
2. Interpleader is too late when filed after judgment has been
3. Foreclosure of REM rendered against him in favor of one of the
4. Expropriation contending claimants, especially where he had
5. Forcible Entry and Unlawful Detainer notice of the conflicting claims prior to the rendition
of the judgment and neglected the opportunity to
Special civil actions initiated by a petition implead the adverse claimants in the suit where
2
[ProM C DR Q] judgment was entered. (WackWack Golf and
1. Declaratory Relief Country Club v. Won, G.R. No. L-23851, 1976)
2. Review of Adjudication of COMELEC/COA
3. Certiorari An interpleader complaint may be filed by a lessee
4. Prohibition against those who have conflicting claims over the
135
5. Mandamus rent due for the property leased. This remedy is
6. Quo Warranto for the lessee to protect him or her from ―double
136
7. Contempt vexation in respect of one liability.‖ He or she
may file the interpleader case to extinguish his or
Special civil actions with 2 stages her obligation to pay rent, remove him or her from
1. Expropriation the adverse claimants‘ dispute, and compel the
2. Partition parties with conflicting claims to litigate among
themselves.(Lui Enterprises v. Zuellig Pharma,
G.R. No. 193494, 12 March 2014, 719 SCRA 88)
3. JURISDICTION AND VENUE Except when there was no negligence
An interpleader can still be filed even after an
See Annex. action has been filed against the plaintiff, as
long as the plaintiff was not negligent in not
4. INTERPLEADER (Rule 62) knowing the pending action.

INTERPLEADER If an action has been filed

An interpleader is a remedy whereby a person In lieu of an interpleader, one can file an answer
who has property whether personal or real, in his with allegations of conflicting claims and a third-
possession, or an obligation to render wholly or party complaint impleading the other party.
partially, without claiming any right in both, or
claims an interest which in whole or in part is not Order to interplead
disputed by the conflicting claimants, comes to Upon the filing of the complaint, an order requiring
court and asks that the persons who claim the said the conflicting claimants to interplead with one
property or who consider themselves entitled to another shall be issued.
demand compliance with the obligation, be
required to litigate among themselves, in order to The court may direct in the said order that the
determine finally who is entitled to one or the other subject matter be paid or delivered to the court.
thing. (Ocampo v. Tirona., G.R. No. 147812, 2005) (Rule 62, Section 2)

a. REQUISITES FOR INTERPLEADER Service of summons

Summons shall be served upon the conflicting
1. There must be two or more claimants with claimants together with:
adverse or conflicting interests to a 1. A copy of the complaint, and
property in the custody or possession of the 2. Order. (Rule 62, Section 3)
plaintiff;
2. The plaintiff in an action for interpleader Motion to dismiss
has no claim upon the subject matter of the Within the time for filing an answer, each
adverse claims or if he has an interest at all, claimant may file a motion to dismiss on the
such interest is not disputed by the claimants; following grounds:
3. The subject matter of the adverse claims must 1. Impropriety of the interpleader
be one and the same; and

175
2. Other appropriate grounds in Rule 16 of the If the subject matter is a [DeWCO] Deed, Will,
Rules of Court Contract or Other written instrument, any person
interested in the same may file the petition. (Rule
Answer and other pleadings 63, Section 1)
Period to file Answer
Answer shall be filed within 15 days after service If the subject matter is a [SEROG] Statute,
of summons. (Rule 11, Section 1; Rule 62, Section Executive order or Regulation, Ordinance, or any
5) other Governmental regulation, any person whose
rights are affected by the same may file the petition.
Period to file Reply (Rule 63, Section 1)
Claimants may file their reply within the period
provided by the Rules. A reply may be filed within Who shall be impleaded as parties?
10 days from the service of the pleading 1. All persons who have or claim any interest, which
responded to. (Rule 11, Section 6; Rule 62, would be affected by the declaration. (Rule 63,
Section 5) Section 2)
2. The following shall also be notified and entitled to
An adverse claimant in an interpleader case may be heard:
be declared in default. Under Rule 62, Section 5 of a. Solicitor General
the 1997 Rules of Civil Procedure, a claimant who Where the action involves the validity of a
fails to answer within the required period may, on statute, executive order or regulation, or any
motion, be declared in default. The consequence other governmental regulation (Rule 63, Section
of the default is that the court may ―render 3); or
judgment barring [the defaulted claimant] from any Where the unconstitutionality of a local gov‘t
claim in respect to the subject matter.‖ The Rules ordinance is alleged (Rule 63, Section 4)
would not have allowed claimants in interpleader b. Local gov’t unit prosecutor or attorney
cases to be declared in default if it would Where the action involves the validity of a local
―ironically defeat the very purpose of the suit.‖ government ordinance. (Rule 63, Section 4)
.(Lui Enterprises v. Zuellig Pharma, G.R. No.
193494, 12 March 2014, 719 SCRA 88) b. REQUISITES OF ACTION FOR
DECLARATORY RELIEF
Effect of failure to plead within the time fixed
The court may, on motion, declare the claimant in 1. There must be a justiciable controversy;
default and render judgment barring him from any 2. The controversy must be between persons
claim in respect to the subject matter. whose interests are adverse;
3. The party seeking declaratory relief must have
The parties in an interpleader may file: a legal interest in the controversy; and
1. Counterclaims; 4. The issue involved must be ripe for judicial
2. Cross-claims; determination. (CJH Development vs. BIR,
3. Third-party complaints; and G.R. No. 172457, 2008)
4. Responsive pleadings thereto as provided in
the Rules c. WHEN COURT MAY REFUSE TO MAKE
JUDICIAL DECLARATION
When court shall determine and adjudicate
claims 1. Where a decision would not terminate the
The court shall proceed to determine their uncertainty or controversy which gave rise to
respective rights and adjudicate their claims after the action, or
the pleadings of the conflicting claimants have 2. In any case where the declaration or
been filed and pre-trial has been conducted. (Rule construction is not necessary and proper under
62, Section 6) the circumstances. (Rule 63, Section 5)

What shall constitute as lien upon the subject NOTE: The court may refuse to exercise the power
matter to declare rights and to construe instruments motu
The following shall constitute a lien or charge upon propio or upon motion.
the subject matter unless otherwise ordered by the Exception: If the action is for reformation of
court: instruments, consolidation of ownership and
1. Docket and other lawful fees paid by the party quieting of title – the court must decide the
who filed the complaint for interpleader; and case.
Costs and litigation expenses. (Rule 62, Section 7)
Other instances when the action for declaratory
5. DECLARATORY RELIEF (Rule 63) relief will not lie:
1. Action to obtain a judicial declaration of
a. WHO MAY FILE ACTION citizenship (no real controversy; other remedies
available) (Lim v. Republic, G.R. No. L-30424,
Note: RTC has exclusive jurisdiction. 1971);
2. Action to establish illegitimate filiation and
actions to determine hereditary rights (lack of

176
 actual existing legal right – hereditary rights are Jurisdiction over actions to quiet title to real property
inchoate since the parent in question is still depends on the amount or value of the property
alive) (Edades v. Edades, G.R. No. L-8964, determines.
1956);
3. Court decisions (not among subject matters 6. REVIEW OF JUDGMENTS AND
listed; violates res judicata); FINAL ORDERS OR RESOLUTIONS
4. Decisions of quasi-judicial agencies (for the
same reason as court decisions) (Monetary OF THE COMELEC AND COA (Rule
Board v. Philippine Veterans Bank, G.R. No. 64)
189571, 2015)
5. Action to resolve a political question; Scope
6. Those determinative of the issues rather than The Rule shall govern the review of judgments and
the construction of definite status, right or final orders or resolutions of the Commission on
relation; Elections en banc and the Commission on Audit.
7. Where the terms of the assailed ordinance are (Rule 64, Section 1)
not ambiguous or of doubtful meaning;
8. Where the contract or statute subject of the The prerequisite filing of a Motion for
case had already been breached; (SJS v. Lina, Reconsideration with the COMELEC en banc is
G.R. No. 160031, 2008); mandatory before said final en banc decision may
9. When the purpose of the action is merely to be brought to the Supreme Court on Certiorari.
seek an advisory opinion from the court on a (Ambil Jr. v. COMELEC, G.R. No. 143398, 2000)
moot question. (Riano, 2009 ed.)
a. APPLICATION OF RULE 65 UNDER
d. CONVERSION TO ORDINARY ACTION RULE 64

If before the final termination of the case, a breach The aggrieved party may bring a judgment or final
or violation of an instrument or a statute, executive order or resolution of the Comelec en banc and
order or regulation, ordinance, or any other COA to the SC on certiorari under Rule 65 and not
governmental regulation should take place, the on appeal by certiorari under Rule 45. (Rule 64,
action may thereupon be converted into an ordinary Section 2)
action, and the parties shall be allowed to file such
pleadings as may be necessary or proper. (Section b. DISTINCTION IN THE APPLICATION OF
6, Rule 63 of the Rules of Court) RULE 64 TO JUDGMENTS OF THE
COMELEC AND COA AND THE
e. PROCEEDINGS CONSIDERED AS APPLICATION OF RULE 65 TO OTHER
SIMILAR REMEDIES TRIBUNALS, PERSONS AND OFFICERS

(i) REFORMATION OF AN INSTRUMENT RULE 64 RULE 65

An action for reformation is not an action brought to
FINAL orders, May be used against
reform a contract, but to reform the instrument
judgments or resolutions interlocutory orders of
evidencing the contract. (Art. 1359 of the New Civil
COA/Comelec
Code)
Directed against Directed against a
(ii) CONSOLIDATION OF OWNERSHIP Comelec and COA tribunal, board or officer
exercising judicial or
The action brought to consolidate ownership is not quasi-judicial functions
for the purpose of consolidating the ownership of
the property in the person of the vendee or buyer Must be filed within 30 Must be filed within 60
but for the registration of the property. (Cruz v. Leis, days from notice of days from notice of
G.R. No. 125233, 2000) judgment or resolution judgment or resolution

(iii) QUIETING OF TITLE TO REAL If MR or MNT were If MR or MNT were

PROPERTY denied, the aggrieved denied, the aggrieved
party may file the party will have another
An action to quiet title to real property is for the petition within the 60 days within which to
removal or prevention of a cloud of title to real remaining period, but file the petition (fresh 60-
property or any interest by reason of any which shall not be less day period)
instrument, record, claim, encumbrance or than 5 days in any case
proceeding which is apparently valid or effective but
is in truth and in fact invalid, ineffective, voidable or All annexes must be Only the order assailed
unenforceable and may be prejudicial to said title. certified must be certified
(Article 476 of the New Civil Code)
Rule 64 does not cover rulings of the COMELEC in
the exercise of its administrative powers (Querubin,

177
et al. v. COMELEC, G.R. No. 218787, 8 December jurisdiction; In excess duty; or
2015) or of Excluded
With grave jurisdiction; another
Time to file petition abuse of or from a
The petition shall be filed within 30 days from notice discretion With grave right or
of the judgment, final order, or resolution. amounting abuse of office.
(Constitution, Art IX, Sec. 7) to lack or discretion
excess of amounting
The filing of a motion for new trial or jurisdiction. to lack or
reconsideration, if allowed under the procedural excess of
rules of the COMELEC and COA, interrupts the jurisdiction.
period.
Purpose: To Purpose: To Purpose: For
annul or nullify have respondent to:
If the motion is denied, petition may be filed within
a proceeding respondent Do the act
the remaining period or within 5 days from notice of
desist from required
denial, whichever is longer. (Rule 64, Section 3)
further as a duty;
proceeding; and
Order to comment
from exercising Pay
If the petition is sufficient in form and substance, the
jurisdiction/ damages
respondents shall be ordered to file their comments
power
within 10 days from notice thereof. (Rule 64,
Section 6) Covers Covers Covers
discretionary discretionary ministerial acts
Outright dismissal of petition: acts and ministerial
1. If the complaint is insufficient in form and acts
substance
2. If the complaint was filed manifestly for delay Corrective Negative and This remedy is
3. If the questions raised are too unsubstantial to remedy: To preventive affirmative or
warrant further proceedings (Rule 64, Section correct a lack of remedy: To positive (if the
6) or usurpation of restrain or performance of
jurisdiction prevent a duty is
Effect of filing of petition usurpation of ordered) or
General Rule: The filing of a petition for certiorari jurisdiction negative (if
shall not stay the execution of the judgment or final desistance
order or resolution sought to be reviewed from excluding
another from a
Exception: When the Supreme Court directs right or office is
otherwise upon such terms as it may deem just ordered)
(Rule 64, Section 8)
(i) CERTIORARI DISTINGUISHED FROM
7. CERTIORARI, PROHIBITION AND APPEAL BY CERTIORARI
MANDAMUS (RULE 65)
Certiorari and appeal by certiorari
a. DEFINITIONS AND DISTINCTIONS distinguished:

Certiorari, Prohibition and Mandamus defined CERTIORARI AS A CERTIORARI AS A

and distinguished: MODE OF APPEAL SPECIAL CIVIL
(RULE 45) ACTION (RULE 65)
CERTIORARI PROHIBITION MANDAMUS
A continuation of the An original action and
Directed against Directed against Directed appellate process over not a mode of appeal
an entity or an entity or against an the original case
person person entity or
exercising exercising person Seeks to review final May be directed against
judicial or quasi- judicial, quasi- exercising judgments or final orders an interlocutory order of
judicial judicial, or ministerial the court or where no
functions ministerial functions appeal or plain or
functions speedy remedy is
available in the ordinary
Entity or person Entity or person Entity or course of law
is alleged to is alleged to be person is
have acted: acting or alleged to Raises only questions of Raises questions of
Without threatening to have: law jurisdiction—that is,
jurisdiction; act: Neglected whether a tribunal, board
In excess Without a or officer exercising
of jurisdiction; ministerial judicial or quasi-judicial

178
 functions has acted SC may deny the The court may dismiss
without jurisdiction or in decision motu propio on the petition if it finds the
excess of jurisdiction or the ground that the same patently without
with grave abuse of appeal is without merit, merit or prosecuted
discretion amounting to or is prosecuted manifestly for delay, or if
lack of jurisdiction manifestly for delay, or the questions raised
that the questions raised therein are too
Filed within 15 days from Filed within 60 days from therein are too unsubstantial to require
notice of judgment or notice of judgment, order unsubstantial to require consideration. In such
final order appealed or resolution sought to consideration. event, the court may
from, or of the denial of be assailed and in case award in favor of the
petitioner‘s motion for a motion for respondent treble costs
reconsideration or new reconsideration or new solidarily against the
trial trial is timely filed, the petitioner and counsel,
60-day period is to be in addition to subjecting
counted from notice of counsel to administrative
denial of said motion sanctions under Rules
139 and 139-B of the
Extension of 30 days Extension is allowed Rules of Court.
may be granted for only in exceptional and
justifiable reasons meritorious cases (See The Court may impose
MidIslands Power v. CA, motu proprio, based on
29 Feb 2012) res ipsa loquitur, other
disciplinary sanctions or
Does not require a prior Motion for
measures on erring
motion for reconsideration is a
lawyers for patently
reconsideration condition precedent,
dilatory and
subject to exceptions
unmeritorious Petitions
Stays the judgment Does not stay the for Certiorari
appealed from judgment or order
subject of the petition, (ii) PROHIBITION AND MANDAMUS
unless enjoined or DISTINGUISHED FROM INJUNCTION
restrained
Prohibition and injunction distinguished
Parties are the original The tribunal, board,
parties with the officer exercising judicial INJUNCTION PROHIBITION
appealing party as the or quasi-judicial
petitioner and the functions is impleaded Ordinary civil action; Special civil action;
adverse party as the as primary respondent; May deal with factual or Refers to issues of
respondent without with adverse party in the legal issues jurisdiction only
impleading the lower lower court (if any) as
court or its judge the private respondent Directed only to the Directed to the court
party litigants, without in itself, commanding it to
Filed only with SC May be filed with SC, any manner interfering cease from the exercise
CA, Sandiganbayan, or with the court of a jurisdiction to which it
RTC has no legal claim

Mandamus and injunction distinguished

INJUNCTION MANDAMUS

Ordinary civil action Special civil action

Directed against a Directed against a

litigant tribunal, corporation,
board, or officer

Purpose is to either Purpose is for the

compel the defendant to tribunal, corporation,
refrain from performing board, or officer to
an act or to perform any perform a ministerial and
act - not necessarily a legal duty
legal and ministerial
duty

179
 6. Where the decision in the certiorari case
b. REQUISITES will avoid future litigations. (Regalado,
2008 ed.)
1. CERTIORARI
a) Tribunal, board, or officer exercises judicial B. Even when the period for appeal has lapsed,
or quasi-judicial functions; SC has allowed a writ of certiorari:
b) Tribunal, board, or officer has acted 1. When appeal is lost without the appellants‘
without or in excess of jurisdiction or with negligence;
grave abuse of discretion; and 2. When public welfare and the advancement
c) There is no appeal or any plain, speedy, of public policy dictates;
and adequate remedy in the ordinary 3. When the broader interest of justice so
course of law. requires;
4. When the writs issued are null and void;
2. PROHIBITION and
a. There must be a controversy; 5. When the questioned order amounts to an
b. Respondent is exercising judicial, quasi- oppressive exercise of judicial authority.
judicial, or ministerial functions;
c. Respondent acted without or in excess of Certiorari is not a proper remedy to appeal a
jurisdiction, or acted with grave abuse of motion to quash
discretion; and Generally, the proper action is to continue with the
d. There must be no appeal or other plain, trial and reiterate the special defenses invoked in
speedy, and adequate remedy. the motion to quash. As an exception, certiorari is
proper when there is grave abuse of discretion.
3. MANDAMUS (Lazarte v. Sandiganbayan, G.R. No. 180122,
a. There must be a clear legal right or duty; 2009)
b. Respondent must be exercising a
ministerial duty—a duty which is absolute Certiorari and prohibition are appropriate
and imperative, and involves merely its remedies to contest the validity of acts of any
execution; branch or agency of government as provided for
c. Respondent unlawfully neglects the under Article VIII Section 1 of the Constitution:
performance of its duty or unlawfully > Judicial power includes duty of the courts to
excludes another from the use and determine whether or not there has been a grave
enjoyment of a right or office to which such abuse of discretion amounting to lack or excess of
other is entitled; and jurisdiction on the part of any branch or
d. No appeal or other plain, speedy, and instrumentality of the Government. (Ermita v.
adequate remedy in the ordinary course of Aldecoa-Delorino, 651 SCRA 128; and Francisco v.
law. Toll Regulatory Board, 633 SCRA 470)

NOTE: All petitions must be accompanied with a Certiorari is the proper remedy to appeal a
certified true copy of the judgment or order subject declaration of presumptive death
thereof. It must be an authenticated original thereof The Family Code was explicit that the court‘s
and not a mere photocopy that must be attached to judgment in summary proceedings, such as the
the petition filed. (Regalado 2008 ed.) declaration of presumptive death of an absent
spouse, shall be immediately final and executory.
c. WHEN PETITION FOR CERTIORARI, An aggrieved party may, nevertheless, file a petition
PROHIBITION AND MANDAMUS IS PROPER for certiorari under Rule 65 to question any abuse of
discretion amounting to lack or excess of jurisdiction
CERTIORARI that transpired. Republic v. Cantor, [G.R. No.
General rule: A petition for certiorari is proper when 184621, December 10, 2013]
all the requisites are complied with.
Exceptions: RTC ruled in favor of private respondents. Upon
A. Even when appeal is available and is the SCA for certiorari, the CA dimissed the petition on
proper remedy, SC has allowed a writ of the ground of lack of jurisdiction. Petitioner filed
certiorari: another SCA for certiorari assailing the CA‘s
1. Where the appeal does not constitute a resolution. Petitioner should have filed a petition for
speedy and adequate remedy; review on certiorari under Rule 45, which is a
2. Where the orders were also issued either continuation of the appellate process over the
in excess of or without jurisdiction; original case. However, in accordance with the
3. For certain special considerations, as liberal spirit pervading the Rules of Court and in the
public welfare or public policy; interest of substantial justice, this Court has, before,
4. Where, in criminal actions, the court treated a petition for certiorari as a petition for
rejects rebuttal evidence for the review on certiorari, particularly (1) if the petition
prosecution as, in case of acquittal, there for certiorari was filed within the reglementary
could be no remedy; period within which to file a petition for review
5. Where the order is a patent nullity; and on certiorari; (2) when errors of judgment are
averred; and (3) when there is sufficient reason to

180
justify the relaxation of the rules. (The City of Manila e. RULE ON FILING OF MOTION
v. Hon. Grecia-Cuerdo, G.R. No. 175723, 2014) FOR RECONSIDERATION BEFORE FILING OF
PETITION
PROHIBITION
General rule: A petition for prohibition is intended General Rule: A motion for reconsideration is a
to prohibit or prevent FUTURE acts done without sine qua non requirement before filing a petition
authority or jurisdiction, and is not proper for acts under Rule 65.
already accomplished. Exceptions:
Exceptions: 1. Where the order questioned is a patent
Even when an act is already fait accompli, SC nullity;
has allowed a writ of prohibition: 2. Where the questions raised in the certiorari
1. Where it would prevent the creation of a proceeding have already been duly
new province by those in the corridors of raised and passed upon by the lower
power who could avoid judicial intervention court or are the same as those raised
and review by merely speedily and and passed upon in the lower court;
stealthily completing the commission of 3. Where there is an urgent necessity for the
such illegality. (Tan v. Comelec, G.R. No. resolution of the question;
73155, 1986) 4. Where an MR would be useless or is
2. Where it would provide a complete relief prohibited;
by not only preventing what remains to be 5. Where petitioner is deprived of due
done but by undoing what has been done, process;
such as terminating a preliminary 6. Where, in a criminal case, relief from an
investigation instead of filing a motion to order of arrest is urgent and the granting
quash. (Aurillo v. Rabi, G.R. No. 120014, of such relief by the trial court is
2002) improbable;
3. Where the acts sought to be enjoined were 7. Where the issue raised is one purely of law
performed after the injunction suit is or where public interest is involved;
brought. (Versoza v. Martinez, G.R. No. 8. Where the proceedings in the lower court
119511, 1998) are a nullity for lack of due process;
9. Where the proceeding was ex parte or in
MANDAMUS which the petitioner had no opportunity to
A petition for mandamus was considered proper in object; and
the following instances: 10. Where the subject matter of the action is
To compel the ombudsman to dismiss a case perishable.
which was pending before him for 6 years,
which was considered a violation of the f. RELIEFS PETITIONER IS ENTITLED TO
constitutional duty to ―promptly act on
complaints filed…‖ (Angchangco v. The primary reliefs available to petitioner are:
Ombudsman, 268 SCRA 301) 1. In a petition of certiorari – That the judgment,
To compel a judge to issue a writ of execution order, or resolution subject of the petition for
pending appeal of a decision in an ejectment certiorari be annulled or modified. (Rule 65,
case, where the defendant appellant failed to Section 1)
make the necessary deposits of rentals 2. In a petition for prohibition – That the
pending appeal. (Vda. De Carbungco v. respondent be ordered to desist from further
Amparo, 83 Phil 638) proceedings in the action or matter specified in the
petition for prohibition. (Rule 65, Section 2); or
Not proper in the following cases: 3. In a petition for mandamus – That the
To enforce purely contractual obligations; respondent, immediately or at some other time to
When there is another speedy and adequate be specified by the court, do the act required to be
remedy; done to protect the petitioner‘s rights, and to pay
To compel a school to readmit students, and/or the damages sustained by the petitioner by reason
to confer academic honors, in violation of the of the respondent‘s wrongful acts (Rule 65, Section
school‘s academic freedom (University of San 3)
Agustin v. CA, 230 SCRA 761; University of 4. Common to certiorari, prohibition and
San Carlos v. CA, 166 SCRA 570) mandamus – The court may grant such incidental
reliefs as law and justice may require. It may also
d. INJUNCTIVE RELIEF award damages. (Rule 65, Section 9). This may
include provisional remedies, final injunctions,
The petition shall not interrupt the course of the mandatory injunctions to return the parties to the
principal case, unless a temporary restraining order status quo, etc.
or a writ of preliminary injunction has been issued,
enjoining the public respondent from further g. ACTIONS/OMISSIONS OF MTC/RTC IN
proceeding with the case. (Rule 65, Section 7) ELECTION CASES

In election cases involving an act or omission of the

MTC or RTC

181
, the petition for certiorari shall be filed exclusively 2. Oust the holder from its enjoyment, if his
with the Comelec, in aid of its appellate jurisdiction. claim is not well-founded, or if he has
(Section 4, Rule 65 of the Rules of Court, as forfeited his right to enjoy the office.
amended by A.M. No. 07-7-12-SC, December 12, (Tecson v. COMELEC, G.R. No. 161434,
2007) 2004)

h. WHEN AND WHERE TO FILE PETITION General rule: Quo warranto is commenced by the
State/government as the proper party plaintiff.
When to file petition Exception: When a person claims to be entitled
Within 60 days from notice of the assailed to the public office allegedly usurped by another
judgment, order or resolution. in which case he can bring the action in his own
In case a motion for reconsideration or a motion name (Rule 66, Sec. 5)
for a new trial is timely filed: within 60 days
from notice of the denial of said motion. Nature of a quo warranto proceeding:
1. It is a direct, not a collateral attack, on the
Where to file petition matter assailed
If petition relates to the acts or omissions of a 2. It is a proceeding against a public officer,
lower court, corporation, board, or officer or not in his official capacity, because no
person: RTC exercising jurisdiction over the official power or right or duty is sought, but
territorial area as defined by the SC. because the officer‘s title to the office is
If petition relates to the acts or omissions of a being questioned.
quasi-judicial agency: Cognizable only by the 3. It is a proceeding of a public nature filed by
CA. (Rule 65, Section 4) a prosecuting attorney ex officio such as
by the Solicitor General or fiscal. (But it is
Is it proper to file a petition under Rule 65 personal in nature as to the person
directly with the Supreme Court? claiming office.)
General Rule: No. Follow the hierarchy of courts.
Thus, direct resort to the Supreme Court will not be How is the action commenced:
entertained. Verified petition
Exception: ―[U]nless the redress desired
cannot be obtained in the appropriate courts or The action is brought against:
where exceptional and compelling 1. A person who usurps, intrudes into, or
circumstances justify availment of a remedy unlawfully holds or exercises a public
within and calling for the exercise of the office, position or franchise;
[Supreme Court‘s] primary jurisdiction.‖ 2. A public officer who does or suffers an act
(Santiago v. Vasquez, 217 SCRA 633) which, by the provision of law, constitutes
a ground for the forfeiture of his office; or
i. PENALTY FOR FILING OF A 3. An association which acts as a corporation
PATENTLY UNMERITORIOUS OR FRIVOLOUS within the Philippines without being legally
PETITION incorporated or without lawful authority so
to act. (Rule 66, Section 1)
The court may dismiss the petition for being
unmeritorious—that is: Rule 66 of the Rules of Court does not apply to quo
1. It is patently without merit; warranto cases against person who usurp an office
2. It is prosecuted manifestly for delay; or in a private corporation. (Calleja v. Panday, G.R.
3. If the questions raised therein are too No. 168696, 2006)
unsubstantial to require consideration.
a. DISTINGUISH FROM QUO WARRANTO
In this case, the court may award treble costs in IN THE OMNIBUS ELECTION CODE
favor of the respondent solidarily against the
petitioner and counsel. It may also subject the Quo warranto under the Rules of Court and
counsel to administrative actions under Rules 139 under the Election Code distinguished
and 139-B of the Rules of Court. QUO WARRANTO QUO WARRANTO
(RULE 66) (ELECTION CODE)
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or Subject of the petition is Subject of the petition is
measures on erring lawyers for patently dilatory and in relation to an in relation to an elective
unmeritorious petitions for certiorari. (Section 8, appointive office office. (Nuval v. Guray,
Rule 65 of the Rules of Court, as amended by A.M G.R. No. L-30241,
No. 07-7-12-SC, December 12, 2007) December 29, 1928)

8. QUO WARRANTO (Rule 66)

The object of Quo Warranto proceedings is to:
1. Determine the right of a person to use or
exercise of a franchise or office; and

182
The issue is the legality Grounds relied upon are: b. The petitioner may also require
of the occupancy of the (a) ineligibility to the an indemnity bond tom the
office by virtue of a legal position; or (b) disloyalty relator.
appointment to the Republic (Sec. 3. A private person claiming to be entitled to the
253, Omnibus Election usurped or unlawfully held office.
Code) a. The petitioner will not need to
secure intervention of the Solicitor
Petition is brought either May be instituted with
General or a fiscal;
to SC, CA, or RTC the COMELEC by any
b. The action will be brought in his
voter contesting the
name.
election of any member
c. Petitioner must be able to show
of Congress, regional,
or establish that he has a clear
provincial or city officer;
right to the position, AND that the
or to the MeTC, MTC or
person holding the office is a
MCTC if against any
mere usurper.
barangay official (Sec.
253, Omnibus Election
b. WHEN GOVERNMENT MAY COMMENCE
Code)
AN ACTION AGAINST INDIVIDUALS
Filed within one year Filed within 10 days after
from the time the cause the proclamation of the When commenced
of ouster, or the right of results of the election When there is usurpation of a public office, position
the petitioner to hold the or franchise
office or position arose
(Section 11, Rule 66) A petition for quo warranto is filed against the
following individuals by the government:
Petitioner is the person Petitioner may be any 1. A person who usurps, intrudes into, or
entitled to the office voter even if he is not unlawfully holds or exercises a public
entitled to the office office, position or franchise;
2. A public officer who does or suffers an act
The court has to declare When the tribunal which, by the provision of law, constitutes
who the person entitled declares the candidate- a ground for the forfeiture of his office; or
to the office is if he is the elect as ineligible, he will 3. An association which acts a corporation
petitioner be unseated but the within the Philippines without being legally
person occupying the incorporated or without lawful authority so
second place will not be to act. (Rule 66, Section 1)
declared as the one duly
elected because the law How and who commences the action on behalf
shall consider only the of the government
person who, having duly Quo warranto is commenced by a verified petition
filed his certificate of brought in the name of the Government of the
candidacy, received a Republic of the Philippines by the Solicitor General,
plurality of votes or in some instances, by a public prosecutor. (Rule
66, Sections 2 and 3)
Quo warranto and mandamus: Quo
warranto tests the title to one‘s office claimed by A petition to cease and desist the release of illegal
advertisements by a ―Legal Clinic‖ run mainly by
another and has as its object the ouster of the
paralegals (unauthorized practice of law), must
holder from its enjoyment, while mandamus avails
to enforce clear legal duties and not to try disputed properly be brought to the Solicitor General to
titles. (Garces v. CA, G.R. No. 114795, 1996) commense an action of quo warranto against the
company in light of their misuse of the corporate
Who may commence an action for quo charter. When the advertisements released by the
warranto: company seem to celebrate bigamy, illegal
1. The Solicitor General or a public prosecutor marriages, or divorce, the same must be enjoined
[MANDATORY quo warranto]. immediately by the court. (Ulep v. The Legal Clinic,
Bar Matter no. 553, 1993) (Secs. 2 and 3, Rule 66,
a. Upon direction of the President;
Rules of Court, in relation to Sec. 6(1), P.D. No.
b. Upon complaint; or
902-A and Sec. 121, Corporation Code.)
c. When he has good reason to
believe he can establish a case
on the grounds in Section 1
Where the action is brought if Solicitor General
2. The Solicitor General or a public prosecutor at commences action
the request and upon relation of another person [ex When the action is commenced by the Solicitor
relatione]. General, the petition may be brought in the:
a. The petitioner must first obtain a 1. Regional Trial Court of the City of Manila;
leave of court; 2. Court of Appeals; or
3. Supreme Court (Rule 66, Section 7)

183
 public office, position, or franchise, judgment shall
Where the action is brought if the action is be rendered that such respondent to be ousted and
commenced by other persons altogether excluded therefrom.
The petition can be brought only to the:
1. Supreme Court; Petitioner or relator may recover his costs.
2. Court of Appeals; or
3. Regional Trial Court exercising jurisdiction Such further judgment may be rendered
over the territorial area where the determining the respective rights of all the parties to
respondent or any of the respondents the action as justice requires. (Rule 66, Section 9)
reside.
e. RIGHTS OF A PERSON ADJUDGED
Quo Warranto against Corporations ENTITLED TO PUBLIC OFFICE
May be brought against an association acting as a
corporation within the Philippines without being If judgment be rendered in favor of the person
legally incorporated or without lawful authority to act averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
Refers to de facto Corporations: those issued a executing any official bond required by law:
certificate of incorporation although it had not fully 1. Take upon himself the execution of
complied with the laws the office
2. Demand of the respondent all the
De facto Corporation: one which in good faith books and the papers in the
claims to be a corporation, was organized in respondent‘s custody or control
accordance and pursuant to a valid law, and appertaining to the office. (if he
assumes corporate powers because it was issued a refuses or neglects to do so, he may
certificate of incorporation. be punished for contempt)
3. Bring an action for damages against
Its corporate existence can be directly attacked by a respondent sustained by him by
quo warranto proceeding according to Sec. 20 of reason of the usurpation (Rule 66,
the Corporation code. Section 11)

Intra Corporate Dispute When a quo warranto case is rendered moot and
Quo Warranto proceedings against persons who academic, but the injunction order issued in such
usurp the office, powers or functions of duly elected pending case was disobeyed, the petitioner is still
board members within a Corporation are not within entitled to receive compensation in damages from
the Scope of Rule 66. such disobedience by the party previously
proceeded against. (Villanueva v. Rosqueta, G.R.
c. WHEN THE INDIVIDUAL MAY No. 180764, 2010)
COMMENCE AN ACTION
Limitation as to period to file
In bringing a petition for quo warranto, a private General Rule: The action must be commenced
individual must show that he has a clear right to the within one (1) year from date after the cause of
office allegedly being held by another. It is not such ouster or the right of the petitioner to hold such
enough that he merely asserts the right to be office or position arose.
appointed to the office. (Cuevas v. Bacal, G.R. No.
139382, 2000) The unbending jurisprudence in this jurisdiction is to
the effect that a petition for quo warranto and
The petitioner must also FIRST prove his mandamus affecting titles to public office must be
entitlement or right to the office, and cannot simply filed within one (1) year from the date the petitioner
rely on the defects in the qualifications of the is ousted from his position. He who claims the right
respondent. Failing this, the petition can be to hold a public office allegedly usurped by another
dismissed at any stage and the court will not pass and who desires to seek redress in the courts,
on the qualifications or eligibility of the holder of the should file the proper judicial action within the
office/respondent. (Acosta v. Flor, 5 Phil. 18) reglamentary period. (Galano v. Roxas, G.R. No. L-
31241, 1975)
An action quo warranto is filed prematurely when Exception: Laches does not attach and failure
the nature of the position is yet to be adjudged to file quo warranto proceeding does not
under a review on certiorari action in the CA as to operate adversely against a dismissed
whether it is of a de facto or de jure capacity. This government employee where it was the act of
also constitutes forum shopping. (Feliciano v. responsible government official which
Villasin, G.R. No. 174929, 2008) contributed in the delay of the filing of complaint
for reinstatement. (Cristobal v. Melchor, G.R.
d. JUDGMENT IN QUO WARRANTO No. L-43203, 1977)
ACTION
9. EXPROPRIATION (Rule 67)
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a Expropriation

184
It is a process by which the power of eminent of not more than three (3) commissioners. The
domain is carried out; taking as of private owned order fixing the just compensation on the basis of
property, by government under eminent domain the evidence before, and findings of, the
commissioners would be final, too. It would finally
Eminent domain dispose of the second stage of the suit, and leave
It is the right of the State to acquire private property nothing more to be done by the court regarding the
for public use upon the payment of just issue. (Barangay San Roque v. Heirs of Pastor,
compensation G.R. No. 138896, 2000)

Note: Expropriation is only proper when the owner Remedy: Appeal by notice of appeal within 15 days
refuses to sell or agrees to sell but an agreement as from receipt of court order.
to price cannot be reached.
The order of the court in each stage is a final
Note: An expropriation suit is incapable of order and is separately appealable.
pecuniary estimation. An expropriation suit does not
involve the recovery of a sum of money. Rather, it c. WHEN PLAINTIFF CAN IMMEDIATELY
deals with the exercise by the government of its ENTER INTO POSSESSION OF THE REAL
authority and right to take private property for public PROPERTY, IN RELATION TO R.A. 8974
use. (Barangay San Roque v. Heirs of Pastor, G.R.
No. 138896, 2000) Upon filing of complaint and after due notice to
defendant the plaintiff shall have the right to enter or
a. MATTERS TO ALLEGE IN COMPLAINT take possession of property if he makes a
FOR EXPROPRIATION preliminary deposit.

An expropriation proceeding is commenced by Value of preliminary deposit:

the filing of a verified complaint which shall: 1. Personal property: provisionally
1. State with certainty the right of the plaintiff to ascertained and fixed by the court
expropriation and the purpose thereof; 2. Real property: assessed value in the tax
2. Describe the real or personal property sought to return
be expropriated; and
3. Join as defendants all persons owning or General rule: Compensation must be in money.
claiming to own, or occupying, any part of the Exception:
property or interest therein showing as far as A court authorized certificate of deposit of
practicable the interest of each defendant. a government bank; and
4. If the plaintiff cannot with accuracy identify the Bonds to be paid by the government under
real owners, averment to that effect must be made the Comprehensive Agrarian Reform
in the complaint. (Rule 67, Section 1) Program.

Note: When the right of the plaintiff to expropriate is Where to deposit

conferred by law the complaint does not have to Depository bank (PNB) (Rule 67, Section 2)
state with certainty the right of expropriation.
Amount of Deposit:
b. TWO STAGES IN EVERY ACTION FOR Value of property assumed.
EXPROPRIATION
Note: This system of payment does not apply in the
Stage 1: Determination of the plaintiff’s acquisition of right-of-way, site or location for any
authority to exercise the power of eminent national government infrastructure project through
domain and the propriety of its exercise in the expropriation.
context of the facts involved in the suit. It ends
with an order, if not of dismissal of the action, of RA 8794 provides for a procedure more favorable
condemnation declaring that the plaintiff has a to the property owner than the procedure provided
lawful right to take the property sought to be in Rule 67. RA 8794 applies in instances when the
condemned, for the public use or purpose described national government expropriates property for
in the complaint, upon the payment of just ‗national government infrastructure projects‘ only.
compensation to be determined as of the date of Thus, for other purposes, the assessed value
the filing of the complaint. An order of dismissal, if standard and the deposit prescribed in Rule 67
this be ordained, would be a final one, of course, continues to apply. (Republic v. Gingoyon, G.R. No.
since it finally disposes of the action and leaves 166429, 2005)
nothing more to be done by the court on the merits.
Difference between Rule 67 and R.A. 8974
Remedy: Appeal by notice of appeal and record on Section 2 Republic Act 8974
appeal within 30 days from receipt of court order. Rule 67
Stage 2: Determination by the court of the just Applicati Expropriati When the National
compensation for the property sought to be on on in Government expropriates
taken. This is done by the court with the assistance

185
 general for National Gov‘t applies in the sense that the property utilized and
Infrastructure projects. taken by the government may only be conveyed by
donation to the government. There is nothing that
For writ Gov‘t. Gov‘t required to make
can more speedily and effectively embitter a citizen
of required to immediate payment to
and taxpayer against his Government and alienate
possessi make an the owner upon filing of
his faith in it, than an injustice in unfair dealing. The
on to initial the complaint.
government must effect payment in the form of just
issue deposit.
compensation, and it may be done through a
Basis of Assessed Market Value of the negotiated sale, as granted by the RTC to the
computin Value of property stated in the tax respondent by virtue of RA 8974 and EO 1035.
g amount the prop. declaration OR the (Republic v. Ortigas, G.R. No. 171496, 2014)
to be paid for current relevant zonal
purposes value of the BIR, e. DEFENSES AND OBJECTIONS
of taxation. whichever is higher, and (SECTION 3)
the value of the
infrastructures/improvem 1. Omnibus Motion Rule — Subject to the
ents using the provisions of Sec. 1, Rule 9, a motion attacking a
replacement/cost pleading, order, judgment or proceeding shall
method. include all objections then available, and all
objections not so included shall be deemed waived.
(Rule 15, Section 8)
What constitutes “Taking”
1. The expropriator must enter a private 2. If a defendant has no objection or defense to
property. the action or the taking of his property he may file
2. The entrance into private property must be and serve a notice of appearance and a
for more than a momentary period. manifestation to that effect, specifically designating
3. The entry into the property should be under or identifying the property in which he claims to be
warrant or color of legal authority. interested, within the time stated in the summons.
4. The property must be devoted to a public Thereafter, he shall be entitled to notice of all
use or otherwise informally appropriated or proceedings affecting the same.
injuriously affected.
5. The utilization of the property for public use 3. If a defendant has objections to the filing of or
must be in such a way as to oust the owner the allegations in the complaint, he shall serve his
and deprive him of all beneficial enjoyment answer within the time stated in the summons.
of the property. (Republic v. Vda. De 1. The answer shall specifically designate or
Castellvi, G.R. No. L-20620, 1974) identify the property in which he claims to
have an interest, state the nature and
d. NEW SYSTEM OF IMMEDIATE extent of the interest claimed, and adduce
PAYMENT OF INITIAL JUST all his objections and defenses to the
COMPENSATION taking of his property.
2. No counterclaim, cross-claim or third-party
For the acquisition of right-of-way, site or location complaint shall be alleged or allowed in the
for any national government infrastructure project answer or any subsequent pleading.
through expropriation, upon the filing of the filing of
the complaint, and after due notice to the 4. A defendant waives all defenses and objections
defendant, the implementing agency shall not so alleged but the court, in the interest of
immediately pay the owner of the property the justice, may permit amendments to the answer to
amount equivalent to the sum of: be made not later than 10 days from the filing
1. 100% of the value of the property based thereof. However, at the trial of the issue of just
on the current relevant zonal valuation of compensation, whether or not a defendant has
the BIR; and previously appeared or answered, he may present
2. The value of the improvements and/or evidence as to the amount of the compensation to
structures as determined under Sec. 7, be paid for his property, and he may share in the
R.A. 8974. (Section 4 of R.A. 8974) distribution of the award.
3. A negotiated sale may be entered into
instead of expropriation proceedings. Note: Failure to file an answer does not produce
(Sections 3, 5&6 of R.A 8974, and the consequences of default in ordinary civil
Sections 6&13 of E.O. 1035) For actions; the defendant may nonetheless appear at
negotiated sale, payment must be effected the trial to present evidence as to the just
within 90 days from submission of all compensation of the claims and, thereafter, share in
documents and authorization of sale, while the judicial award.
for expropriation, it is 90 days from finality
of the decision rendered by the court. f. ORDER OF EXPROPRIATION

The solicitor general is wrong in asserting that

section 50 of PD 1529(property registration decree)

186
The order of expropriation forecloses any further Value
objections to the right to expropriate, including the 1. As of the date of filing of the complaint; OR
public purpose of the same. 2. Upon taking of the property
Whichever comes first
The court will then proceed to resolve the matter of
just compensation. The order of expropriation merely declares that the
plaintiff has the lawful power to expropriate the
Such final order sustaining the right to expropriate property but contains no ascertainment of the
the property may be appealed by any party compensation to be paid to the owner of the
aggrieved thereby. Such appeal, however, shall not property.
prevent the court from determining the just
compensation to be paid. h. APPOINTMENT OF COMMISSIONERS;
COMMISSIONER’S REPORT; COURT
Note: Expropriation is one of the actions wherein ACTION UPON COMMISSIONER’S REPORT
multiple appeals are permitted.
An appeal may be taken from the order of APPOINTMENT – Upon the rendition of the order of
expropriation which authorizes the expropriation, the court shall appoint not more than
expropriation. three (3) competent and disinterested persons as
Another appeal may lie against the judgment on the commissioners to ascertain and report to the court
just compensation to be paid. the just compensation for the property sought to be
taken.
Since multiple appeals are permitted, the
reglementary period to appeal shall be 30 days and Contents of the order of appointment
a record on appeal shall be required for each of the 1. The time and place of the first session of
permissible appeals. the hearing to be held by the
commissioners; and
After the rendition of such an order, the plaintiff 2. The time within which their report shall be
shall not be permitted to dismiss or discontinue the submitted to the court.
proceeding except on such terms as the court
deems just and equitable. (Rule 67, Section 4) Objections to the appointment of any of the
commissioners shall be filed with the court within 10
Judicial review of the exercise of eminent domain is days from service, and shall be resolved within 30
limited to the following areas of concern: (a) the days after all the commissioners shall have
adequacy of the compensation, (b) the necessity of received copies of the objections. (Rule 67, Section
the taking, and (c) the public use character of the 5)
purpose of the taking. Dismissal of an expropriation
proceeding is proper when the city asserting Oath
eminent domain failed to prove in evidence that Before entering upon the performance of their
there is a genuine necessity for taking public duties, the commissioners shall take and subscribe
property. Providing a playground for a non-profit, an oath that they will faithfully perform their duties
private organization, not directly for the benefit of as commissioners.
the locality, is not a public purpose. Hence, it is an
inappropriate reason for instituting expropriation Scope of powers of the commissioners:
proceedings and no confiscation of property may be 1. Accept evidence which may be introduced
executed. (Masikip v. City of Pasig, G.R. No. by either party
136349, 2006) 2. After due notice to the parties to attend,
examine the property sought to be
g. ASCERTAINMENT OF JUST expropriated and its surroundings and
COMPENSATION measure the same. (However the parties
may consent to the contrary)
Just compensation 3. Assess the consequential damages to the
It is full and fair equivalent of the property taken property and deduct from such the
from its owner by the expropriator. The measure is consequential benefits to be derived by the
not just the taker‘s gain, but the owner‘s loss. owner from the public use or purpose of
Just compensation means not only the correct the property taken
determination of the amount to be paid to the owner
of the land but also the payment of the land within a But in no case shall the consequential benefits
reasonable time from its taking. Without prompt assessed exceed the consequential damages
payment, compensation cannot be considered "just" assessed, or the owner be deprived of the actual
for the property owner is made to suffer the value of his property so taken. (Rule 67, Section 6)
consequence of being immediately deprived of his
land while being made to wait for a decade or more FORMULA
before actually receiving the amount necessary to a. Where assessed benefits are less than assessed
cope with his loss. (Coscoluela v. Court of Appeals, damages
G.R. No. 77765, 1988) Value of the property (at the date of taking OR
filing)

187
+ Consequential damages purpose defined in the judgment or to retain
- Consequential benefits possession already previously made in accordance
= Just compensation with Section 2, Rule 67 of the Rules of Court.

b. Where assessed benefits are larger than the Title to the property expropriated passes from the
assessed damages owner to the expropriator upon full payment of just
compensation. (Federated Realty Corp. v. CA, G.R.
Just compensation = Fair Market Value No. 127967, 2005)

REPORT: The court may order the commissioners Title in expropriation becomes vested:
to report when any particular portion of the real Personal property - upon payment of just
estate shall have been passed upon by them, and compensation
may render judgment upon such partial report, and Real property - upon payment of just
direct the commissioners to proceed with their work compensation AND registration
as to subsequent portions of the property sought to
be expropriated, and may from time to time so deal When real estate is expropriated, a certified copy of
with such property. such judgment shall be recorded in the registry of
deeds of the place in which the property is situated,
The commissioners shall make a full and accurate and its effect shall be to vest in the plaintiff the title
report to the court of all their proceedings, and such to the real estate so described for such public use
proceedings shall not be effectual until the court or purpose. (Rule 67, Section 13)
shall have accepted their report and rendered
judgment in accordance with their j. EFFECT OF RECORDING OF
recommendations. JUDGMENT

Except as otherwise expressly ordered by the court, 1. The judgment shall state:
such report shall be filed within 60 days from the 2. An adequate description of the particular
date the commissioners were notified of their property or interest therein expropriated;
appointment, which time may be extended in the and
discretion of the court. 3. The nature of the public use or purpose for
which it is expropriated.
Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties, Remedies of a property owner for non-payment
with notice that they are allowed 10 days within of the just compensation for the taking of his
which to file objections to the findings of the report, property:
if they so desire. (Rule 67, Section 7) As a general rule, the private landowner cannot
execute on the judgment or recover the property.
Action upon the report – Upon the expiration of the Non payment merely entitles the private landowner
period of 10 days referred to in the preceding to interest on the just compensation, until fully
section, or even before the expiration of such period paid;
but after all the interested parties have filed their Special Exceptions:
objections to the report or their statement of If the expropriated property earns income or
agreement therewith, the court may, after hearing: the government has allocated/appropriated
1. Accept the report and render judgment in funds for the just compensation, the landowner
accordance therewith; or may execute on such funds. (Coscolluela v.
2. For cause shown, it may recommit the CA, G.R. No. 77765 August 15, 1988) within
same to the commissioners for further five (5) years from finality of the decision.
report of facts; or An action for reconveyance or recovery of
3. It may set aside the report and appoint possession, if payment of just compensation
new commissioners; or has not been made after the lapse of five (5)
4. It may accept the report in part and reject it years from finality of the judgment fixing just
in part; and compensation, under special circumstances,
5. It may make such order or render such including the fact that the property taken is no
judgment as shall secure to the plaintiff the longer devoted to public use (Republic v. Lim,
property essential to the exercise of his G.R. No. 161656. June 29, 2005)
right of expropriation, and to the defendant
just compensation for the property so It is arbitrary and capricious for a government
taken. agency to initiate expropriation proceedings, seize a
person‘s property, allow the judgment of the court to
i. RIGHTS OF PLAINTIFF UPON become final and executory and then refuse to pay
JUDGMENT AND PAYMENT on the ground that there are no appropriations for
the property earlier taken and profitably used. Levy
After payment of the just compensation as and garnishment of NHA funds and property must
determined in the judgment, the plaintiff shall have be executed by the sheriff as ordered by the court
the right to enter upon the property expropriated to compensate the respondents. (NHA v. Heirs of
and to appropriate the same for the public use or Guivelondo, G.R. No. 154411, 2003)

188
10. FORECLOSURE OF REAL ESTATE Confirmation of the Sale:
MORTGAGE (RULE 68) After the foreclosure sale has been effected, the
mortgagee shall file a MOTION FOR ITS
CONFIRMATION.
FORECLOSURE
Foreclosure is a procedure by which the holder of a
Motion for its confirmation
mortgage—an interest in land providing security for
1. Motion is non-litiguous and may be made
the performance of a duty or the payment of a
ex parte
debt—sells the property upon the failure of the
2. Requires notice and hearing
debtor to pay the mortgage debt and, thereby,
terminates his or her rights in the property. (West's 3. Mortgagor will be allowed the opportunity
Encyclopedia of American Law, edition 2. Copyright to show cause why the sale should not be
2008 The Gale Group, Inc. All rights reserved.) confirmed and to inform them when his
right will be cut off
Modes of Foreclosure in Real Estate Mortgage: 4. If the mortgagor was not notified of the
hearing, the subsequent confirmation of
1. Judicial Forclosure pursuant to Rule
the sale is vitiated as if no confirmation
68
ever took place
2. Extrajudicial Forclosure pursuant to
5. After the hearing and the court finds valid
Act No. 3135 as amended by Act
grounds, it shall issue an order confirming
4118, and A.M. No. 99-10-05-0
(Acbang v. Luczon) the foreclosure sale= judgment in itself and
is deemed a final adjudication.
a. JUDGMENT ON FORECLOSURE FOR
PAYMENT OR SALE The title vests in the purchaser upon a valid
confirmation of the sale and retroacts to the date of
sale. (Grimalt vs. Vasquez, G.R. No. L-11721,
If after the trial, the court finds that the matters set
1918)
forth in the complaint are true, it shall render a
judgment containing the following matters:
The order of confirmation is appealable and if not
1. An ascertainment of the amount due to the
appealed within the period for appeal becomes
plaintiff upon the mortgage debt or
final.
obligation, including interest and other
charges as approved by the court, as well
Upon the finality of the order of confirmation or upon
as costs;
the expiration of the period of redemption when
2. A judgment of the sum found due;
allowed by law, the purchaser at the auction sale or
3. An order that the amount found due be
last redemptioner, if any, shall be entitled to the
paid to the court or to the judgment obligee
possession of the property and he may secure a
within the period of not less than 90 days
writ of possession, upon, motion, from the court
nor more than 120 days from the entry of
which ordered the foreclosure unless a third party is
judgment; and
actually holding the same adversely to the judgment
4. An admonition that in default of such
obligor. (Rule 67, Section 3)
payment the property shall be sold at
public auction to satisfy the judgment.
The import of Sec. 3 includes one vital effect—the
(Rule 67, Section 2)
equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no further
The judgment of the court on the above matters is
redemption, unless allowed by law (as in the case
considered a final adjudication of the case and
of banks as mortgagees). The equity of redemption
hence, is subject to challenge by the aggrieved
party by appeal or by other post-judgment starts from the 90-120 day period set in the
remedies. judgment of the court up to the time before the sale
is confirmed by an order of the court. Once
confirmed, no equity of redemption may further be
The period granted to the mortgagor for the
exercised.
payment of the amount found due by the court is
not just a procedural requirement but a substantive
General Rule: There is no right of redemption in a
right given by law to the mortgagee as his first
judicial foreclosure.
chance to save his property from final disposition at
Exception: Judicial foreclosures by banks = 1
the foreclosure sale. Hence, this period cannot be
omitted. (De Leon v. Ibañez, G.R. No. L-6967, year redemption period)
1954)
c. DISPOSITION OF PROCEEDS OF SALE
If the defendant fails to pay the amount adjudged
Formula:
within the period given, the court will order the
Proceeds of the sale - Costs of the sale
foreclosure and execution sale of the mortgaged
Payment to the person foreclosing
property.

b. SALE OF MORTGAGED PROPERTY;

EFFECT

189
When there shall be any balance or residue after There is a right of There is only an equity
paying off the mortgage debt due, the same redemption. Mortgagor of redemption. No right
shall be paid to: has a right of redemption of redemption except
1. Junior encumbrancers in the order of their for one year from when mortgagee is a
priority. registration of the sale banking institution;
2. If there be no junior encumbrancers or if (except equity of redemption is
there is still a balance after paying off the where the mortgagee is 90 to 120 days, and any
junior encumbrancers, the same shall be a bank and the time before confirmation
paid to the mortgagor or any person mortgagor is a juridical of foreclosure sale
entitled thereto. (Section 4, Rule 67 of the entity, the right to
Rules of Court) redeem may be Exception:
exercised until, but not Where the mortgagee is
d. DEFICIENCY JUDGMENT after, the registration of a bank, the right of
the certificate of redemption may be
If there be a balance due to the plaintiff after sale/foreclosure with the exercised within 1 year
applying the proceeds of the sale, the court, upon Register of Deeds, after the sale of the
motion, shall render judgment against the defendant which in no case shall property (General
for any such balance. be more than three (3) Banking Act of 2000,
months after the Sec. 47)
Execution may issue immediately if the balance is foreclosure, which ever
all due the plaintiff shall be entitled to execution at is earlier. (General
such time as the remaining balance shall become Banking Act of 2000,
due and such due date shall be stated in the Sec. 47)
judgment (Section 6, Rule 67 of the Rules of Court).
Mortgagee has to file a Mortgagee can move for
The deficiency judgment is in itself a judgment;
separate action to deficiency judgment in
thus, it is also appealable.
recover any deficiency the same action
No independent action need be filed to recover the Buyer at public auction Buyer at public auction
deficiency from the mortgagor. The deficiency becomes absolute becomes absolute
judgment shall be rendered upon motion of the owner only after finality owner only after
mortgagee. of an action for confirmation of the sale
consolidation of
The motion must be made only after the sale and ownership
after it is known that a deficiency exists. Before that,
any court order to recover the deficiency is void. Mortgagee is given a Mortgagee need not be
(Govt. of PI v. Torralba, G.R. No. L-41573, 1935) special power of given a special power of
attorney in the mortgage attorney
The mortgagor who is not the debtor and who contract to foreclose the
merely executed the mortgage to secure the mortgaged property in
principal debtor‘s obligation, is not liable for the case of default
deficiency, unless he assumed liability for the same
in the contract. (Philippine Trust Co. v. Echaus Tan
Siua, G.R. No. L-29736, 1929) g. EQUITY OF REDEMPTION VERSUS
RIGHT OF REDEMPTION
Since a deficiency judgment cannot be obtained
against the mortgagor who is not the debtor in the RIGHT OF EQUITY OF
principal obligation, the mortgagee may have to file REDEMPTION REDEMPTION
a separate suit against the principal debtor.
Prerogative or right to Equity of the defendant
f. JUDICIAL FORECLOSURE VERSUS
reacquire mortgaged mortgagor to extinguish
EXTRAJUDICIAL FORECLOSURE
property after the mortgage and retain
registration of the ownership of the
Judicial foreclosure and extrajudicial
foreclosure sale property by paying the
foreclosure distinguished
secured debt within the
EXTRA-JUDICIAL JUDICIAL 90-120 day period set by
FORECLOSURE (ACT FORECLOSURE (RULE the court after the
3135) 68) judgment becomes final
(See Rule 68, Sec. 2)
No complaint is filed. No Complaint is filed with
court intervention the courts

190
General rule: Exists General rule: Must be Plaintiff
only in the case of exercised within the 90- The action shall be brought by the person who has
extrajudicial 120 day period after the a right to compel the partition of real estate (Rule
foreclosure of the judgment becomes final 69, Section 1) or of an estate composed of personal
mortgage property, or both real and personal property (Rule
Except: When, even 69, Section 13), i.e. a co-owner.
Except: When, in a after the foreclosure sale
judicial foreclosure, itself has been made, no The plaintiff is a person who is the supposed co-
the mortgagee is PNB or order of confirmation of owner of the property or estate sought to be
a bank or banking the sale has been made. partitioned.
institution Otherwise, no
redemption can be made General Rule: Partition is allowed to file a petition
PNB‘s charter and the anymore. for partition ANY TIME as the Civil Code provides
General Banking Act that NO co-owner shall be obliged to remain in the
confer on the mortgagor, co-ownership.
his successors-in- Exceptions:
interest, or judgment 1. Existence of an agreement among co-
creditor the right to owners to retain the property undivided
redeem the property for not exceeding ten (10) years;
sold on foreclosure after 2. When co-owners are prohibited by the
confirmation by the court donor or testator for a period not
of the foreclosure sale exceeding twenty (20) years;
within one year from the 3. When partition is prohibited by law; and
date of the registration of 4. When the property is NOT subject to a
the certificate of sale in physical division and to do so would
the Registry of Property. render it unserviceable for the use which
it is unintended.
Exception to
exception: Defendant
Where the mortgagor is The defendants are all the co-owners of the
a juridical entity whose disputed property. All the co-owners MUST be
property has been the joined. Accordingly, an action will not lie without the
subject of an joinder of all co-owners and other persons having
extrajudicial interest in the property. (Reyes v. Cordero, G.R. No.
foreclosure, the right to L-14242, 1920)
redeem may be
exercised until, but not All the co-owners, therefore, are INDISPENSABLE
after, the registration of parties.
the certificate of
sale/foreclosure with the Non-inclusion of co-owner BEFORE judgment: not
Register of Deeds, a ground for Motion to Dismiss. The remedy is to
which in no case shall file a motion to include party.
be more than three (3)
months after the Non-inclusion of co-owner AFTER judgment:
foreclosure, which ever judgment is VOID because co-owners are
is earlier. (General indispensable parties.
Banking Act of 2000,
Sec. 47) Note: Creditors/assignees of co-owners may
intervene and object to a partition effected without
their concurrence. BUT the creditors/assignees
cannot impugn a partition already executed, unless
11. PARTITION (Rule 69)
there has been fraud, or in case partition was made
notwithstanding a formal opposition presented to
Partition
prevent it.
It is the separation, division and assignment of
property held in common among co-owners in
The Municipal Trial Court MAY HAVE
proportion to their respective interests in the said
JURISDICTION in actions for partition if the value of
property.
the real property is less than Three Hundred
Thousand (P300,000) if not in Metro Manila or less
Note: The procedure for judicial partition is provided
than Four Hundred Thousand (P400,000) if located
under Rule 69. For extrajudicial partition, no court
in Metro Manila.
intervention is required
b. MATTERS TO ALLEGE IN THE
a. WHO MAY FILE A COMPLAINT; WHO COMPLAINT FOR PARTITION
SHOULD BE MADE DEFENDANTS
Complaint for Partition

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 1. Nature and extent of petitioner‘s title; 3. That a partition is not legally proscribed thus may
2. Adequate description of the real estate of be allowed.
which partition is demanded; and
3. A demand for the accounting of the rents, The court shall order the partition of the property
profits, and other income from the property among all the parties in interest, if AFTER TRIAL it
which he may be entitled to. finds that the plaintiff has the right to partition
(Section 2, Rule 69 of the Rules of Court)
Petitioner MUST join as defendants all other
persons interested in the property. A final order decreeing PARTITION and
ACCOUNTING may be APPEALED by any party
A demand for the accounting MUST be included as aggrieved thereby.
they are parts of the cause of action for partition.
They cannot be demanded in another action and Partition by Agreement
will be BARRED if NOT SET UP in the SAME The parties may also make the partition among
action. themselves by proper instruments of conveyance.

c. TWO STAGES IN EVERY ACTION FOR If they do agree, the court shall then confirm the
PARTITION partition so agreed upon by all of the parties, and
such partition, together with the order of the court
A reading of the Rules will reveal that there are confirming the same, shall be recorded in the
actually THREE stages in the action, EACH of registry of deeds of the place in which the property
which is APPEALABLE: is situated (Section. 2, Rule 69 of the Rules of
1. The order of partition where the property of Court)
the partition is determined;
2. The judgment as to the accounting of the If parties CANNOT AGREE to the partition,
fruits and income of the property; and appointment of commissioners shall be had to
3. The judgment of partition. (Riano, 2009 preside over the partition proceedings.
ed.)
In a situation where there remains an issue as to
Note: From the first or second stages BEFORE the expenses chargeable to the estate, partition is
judgment of partition, appeal is by notice of appeal inappropriate. In this case, petitioner does not
and record on appeal within 30 days from notice of dispute the findings that ―certain expenses‖
court order. AFTER judgment is rendered, the including those related to her father‘s final illness
remedy against a judgment of partition is only by and burial have not been properly settled. Thus, the
notice of appeal within 15 day from receipt of heirs have to submit their father‘s estate to
judgment. settlement because the determination of these
expenses cannot be done in an action for partition.
Proof of legal acknowledgment as an heir is not a But, the heirs or distributees of the properties may
prerequisite before an action for partition may be take possession thereof even before the settlement
filed. An action for partition is at once an action for of accounts, as long as they first file a bond
declaration of co-ownership and for segregation and conditioned on the payment of the estate‘s
conveyance of a determined portion of the obligations. (Figuracion-Gerilla v. Vda. de
properties involved. If the defendant asserts Figuracion, G.R. 154322, Aug 16, 2005)
exclusive title over the property, the action for
partition should not be dismissed. Rather, the court e. PARTITION BY COMMISSIONERS;
should resolve the case and if the plaintiff is unable APPOINTMENT OF COMMISSIONERS;
to sustain his claimed status as a co- owner, the COMMISSIONER’S REPORT; COURT
court should dismiss the action, not because the ACTION UPON COMMISSIONER’S REPORT
wrong remedy was availed of, but because no basis
exists for requiring the defendant to submit to PARTITION BY COMMISSIONERS:
partition. If, on the other hand, the court after trial If the parties are unable to agree upon the partition,
should find the existence of co- ownership among the court shall appoint not more than three (3)
the parties, the court may and should order the competent and disinterested persons as
partition of the properties in the same action. (Balo commissioners to make the partition, commanding
v. CA G.R. 129704 Sept. 30, 2005) them to set off to the plaintiff and to each party in
interest such part and proportion of the property as
d. ORDER OF PARTITION AND PARTITION the court shall direct. (Rule 69, Section 3)
BY AGREEMENT
Commissioners are NOT ALLOWED to adjudicate
For an Order of Partition to Issue, the Court on questions of title or ownership of the property. It
Must Determine: is merely their duty to make OR effect the partition.
1. Whether the plaintiff is truly a co-owner of the
property; Commissioners are required to take an OATH that
2. Whether there is indeed a co-ownership among they will faithfully perform their duties as
the parties; and commissioners. Such oath shall be FILED in court.

192
In making the partition, the commissioners shall payment the whole of the real estate free from any
view and examine the real estate, after due notice interest on the part of the other parties to the action.
to the parties to attend at such view and
examination, and shall hear the parties as to their If the property is sold and the sale confirmed by the
preference in the portion of the property to be set court, the judgment shall state the name of the
apart to them and the comparative value thereof, purchaser or purchasers and a definite description
and shall set apart the same to the parties in lots or of the parcels of real estate sold to each purchaser,
parcels as will be most advantageous and and the effect of the judgment shall be to vest the
equitable, having due regard to the real estate in the purchaser or purchasers making
improvements, situation and quality of the the payment or payments, free from the claims of
different parts thereof. (Rule 69, Section 3) any of the parties to the action.

Commissioner’s Report: A certified copy of the judgment shall in either case

1. The commissioners shall make a full and be recorded in the registry of deeds of the place
accurate report to the court of: in which the real estate is situated, and the
2. Partition proceedings expenses of such recording shall be taxed as part
3. Assignment of real estate to one of the of the costs of the action. (Rule 69, Section 11)
parties; or
4. The sale of the same. g. PARTITION OF PERSONAL PROPERTY

Copies of the report shall be SERVED on ALL The provisions of this Rule shall apply to partitions
INTERESTED PARTIES. Opposition to such of estates composed of personal property, or of
partition must be commenced by filing an objection both real and personal property, in so far as the
within ten (10) days from receipt of report. same may be applicable. (Rule 69, Section 13)

Confirmation of the Court Required h. PRESCRIPTION OF ACTION

No proceeding had before or conducted by the
commissioners shall pass the title to the property or The right of action to demand partition does NOT
bind the parties UNTIL the court shall have prescribe, UNLESS one of the interested parties
ACCEPTED the report of the commissioners and openly and adversely occupies the property without
RENDERED JUDGMENT thereon. recognizing the co-ownership or repudiates the
same. In this exception, acquisitive prescription may
Court action upon commissioner’s report set in. (Regalado, 2008 ed.)
After an objection has been filed OR the expiration
of the ten (10) day period allowed for such A co-owner has the right to sue for recovery of
objection, the court may, UPON HEARING: possession of the co-owned and undivided
1. Accept the report and render judgment in property unlawfully occupied by another co-
accordance therewith; or, owner. He is at once an owner of the whole
2. For cause shown, recommit the same to property, and over the whole, exercises dominion.
the commissioners for further report of A co-owner may file an action for recovery of
facts; or possession against another co-owners who takes
3. Set aside the report and appoint new possession of the entire property. However, the
commissioners; or only effect a judgment in this case would have is to
4. Accept the report in part and reject it in recognize the co-ownership. A partition must be
part; and made (judicially or extrajudicially) before a specific
5. Make such order and render such portion can be allotted to any co-owner. (De Guia v.
judgment as shall effectuate a fair and just CA, 413 SCRA 114)
partition of the real estate, or of its value, if
assigned or sold as above provided, 12. FORCIBLE ENTRY AND UNLAWFUL
between the several owners thereof. (Rule DETAINER (Rule 70)
69, Section 2)
Three (3) kinds of actions available to recover
f. JUDGMENT AND ITS EFFECTS
possession of real property:
The judgment shall state definitely, by metes and 1. Accion interdictal
bounds and adequate description, the particular
An action where the issue is the right of physical or
portion of the real estate assigned to each party.
material possession of the subject real property
independent of any claim of ownership. This
The effect of the judgment shall be to vest in each
includes forcible entry and unlawful detainer.
party to the action in severalty the portion of the real
estate assigned to him. 2. Accion publiciana
It is plenary action to recover the legal right of
If the whole property is assigned to one of the possession which may be brought when the
parties upon his paying to the others the sum or
dispossession has lasted for more than one (1)
sums ordered by the court the effect of the
year. If at more than one (1) year had elapsed, the
judgment shall be to vest in the party making the

193
action should be not forcible entry or unlawful The law does not require Plaintiff must first make
detainer but an accion publiciana previous demand for the such demand which is
defendant to vacate; jurisdictional in nature;
3. Accion reivindicatoria
The plaintiff must prove The plaintiff need not
This action involves not only possession but
that he was in prior have been in prior
recovery of ownership of the property.
physical possession of physical possession;
the premises until he
FORCIBLE ENTRY: where one is deprived of
was deprived by the
physical possession of real property by means of
defendant; and
Force, Intimidation, Strategy, Threats, or Stealth
(FISTS). The one (1) year period The one (1) year period
is generally counted is counted from the date
UNLAWFUL DETAINER: where one illegally from the date of actual of last demand.
withholds possession after the expiration or entry on the property.
termination of his right to hold possession under
any contract, express or implied.
There are two reasons why the complaint was not
The allegation in the complaint that there was for unlawful detainer. Firstly, by averring that the
unlawful withholding of possession is sufficient to respondent constructed his shanty on the lot without
make out a case for unlawful detainer. Hence, the their consent and then praying that the MeTC direct
phrase "unlawful withholding" has been held to the respondent to pay them rent from the inception
imply possession on the part of defendant, which of the respondent‘s occupation of the lot, no other
was legal in the beginning, having no other source conclusion can be made except that the petitioners
than a contract, express or implied, and which later had always considered respondent‘s occupation of
expired as a right and is being withheld by the same to be unlawful from the very beginning. It
defendant. (Ross Rica v Sps. Ong G.R. 132197, is a settled rule that in order to justify an action for
Aug. 16, 2005) unlawful detainer, the owner‘s permission or
Note: Forcible Entry and Unlawful Detainer are tolerance must be present at the beginning of the
summary in nature to provide for an expeditious possession."
means of protecting actual possession, or the right Secondly, what the petitioners actually filed was a
of possession of the property involved. fatally defective complaint for forcible entry,
considering that there was no allegation therein
a. DEFINITIONS AND DISTINCTION regarding the petitioners‘ prior physical possession
of the lot. In actions for forcible entry, two
allegations are mandatory for the MTC to acquire
FORCIBLE ENTRY UNLAWFUL DETAINER jurisdiction: first, the plaintiff must allege his prior
physical possession of the property; and second, he
Ground: Ground:
must also allege that he was deprived of his
Deprivation of physical Unlawful withholding of
possession by any of the means provided for in
possession of any land possession of any land
Section 1,Rule 70 of the Rules of Court.
or building either by or building after the
The word ―possession‖ as used in forcible entry and
Force, Intimidation, expiration or termination
unlawful detainer, means nothing more than
Threat, Strategy or of the right to hold
physical possession, not legal possession in
Stealth (FISTS), which possession by virtue of
contemplated in civil law." (Sales v Barro, G.R.
shall include every any contract, express or
171678, Dec. 10, 2008)
situation or condition implied.
under which one person (Sps. Del Rosario vs.
b. DISTINGUISHED FROM ACCION
can wrongfully enter Gerry Roxas
PUBLICIANA, ACCION REIVINDICATORIA
upon real property and Foundation, G.R. No.
AND ACCION INTERDICTAL
exclude another, who 170575, 2011)
has had prior
possession, therefrom. ACCION ACCION ACCION
(Sps. Del Rosario vs. INTERDICTA PUBLICIAN REIVINDICATORI
Gerry Roxas L A A
Foundation, G.R. No.
170575, 2011) Summary A plenary An action for the
action for the action (full recovery of
The possession of the The possession of the recovery of trial ownership, which
defendant is unlawful defendant is lawful from physical proceeding) necessarily
from the beginning; the beginning becomes possession for the includes the
issue is which party has illegal by reason of the where the recovery of recovery of
prior de facto expiration or termination dispossession the REAL possession
possession; of his right to the has not lasted right of
possession of the more than one possession
property; (1) year when the
dispossessio

194
 n has lasted When proceedings instituted
for more than Any time within one year after such unlawful
one (1) year deprivation or withholding of possession

Note: The failure to allege the TIME when unlawful

deprivation took place is fatal because this will
determine the start of the counting of the 1 year
period for the filing of the summary action. (Munoz
v. CA, G.R. No. 102693, 1992)
Under MTC‘s RTC‘s RTC‘s jurisdiction if
jurisdiction jurisdiction if the value of e. PLEADINGS ALLOWED
only the value of property exceeds
property P20,000, or The only pleadings allowed to be filed are the
exceeds P50,000 in Metro complaint, compulsory counterclaim and cross-
P20,000, or Manila claim pleaded in the answer, and the answers
P50,000 in thereto. All pleadings shall be verified. (Rule 70,
Metro Manila Section 5)

c. HOW TO DETERMINE JURISDICTION IN f. ACTION ON THE COMPLAINT

ACCION PUBLICIANA, ACCION
REIVINDICATORIA AND ACCION The court may:
INTERDICTAL 1. Dismiss the case outright on any of the
grounds for the dismissal of a civil action
Jurisdiction is determined by the allegations of the which are apparent therein; or
complaint. The mere raising of the issue of tenancy 2. If no ground for dismissal is found, it shall
does not automatically divest the court of forthwith issue summons. (Rule 70,
jurisdiction because the jurisdiction of the court is Section 5)
determined by the allegations of the complaint and
is not dependent upon the defenses set up by the g. WHEN DEMAND IS NECESSARY
defendant. (Mariño, Jr. v. Gamilla, G.R. No.
132400, 2005) In Unlawful Detainer cases, unless there exists a
stipulation to the contrary, such actions shall only
Jurisdiction in the RTC is vested if the value of the be commenced after demand to pay or comply
property would exceed P20,000 or P50,000, if it with the conditions of the lease AND to vacate is
were located in Metro Manila. Otherwise, made upon the lessee.
jurisdiction would be vested in the MTC, MeTC, or
MCTC. (Section 33 of B.P. 129, as amended by Note: A demand in the alternative either to pay the
R.A. 7691) increased rental or otherwise vacate the land is not
the demand which gives rise to a cause of action for
d. WHO MAY INSTITUTE THE ACTION AND unlawful detainer.
WHEN; AGAINST WHOM THE ACTION MAY
BE MAINTAINED Form of demand
1. Written notice served upon the person
Plaintiff: found on the premises, or by posting such
1. A person deprived of the possession of notice on the premises if no person be
any land or building by force, intimidation, found thereon (Rule 70, Section 2);
threat, strategy, or stealth; or 2. By substituted service or registered mail;
2. A lessor, vendor, vendee, or other person 3. Jurisprudence provides that demand upon
against whom the possession of any land a tenant may be oral, but sufficient
or building is unlawfully withheld after the evidence must be adduced to show that
expiration or termination of the right to hold there was indeed a demand like
possession, by virtue of any contract, testimonies from disinterested and
express or implied, or his/her legal unbiased witnesses. (Jakihaca v. Aquino,
representatives or assigns. G.R. No. 83982, 1990)

Note: The plaintiff in FE/UD actions must be Note: If several demands were made, the one year
entitled to the physical possession of the property. period is counted from the last demand letter
He/she does not necessarily have to be the owner received, unless the subsequent demands were
of such. merely in the nature of reminders of the original
demand, in which case the one-year period is
Defendant: One who is in possession of the counted from the first demand.
property who may either be a/an:
1. Lessee; Effect of non-compliance with demand
2. Sublessee; or The lessor may proceed against the lessee if the
3. Intruder. demand is not complied with AFTER:
1. 15 days in the case of land; or

195
 2. 5 days in case of buildings. specifically to settle the question with finality.
(Roberts v. Papio, G.R. No. 166714, 2007)
Prior demand in unlawful detainer is NOT
required when: The issue of ownership shall be resolved only to
1. The purpose of the action is to terminate determine the issue of possession. (Rule 70,
the lease because of expiry of term and Section 16)
not because of failure to pay rentals;
2. Purpose of suit is not for ejectment but for Such judgment would not bar an action between the
enforcement of terms of contract; or same parties respecting title to the land or building.
3. When the defendant is not a tenant but a The resolution of the MeTC on the ownership of the
mere intruder. property is merely provisional or interlocutory. Any
question involving the issue of ownership should be
h. PRELIMINARY INJUNCTION AND raised and resolved in a separate action brought
PRELIMINARY MANDATORY INJUNCTION specifically to settle the question with finality.
(Roberts v. Papio, [G.R. No. 166714, 2007)
The court may grant preliminary injunction to
prevent the defendant from committing further acts j. HOW TO STAY THE IMMEDIATE
of dispossession against the plaintiff. EXECUTION OF JUDGMENT

A possessor deprived of his possession through Defendant must take the following steps to stay
forcible entry or unlawful detainer may, within five the execution of the judgment:
(5) days from the filing of the complaint, present a 1. Perfect an appeal;
motion for the issuance of a writ of preliminary 2. File a supersedeas bond to pay for the
mandatory injunction to restore him in his rents, damages and costs accruing down to
possession. the time of the judgment appealed from; and
3. Deposit periodically with the RTC, during
The court shall decide the motion within 30 days the pendency of the appeal, the adjudged
from the filing thereof. (Rule 70, Section 15) amount of rent due under the contract as
determined in the judgment of the MTC, or if
Note: If the case is pending, the petition for there be no contract, the reasonable value of
preliminary injunction may only be filed by the the use and occupation of the premises. (Rule
plaintiff; if the case is on appeal, the petition may be 70, Section 19)
filed by either the plaintiff or the defendant. (Rule
70, Section 15) Note: If the defendant can no longer pay this shall
not defeat the appeal. He will, however, be
i. RESOLVING DEFENSE OF OWNERSHIP compelled to surrender possession of the property
as the plaintiff will be entitled to execution as a
The assertion by the defendant of ownership over matter of right.
the disputed property does not serve to divest the
inferior court of its jurisdiction. The defendant 4. Upon motion of the plaintiff, within 10 days from
cannot deprive the court of jurisdiction by merely the perfection of the appeal to the RTC in
claiming ownership of the property involved. (Rural forcible entry and unlawful detainer cases, the
Bank of Sta. Ignacia v. Dimatulac, G.R. No. 142015, latter may issue a writ of preliminary
2003); (Perez v. Cruz, G.R. No. 142503, 2003). If mandatory injunction to restore the plaintiff in
the defendant raises the question of ownership and possession of the court is satisfied that the
the issue of possession cannot be resolved without defendant‘s appeal is frivolous or dilatory, or
deciding the question of ownership, the issue of that the appeal of the plaintiff is prima facie
ownership shall be resolved only to determine the meritorious. (Rule 70, Section 20)
issue of possession. (Section 3 of R.A. 7691)
Note: In forcible entry and unlawful detainer cases,
When the defendant raises the issue of ownership, the judgment of the RTC against the defendant
the court may resolve the issue of ownership only shall be immediately executory, without prejudice to
under the following conditions: a further appeal that may be taken therefrom. (Rule
1. When the issue of possession cannot be 70, Section 21)
resolved without resolving the issue of
ownership; and The judgment is immediately executory in order to
2. The issue of ownership shall be resolved avoid injustice to a lawful possessor.
only to determine the issue of possession.
(Rule 70, Section 16) Note: The judgment is immediately executory only
when the judgment is against the defendant. If the
Such judgment would not bar an action between the judgment is in favor of the defendant, such is not
same parties respecting title to the land or building. immediately executory and can be executed only
The resolution of the MeTC on the ownership of the after the lapse of the regular 15-day period to
property is merely provisional or interlocutory. Any appeal without the plaintiff having perfected the
question involving the issue of ownership should be same.
raised and resolved in a separate action brought

196
Even if RTC judgments in unlawful detainer cases
are immediately executory, preliminary injunction 13. CONTEMPT (Rule 71)
may still be granted. There need only be clear
showing that there exists a right to be protected and Contempt is disobedience and utter disregard to
that the acts against which the writ is to be directed the court by acting in opposition to its authority,
violate said right. (Benedicto v. CA, G.R. No. justice and dignity. It also includes conduct
157604, 2005) which tends to bring the authority of the court and
the administration of law into disrepute or in a
k. SUMMARY PROCEDURE, PROHIBITED manner which impedes the due administration of
PLEADINGS justice. (Siy v. National Labor Relations
Commission, G.R. No. 158971, 2005)
Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an Twofold aspect:
expeditious means of protecting actual possession 1. Proper punishment for the disrespect to
or the right to possession of the property involved. the court or its order; and
(Tubiano v. Razo, G.R. No. 132598, 2000) These 2. To compel the guilty party‘s performance
actions shall both fall under the coverage of the of some act or duty required of him by the
Rules of Summary Procedure irrespective of the court. (Halili v. CIR, G.R. No. L-24864,
amount of damages or unpaid rental sought to be 1985)
recovered. (Rule 70, Section 21)
a. KINDS OF CONTEMPT
Prohibited pleadings and motions:
1. Motion to dismiss the complaint except on b. PURPOSE AND NATURE OF EACH
the ground of lack of jurisdiction over the
subject matter, or failure to comply with 1. Civil or Criminal, depending on the nature
section 12; and effect of the contemptuous act.
2. Motion for a bill of particulars; 2. Direct or indirect, according to the manner
3. Motion for new trial, or for reconsideration of commission.
of a judgment, or for reopening of trial;
4. Petition for relief from judgment; Civil and Criminal contempt distinguished
5. Motion for extension of time to file
pleadings, affidavits or any other paper; CIVIL CONTEMPT CRIMINAL CONTEMPT
6. Memoranda;
It is the failure to do It is a conduct directed
7. Petition for certiorari, mandamus, or
something ordered to be against the authority and
prohibition against any interlocutory order
done by a court or a dignity of the court or a
issued by the court;
judge for the benefit of judge acting judicially; it
8. Motion to declare the defendant in default;
the opposing party is an obstructing the
9. Dilatory motions for postponement;
therein and is therefore administration of justice
10. Reply;
and offense against the which tends to bring the
11. Third-party complaints; and
party in whose behalf court into disrepute or
12. Interventions. (Rule 70, Section 13)
the violated order was disrespect
made
As a general rule, a judgment in favor of the plaintiff
in an ejectment suit is immediately executory, in The purpose is to The purpose is to
order to prevent further damage to him arising from compensate for the punish, to vindicate the
the loss of possession of the property in question. benefit of a party authority of the court and
To stay the immediate execution of the said protect its outraged
judgment while the appeal is pending the foregoing dignity
provision requires that the following requisites must
concur: (1) the defendant perfects his appeal; (2) he The rules of procedure Should be conducted in
files a supersedeas bond; and (3) he periodically governing contempt accordance with the
deposits the rentals which become due during the proceedings or criminal principles and rules
pendency of the appeal. The failure of the prosecutions ordinarily applicable to criminal
defendant to comply with any of these conditions is are inapplicable to civil cases, insofar as such
a ground for the outright execution of the judgment, contempt proceedings procedure is consistent
the duty of the court in this respect being with the summary nature
"ministerial and imperative." Hence, if the of contempt proceedings
defendant-appellant perfected the appeal but failed
to file a supersedeas bond, the immediate
Direct and indirect contempt distinguished
execution of the judgment would automatically
follow. Conversely, the filing of a supersedeas bond DIRECT CONTEMPT INDIRECT CONTEMPT
will not stay the execution of the judgment if the
appeal is not perfected. Necessarily then, the
supersedeas bond should be filed within the period
for the perfection of the appeal. (Acbang v. Luczon,
G.R. No. 164246, 2014)

197
In general, it is It is not committed in the Acts constituting Acts constituting
committed in the presence of the court, direct contempt are: indirect contempt are:
presence of or so near but done at a distance a) Misbehavior in the a) Misbehavior an
the court or judge as to which tends to belittle, presence of or so near officer of a court in the
obstruct or interrupt the degrade, obstruct or the court as to obstruct performance of his
proceedings before it embarrass the court and or interrupt the official duties or in his
justice proceedings before it; official transactions;
b) Disrespect toward
the court; b) Disobedience of or
c) Offensive resistance to a lawful
personalities towards writ, process, order, or
others; judgment of a court,
d) Refusal to be sworn including the act of a
as a witness or to person who, after being
answer as a witness; dispossessed or ejected
e) Refusal to from any real property by
subscribe an affidavit or the judgment or process
deposition when lawfully of any court of
required to do so ; competent jurisdiction,
f) Acts of a party or a enters or attempts or
counsel which constitute induces another to enter
willful and deliberate into or upon such real
forum shopping; and property, for the purpose
g) Unfounded of executing acts of
accusations or ownership or
allegations or words in a possession, or in any
pleading tending to manner disturbs the
embarrass the court or possession given to the
to bring it into disrepute. person adjudged to be
(Re: Letter dated 21 entitled thereto;
Feb. 2005 of Atty. Noel
Sorreda, A.M. No. 05-3- c) Any abuse of or any
04-SC. July 22, 2005) unlawful interference
with the processes or
proceedings of a court
not constituting direct
contempt under Section
1 of this Rule;

d) Any improper conduct

tending, directly or
indirectly, to impede,
obstruct, or degrade the
administration of justice;

e) Assuming to be an
attorney or an officer of a
court, and acting as such
without authority;

f) Failure to obey a
subpoena duly served;
and

g) The rescue, or
attempted rescue, of a
person or property in the
custody of an officer by
virtue of an order or
process of a court held
by him.

c. REMEDY AGAINST DIRECT

CONTEMPT; PENALTY

Contempt in facie curiae

198
 2. Opportunity for person charged to appear
Punishment if committed against: and explain his conduct; and
1. RTC or court of equal or higher rank: 3. To be heard by himself or counsel
Fine not exceeding P2,000 or
imprisonment not exceeding 10 days or f. ACTS DEEMED PUNISHABLE AS
both. INDIRECT CONTEMPT
2. MTC: Fine not exceeding P200 or
imprisonment not exceeding 1 day or both. A person guilty of any of the following acts may be
(Rule 72, Section 1) punished for indirect contempt:
1. Misbehavior an officer of a court in the
Note: If contempt consists in the refusal or omission performance of his official duties or in his
to do an act which is yet within the power of the official transactions;
respondent to perform, he may be imprisoned by 2. Disobedience of or resistance to a lawful
order of the court concerned until he performs it. writ, process, order, or judgment of a court,
including the act of a person who, after
Remedy is certiorari/ prohibition (NOT appeal) and being dispossessed or ejected from any
filing of such petition for certiorari or prohibition shall real property by the judgment or process of
suspend the execution of the judgment, provided a any court of competent jurisdiction, enters
bond is filed. (Rule 71, Section 2) or attempts or induces another to enter
into or upon such real property, for the
This bond is conditioned upon his performance of purpose of executing acts of ownership or
the judgment should the petition be decided against possession, or in any manner disturbs the
him. possession given to the person adjudged
to be entitled thereto;
d. REMEDY AGAINST INDIRECT 3. Any abuse of or any unlawful interference
CONTEMPT; PENALTY with the processes or proceedings of a
court not constituting direct contempt
Constructive contempt under section 1 of this Rule;
4. Any improper conduct tending, directly or
Punishment if committed against: indirectly, to impede, obstruct, or degrade
1. RTC or a court of equivalent or higher the administration of justice;
rank: Fine not exceeding P30,000 or 5. Assuming to be an attorney or an officer of
imprisonment not exceeding 6 months or a court, and acting as such without
both. authority;
2. MTC: Fine not exceeding P5,000 or 6. Failure to obey a subpoena duly served;
imprisonment not exceeding 1 month or 7. The rescue, or attempted rescue, of a
both. (Rule 71, Section 7) person or property in the custody of an
officer by virtue of an order or process of a
Note: The penalty is immediately executory, unless court held by him; (Rule 71, Section 3) and
a bond is filed. 8. Failure by counsel to inform the court of
the death of his client, since it constitutes
Remedy: an improper conduct tending to impede the
Appeal (Rule 71, Section 11) administration of justice. (Rule 71, Section
3)
e. HOW CONTEMPT PROCEEDINGS ARE
COMMENCED Note: The SC not only has plenary disciplinary
authority over attorneys but also has the inherent
2 Modes of commencing proceeding for indirect power to punish for contempt. The former stems
contempt: from the Court‘s constitutional mandate to regulate
1. Motu proprio by the court through an order admission into the practice of law, which includes
or any other formal charge requiring the as well authority to regulate the practice itself of
respondent to show cause why he should law; the latter is ―necessary for its own protection
not be punished for contempt; and against an improper interference with the due
2. Verified petition charging for indirect administration of justice.‖ (Zaldivar v.
contempt with supporting particulars and Sandiganbayan,G.R. Nos. 79690-707, 1988)
certified true copies of documents or
papers involved therein, and upon full g. WHEN IMPRISONMENT SHALL BE
compliance with the requirements for filing IMPOSED
initiatory pleadings for civil actions in the
court concerned. (Rule 71, Section 4) When the contempt consists in the refusal or
omission to do an act which is yet in the power of
Requisites before accused may be punished for the respondent to perform, he may be imprisoned
indirect contempt: by order of the court concerned until he performs it.
1. Charge in writing to be filed or a show
cause order issued by the court; The punishment is imposed for the benefit of a
complainant or a party to a suit who has been

199
injured aside from the need to compel performance
of the orders or decrees of the court, which the
contemnor refuses to obey although able to do so.
In effect, it is within the power of the person
adjudged guilty of contempt to set himself free.

h. CONTEMPT AGAINST QUASI-JUDICIAL

BODIES

Rule 71 applies suppletorily to contempt committed

against persons exercising quasi-judicial functions.
(Rule 71, Section 12)

Quasi-judicial bodies that have the power to cite

persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place
where contempt has been committed shall have
jurisdiction over the charges for indirect contempt
that may be filed. (Rule 71, Section 12)

END OF TOPIC

200
 E. LETTERS TESTAMENTARY
AND OF ADMINISTRATION
SPECIAL PROCEEDINGS
1. When and to whom
letters of administration granted
2. Order of preference
A. SETTLEMENT OF ESTATE OF 3. Opposition to issuance of
DECEASED PERSONS, VENUE letters testamentary;
AND PROCESS simultaneous filing of
1. Which court has 4. petition for
jurisdiction administration
2. Venue in judicial 5. Powers and duties of
settlement of estate executors and administrators;
3. Extent of jurisdiction of restrictions on the
probate court 6. powers
4. Powers and duties of 7. Appointment of special
probate court administrator
8. Grounds for removal of
B. SUMMARY SETTLEMENT OF administrator
ESTATES
1. Extrajudicial settlement F. CLAIMS AGAINST THE
by agreement between heirs, ESTATE
when allowed 1. Time within which claims
2. Two-year prescriptive shall be filed; exceptions
period 2. Statute of non-claims
3. Affidavit of self- 3. Claim of executor or
adjudication by sole heir administrator against the estate
4. Summary settlement of 4. Payment of debts
estates of small value, when
allowed G. ACTIONS BY AND AGAINST
5. Remedies of aggrieved EXECUTORS AND
parties after extrajudicial
ADMINISTRATORS
settlement of estate
1. Actions that may be
brought against executors and
C. PRODUCTION AND PROBATE administrators
OF WILL 2. Requisites before
1. Nature of probate creditor may bring an action for
proceeding recovery of property
2. Who may petition for fraudulently conveyed by the
probate; persons entitled to deceased
notice
H. DISTRIBUTION AND
D. ALLOWANCE OR PARTITION
DISALLOWANCE OF WILL 1. Liquidation
1. Contents of petition for 2. Project of partition
allowance of will 3. Remedy of an heir
2. Grounds for disallowing a entitled to residue but not given
will his share
3. Reprobate 4. Instances when probate
a. Requisites before a will proved
abroad would be allowed in the
court may issue writ of
Philippines execution
4. Effects of probate
I. TRUSTEES

201
 1. Distinguished from in relation to Custody of
executor/administrator Minors (A.M. No. 03-04-04-
2. Conditions of the bond SC)
3. Requisites for the
removal and resignation of a N. WRIT OF AMPARO (A.M. NO. 07-
trustee 9-12-SC)
4. Grounds for removal and 1. Coverage
resignation of a trustee 2. Distinguish from habeas
5. Extent of authority of corpus and habeas data
trustee 3. Differences between
amparo and search warrant
J. ESCHEAT 4. Who may file
1. When to file 5. Contents of return
2. Requisites for filing of 6. Effects of failure to file
petition return
3. Remedy of respondent 7. Omnibus waiver rule
against petition; period for filing 8. Procedure for hearing
a claim 9. Institution of separate
action
K. GUARDIANSHIP 10. Effect of filing of a
1. General powers and criminal action
duties of guardians 11. Consolidation
2. Conditions of the bond of 12. Interim reliefs available to
the guardian petitioner and respondent
3. Rule on guardianship 13. Quantum of proof in
over minor application for issuance of writ
of amparo
L. ADOPTION
1. Distinguish domestic O. WRIT OF HABEAS DATA (A.M.
adoption from inter-country NO. 08-1-16-SC)
adoption 1. Scope of writ
2. Domestic Adoption Act 2. Availability of writ
a. Effects of adoption 3. Distinguished from
b. Instances when adoption may habeas corpus and amparo
be rescinded
c. Effects of rescission of 4. Contents of the petition
adoption 5. Contents of return
3. Inter-country adoption 6. Instances when petition
a. When allowed may be heard in chambers
b. Functions of the RTC 7. Consolidation
c. “Best interest of the minor”
standard
8. Effect of filing of a
criminal action
9. Institution of separate
M. WRIT OF HABEAS CORPUS action
1. Contents of the petition
10. Quantum of proof in
2. Contents of the return
application for issuance of writ
3. Distinguish peremptory writ
of amparo
from preliminary citation
4. When not proper/applicable
5. When writ P. CHANGE OF NAME
disallowed/discharged 1. Differences under Rule
6. Distinguish from writ of 103, R.A. No. 9048 and Rule 108
amparo and habeas data 2. Grounds for change of
7. Rules on Custody of Minors name
and Writ of Habeas Corpus

202
Q. ABSENTEES
1. Purpose of the rule
2. Who may file; when to file

R. CANCELLATION OR
CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
1. Entries subject to
cancellation or correction under
Rule 108, in relation to R.A. No.
9048

S. APPEALS IN SPECIAL
PROCEEDINGS
1. Judgments and orders for which
appeal may be taken
2. When to appeal
3. Modes of appeal

203
 relating to settlement of the estate of a deceased
person such as advancement of property made by
SPECIAL PROCEEDING the decedent, partake of the nature of a special
A remedy by which a party seeks to establish a proceeding, which concomitantly requires the
status, a right or a particular fact. (Rule 1, Section application of specific rules as provided for in the
3) Rules of Court. Clearly, matters which involve
settlement and distribution of the estate of the
Subject Matter of Special Proceedings decedent fall within the exclusive province of the
Settlement of estate of deceased persons; probate court in the exercise of its limited
Escheat; jurisdiction. (Natcher v. CA, 366 SCRA 385, 2001)
Guardianship and custody of children; A liquidation proceeding resembles the proceeding
Trustees; for the settlement of state of deceased persons
Adoption; under Rules 73 to 91 of the Rules of Court. The two
Rescission and revocation of adoption; have a common purpose: the determination of all
Hospitalization of insane persons; the assets and the payment of all the debts and
Habeas corpus; liabilities of the insolvent corporation or the estate.
Change of name; The liquidator and the administrator or executor are
Voluntary dissolution of corporations; both charged with the assets for the benefit of the
Judicial approval of voluntary recognition of minor claimants. Since this is a special proceeding, to
natural children; properly appeal the case, a record on appeal is
Constitution of family home; required. (Pacific Banking Corporation Employees
Declaration of absence and death; Organization v. CA, 242 SCRA 492, 1995)
Cancellation of correction of entries in the civil
registry. (Rule 72, Section 1)
A special proceeding cannot be joined with an
Note: This list is not exclusive. Any petition by ordinary civil action. (Rule 2, Section 5)
which a party seeks to establish a status, right or
particular fact can fall under special
proceedings. (Festin, Special Proceedings, A A. SETTLEMENT OF ESTATE OF
Foresight to the Bar Exam: Question and DECEASED PERSONS, VENUE AND
Answer Noted, Bar Questions, Cases and
Updated Laws, 2011)
PROCESS

Applicability of Rules of Civil Actions

In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far 1. WHICH COURT HAS JURISDICTION
as practicable, applicable in special 2. VENUE IN JUDICIAL SETTLEMENT
proceedings. (Rule 72, Section 2) OF ESTATE
3. EXTENT OF JURISDICTION OF
Specific provisions of Section 5, Rule 86 of the
Rules of Court should prevail over the general
PROBATE COURT
provisions of Section 11, Rule 6 of the Rules of 4. POWERS AND DUTIES OF
Court because the settlement of deceased persons PROBATE COURT
are primarily governed by the rules on special
proceedings. The Rules of Court only apply Special proceedings for settlement of estate may be
suppletorily. (Metropolitan Bank & Trust Company TESTATE (where the deceased left a will) or
v. Absolute Management Corporation, GR No. INTESTATE (if there is no will).
170498, 2013)
Probate of a will is MANDATORY and takes
Distinction between “action” and “special precedence over intestate proceedings. If in the
proceedings” course of intestate proceedings pending before a
An action is a formal demand of one‘s right in a court, it is found it that the decedent had left a last
court in a manner prescribed by the court or by the will, proceedings for the probate of the latter should
law. It is the method of applying legal remedies replace the intestate proceedings even if at that
according to definite established rules. stage an administrator had already been appointed,
the latter being required to render final account and
The term ―special proceeding‖ may be defined as turn over the estate in his possession to the
an application or proceeding to establish the status executor subsequently appointed but this is without
or right of a party or a particular fact. Usually, in prejudice to the fact that should the alleged last will
special proceeding, no formal pleadings are be rejected or is disapproved, the proceeding
required, unless the statute expressly so provides. shall continue as intestacy. (Uriarte vs CFI Of
In special proceedings, the remedy is granted Negros, G.R. Nos. L-21938-39,1970)
generally upon an application or motion. (Hagans v.
Wislizenus, 42 PHIL 880, 1992) A special proceeding for the settlement of estate is
An action for reconveyance and annulment of title intended to settle the entire estate of the deceased.
with damages is a civil action, whereas matters (Vda De Reyes v. CA, 169 SCRA 524, 1989)

204
 this case, the court of the province in which a part of
Two Kinds of Settlement: his estate may be found shall take cognizance of
the settlement of his estate. (Uriarte v. CFI, G.R.
Nos. L-21938-39, 1970)
1. Judicial Settlement – testate or intestate
proceeding instituted in the country were the The court in which the first case was filed shall have
decedent had his residence or had estate if a exclusive jurisdiction to decide said issue. Should it
non-resident. be decided, in the proceedings before the said
court, that venue had been improperly laid, the
2. Extrajudicial Settlement – a proceeding where case pending therein should be DISMISSED and
the decedent left no wills and the heirs the corresponding proceedings MAY, thereafter, be
adjudicate the estate among themselves without initiated in the proper court. (In the matter of the
seeking letters of administration. Intestate of the Deceased Eusebio, G.R. No. L-
8409, 1956)
The settlement of a decedent‘s estate is a
proceeding IN REM. All interested persons whether 2. VENUE IN JUDICIAL SETTLEMENT
known to the parties or not may be bound by it.
(Philippine Savings Bank vs. Lantin, G.R. No. L-
OF ESTATE
33929, 1983)
WHERE ESTATE IS SETTLED
1. WHICH COURT HAS Venue of the Proceeding
JURISDICTION 1. If the decedent is a resident of the Philippines
(whether citizen or alien) – Court of the place
Jurisdiction depends on the gross value of the where the decedent resided at the time of death.
estate. 2. If decedent is a non-resident of the Philippines
– Court of the place where the decedent had his
If within Metro Manila, the Regional Trial Court estate. (Rule 73, Section 1)
would assume jurisdiction if the estate exceeds
P400,000. If not, the Municipal Trial Court has RESIDENCE
jurisdiction. Personal/actual/physical habitation, his actual
residence or place of abode (Fule v. CA, G.R. Nos.
Outside Metro Manila, the Regional Trial Court L-40502 & 42670, 1976); and NOT his permanent
would assume jurisdiction if the estate exceeds legal residence of domicile (Pilipinas Shell v.
P300,000. If not, the Municipal Trial Court has Dumlao, G.R. No. 44888, 1992).
jurisdiction. (R.A. 7691)
Importance of Decedent’s Residence
a) Exclusionary Rule The residence of the decedent who is a resident of
the Philippines at the time of his death is
General Rule: The court first taking cognizance of determinative of the venue of the proceeding. It
the settlement of the estate of the decedent shall is only where the decedent was a nonresident of
exercise jurisdiction to the exclusion of all other the Philippines at the time of his death that
courts. (Vda. De Chua vs CA. G.R. No. 116835, venue lies in any province in which he had
1998) estate. (Rule 73, Section 1)

The probate court acquires jurisdiction from the If separate proceedings have been instituted for
moment the petition for the settlement of estate is each estate, both proceedings may be consolidated
filed with said court. It cannot be divested of such if they were filed in the same court. (Bernardo v.
jurisdiction by the subsequent acts of the parties CA, G.R. Nos. 111715 & 112876, 2000)
(e.g. if they entered into an extrajudicial partition
settlement or filed another petition for settlement in Wrong venue is a waivable procedural defect, and
a proper court of concurrent venue). (Cuenco v. such waiver may occur by laches where a party
CA, G.R. No. L-24742, 1973) had been served notice of the filing of the probate
petition for a year and allowed the proceedings to
The SC held that the delivery of the will is continue for such time before filing a motion to
sufficient for jurisdiction to be acquired, even if no dismiss. (Uriarte v. CFI, G.R. Nos. L-21938-39,
petition for its allowance was filed until later 1970)
because upon the will being deposited, the court
could motu proprio have taken steps to fix time and The laying of venue is procedural rather than
place for proving the will and issued notices in substantive, relating as it does to jurisdiction of
accordance with Rule 76, Sec 3. (Rodriguez v. the court over the person rather than the
Borja, G.R. No. L-21993, 1966) subject matter. Venue relates to trial and not to
jurisdiction. It is a procedural, not a jurisdictional,
Exception: matter. It relates to the place of trial or geographical
Exclusionary Rule is NOT applied when the location in which an action or proceeding should be
decedent is an inhabitant of a foreign country. In

205
brought and not to the jurisdiction of the court. It is The question is one of collation or advancement;
meant to provide convenience to the parties, rather When all the parties agree to submit the question to
than restrict their access to the courts as it relates the determination of the courts, and rights of
to the place of trial. In contrast, in criminal actions, it third parties are not impaired. (Coca v.
is fundamental that venue is jurisdictional it being Borromeo, G.R. No. L-27082, 1978)
an essential element of jurisdiction. (Armand
Nocum and the Philippine Daily Inquirer v. Lucio It is well-settled rule that a probate court or one in
Tan, G.R. No. 145022, 2005) charge of proceedings whether testate or intestate
cannot adjudicate or determine title to properties
Unless and until the defendant objects to the venue claimed to be a part of the estate and which are
in a motion to dismiss, the venue cannot be truly equally claimed to belong to outside parties. All that
said to have been improperly laid, as for all practical the said court could do as regards said properties is
intents and purposes, the venue, though technically to determine whether they should or should not be
wrong, may be acceptable to the parties for whose included in the inventory or list of properties to be
convenience the rules on venue had been devised. administered by the administrator. If there is no
The trial court cannot pre-empt the defendant‘s dispute, well and good; but if there is, then the
prerogative to object to the improper laying of the parties, the administrator, and the opposing parties
venue by motu proprio dismissing the case. (Rudolf have to resort to an ordinary action for a final
Lietz Holdings Inc. v. The Registry of Deeds of determination of the conflicting claims of title
Paranaque City, G.R. No. 133240, 2000) because the probate court cannot do so. (Reyes vs.
Mosqueda, 187 SCRA 661, 1990)
3. EXTENT OF THE JURISDICTION
OF THE PROBATE COURT 4. POWERS AND DUTIES OF
PROBATE COURT
PROBATE
A proceeding to establish the validity of a will. In probate proceedings, the court:
1. Orders the probate of the will of the decedent
PROBATE JURISDICTION (Rule 77, Section 3);
Jurisdiction that is limited and it includes only 2. Grants letters of administration of the party best
matters relating to the settlement of estates and entitled thereto or to any qualified applicant
the probate of wills of persons, particularly the (Rule 79, Section 5);
administration of the decedent's estate, the 3. Supervises and controls all acts of
payment of his debts, questions as to collation or administration; hears and approves claims
advancements to the heirs, the liquidation of the against the estate of the deceased (Rule 86,
conjugal partnership, and the partition and Section 11);
distribution of the estate. 4. Orders payment of lawful debts (Rule 88,
Section 11);
It also extends to matters incidental and collateral to 5. Authorizes sale, mortgage or any encumbrance
the exercise of a probate court's recognized powers of real estate (Rule 89, Section 2);
such as selling, mortgaging or otherwise 6. Directs the delivery of the estate to those
encumbering realty belonging to the estate. Indeed, entitled thereto (Rule 90, Section 1);
the rules on this point are intended to settle the 7. Issues warrants and processes necessary to
estate in a speedy manner, so that the benefits that compel the attendance of witnesses or to carry
may flow from such settlement may be immediately into effect their orders and judgments, and all
enjoyed by the heirs and the beneficiaries. (Heirs of other powers granted them by law (Rule 73,
Sandejas v. Lina, G.R. No. 141634, 2001) Section 3); and
8. If a person defies a probate order, it may issue a
General Rule: Questions as to TITLE to property warrant for the apprehension and imprisonment
cannot be passed upon by the probate court in the of such person until he performs such order or
judgment, or is released. (Rule 73, Section 3)
testate or intestate proceeding but should be
ventilated in a separate action.
The court acts as trustee, and as such, should
jealously guard the estate and see to it that it is
Exception: wisely and economically administered, not
To determine whether said property should be dissipated. (Timbol v. Cano, G.R. No. L-15445,
included in the inventory or list of properties to 1961)
be administered by the administrator, in which
case, the court may make a provisional The authentication of a will decides only those
determination. But such determination is that touch upon the capacity of the testator and
provisional and NOT conclusive and is the compliance with those requisites or
subject to the final decision in a separate action solemnities that the law prescribes for the
regarding ownership which may be instituted by validity of wills. It does not determine nor even by
the parties. (Pio Baretto Realty Development, implication prejudge the validity or efficiency of
Inc. v. CA, G.R. No. 132362, 2001) the provisions; the questions relating to these points
When all parties to such determination are heirs; remain entirely unaffected, and may be raised even

206
after the will has been authenticated. (Teotico v. del GR: If the 7 years All purposes
Val, G.R. No. L-18753, 1965) person is 1-75 EXCEPT
years old, succession
(Art. 390, Civil
Probate Court’s Power to Issue Writs of Code)
Execution
EXC: Above 75 5 years All purposes
General Rule: years old including
A probate court CANNOT issue writs of execution succession
because its orders usually refer to the adjudication (Art. 390, Civil
of claims against the estate which the executor or Code)
administrator may satisfy WITHOUT the need of
executor processes (Festin, Special Proceedings: A
nd
Foresight to the Bar Exam, 2 Ed. 2011)

Exceptions:
The court may issue writs of execution on the
following
1. To satisfy the contributive shares of the
devisees, legatees and heirs on possession of
the decedent‘s assets (Rule 88, Section 6);
2. To enforce payment of the expenses of partition
(Rule 90, Section 3); and
3. To satisfy the cost when a person is cited for
examination in probate proceedings. (Rule 142,
Section 13) If person is 1- 10 years All purposes
75 years old including
Estate settlement upon dissolution of marriage succession
(Art. 390, Civil
Code)
Upon dissolution of marriage by the death of either
the husband or the wife, the community property
must be administered and liquidated in the
in/testate proceedings of the deceased spouse. If
both have died, liquidation may be made in the
in/testate proceedings of either. (Rule 73, Section 2)

Probate Court’s Power to Liquidate the Conjugal

Partnership
Only the probate court can competently rule on
whether the properties are conjugal and form part of
the estate. It is only the probate court that can
liquidate the conjugal partnership and distribute the
same to the heirs, after the debts of the estate have
been paid. (Romero v. Court of Appeals, G.R. No.
188921, 2012)

Presumption of death
Number of May be declared
years that the dead for:
person is
absent

207
On board a 4 years from All purposes property that may have been alienated or the
vessel lost at loss of including property acquired therewith;
sea vessel/plane succession BUT he cannot claim either fruits or rents. (Article
(Art. 391, Civil 392, Civil Code)
Code)
The declaration of presumptive death of a person
On board a 4 years All purposes under Article 41 of the Family Code is a SUMMARY
missing including proceeding and NOT a special proceeding.
airplane succession (Republic of the Philippines v. Jomoc, G.R. No.
(Art. 391, Civil 163604, 2005)
Code)
END OF TOPIC
Lost while 4 years All purposes
being with the including
armed forces succession
that took part (Art. 391, Civil
in a war Code) B. SUMMARY SETTLEMENT OF
ESTATES
Lost in 4 years All purposes
circumstances including 1. EXTRA-JUDICIAL SETTLEMENT BY
where there is succession
danger of
AGREEMENT BETWEEN HEIRS,
(Art. 391, Civil
death. Code) WHEN ALLOWED
2. TWO-YEAR PRESCRIPTIVE PERIOD
3. AFFIDAVIT OF SELF-
ADJUDICATION BY SOLE HEIR
4. SUMMARY SETTLEMENT OF
ESTATES OF SMALL VALUE,
WHEN ALLOWED
5. REMEDIES OF AGGRIEVED
PARTIES AFTER EXTRA-JUDICIAL
SETTLEMENT OF ESTATE

SUMMARY SETTLEMENT OF ESTATES

General Rule: Estate settlement should be

judicially administered through an
administrator/executor.

Exceptions:
Extra-judicial settlement by agreement between or
among heirs. (Rule 74, Section 1)

Summary settlement of estates of small value.

(Rule 74, Section 2)

EXTRA-JUDICIAL SUMMARY settlement of

SETTLEMENT estates of small value
Sec. 1, Rule 74 Sec. 2, Rule 74

If the absentee appears, or without appearing his

existence is proved, he may recover the balance of
his estate by motion in the same proceeding, 1. Does not require 1. Involves adjudication
subject to the following conditions: court intervention through summary
proceeding
All his debts must have been paid (Rule 73, Section
4);
He shall recover his property in the condition in
which it may be found, and the price of any

208
2. Value of 2. Applies only where the appointment of an administrator. It does NOT
the estate gross estate does not preclude the heirs from instituting
is exceed P 10,000 administration proceedings, even if the estate
immaterial has no debts or obligations, if they do not
desire to resort for GOOD REASONS to an
ordinary action for partition. Recourse to an
administration proceeding even if the estate has no
3. Allowed ONLY in 3. Allowed in both testate debts is sanctioned only if the heirs have good
intestate succession and intestate succession reasons for not resorting to an action for partition.
(Pereira v. CA, G.R. No. L-81147, 1989; Arcillas v.
Montejo, G.R. No. L-21725, 1968)

Procedural Requirements
1. Division of estate must be in a public
4. Allowed when there 4. Allowed even if there instrument or by affidavit of adjudication in
are NO outstanding are outstanding debts the case of a sole heir;
debts at the time of 2. Filed with proper Registry of Deeds;
settlement 3. Bond filed equivalent to the value of the
personal property; and
4. Publication of notice of the fact of extrajudicial
settlement at least once a week for 3
5. Can be resorted to 5. May be instituted by consecutive weeks.
only at the instance any interested party and
and by agreement of all even by a creditor of the If the heirs disagree as to the division of the estate,
the heirs estate, without the they may do so by means of an ordinary action for
consent of all the heirs PARTITION instead of filing a public instrument with
the Registry of Deeds.

Settlement in a private instrument is valid. The

requirement of a public instrument in Section 1,
th
Rule 74 is not constitutive of the validity but is
(Regalado, Remedial Law Compendium, 11 ed. merely evidentiary in nature. However, reformation
2008) of the instrument may be compelled. (Hernandez v.
Andal, G.R. No. L-273, 1947)
1. EXTRAJUDICIAL SETTLEMENT BY
An extrajudicial settlement, despite the publication
AGREEMENT BETWEEN HEIRS, thereof in a newspaper, shall not be binding on any
WHEN ALLOWED person who has not participated therein or who
had no notice thereof. (Rule 74, Section 1)
Substantive Requirements
1. The decedent left: The bond is required only when personalty is
a. No will. involved. If it is a real estate, it shall be subject to
b. No debts. a lien in favor of creditors, heirs or other persons for
2. The heirs are all of age, or the minors are the full period of 2 years from such distribution and
represented by their judicial or legal such lien cannot be substituted by a bond.
representatives duly authorized for the purpose.
(Rule 74, Section 1) The bond is the value of the personal property
certified by the parties under oath and conditioned
If the decedent left a will and no debts and the heirs upon payment of just claims filed under Section 4,
and legatees desire to make an extrajudicial Rule 74 of the Rules of Court.
partition of the estate, they must first present that
will to the court for probate and divide the estate in 2. TWO-YEAR PRESCRIPTIVE
accordance with the will. They may not do away
PERIOD
with the presentation of the will to the court for
probate, because such suppression of the will is
There is a DISPUTABLE PRESUMPTION that the
contrary to law and public policy. (Guevara v.
decedent left no debts IF no creditor files a petition
Guevara, 74 Phil. 479, 1943)
for letters of administration within two (2) years after
the death of the decedent. (Guico v. Bautista, G.R.
It is sufficient if any debts that the decedent incurred
No. L-14921, 1960)
have been paid at the time of the extra-judicial
settlement.
As to those who did not take part of the settlement
or had no notice of the death of the decedent or the
When all the heirs are of lawful age and there are
settlement, it is unreasonable and unjust that they
no debts due from the estate, they may agree in
be required to assert their claims within the period
writing to partition the property without instituting the
of 2 years. (Sampilo v. CA, 103 Phil. 71, 1958)
judicial administration or applying for the

209
3. AFFIDAVIT OF SELF- If there is an undue deprivation of lawful
participation in the estate
ADJUDICATION BY SOLE HEIR The existence of debts against the estate or
undue deprivation of lawful participation
General Rule: Extra-judicial settlement shall be payable in money.
done by means of a public instrument filed in the
Register of Deeds. (Rule 74, Section 1)
2. Petition for Relief (Rule 38)
Exception: If there is only one heir, he may
Grounds: (FAME)
adjudicate to himself the entire estate by means of
an affidavit filed in the Registry of Deeds. (Rule 74, a. Fraud;
Section 1) b. Accident;
c. Mistake;
d. Excusable negligence.
If a person misrepresents himself as the only heir,
an implied/constructive trust is created in favor of
Period to File
the other heirs whose rights were violated. Action of
Within sixty (60) days AFTER the petitioner
reconveyance based on implied trust prescribes 10
learns of the judgment, final order or other
years from the issuance of TCT over the property.
(Marquez v. CA, 300 SCRA 653, 1998) proceeding to be set aside, and not more than 6
months after such judgment or final order was
entered.
If a person does not have knowledge of the
extrajudicial partition, being an ex-parte proceeding,
Note: Claim against the bond or real estate or
then he cannot be bound thereby. (PEZA v.
both may be availed of only WITHIN two (2)
Fernandez G.R. No. 138971, 2001)
years after the settlement and distribution of
the estate. Such bond or property will be
4. SUMMARY SETTLEMENT OF charged with this responsibility within 2 years
ESTATES OF SMALL VALUE, regardless of transfers of property.
WHEN ALLOWED
3. Reopening by Intervention Within
Reglementary Period
Requisites
1. Petition filed by any interested person
The Following are Allowed to Intervene with Leave
2. Gross value of the estate, whether or not the
of Court:
decedent died testate OR intestate, must not
a. Has a legal interest in the matter in litigation; or
exceed ten thousand pesos (P10,000).
b. Has such legal interest in the success of either
3. Application must contain allegation of gross
of the parties, or an interest against both; or
value of estate.
c. Is so situated as to be adversely affected by a
4. Upon hearing, the date of which:
distribution/disposition of property in the custody
a. Shall be set by court not less than one (1)
of the court or of an officer thereof.
month nor more than three (3) months from
date of last publication of notice.
Period to File
B Notice of hearing published once a week for
Any time BEFORE rendition of judgment by the trial
three (3) consecutive weeks in a newspaper
court, as long as within reglementary period of two
of general circulation.
4. Notice shall be served upon such interested (2) years.
persons as the court may direct.
5. Bond in an amount fixed by the court (not value Section 4, Rule 74 of the Rules of Court provides
for a two-year prescriptive period to persons who
of personal property) conditioned upon payment
have participated or taken part or have had notice
of just claims under Section 4, Rule 74 of the
Rules of Court. (Rule 74, Section 2) of the extrajudicial partition AND when the
provisions of Section 1, Rule 74 of the Rules of
Court have been complied with, i.e. That all the
After such requisites are met, the court MAY
persons or heirs of the decedent have taken part in
proceed SUMMARILY, WITHOUT the appointment
the extrajudicial settlement or are represented by
of an executor or administrator.
themselves or through guardians.

5. REMEDIES OF AGGRIEVED In relation thereto, Section 1, Rule 74 of the Rules

PARTIES AFTER EXTRA-JUDICIAL of Court provides in part that NO extrajudicial
SETTLEMENT OF ESTATE settlement shall be binding upon any person who
has not participated therein or who has had no
notice thereof. This rule contemplates a notice that
The following remedies are available to the
must be sent out or issued BEFORE the deed of
aggrieved party after extra-judicial settlement of
extrajudicial settlement is agreed upon, i.e. Notice
the estate:
calling all interested parties to participate in the said
1. Claim Against the Bond or Real Estate or Both
partition, NOT AFTER, which is when publication
(Rule 74, Section 4) has been done in the instant case. (Pedrosa v. CA,
G.R. No. 118680, 2001)

210
 limitation of actions. (Guevara v. Guevara, G.R. No.
4. Other remedies: L-5405, 1956)
a. New Action to Annul Settlement within
reglementary period of two (2) years; Probate of a will is MANDATORY as required by
b. Rescission in case of preterition of law and public policy. No will shall pass either real
compulsory heir in partition tainted with bad or personal estate UNLESS it is PROVED and
faith (Art. 1104, Civil Code); and ALLOWED in the proper court.
c. Action for Reconveyance on the ground of
fraud which should be filed within ten (10) Ordinarily, the probate of the will does not look into
years from the discovery of fraud. (Art. 1144, its intrinsic validity; but on the extrinsic validity
Civil Code) which includes the capacity of the testator to make
N.B.: There is an implied or constructive of a will and the compliance with the requisites or
trust in favor of the heirs who were excluded solemnities which the law prescribes for the validity
from the settlement. of wills.
d. Action to Annul Fraudulent Extrajudicial
Settlement does not prescribe. Besides, an However, when practical considerations demand,
action or defense for the declaration of the the intrinsic validity of the will may be passed upon
inexistence of a contract does not prescribe like when on its face there is really preterition or
under Art. 1410 of the Civil Code. (Neri vs. invalid disinheritance making the will void.
Heirs of Uy, G.R. 194366, October 10, 2012) (Maninang v. CA, G.R. No. L-57848, 1982)

Period for Claim of Minor or Incapacitated The general rule is that the probate court‘s authority
Person is limited only to the extrinsic validity of the will, the
Within one (1) year after the minority or incapacity is due execution thereof, the testator‘s testamentary
removed. (Rule 74, Section 5) capacity and compliance with the solemnities
prescribed by law. The intrinsic validity normally
END OF TOPIC comes after the court declared that the will has
been duly authenticated. However, the rule is not
without exceptions. The probate court is not
powerless to pass upon certain provisions of the
will. (Acain v. IAC, G.R. No. 72706, 1987)
C. PRODUCTION AND PROBATE
OF THE WILL PRODUCTION OF THE WILL

Custodian of the Will

The person who HAS CUSTODY of the will shall
1. NATURE OF PROBATE deliver the will to the court having jurisdiction or to
PROCEEDING the executor named in the will within twenty (20)
days after knowledge of death of testator. (Rule 75,
2. WHO MAY PETITION FOR Section 3)
PROBATE; PERSONS ENTITLED TO
NOTICE Executor of the Will
A person named as executor in the will SHALL
1. NATURE OF PROBATE present such will to the court having jurisdiction
PROCEEDING AND signify to the court in writing his
acceptance or refusal of the trust:
1. Within twenty (20) days after he knows of the
Probate proceedings are IN REM. The notice by death of the testator; or
publication as a pre-requisite to the allowance of a 2. Within twenty (20) days after he knows that he is
will is a constructive notice to the whole world, and named executor IF he obtained such knowledge
when probate is granted, the judgment is binding
after the death of the testator. (Rule 75,
upon everybody, even against the State.
Section 3)
The probate of a will having jurisdiction thereof is
conclusive as to its due execution and validity. A custodian or an executor who neglects such duty
without satisfactory excuse shall be fined not
This proceeding cannot be dispensed with and exceeding two thousand pesos (P2,000). (Rule 75,
substituted by another proceeding, judicial or Section 4)
extrajudicial, without offending public policy. It is
mandatory as no will shall pass either real or A person having custody of the will and neglects to
personal property unless proved and allowed in deliver the same without reasonable cause when
accordance with the Rules. It is ordered to do so MAY be committed to prison until
IMPRESCRIPTIBLE, because it is required by he delivers the will. (Rule 75, Section 5)
public policy and the state could not have intended
to defeat the same by applying thereto the statute of

211
2. WHO MAY PETITION FOR 2. Executor and co-executor if not the petitioner
(Rule 76, Section 4)
PROBATE; PERSONS ENTITLED
TO NOTICE If it is the testator himself who asks for the
allowance of his own will, notice shall only be
Who May Petition For Probate of Will required to given to his compulsory heirs. (Rule 76,
1. Executor; Section 4)
2. Devisee/legatee named in the will;
3. Testator himself during his lifetime; How Notice is Given
4. Any creditor: as a preparatory step for filing of 1. By Mail – at least twenty (20) days before
his claim therein. hearing
5. Any person interested in the estate; (Rule 76, 2. Personal Service – at least ten (10) days
Section 1) before hearing. (Rule 76, Section 4)

Note: ALL of the abovementioned MAY petition for Notice is required to be personally given to
the probate of the will whether the same be in his known heirs, legatees and devisees of the testator.
possession or not, or is lost or is destroyed. However in this case, a perusal of the will would
indicate that respondent was instituted as the sole
An INTERESTED PARTY is one who would be heir of the decedent. Petitioners are merely
benefited by the estate such as an heir or one who nephews and nieces of the decedent, and they are
has a claim against the estate like a creditor. neither compulsory nor testate heirs who are
entitled to be notified of the probate proceedings.
The interest must be BOTH material and direct as Respondent has no legal obligation to mention
to the will or estate or the property to be affected by petitioners in the petition for probate nor to
it either as executor or claimant of the estate. personally notify them about the same. (Alaban v.
(Sumilang v. Romagosa, G.R. No. L-9483, 1960) CA, G.R. No. 156021, 2005)
One who is only indirectly interested in a will may
NOT interfere in its probate. (Herrera, Remedial The personal service of notice upon the heirs is a
Law III-A Special Proceedings and Special Rules matter of procedural convenience and not a
Implementing the Family Courts Act of 1997, 2005) jurisdictional requisite. (In Re Estate of Emil H.
Johnson, G.R. No. 12767, 1918; In Re Estate of
In testate succession, there can be no valid partition Deceased Jose B. Suntay, G.R. Nos. 3087 and
among the heirs until after the will has been 3088, 1954; Abut, et al. v. Abut, et al. G.R. No. L-
probated. The law enjoins the probate of a will and 26743, 1972)
the public requires it, because unless a will is
probated and notice thereof given to the whole However, where the names of the heirs and their
world, the right of a person to dispose of his residences are known, notices of the hearing of the
property by will may be rendered nugatory. (Union petition in accordance with Section 4, Rule 76 must
Bank v. Sentibañez, G.R. No. 149926, 2005) be forwarded to them and such requirement cannot
be satisfied by mere publication. (De Aranz, et al. v.
Jurisdictional requirements for proving wills Galing, et al., G.R. No. 77047, 1988)
A HEARING shall be set by the court for proving the
will after the will has been delivered to OR a petition END OF TOPIC
for allowance of a will has been filed in the court.
This is for the purpose of allowing those who are
concerned to protest. (Rule 76, Section 3)

NOTICE of such time and place of proving the will D. ALLOWANCE OR

SHALL be PUBLISHED for three (3) weeks DISALLOWANCE OF WILL
successively in a newspaper of general circulation.
But this requirement is not necessary IF the probate
has been filed by the testator himself. (Rule 76,
Section 4)
1. CONTENTS OF PETITION FOR
Jurisdictional facts of probate proceedings ALLOWANCE OF WILL
Fact of death of the decedent; and 2. GROUNDS FOR DISALLOWING A
Residence at the time of death where the WILL
probate court is sitting; or 3. REPROBATE
Location of part of estate within the jurisdiction
of the probate court. (Palaganas v. a. Requisites before a will proved abroad
Palaganas, G.R. No. 169144, 2011) will be allowed in the Philippines
4. EFFECTS OF PROBATE
Persons entitled to notice
1. Designated or other known heirs, legatees and
devisees

212
1. CONTENTS IN THE PETITION FOR at the time of affixing his signature thereto
(Section 9, Rule 76 of the Rules of Court and
ALLOWANCE OF WILL Art. 839 of the Civil Code)

Contents in the Petition for Probate The list is EXCLUSIVE. No other grounds can serve
1. Jurisdictional facts: Death of the testator and his to disallow a will.
residence at the time of death or the place
where the estate was left by the decedent who is Pursuant to Article 811 of the Civil Code, the
a non-resident probate of holographic wills is the allowance of the
2. Names/ages/residences of the heirs, legatees, will by the court after its due execution has been
and devisees proved. However, if the holographic will has been
3. Probable value and character of the estate lost or destroyed and no other copy is available, the
property will cannot be probated because the best and only
4. Name of the person for whom the letters are evidence is the handwriting of the testator in said
prayed will. It is necessary that there be a comparison
5. Name of the person having custody of the will if between sample handwritten statements of the
it has not been delivered to the court (Rule 76, testator and the handwritten will. But, a photostatic
Section 2) copy of the holographic will may be allowed
because comparison can be made with the
But NO defect shall render void the allowance of standard writings of the testator. (Bonilla v. Aranza,
the will, or the issuance of letters testamentary or of G.R. No. L-58509, 1982)
administration with the will annexed. (Rule 76,
Section 2) 3. REPROBATE
The applicable law, therefore, confers jurisdiction on
the RTC or the MTC over probate proceedings A will allowed/probated in a foreign country MAY be
depending on the gross value of the estate, which allowed, filed and recorded in the Philippines. (Rule
value must be alleged in the complaint or petition to 77, Section 1)
be filed. (Frianela v. Banayad Jr., G.R. No. 169700,
2009) Administration of an estate extends only to the
assets of the decedent found within the state or
The conflict between the dates appearing on the will country where it was granted. The administrator
does not invalidate the document, because the law appointed in one state has no power over property
does not even require that a [notarial] will be in another state or country. (Rule 77, Section 4)
executed and acknowledged on the same
occasion. More importantly, the will must be Petition to be filed in the Regional Trial Court.
subscribed by the testator, as well as by three or The Regional Trial Court where such petition is filed
more credible witnesses who must also attest to it in shall fix a time and place for the hearing and
the presence of the testator and of one another. cause notice thereof to be given as in case of an
The testator and the witnesses must acknowledge original will presented for allowance. (Rule 77,
the will before a notary public. In any event, the Section 1 and 2); Leon & Ghezzi v. Manufacturer
variance in the dates of the will as to its supposed Life Insurance Co, G.R. No. L-3677, 1951)
execution and attestation was satisfactorily and
persuasively explained by the notary public and the a. REQUISITES BEFORE A WILL PROVED
instrumental witnesses. (Ortega v. Valmonte, G.R. ABROAD WILL BE ALLOWED IN THE
No. 157451, 2005) PHILIPPINES

2. GROUNDS FOR DISALLOWANCE Requisites Before a Will Proved Abroad Will Be

Allowed in the Philippines
OF WILL
1. The testator had his domicile in the
foreign country
Disallowance of Will 2. The will has been admitted to probate in such
1. If the formalities required by law (execution and country – due execution of the will in accordance
attestation) have not been complied with with foreign laws
2. If the testator was insane, or otherwise mentally 3. The fact that the foreign tribunal is a probate
incapable of making a will at the time of its court with jurisdiction over the proceedings
execution 4. The law on probate procedure of the said foreign
3. If it was executed through force or under duress, country and proof of compliance therewith
or the influence of fear or threats 5. The legal requirements in said foreign country
4. If it was procured by undue and improper for the valid execution of the will. (Vda. de Perez
pressure and influence on the part of the v. Tolete, G.R. No. 76714, 1994)
beneficiary or of some other person
5. If the signature of the testator was procured by In the absence of proof of the foreign law, it is
fraud or trick presumed that it is the SAME as in the Philippines.
6. If the testator acted by mistake or did not intend (ATCI Overseas Corporation v. Echin, G.R. No.
that the instrument he signed should be his will 178551, 2010)

213
 Under Article 16 of the Civil Code, it is the national
The court having jurisdiction over the reprobate of a law of the decedent that is applicable. Article 1039
will SHALL CAUSE NOTICE thereof to be given as further provides that ―capacity to succeed is
in the case of an original will presented for governed by the law of the nation of the decedent.‖
allowance. Thus, the PUBLICATION and NOTICE As a corollary rule, Section 4, Rule 77 of the Rules
REQUIREMENTS as stated in Sections 3 and 4 of provides that such estate after payment of just
Rule 76 of the Rules of Court ARE REQUIRED in debts and expenses of administration shall be
the reprobate. (Rule 77, Section 2) disposed of according to such will, so far as such
will may operate upon it. Whatever public policy or
The will of an alien who is abroad produces effect in good customs may be involved in our system of
the Philippines if made with the formalities legitimes, Congress has not intended to extend the
prescribed by the law of the place in which he same to the succession of foreign nationals. In any
resides, or according to the formalities observed in case, the Court has also ruled that if land is invalidly
his country, or in conformity with those which this transferred to an alien who subsequently becomes
Code prescribes. Thus, proof that both wills a citizen or transfers it to a citizen, the flaw in the
conform with the formalities prescribed by New York original transaction is considered cured and the title
laws or by Philippine laws is imperative. (Vda. de of the transferee is rendered valid. (Ancheta v.
Perez v. Tolete, G.R. No. 76714, 1994) Guersey-Dalaygon, G.R. No. 139868, 2006)

4. EFFECTS OF PROBATE & END OF TOPIC

REPROBATE

Effects of Reprobate
1. The will shall have the same effect as if E. LETTERS TESTAMENTARY AND
originally proved and allowed in the Philippines.
2. Letters testamentary or administration with a will OF ADMINISTRATION
annexed shall extend to all estates in the
Philippines.
3. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of 1. WHEN AND TO WHOM LETTERS OF
according to the will, so far as such will may ADMINISTRATION GRANTED
operate upon it, and the residue, if any, shall be 2. ORDER OF PREFERENCE
disposed of as provided by law in cases of 3. OPPOSITION TO ISSUANCE OF
estates in the Philippines belonging to persons
who are inhabitants of another country.
LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF
The general rule universally recognized is that PETITION FOR ADMINISTRATION
administration extends only to the assets of the 4. POWERS AND DUTIES OF
decedent found within the state or country where EXECUTORS AND
it was granted, so that an administrator appointed
in one state or country has no power over the ADMINISTRATORS; RESTRICTIONS
property in another state or country. (Leon & Ghezzi ON THE POWERS
v. Manufacturer Life Insurance Co., G.R. No. L- 5. APPOINTMENT OF SPECIAL
3677, 1951) ADMINISTRATOR
When a person dies intestate owning property in the
6. GROUNDS FOR REMOVAL OF
country of his domicile as well as in foreign country, ADMINISTRATOR
administration shall be had in both countries. That
which is granted in the jurisdiction of the decedent‘s 1. WHEN AND TO WHOM LETTERS
domicile is termed the PRINCIPAL
ADMINISTRATION, while any other administration OF ADMINISTRATION GRANTED
is termed ANCILLARY ADMINISTRATION. The
ancillary administration is proper whenever a EXECUTOR
person dies leaving in a country other than that of The person named in the will to administer the
his domicile, property to be administered in the decedent‘s estate and carry out the provisions
nature of assets of the decedent, liable for his thereof.
individual debts or to be distributed among his heirs.
(Johannes vs. Harvey, G.R. No. 18600, 1992; LETTERS TESTAMENTARY
Tayag v. Benguet Consolidated, Inc., G.R. No. L- The authority issued to an executor named in the
23145, 1968) will WHEN a will has been proved and allowed and
the person named therein is competent, accepts
These 2 proceedings are separate and independent the trust and gives a bond.
of each other. (CIR v. Fisher, et al., G.R. No. L-
11668, 1968) ADMINISTRATOR (regular or special)

214
The person appointed by the court to administer Revised Circular No. 28-91 and Administrative
the estate. Where the decedent died intestate, or Circular No. 04-94 of the Court require a
where the will was void and not allowed to probate, certification against forum shopping for all initiatory
or where no executor was named in the will, or the pleadings filed in court. However, in this case, the
executor named therein is incompetent to serve as petition for the issuance of letters testamentary is
such. not an initiatory pleading but a mere continuation
of the original petition for the probate of Dr.
LETTERS OF ADMINISTRATION Nittscher‘s will. Hence, respondent‘s failure to
The authority issued by the court to a competent include a certification against forum shopping in his
person WHEN petition for the issuance of letters testamentary is
1. The decedent died intestate; or not a ground for outright dismissal of the said
2. Although there is a will, the will does not appoint petition. (Nittscher v. Nittscher, G.R. No. 160530,
any executor; or 2007)
3. Executor named in the will is incompetent,
refuses the trust or fails to give a bond. Only an interested person may oppose the petition
for issuance of letters of administration. An
Persons Who Are INCOMPETENT to Serve As interested person is one who would be benefited by
Executors/Administrators the estate such as an heir, or one who has a claim
1. Minor against the estate, such as a creditor. (Vda. de
2. Non-resident Chua v. CA, G.R. No. 70909, 1994)
3. One who, in the opinion of the court, is unfit to
exercise the duties of the trust by reason of: 2. ORDER OF PREFERENCE
a) Drunkenness
b) Improvidence
Order of Preference in Granting Letters of
c) Want of understanding/integrity
Administration
d) Conviction of an offense involving moral
turpitude
1. Surviving spouse or next of kin or both in the
4. The executor of an executor cannot administer
the estate of the first testator (Rule 78, Section discretion of the court, or to such person as the
2) abovementioned requests to have appointed, IF
competent and willing to serve; or
A corporation/association authorized to conduct the
Next of Kin
business of a trust company in the Philippines may
Those persons who are entitled under the statute of
be appointed as an executor, administrator,
distribution to the decedent‘s property.
guardian of an estate, or trustee, in like manner as
an individual; but it shall not be appointed guardian
of the person of a ward. (Article 1060, Civil Code of 2. If the surviving spouse, next of kin or their
the Philippines) nominee be incompetent or unwilling to serve
OR if the surviving spouse or next of kin
NEGLECTS FOR 30 DAYS after the death of
The marriage of a single woman also shall NOT
the decedent to apply for administration by them
affect her authority to serve under a previous
or their nominee, any one or more of the
appointment. (Rule 78, Section 3)
principal creditors, IF competent and willing to
serve.
If one has liabilities to the estate, he cannot perform
the duties of an administrator. This is considered
an adverse interest to the estate which renders 3. Stranger – such other person that the court may
him unsuitable to act as administrator. The select.
determination of a person's suitability for the office
of judicial administrator rests, to a great extent, in It is generally said that the nearest of kin, whose
the sound judgment of the court exercising the interest in the estate is more preponderant, is
power of appointment and said judgment is not to preferred in the choice of administrator. Among
be interfered with on appeal unless the said court is members of a class the strongest ground for
clearly in error. (Lim v. Diaz-Millarez, G.R. No. L- preference is the amount or preponderance of
17633, 1966) interest. As between next of kin, the nearest of kin
is to be preferred. (In re Testate Estate of the Late
Several Co-Executors Named in the Will But Not Gregorio Ventura, G.R. No. L-26306, 1988)
All Can Act
If all of the named co-executors cannot act because Even assuming that Felicisimo was not capacitated
of incompetency, refusal to accept the trust, or to marry respondent in 1974, nevertheless, we find
failure to give bond on the part of one or more of that the latter has the legal personality to file the
them, letters testamentary may issue to such of subject petition for letters of administration, as she
them as are competent, or who accept the trust, or may be considered the co-owner of Felicisimo as
give bond, and they may perform the duties and regards the properties that were acquired through
discharge the trust required by the will. (Rule 78, their joint efforts during their cohabitation. (San Luis
Section 5) v. San Luis, G.R. No. 133743, 2007)

215
 The admission to probate of a will may be opposed
or contested by, and only by, persons having
Interest in Estate as Principal Consideration some interest in the estate which will be affected
The underlying assumption is that those who will and concluded by the probate of the proposed will.
reap the benefits of a wise / speedy / economical (Paras v. Narciso, G.R. No. 10959, 1916)
administration of the estate or those who will most
suffer the consequences of waste / improvidence / Interest required in order that a person may be a
mismanagement have the higher interest and most party thereto must be material and direct, not
influential motive to administer the estate correctly. merely indirect or contingent. (Saguinsin v.
Lindayag, 6 SCRA 874, 1962)
Order of Preference AND Thirty (30) Day Period:
NOT Mandatory
Grounds for Opposing
Just as the order of preference is NOT absolute and
may be disregarded for valid cause despite the 1. In Letters Testamentary
a) Incompetence
mandatory tenor in the opening sentence of Rule 78
for its observance, so may the thirty (30) day b) Refusal of trust
period be likewise be waived under the c) Failure to give bond
2. In Letters of Administration
permissive tone which merely provides that said
a) Incompetence
letters as an alternative ―may‖ be granted to one or
more of the principal creditors. (Gabriel v. CA, G.R. b) Preferential right under Section 6, Rule 78 of
No. 101512, 1992) the Rules of Court

Contents of Petition for Letters of

Administration may be granted to such other
Administration
person as the court may appoint in case the
1. The jurisdictional facts (death of testator and his
persons who have preferential right to be appointed
residence at the time of death);
are NOT competent or are UNWILLING to serve. It
2. The names, ages, and residences of the heirs,
is proper to command the court below to appoint a
and the names and residences of the creditors,
regular administrator (hence, MANDAMUS lies) but
it is NOT proper to tell whom to appoint. (Reynoso of the decedent;
3. The probable value and character of the
v. Santiago, 85 Phil 268, G.R. No. L-3039, 1949)
property of the estate;
4. The name of the person for whom letters of
A probate court cannot arbitrarily and without administration are prayed.
sufficient reason disregard the preferential
rights of the surviving spouse to the administration But NO defect in the petition shall render void the
of the estate of the deceased spouse. But, if the issuance of letters of administration.
person enjoying such preferential rights is
unsuitable, the court may appoint another person.
The determination of a person's suitability for the If a petition for letters of administration is filed, such
office of administrator rests, to a great extent, in the court shall fix a time and place for hearing the
sound judgment of the court exercising the power of petition. and shall cause notice thereof to be
appointment and such judgment will not be given to the known heirs and creditors of the
interfered with on appeal unless it appears decedent, and other persons believed to have an
affirmatively that the court below was in error. interest in the estate.(Section 3, Rule 79 of the
(Sioca v. Garcia, G.R. No. L-20080, 1923) Rules of Court).There must also be publication of
the notice for three (3) weeks successively. These
requirements are JURISDICTIONAL.
Letters of administration may be granted to any
person or any other applicant even if there are other
Where no notice as required by Section 3, Rule 79
competent persons with a better right to the
of the Rules of Court has been given to persons
administration IF such persons fail to appear when
believed to have an interest in the estate of the
notified and claim the letters to themselves. (Rule
deceased person; the proceeding or the settlement
79, Section 6)
of the estate is void and should be annulled. The
requirement as to notice is essential to the validity
3. OPPOSITION TO THE ISSUANCE of the proceeding in order that no person may be
OF LETTERS TESTAMENTARY; deprived of his right to property without due process
SIMULTANEOUS FILING OF of law. (Eusebio v. Valmores, 96 Phil 163, G.R. No.
L-7019, 1955)
PETITION FOR ADMINISTRATION
Opposition to Petition for Administration
Any interested person in the will can oppose.
Any interested person may file a written opposition
Such opposition should state the grounds why the
to contest the petition for administration on the
letters testamentary should not issue in writing and
grounds of incompetency and preferential right to
he may attach a petition for letters of
administration.
administration with the will annexed. (Rule 79,
Section 1)
The principal consideration in the appointment of an
administrator of the estate of a deceased person is

216
the interest in said estate of the one to be appointed 1. To have access to, and examine and take
as administrator. To justify removal of an copies of books and papers relating to the
administrator, there must be evidence of an act or partnership in case of a deceased partner;
omission on the part of the administrator not 2. To examine and make invoices of the property
conformable to or in disregard of the rules or the belonging to the partnership in case of a
orders of the court. A temporary residence deceased partner;
outside of the state, maintained for the benefit of 3. To make improvements on the properties under
the health of the executors' family, is not such a administration with the necessary court
removal from the state as to necessitate his approval, except for necessary repairs;
removal as executor. (Gonzales v. Aguinaldo, 4. To maintain in tenantable repair the houses and
G.R. No. 74769, 1990) other structures and fences and to deliver the
same in such repair to the heirs or devisees
A dismissal of a petition for letters of administration when directed to do so by the court;
will lie against a person who has no interest in the 5. To possess and manage the estate when
estate of the decedent. However, as an exception, necessary for (a) the payment of debts and (b)
an objection to a petition for letters of the payment of expenses of administration;
administration may be barred by waiver or 6. Make a true inventory and appraisal of all
estoppel. A party who has affirmed and invoked the real/personal property of decedent within three
jurisdiction of the court in a particular matter to (3) months after his appointment (except clothes
secure an affirmative relief cannot be allowed to of family, marriage bed, and other articles for
afterwards deny the same to escape penalty. subsistence of family).
(Pilipinas Shell Petroleum Corp. v. Dumlao, G.R. 7. Render an account of his administration within
No. 44888, 1992) one (1) year from the time of receiving letters
testamentary or of administration and he shall
Where an heir has validly assigned all his rights to render such further accounts as the courts may
the estate before the institution of settlement require until the estate is wholly settled;
proceedings thereover, he no longer has the 8. Give allowance to legitimate surviving spouse or
requisite interest to participate therein. (Duran, et al. children of the decedent if the court decrees
v. Duran, G.R. No. L-23372, 1967) such (grandchildren are not entitled).

Where the assignment is made during the An administrator or executor has all the powers
pendency of settlement proceedings, it requires necessary for the administration of the estate and
approval of the court for its validity. However, it has which powers he can exercise without leave of
been held that in this situation, even if that court.
assignment has been approved by the court, such
approval is not deemed final until the proceeding However, If the lease contract exceeds one year,
over the estate is closed, as such approval can still the same is no longer a mere act of administration
be vacated, hence the assignor remains as an (Article 1878, Civil Code), and leave of court is
interested party in the proceeding. (Gutierrez v. required.
Villegas, et al., G.R. No. L-11848, 1962)
Properties under the name and possession of an
Order of Appointment of Regular Administrators administrator are considered as properties in
The order of appointment of regular administrators custodial legis. Thus, they cannot be attached even
is FINAL and therefore, APPEALABLE. by creditors of the decedent. (Lizaragga v. Abada,
49 Phil. 124, G.R. No. 13910, 1919)
Effect of Appeal Appointing New Administrator
Bonds of Executors and Administrators
Where the order of the court appointing a new
Before an executor or administrator enters upon the
administrator in substitution of the original
administrator is pending appeal, and in the execution of his trust, he SHALL give a bond, in
such a sum as the COURT directs.
absence of any order for the immediate execution
of the order of substitution, the old administrator
Conditions of the Bond
HAS THE RIGHT TO CONTINUE as such until the
appeal is finally disposed of. (Herrera, Remedial 1. To make and return to the court, within three (3)
months, a true and complete inventory of all
Law III-A Special Proceedings and Special Rules
Implementing the Family Courts Act of 1997, 2005) goods, chattels, rights, credits, and estate of the
deceased which shall come to his possession or
knowledge or to the possession of any other
4. POWERS AND DUTIES OF person for him;
EXECUTORS AND 2. To administer according to these rules, and, if
ADMINISTRATORS; an executor, according to the will of the testator,
all goods, chattels, rights, credits, and estate
RESTRICTIONS ON THE POWERS which shall at any time come to his possession
or to the possession of any other person for him,
Powers and Duties of Executors and and from the proceeds to pay and discharge all
Administrators debts, legacies, and charges on the same, or

217
 such dividends thereon as shall be decreed by Accountability and Compensation of Executors
the court; and Administrators
3. To render a true and just account of his 1. Executor or administrator shall be chargeable
administration to the court within one (1) year, with all estate and income;
and at any other time when required by the 2. An executor or administrator cannot profit by
court; increase or suffer loss by decrease or
4. To perform all orders of the court by him to be destruction without his fault, of any part of the
performed. estate;
3. No executor or administrator shall be
The bond posted by administrators and executors is accountable for debts due the deceased which
intended as an indemnity to the creditors, the heirs remain uncollected without his fault;
and the estate. The court shall fix the amount 4. An executor or administrator shall be
thereof and hold it accountable for breach of duty accountable for income from realty used by him;
on the part of the administrator or executor. The 5. An executor or administrator shall be
enforcement of such liability may be brought by accountable if he neglects or delays to raise
motion in the administration proceedings or in a money by collecting debts or pay over the
separate civil action. (Mendoza v. Pacheco, et al., money that he has in his hands and the value of
G.R. No. 43351, 1937; Warner, Barnes & Co., Ltd. the estate decreases because of such act.
v. Luzon Surety Co., Inc., 95 Phil. 924, 1954)
An executor or administrator shall be allowed the
Administrator’s Bond NECESSARY expenses for the care, management,
It is a statutory bond. Conditions prescribed by the and settlement of the estate, and for his
statute form part of bond agreement. services.
Terms and effectivity of bond do not depend on NECESSARY EXPENSES
payment of premium and do not expire until the Necessary expenses of administration are such
administration is closed. As long as the probate expenses as are needed for the preservation and
court retains jurisdiction of the estate, the bond productivity of the estate and for its management
contemplates a continuing liability. (Herrera, for purposes of liquidation, payment of debts
Remedial Law III-A Special Proceedings and and distribution of the residue among persons
Special Rules Implementing the Family Courts Act entitled thereto.
of 1997, 2005)
An administrator or executor may be allowed fees
Executor’s Bond for the necessary expenses he has incurred as
An executor MAY serve without bond if the testator such, but he may not recover attorney's fees from
in his will stipulates such condition. However, the the estate. His compensation is fixed by the rule but
court MAY require that the executor file a bond in such compensation is in the nature of executor's
case of a change in his circumstances or for other or administrator's commissions, and never as
sufficient cause with the conditions stipulated in attorney's fees. A greater sum [other than that
Section 1, Rule 81 of the Rules of Court. established by the rule] may be allowed in any
special case, where the estate is large, and the
Restrictions on the Power of an settlement has been attended with great difficulty,
Administrator/Executor and has required a high degree of capacity on the
1. Cannot acquire by purchase, even at public or part of the executor or administrator. (Lacson v.
judicial auction, either in person or mediation of Reyes, G.R. No. 86250, 1990)
another, the property under administration
2. Cannot borrow money without authority of the When an executor or administrator is an attorney,
court attorney‘s fees are not chargeable to the estate of
3. Cannot speculate with funds under the decedent. However, when a lawyer performs
administration acts in favor of the heirs as counsel and not as
4. Cannot lease the property under administration administrator of the estate, the attorney‘s fees are
for more than one (1) year then chargeable to the heirs for whom such acted
5. Cannot continue the business of the deceased as legal counsel. (Quasha v. LCN Construction
unless authorized by the court Corp., G.R. No. 174873, 2008)
6. Cannot profit by the increase/decrease in the
value of the property under administration 5. APPOINTMENT OF SPECIAL
Where estate of a deceased is already the subject
ADMINISTRATOR
of a testate or intestate proceeding, the
administrator cannot enter into any transaction SPECIAL ADMINISTRATOR
involving it without approval of the court. (Herrera, Representative of a decedent appointed by a
Remedial Law III-A Special Proceedings and probate court to care for and preserve his estate
Special Rules Implementing the Family Courts Act until an executor or general administrator is
of 1997, 2005) appointed.

218
When Appointed appoint or remove special administrators based on
1. Delay in granting of letters testamentary or of grounds other than those enumerated in the Rules,
administration, including appeal in the probate of at their discretion. The special administrator is an
the will. (Rule 80, Section 1) officer of the court who is subject to its supervision
2. Executor is a claimant of the estate he and control and who is expected to work for the
represents. (Rule 86, Section 8) In this case, a best interest of the entire estate, especially with
special administrator shall be appointed by the respect to its smooth administration and earliest
court with respect to such claim. settlement. (Co v. Rosario, G.R. No. 160671, 2008)

Pending appeal of an order substituting an old Duties/Powers of the Special Administrator

administrator with a new administrator, a special 1. Possession and charge of the goods, chattels,
administrator may NOT be appointed. (Relucio v. rights, credits and estate of the deceased;
San Jose, 91 Phil. 365, 1952) 2. Preserve the same;
3. Commence and maintain suit for the estate;
The requirement of a hearing and the notification to 4. Sell only perishable property ordered by the
all the known heirs and other interested parties as court;
to the date thereof is ESSENTIAL to the validity of 5. Pay debts only as may be ordered by the court;
the proceeding for the appointment of a special 6. Make a true inventory and appraisal of all
administrator. Notice through publication of the real/personal property of decedent within three
petition is a jurisdictional requirement even in the (3) months after his appointment (except clothes
appointment of a special administrator. (De of family, marriage bed, and other articles for
Guzman v. Angeles, G.R. No. 78590, 1988) subsistence of family);
7. Render a true and just account of his
The order of preference in the appointment of administration within one (1) year of
regular administrators does not apply to the appointment;
appointment of a special administrator but such 8. Perform all orders by the court;
order of preference may be followed by the judge in 9. Give allowance to legitimate surviving spouse or
the exercise of sound discretion. (Matias v. children of the decedent if the court decrees
Gonzales, G.R. No. L-10907, 1957) such (grandchildren are not entitled);
10. Deliver property he received to person
The order appointing a special administrator is an appointed as executor or administrator or to
interlocutory and is not appealable. (Garcia v. such other person as may be authorized by the
Flores, G.R. No. L-10392, 1957) court.

Similarly, the grounds for the removal of the regular Special Administrator’s Bond
administrator do not apply strictly to the special A special administrator, BEFORE entering upon the
administrator as he may be removed by the court duties of his trust SHALL give a bond, in such sum
on other grounds in its discretion. (Junquera v. as the court directs. It is CONDITIONED upon the
Borromeo, G.R. No. L-18498, 1967) following:
1. He will make and return a true inventory of the
The position of special administrator, by the very goods, chattels, rights, credits and estate of the
nature of the powers granted thereby, is one of trust deceased which come to his possession and
and confidence. It is a fiduciary position and, knowledge; and
therefore, requires a comprehensive determination 2. He will truly account for such as are received by
of the suitability of the applicant to such position. him when required by the court, and will deliver
Hence, under Philippine jurisprudence, it has been the same to the person appointed executor or
settled that the same fundamental and legal administrator, or to such other person as may be
principles governing the choice of a regular authorized to receive them. (Section 4, Rule 81
administrator should be taken in choosing the of the Rules of Court)
special administrator. It is essential that the
suitability of the applicant be ascertained in a When Powers of Special Administrator Cease
hearing with due notice to all oppositors who may When letters testamentary or of administration are
object precisely to the applicant's suitability to the granted and questions causing the delay are
trust. (De Guzman v. Angeles, G.R. No. 78590, resolved, on the estate of the deceased, the powers
1988) of the special administrator shall cease.

Even if special administrators had already been He shall then deliver to the executor or
appointed, once the probate court finds the administrator the goods, chattels, money, and
appointees no longer entitled to its confidence, it is estate of the deceased in his hands. The executor
justified in withdrawing the appointment and giving or administrator may prosecute to final judgment
no valid effect thereto. (Ocampo v. Ocampo, G.R. suits commenced by such special administrator.
No. 187879, 2010)

The selection or removal of special administrators is

not governed by the rules regarding the selection or
removal of regular administrators. Courts may

219
6. GROUNDS FOR REMOVAL OF 2. STATUTE OF NON-CLAIMS
EXECUTORS AND 3. CLAIM OF EXECUTOR OR
ADMINISTRATORS ADMINISTRATOR AGAINST THE
ESTATE
Grounds for Removal of Executor/Administrator 4. PAYMENT OF DEBTS
(NOT exclusive)
1. Neglect to render accounts (within one (1) year CLAIMS AGAINST THE ESTATE
when the court directs)
AFTER granting letters testamentary or of
2. Neglect to settle estate according to the Rules of
administration, the COURT shall issue a NOTICE
Court requiring all persons having money claims against
3. Neglect to perform an order/judgment of the the decedent to file them in the office of the clerk of
court or a duty expressly provided by the Rules
court. (Rule 86, Section 1)
of Court
4. Absconding General Rule:
5. Insanity or incapacity or unsuitability to The following claims must be filed UNDER
discharge the trust NOTICE; otherwise, barred: (JSFM)
1. Money claims – those arising from implied or
The lawful acts of an executor or administrator
express contracts, due or not due, or contingent,
BEFORE the revocation of his letters testamentary
contracted BEFORE death of the decedent
or administration or before resignation or removal 2. Funeral expenses
shall have the like validity as if there had been no
3. Expenses for the last Sickness of the decedent
such revocation, resignation or removal. 4. Judgment for money against the decedent

Powers of a New Executor/Administrator (After

Other claims, such as those for damages based on
the First Resigns, is Removed, or Letters
delict or quasi-delict, recovery of real or personal
Revoked)
property, or to enforce a lien thereon, may be filed
1. Collect and settle the estate not administered
and proceed independently against the executor or
2. Prosecute/defend actions commenced by or
administrator of the estate of the deceased.and not
against the former executor/administrator as a money claim against the estate. (Rule 87,
3. Recover execution on judgments in the name Section 1)
of former executor/administrator
Publication of Notice
Role of administrator if a will is discovered The executor or administrator shall, immediately
If the letters of administration have been granted after the notice to creditors is issued, PUBLISH the
because of the belief that the decedent had died same for THREE (3) weeks successively in a
intestate, and subsequently, a will is discovered and newspaper of general circulation.
allowed by the court, the administration shall be
revoked and the administrator shall surrender the There must also be POSTING for the same period
letters of administration to the court and render his in four (4) public places in the province, and two (2)
account of administration. public places in the municipality where the decedent
last resided. (Rule 86 of Rules of Court, Sec.3)
It is within the court‘s discretion to decide whether
or not the intestate proceeding should be
discontinued and a new proceeding should be 1. TIME WITHIN WHICH CLAIMS
constituted. SHALL BE FILED; EXCEPTIONS
The discovery of a will does not ipso facto nullify the General rule: Within the time fixed in the notice
administration unless the will has been proved and which shall not be more than twelve (12) months
allowed. (De Parreño v. Aranzanso, G.R. No. L- nor less than six (6) months after the date of the
26940, 1982) FIRST publication. Otherwise, the claims are
barred forever.
END OF TOPIC
Exception: BELATED CLAIMS – Claims not filed
within the original period fixed by the court. On
application of a creditor who has failed to file his
F. CLAIMS AGAINST THE ESTATE claim within the time previously limited, at any time
before an order of distribution is entered, the
(Rule 86) court may, for cause shown and on such terms
as are equitable, allow such claim to be filed not
exceeding one (1) month from the order allowing
belated claims (the order may either be in open
1. TIME WITHIN WHICH CLAIMS court or not). (Rule 86, Section 2)
SHALL BE FILED; EXCEPTIONS

220
2. STATUTE OF NON-CLAIMS Solidary obligation of decedent and mortgage
debt due from the estate
Where the obligation of the decedent is solidary
The specific period fixed by the probate court
with another debtor, the claim shall be filed against
(following the 6-12 month range) for the filing of
the decedent as if he were the only debtor. (Rule
claims against the estate for examination and
86, Section 6)
allowance; otherwise, the claims are barred
forever.
On the other hand, is it necessary to implead the
estate of the decedent which is solidarily liable with
The rule requires certain creditors of a deceased another person, in a collection case filed against the
person to present their claims for examination and latter?
allowance within a specified period, the purpose NO. The estate of the decedent is not considered
thereof being to settle the estate with dispatch, so an indispensable party. The whole amount of
that the residue may be delivered to the persons obligation may proceed against any one of the
entitled thereto without their being afterwards called solidary debtor pursuant to Art. 1216 of the Civil
upon to respond in actions for claims, which, under Code. (Boston Equity Resources, Inc. v. Court of
the ordinary statute of limitations, have not yet Appeals, G.R. No. 173946, 2013)
prescribed. (Santos v. Manarang, G.R. No. L-8235
1914)
A Creditor Holding a Claim AGAINST the
Deceased Secured by Mortgage or Other
Exception 1: Collateral Security May
The court, for good cause shown, may grant a one- 1. Abandon the security and prosecute his claim
month period for a creditor to file a claim which he against the estate and share in the general
failed to bring during the original period granted for distribution of the assets of thereof; OR
the filing of claims. 2. Foreclose his mortgage or realize upon his
security by action in court, making the executor
Such motion for leave to file a claim beyond the or administrator a party defendant and if there is
original period may be filed at any time during the judgment for deficiency, he may file a contingent
administration proceedings provided no order of claim against the estate within the statute of
distribution has yet been entered. (Aquino, et al. v. non-claims; OR
Aquino, 103 Phil. 1107; cf. Danan, et al. v. 3. Rely solely on his mortgage and foreclose
Buencamino, etc., et al., G.R. No. 57205, 1981) (judicial or extrajudicial) the same at anytime
within the period of the statute of limitations but
Exception 2: he cannot be admitted as creditor and shall not
A Creditor May Still Recover when: receive in the distribution of the other assets of
Claims not filed within the time given in the notice the estate. (Rule 86, Section 7)
MAY be set forth as COUNTERCLAIMS in any
action that the executor or administrator may bring Case law now holds that this rule grants to the
against the claimants. (Rule 86, Section 5) mortgagee three distinct, independent and mutually
exclusive remedies that can be alternatively
A judgment for a money claim against the pursued by the mortgage creditor for the
deceased cannot. be enforced by writ of satisfaction of his credit in case the mortgagor dies,
execution. A judgment against the deceased for a among them: (1) to waive the mortgage and claim
money claim must be filed as a claim before the the entire debt from the estate of the mortgagor as
probate court. If death of the defendant occurred an ordinary claim; (2) to foreclose the mortgage
prior to levy, the judgment is NOT enforceable by judicially and prove any deficiency as an ordinary
writ of execution. The judgment creditor must file claim; and (3) to rely on the mortgage exclusively,
a claim in the probate court. foreclosing the same at any time before it is barred
by prescription without right to file a claim for any
Even if the testator acknowledged the debt in his deficiency. (Philippine National Bank v. Court of
will and instructed the executor to pay such debt, Appeals, G.R. no. 121597, 2001); Heirs of
the Statute of Non-Claims MUST still be complied
with. (Santos v. Manarang, G.R. No. L-8235,
Spouses Maglasang v. Manila Banking
Corporation, G.R. no. 171206, 2013)
1914)

The specific provisions of Sec. 5, Rule 86 of the 3. CLAIM OF EXECUTOR OR

Rules of Court should prevail over the general ADMINISTRATOR AGAINST THE
provisions of Rules of Court even though the ESTATE
decedent‘s estate was impleaded in a complaint
for recovery of sum of money. The general
provisions of Rules of Court merely apply If executor/administrator has a claim, he shall give
suppletorily. (Metropolitan Bank & Trust Co. v. notice to the court in writing and the court thereafter
Absolute Management Corporation, G.R. no. shall appoint a special administrator. (Rule 86,
Section 8)
170498, 2013)

How to File a Claim

221
1. Delivering the claim with the necessary 6. When the decedent during his lifetime held real
property in trust for another person. (Rule 89,
vouchers to the clerk of court and by serving a
Section 9)
copy to the executor/administrator
2. Serve a copy on the executor or administrator.
Order of the Sale of Personal Property
(Rule 86, Section 9)
1. To pay the debts and expenses of
administration.
2. To pay legacies.
An affidavit must support such claim, stating the
3. To cover expenses for the preservation of the
amount justly due, that no payments have been
estate. (Rule 89, Section 1)
made thereon which are not credited and that there
are no offsets to the same.
Regulations for Granting Authority to
Sell/Mortgage/Encumber Estates:
If the claim is contingent, an affidavit stating the
1. The executor/administrator shall file a written
particulars must accompany the claim.
petition setting forth the debts due from the
deceased, the expenses of administration, the
Answer of Executor/Administrator legacies, the value of the personal estate, the
Within fifteen (15) days after service of a copy of the situation of the estate to be
claim on the executor or administrator, he shall file sold/mortgaged/encumbered, and such other
his answer admitting or denying the claim. (Rule 86, facts as show that the
Section 10) sale/mortgage/encumbrance is necessary or
beneficial;
Upon the filing of an answer to a claim, or expiration 2. The court shall fix a time and place for hearing
of the time for such filing, the claim shall be set for such petition. There MUST be notice served on
trial with notice to both parties. (Rule 86, Section the time and place of the hearing to persons
12) interested.
3. The court MAY require the
The judgment of the court approving or executor/administrator shall give an additional
disapproving a claim shall be appealable. (Rule 86, bond conditioned that such
Section 13) executor/administrator will account for the
proceeds of the sale/mortgage/encumbrance;
4. PAYMENT OF DEBTS (Rule 88) 4. The court may, by order stating compliance with
the abovementioned requirements, authorize the
PAYMENT OF DEBTS IF ESTATE IS SUFFICIENT executor/administrator to
sell/mortgage/encumber, in proper cases, such
General rule: The payment of the debts of the part of the estate as is deemed necessary, and
in case of sale the court may authorize it to be
estate must be taken (by order of preference):
public or private, as would be most beneficial to
1. From the portion or property designated in the
all parties concerned. The
will; (Rule 88, Section 2)
executor/administrator shall be furnished with a
2. From the personal property, and
certified copy of such order;
3. From the real property.
5. If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale
If there is still a deficiency, it shall be met by
shall be governed by the provisions concerning
contributions by devisees, legatees, or heirs who
notice of execution sale;
have been in possession of portions of the estate
6. There shall be recorded in the registry of
BEFORE debts and expenses have been settled
deeds of the province in which the real
and paid. (Rule 88, Section 6)
estate thus sold/mortgaged/encumbered is
situated, a certified copy of the order of the
Exception: Instances When Realty Can Be
Charged First: court, together with the deed of the
executor/administrator for such real estate,
1. When the personal property is not sufficient.
(Rule 88, Section 3) which shall be as valid as if the deed had been
executed by the deceased in his lifetime. (Rule
2. Where the sale of such personalty would be
89, Section 7)
detrimental to the participants (everyone) of the
estate. (Rule 88, Section 3)
Such recording shall be valid as if the deed had
3. When sale of personal property may injure the
been executed by the deceased in his lifetime.
business or interests of those interested in the
(Philippine National Bank v. Court of Appeals,
estate. (Rule 89, Section 2)
G.R. no. 121597, 2001)
4. When the testator has not made sufficient
provision for payment of such
Sale of Property Acquired on Execution or
debts/expenses/legacies. (Rule 89, Section 2)
Foreclosure
5. When the decedent was, in his lifetime, under
The court MAY authorize an executor/ administrator
contract, binding in law, to deed real property to
beneficiary. (Rule 89, Section 8) to sell/ mortgage/ encumber real estate acquired by
him on execution or foreclosure sale, under the
same circumstances and under the same

222
regulations as prescribed in this rule for the sale/ liable to contribute for the payment of debts and
mortgage/ encumbrance of other real estate. (Rule expenses, and the court, after hearing, may settle
89, Section 6) the amount of their several liabilities, and order how
much and in what manner each person shall
Sale Beneficial to Interested Persons contribute. (Rule 88, Section 6)
Sale of personal or real estate may be allowed
when the court finds that it will be BENEFICIAL to PAYMENT OF DEBTS IF ESTATE IS INSOLVENT
the heirs, devisees and legatees although NOT OR ASSETS INSUFFICIENT
necessary to pay debts, legacies or expenses of
administration. This must be upon application of the If insufficient estate to pay all debts: The
executor or administrator and on written notice to executor/administrator shall pay the debts
interested persons. (Rule 89, Section 4) according to the concurrence and preference of
credits provided by Articles 1059 and 2239-2251 of
Opposition to Sale/Mortgage or Encumbrance of the Civil Code. (Rule 88, Section 7)
Estate
Any interested person may give a BOND in an After following the order of preference of credits, if
amount fixed by the court, conditioned to pay the all the creditors belonging to one class cannot be
debts, expenses of administration and legacies to paid in full, then all of them will suffer a reduction in
prevent the court from granting the authority to proportion to that creditor‘s claim. No creditor of
sell/mortgage or encumber such property. (Rule 89, any one class shall receive any payment until those
Section 3) of the preceding class are paid. (Rule 88, Section 8)

Payment of Contingent Claims Estate of an Insolvent Non-Resident Disposed

of
CONTINGENT CLAIM His estate in the Philippines shall be so disposed of
Claim that is subject to the happening of a future that his creditors in and outside the Philippines may
uncertain event. receive an equal share, in proportion to their
respective credits. (Rule 88, Section 9)
If the court is satisfied that a contingent claim duly
filed is valid, it may order the executor/administrator Claim Proven Outside the Philippines Against
to retain in his hands sufficient estate to pay such an Insolvent Resident’s Estate Paid
contingent claim when the same becomes absolute, Claims proven outside the Philippines where the
or, if the estate is insolvent, sufficient to pay a executor had knowledge and opportunity to contest
portion equal to the dividend of the other creditors. its allowance therein may be added to the list of
(Rule 88, Section 4) claims in the Philippines against the estate of an
insolvent resident and the estate will be distributed
Requisites for the Estate to be Retained to Meet equally among those creditors. The claims of
Contingent Claims: foreign creditors against insolvent non-residents
1. Contingent claim is duly filed within the two (2) and against insolvent residents would not be able to
year period allowed for the creditors to present recover from the estate if there is no reciprocity with
claims; that creditor‘s country granting the same benefit to
2. Court is satisfied that the claim is valid; Filipinos. (Rule 88, Section 10)
3. The claim has become absolute. (Rule 88,
Section 5) However, the benefit of this and the preceding
sections shall not be extended to the creditors in
Contingent Claims Which Mature AFTER the another country if the property of such deceased
Two (2) Year Period for Filing of Claims person there found is not equally apportioned to the
The assets retained in the hands of the creditors residing in the Philippines and the other
executor/administrator, not exhausted in the creditors, according to their respective claims. (Rule
payment of claims, shall be distributed by the order 88, Section 10)
of the court to the persons entitled to the same.
Order of Payment of Debts
But the assets so distributed MAY still be applied Before the expiration of the time limited for the
to the payment of the claim when established, and payment of debts, the court shall order the payment
the creditor may maintain an action against the thereof. (Rule 88, Section 11)
DISTRIBUTEES to recover the debt, and such
distributees and their estates shall be liable for the Upon APPEAL, the court may suspend the order for
debt in proportion to the estate they have the payment of debts OR may order the distribution
respectively received from the property of the among the creditors whose claims are definitely
deceased. (Rule 88, Section 5) allowed, leaving in the hands of the
executor/administrator sufficient assets to pay the
Contributive Share of Devisees/Legatees/Heirs claim disputed and appealed. (Rule 88, Section 12)
in Possession of Portions of Estate for Debts
If devisees, legatees or heirs have taken Time for Payment of Debts and Legacies; Period
possession of portions of the estate before the for Successor of Deceased
debts have been settled and paid have become Administrator/Executor

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Shall not exceed one (1) year in the first instance; What happens to actions for money claims that
but court may extend on application of executor are already pending in court against the
/administrator and after hearing and notice thereof. decedent at the time of his death

Extension must not exceed six (6) months for single When the action is for recovery of money arising
extension. The whole period allowed to the original from contract, express or implied, and the
executor/administrator shall not exceed two (2) defendant dies before entry of final judgment in the
years. court in which the action was pending at the time of
such death, it shall not be dismissed but shall
The successor of dead executor/administrator may instead be allowed to continue until entry of final
be allowed an extension not to exceed six (6) judgment. A favorable judgment obtained by the
months. (Rule 88, Section 15) plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting
END OF TOPIC claims against the estate of a deceased person.
(Rule 3, Sec. 20)

When Heirs May Sue

Heirs may not sue the executor/administrator for
G. ACTIONS BY AND AGAINST recovery of property left by the decedent UNTIL
EXECUTORS AND there is an order of the court assigning such lands
to such heir or until the time for paying debts has
ADMINISTRATORS expired. (Rule 87, Section 3)
(Rule 87)
ACTIONS THAT MAY BE BROUGHT BY THE
ADMINISTRATOR OR EXECUTOR

1. ACTIONS THAT MAY BE BROUGHT For the recovery or protection of the property or
AGAINST EXECUTORS AND rights of the deceased, an executor or administrator
ADMINISTRATORS MAY bring or defend, in the right of the deceased,
actions for causes which survive. (Rule 87, Section
2. REQUISITES BEFORE CREDITOR 1)
MAY BRING AN ACTION FOR
RECOVERY OF PROPERTY Upon the commencement of the testate or intestate
FRAUDULENTLY CONVEYED BY proceedings, the heirs have NO standing in court
THE DECEASED actions for recovery or protection of the property
rights of the deceased, EXCEPT when the executor
or administrator is UNWILLING or FAILS or
1. ACTIONS THAT MAY BE REFUSES to act OR when the administrator is
BROUGHT AGAINST EXECUTORS made a party defendant, in which event the heirs
AND ADMINISTRATORS may act in his place. (Herrera, Remedial Law III-A
Special Proceedings and Special Rules
Implementing the Family Courts Act of 1997, 2005)
Actions That May be Commenced Directly
against the Executor and Administrator – Foreclosure of Mortgage Due to Estate
Claims THAT Survive Executor/administrator CAN foreclose a mortgage
1. Recovery of real/personal property (or any belonging to the decedent. (Rule 87, Section 5)
interest therein) from the estate;
2. Enforcement of a lien thereon; Discharge of Debt by Executor or Administrator
3. Action to recover damages arising from tort. An executor or administrator may compound with
(Rule 87, Section 1) the debtor of the deceased for a debt due and may
give a discharge of such debt on receiving a just
Actions That May Be Commenced Against the dividend of the estate of the debtor UPON approval
ESTATE of the Deceased - Claims That DO NOT of the court. (Rule 87, Section 4)
Survive
1. Money claims, debts incurred by the deceased Concealment/Embezzlement/Conveyance of Any
during his lifetime arising from contract: of the Property OF the Deceased
a) Express or implied Upon complaint of any interested person in the
b) Due or not due estate, the court may cite such suspected person to
c) Absolute or contingent appear before it and examine him on oath on the
2. Claims for funeral expenses or for the last illness matter of such complaint.
of the decedent.
3. Judgment for money against decedent. (Rule 86, If the suspected person refuses to appear or to
Section 5) answer questions asked of him during the
examination, the court may punish him for contempt
and may commit him to prison until he submits to
the order of the court. (Rule 87, Section 6)

224
 7. The action by the creditor is in the Name of the
If even BEFORE the granting of the letters executor/administrator.
testamentary/letters of administration, a person
embezzles or alienates any property of the The last 3 requisites are unnecessary where the
deceased, such person shall be liable in favor of the grantee is the executor/administrator himself, in
administrator or executor for double the value of the which event, the action should be in the name of all
property sold, embezzled, or alienated, to be the creditors.
recovered for the benefit of the estate. (Rule 87,
Section 8) END OF TOPIC

Complaint of Executor/Administrator against

Person Entrusted with Estate
The court may require such person entrusted with
the estate to appear before it and render a full H. DISTRIBUTION AND PARTITION
account of all property which came into his (RULE 90)
possession.

Refusal to appear or give an accounting may be

punished with contempt. (Rule 87, Section 7)
1. LIQUIDATION
When executor or administrator may bring
action for property fraudulently conveyed by the 2. PROJECT OF PARTITION
deceased 3. REMEDY OF AN HEIR ENTITLED TO
When there is a deficiency of assets in the hands of RESIDUE BUT NOT GIVEN HIS
an executor or administrator for the payment of SHARE
debts and expenses of administration and the
4. INSTANCES WHEN PROBATE
deceased fraudulently conveyed property to avoid
any right debt or duty, the executor or administrator COURT MAY ISSUE WRIT OF
may commence and prosecute to final judgment EXECUTION
such action for recovery of property.
1. LIQUIDATION
The action would be for the benefit of the creditors.
HOWEVER, he shall not be bound to commence
the action UNLESS: It is that the determination of all assets of the estate
1. Upon application of the creditors; and payment of all debts and expenses.
2. The creditors making the application pay such
part of the costs and expenses; 2. PROJECT OF PARTITION
2. Give security therefore to the executor or the
administrator. (Rule 87, Section 9)
General Rule: Order of distribution shall be made
after payment of all debts, funeral expenses,
2. REQUISITES BEFORE CREDITOR expenses for administration, allowance of widow,
MAY BRING AN ACTION FOR and inheritance taxes.
RECOVERY OF PROPERTY
The order of distribution of residue shall be made by
FRAUDULENTLY CONVEYED BY the court upon application of the executor or
THE DECEASED administrator or any interested persons and after
hearing and upon notice.
Requisites Before Creditor May Bring Action:
(DeFrAN LeBoN) Exception: If the distributes or any of them gives a
1. There is a Deficiency of assets in the hands of bond conditioned for the payment of said obligation,
an executor/administrator for the payment of the order of distribution may be made even before
debts and expenses of administration. the payment of the debts and expenses. (Rule 90,
2. In his lifetime, the deceased had made or Section 1)
attempted to make a Fraudulent conveyance of
his property or had so conveyed such property Title to the property is vested from the FINALITY of
that by law, the conveyance would be void as the order of distribution.
against other creditors.
3. The subject of the attempted conveyance would
be liable to Attachment in his lifetime.
3. REMEDY OF AN HEIR ENTITLED
4. The executor/administrator has shown No desire TO RESIDUE BUT NOT GIVEN HIS
to file the action or failed to institute the same SHARE
within a reasonable time.
5. Leave is granted by the court to the creditor to If an heir has not received his share, his proper
file the action. remedy is to file a motion with the probate court for
6. A Bond is filed by the creditor. delivery to him of his share or if the estate

225
proceedings had been closed, he should file a 3. REQUISITES FOR THE REMOVAL
motion for reopening of the proceeding, within the
prescriptive period, and not to file an independent AND RESIGNATION OF A TRUSTEE
action for annulment of the project of partition. 4. GROUNDS FOR THE REMOVAL
(Guilas v. Judge of CFI, G.R. No. L-26695, 1972) AND RESIGNATION OF A TRUSTEE
5. EXTENT OF AUTHORITY OF
As long as the order or distribution of the estate has
not been complied with, the probate proceedings
TRUSTEE
cannot be deemed closed and terminated, because
a judicial partition is not final and conclusive and TRUSTEES
does not prevent the heirs from bringing an action A trustee shall be appointed by the REGIONAL
to obtain his share, provided the prescriptive period TRIAL COURT where the will was allowed or where
therefore has not elapsed. The better practice, the property affected by the trust is situated. (Rule
however, for the heir who has not received his 98, Section 1)
share, is to demand his share through proper
motion in the same probate or administrative A Trustee May Be Appointed
proceedings, or for the reopening of the probate or
1. Under a will – where the testator has omitted in
administrative proceedings if it had already been
his will to appoint a trustee in the Philippines.
closed, and not through an independent action, (Rule 98, Section 2)
which would be tried by another court or judge
which may thus reverse a decision or order of the NOTE: Notice to and consent of the beneficiary are
probate or intestate court already final and executed
NOT essential for the creation of the trust for
and reshuffle properties long ago distributed and
appointment under a will.
disposed of. (Timbol v. Cano, G.R. No. L-15445,
1961)
2. Under a written instrument – when a trustee
under a written instrument declines, resigns,
4. INSTANCES WHEN PROBATE dies or is removed before the objects of the trust
COURT MAY ISSUE WRIT OF are accomplished and no adequate provision is
EXECUTION made as to supplying vacancy. (Rule 98,
Section 3)
General Rule: Probate court cannot issue writ of Where Trustee Appointed Abroad
execution. (Pastor v. CA, G.R. No. L-56340, 1983) When land in the Philippines is held in trust for a
resident by a trustee who derives authority outside
Rationale: Its orders usually refer to the the Philippines, he shall file a petition for
adjudication of claims against the estate which the appointment as trustee in the Regional Trial Court
executor /administrator may satisfy without the need where the land is located. Otherwise, the court shall
of executory process. declare the trust vacant and shall appoint a new
trustee. (Rule 98, Section 4)
Exception –
1. To satisfy the contributive shares of the
devisees/legatees/heirs when the latter had 1. TRUSTEE DISTINGUISHED FROM
entered prior possession over the estate. EXECUTOR OR ADMINISTRATOR
(Rule 88, Section 6)
2. To enforce payment of the expenses of A TRUSTEE holds an office of trust whose duties
partition. (Rule 90, Section 3) may cover a wider range, and are usually governed
3. To satisfy the costs when a person is cited by the intention of the trustor or the parties (if
for examination in probate proceedings. established by contract).
(Rule 142, Section 13)
(Vda. de Valera v. Ofilada, G.R. No. L-27526, An EXECUTOR/ADMINISTRATOR holds an office
1974) of trust; duties are fixed and/or limited by law.

END OF TOPIC 2. CONDITIONS OF THE BOND

Before entering his duties, a trustee must file a
bond with the Clerk of Court in an amount fixed by
the court, payable to the Philippine government and
I. TRUSTEES sufficient and available to protect any party in
interest.

1. DISTINGUISHED FROM Failure to file bond is considered as an act of

EXECUTOR/ADMINISTRATOR declining or refusal of the trust or of the resignation
2. CONDITIONS OF THE BOND of the trustee, as the case may be. (Rule 98,
Section 5)

226
Court MAY EXEMPT from Giving Bond: 5. EXTENT OF AUTHORITY OF
1. A trustee under a will, if the testator so TRUSTEE
directed/requested; or
2. Any trustee, if all persons beneficially interested
are of full age and request the exemption. Appointment Under Will
The trustee, in whom the estate shall vest, shall
The court may cancel the bond exemption anytime; have the same rights, powers and duties as if he
the trustee shall then file the bond. (Rule 98, had been appointed by the testator.
Section 5)
No person succeeding to the trust as executor or
administrator of a former trustee shall be required to
Conditions Included in the Bond
accept such trust. (Rule 98, Section 2)
1. That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate Appointment Under Written Instrument
belonging to him as trustee, which at the time of Such new trustee shall have and exercise the same
the making of such inventory shall have come to powers, rights and duties as if he had been
his possession or knowledge; originally appointed, and the trust estate shall vest
2. That he will manage and dispose of all such in him in like manner as it had vested or would have
estate, and faithfully discharge his trust in vested in the trustee in whose place he is
relation thereto, according to law and the will of substituted. (Rule 98, Section 3)
the testator or the provisions of the instrument or
order under which he is appointed; Sale and Encumbrance of Trust Estate
3. That he will render upon oath at least once a When the sale or encumbrance of any real or
year until his trust is fulfilled, unless he is personal estate held in trust is NECESSARY or
excused therefrom in any year by the court, a EXPEDIENT, the court may, on petition and after
true account of the property in his hands and NOTICE and HEARING, order such sale or
of the management and disposition thereof, and encumbrance.
will render such other accounts as the court may
order; The petition, notice, hearing, order of sale or
4. That at the expiration of his trust he will settle encumbrance and record of h SHALL CONFORM
his accounts in court and pay over and as nearly as maybe to the provisions concerning the
deliver all the estate remaining in his hands, sale or encumbrance by GUARDIANS of the
or due from him on such settlement, to the property of their wards. (Rule 98, Section 9)
person or persons entitled thereto. (Rule 98,
Section 6) Acquisition of Trust Estate
General Rule – A trustee cannot acquire the trust
estate by prescription because for the purpose of
3. REQUISITES FOR REMOVAL AND prescription, the possession of the property by the
RESIGNATION OF A TRUSTEE trustee is not an adverse possession, but only a
possession in behalf of the owner of the same.
Requisites for Removal (Canezo v. Rojas, G.R. No. 148788, 2007)
1. Petition of interested parties
2. Due notice to the trustee Exception – If there is an open, clear and
3. Hearing (Rule 98, Section 8) unequivocal repudiation of the trust and
the beneficiary knows of the repudiation.
(Canezo v. Rojas, G.R. No. 148788, 2007)
4. GROUNDS FOR REMOVAL AND
RESIGNATION OF A TRUSTEE END OF TOPIC

Who May Petition

Parties beneficially interested. (Rule 98, Section 8)
J. ESCHEAT
Grounds for Removal of a Trustee (Rule 91)
1. If essential to the interests of the party
petitioning the removal;
2. If trustee becomes insane or otherwise
incapable OR unsuitable of discharging the trust.
(Rule 98, Section 8) 1. WHEN TO FILE
2. REQUISITES FOR FILING OF
Resignation of a Trustee PETITION
A trustee may resign his trust if the court deems it
proper to allow such resignation - whether the
3. REMEDY OF RESPONDENT
trustee was appointed by the court or by a will. AGAINST PETITION; PERIOD FOR
(Rule 98 of the Rules of Court, Sec. 8) FILING A CLAIM

227
ESCHEAT Use of Escheated Property
A proceeding whereby the real and personal Such estate shall be for the benefit of public
property of a deceased person in the Philippines schools, public charitable institutions and centers in
become the property of the state upon his death, said municipalities or cities.
without leaving any will or legal heirs (21 CIS,
Section 1, p. 848). The court, at the instance of an interested party or
upon its own motion, may order the establishment
of a PERMANENT trust so that only the income of
1. WHEN TO FILE; THREE the property will be used. (Rule 91, Section 3)
INSTANCES OF ESCHEAT
3. REMEDY OF RESPONDENT
When to File
When a person dies intestate, leaving no heir or
AGAINST PETITION; PERIOD FOR
person by law entitled to the decedent‘s real or FILING A CLAIM
personal property. (Rule 91, Section 1)
When the petition does not state facts which entitle
Who Files the petition to the remedy prayed for, the
The Solicitor General or his representative in behalf respondent may file a MOTION TO DISMISS the
of the Republic of the Philippines. (Rule 91, Section petition. (Municipal Council of San Pedro, Laguna v.
1) Colegio de San Jose, G.R. No. L-45460, 1938)

Where Filed Who May File a Claim on Escheated Estate

Regional Trial Court of the province where the 1. Devisee;
deceased last resided OR in which he had estate. 2. Legatee;
(Rule 91, Section 1) 3. Heir;
4. Widow/Widower; or
Three Instances of Escheats: 5. Any person entitled to such estate. (Rule 91,
1. When a person dies intestate leaving no heir but Section 4)
leaving property in the Philippines (Rule 91, Section
1) Period for Filing
2. REVERSION PROCEEDINGS – Sale in Within five (5) years from date of judgment,
violation of the Constitutional provision; (Rule otherwise it will be barred forever. (Rule 91, Section
91, Section 5) 4)
3. Unclaimed Balances Act (dormant accounts for
10 years shall be escheated) (Act no. 3936 as END OF TOPIC
amended by P.D. no. 679, sec. 1)

2. REQUISITES FOR FILING OF

PETITION
K. GUARDIANSHIP
Requisites (Rules 92-97)
That a person died intestate
That he left no heirs or persons by law entitled to
the same; and
The deceased left properties. (Rule 9, Section 1) 1. GENERAL POWERS AND DUTIES
OF GUARDIANS
If the petition is sufficient in form and substance, the 2. CONDITIONS OF THE BOND OF
court by order shall set a date and place for the THE GUARDIAN
hearing of the petition. Such order must be
published before the hearing at least once a week
3. RULE ON GUARDIANSHIP OVER
for six (6) successive weeks in a newspaper of MINOR
general circulation. (Rule 91, Section 2)
GUARDIANSHIP
To Whom Escheated Property Will be Assigned The power of protective authority given by law and
1. Personal property – municipality or city where imposed on an individual who is free and in the
the decedent last resided in the Philippines enjoyment of his rights, over one whose weakness
2. Real property – municipality or cities, on account of his age or other infirmity renders him
respectively in which the same is situated. unable to protect himself.

GUARDIAN
If the deceased never resided in the Philippines, the
whole estate may be assigned to the respective The person in whom the law has entrusted the
municipalities or cities where the same is located. custody and control of the person or estate or both
(Rule 91, Section 3) of an infant, insane or other person incapable of
managing his own affairs.

228
WARD Contents of a Petition for Guardianship of
The person under guardianship whom the law Resident Incompetent
regards as incapable of managing his own affairs. 1. The jurisdiction facts – incompetency of the
person for whom guardianship is sought and his
Kinds of Guardians residence;
1. According to Scope or Extent 2. The incompetency rendering the appointment
a) Guardian of the person necessary or convenient;
b) Guardian of the property 3. The names, ages, and residence of the relatives
c) General guardian – those appointed by the of the incompetent, and of the person having
court to have care and custody of the person him in their care;
AND all of his property. 4. The probable value and character of his estate;
2. According to Constitution 5. The name of the person for whom letters of
a) Legal – deemed as guardians WITHOUT guardianship.
need for appointment
b) Guardian ad litem – appointed by the court The petition shall be verified; but NO defect in the
in an action in court petition or verification shall render void the issuance
c) Judicial – appointed by the court in of letters of guardianship. (Rule 93, Section 2)
pursuance to law (i.e. guardian for insane
persons or prodigals etc.) Contents of a Petition for Guardianship of Non-
Resident Incompetent Who Has Estate in the
Where to Institute Guardianship Proceedings Philippines
Guardianship of the person or estate of an 1. Any relative;
incompetent may be instituted in the Regional Trial 2. Friend; or
Court of the place where the incompetent person 3. Anyone interested in the estate – in expectancy
resides. or otherwise (Rule 93, Section 6)

If the incompetent person resides outside the ANCILLARY GUARDIANSHIP

Philippines, then the petition for guardianship may Refers to the guardianship in a state other than that
be filed in the Regional Trial Court of the place in which guardianship is originally granted.
where the property of such incompetent may be
found. (Rule 92, Section 1) Guardianship Proceedings
After the petition is filed, the court shall fix the time
An INCOMPETENT Includes and place for HEARING the same and shall cause
1. Persons suffering the penalty of civil interdiction; NOTICE to be given to persons mentioned in the
2. Hospitalized lepers; petition AND to the incompetent himself. (Rule 93,
3. Prodigals; Section 3)
4. Deaf and dumb who are unable to read and
write; Notice is essential in order to confer jurisdiction on
5. Those who are of unsound mind even though the court where a petition for guardianship is filed.
they may have lucid intervals; (Herrera, Remedial Law III-A Special Proceedings
6. Persons not being of unsound mind but by and Special Rules Implementing the Family Courts
reason of age, disease, weak mind or other Act of 1997, 2005)
causes CANNOT without outside aid, take care
of themselves and manage their property. (Rule At the hearing, the incompetent must be present, if
92, Section 2) able to attend and there must be a showing that
notice was given. The court shall hear the evidence
Prodigality of the parties and if the person in question is indeed
In order to render a person legally unfit to an incompetent, it shall appoint a suitable guardian
administer his own affairs, his acts of prodigality of his person or estate, or both, with the powers and
must show a morbid mind and a disposition to duties hereinafter specified. (Rule 93, Section 5)
spend or waste the estate so as to expose his
family to want or to deprive his forced heirs of their Opposition to Petition
inheritances. (Martinez v. Martinez, G.R. no. 445, ANY INTERESTED PERSON may file a written
1902) opposition on the following grounds:
1. Competency of the alleged incompetent; and
Who May Petition For Appointment of Guardian 2. Unsuitability of the person for whom letters are
for Resident Incompetent prayed. (Rule 93, Section 4)
1. Any relative;
2. Friend; Such Opposition to the Petition May Ask For the
3. Other person in behalf of resident incompetent Following Reliefs:
who has no parent or lawful guardian;
4. The Director of Health in favor of an insane 1. Dismissal of petition; or
person who should be hospitalized or of an 2. That the letters of guardianship issue to himself,
isolated leper. (Rule 93 of the Rules of Court, or to any suitable person named in the
Sec. 1) opposition. (Rule 93, Section 4)

229
 suspected person to appear for examination and
may order to secure the estate. (Rule 96, Section 6)
1. GENERAL POWERS AND DUTIES
OF GUARDIANS Purpose: To secure evidence from persons
suspected of embezzling, concealing or conveying
General Powers and Duties 0f Guardians: away any property of the ward so as to enable the
1. To pay the ward's just debts out of: guardian to institute the appropriate action to obtain
a) The personal estate and the real estate‘s possession of and secure title to the property. (Cui
income; v. Piccio, G.R. No. L-5131,1952)
b) The real estate, IF sufficient and only upon
obtaining court order. (Rule 96, Section 2) Generally, the guardianship court exercising special
and limited jurisdiction cannot actually order the
2. To settle all the ward’s accounts; demand, delivery of the property of the ward found to be
sue for or receive for all debts due the ward, or embezzled, concealed or conveyed. Only in
for the same and give discharges to the debtor, extreme cases, where property clearly belongs to
on receiving a fair and just dividend of the the ward or where his title thereto has been
estate and effects; and appear for the ward in already judicially decided, may the court direct its
all actions/proceedings, unless another person delivery to the guardian.
is appointed for that purpose. (Rule 96, Section
3) In effect, there can only be delivery or return of the
embezzled, concealed or conveyed property of the
3. To manage the ward’s estate frugally and ward, where the right or title of said ward is clear
without waste; apply the income/profits to the and undisputable.
comfortable and suitable maintenance of the
ward and his family; and if the income/profits are However, where title to any property said to be
insufficient, sell/encumber the real estate (upon embezzled, concealed or conveyed is in dispute,
court authorization). (Rule 96, Section 4) under the Cui case, the determination of said title or
right whether in favor of the person said to have
4. To render an inventory of the ward’s estate embezzled, concealed or conveyed the property
within three (3) months after his appointment must be determined in a separate ordinary action
and annually thereafter, and upon application of and not in guardianship proceedings. (Parco v. CA,
interested persons G.R. No. L-33152, 1982)
a) If any property of the ward not included in an
inventory already rendered is Conflicts regarding the ownership or title to the
discovered/acquired by the ward, like property in the hands of the guardian in his capacity
proceedings shall be had for inventory and as such should be litigated in a SEPARATE
appraisement within three (3) months; (Rule 96, PROCEEDING, the court in the guardianship
Section 7) proceeding being SOLELY concerned with the
ward‘s care and custody and proper administration
5. To render an accounting of the property for of his properties. (Viloria v. Administrator of
one (1) year from his appointment and every Veterans Affairs, G.R. no. L-9620, 1957)
year thereafter, and upon application of
interested persons. Selling and Encumbering Property of Ward
a) A non-parent guardian is allowed the amount of The guardian may present a VERFIED PETITION
his reasonable expenses incurred in the stating that:
execution of his trust, plus just compensation for 1. Income of estate is insufficient to maintain the
his services, not exceeding 15% of the ward‘s ward and his family; or
net income. (Rule 96, Section 8); 2. When it is for the benefit of the ward. (Rule 95,
Section 1)
6. The court may authorize the guardian to join in
an assent to an estate partition held by the If it appears to be probable that such sale or
ward jointly or in common with others. The encumbrance is necessary or is beneficial, the court
authority shall only be granted after hearing, shall make an order directing the next of kin of the
notice to the ward‘s relatives, and a careful ward OR all persons interested in the estate to
investigation as to the proposed action‘s appear and SHOW CAUSE why the petition should
necessity/propriety. (Rule 96, Section 5); not be allowed. (Rule 95, Section 2)

Proceedings When A Person is Suspected of There shall be a hearing where the court shall
Embezzling or Concealing Property of the Ward refuse the petition OR order such sale or
encumbrance for the maintenance of the ward and
Upon complaint of the guardian or ward or any his family or for the incompetent‘s benefit.
person interested in the ward‘s estate, that anyone
is suspected of having NO order of sale granted shall continue in force
embezzled/concealed/conveyed away any of the more than one (1) year after granting the same,
ward/estate‘s property, the court may cite the without a sale being had. (Rule 95, Section 4)

230
Investment of Proceeds and Management of 4. Friend. (Rule 97, Section 1)
Estate
The court may authorize and require the guardian to Who May Oppose
invest the proceeds of sale and encumbrances, and 1. Guardian;
any other of his ward‘s money in his hands, as shall 2. Relative of the ward;
be for the best interest of all concerned, and may 3. Any other person, in the discretion of the court.
make orders for the management, investment, and (Rule 97, Section 1)
disposition of the estate and effects, as
circumstances may require. (Rule 95, Section 5) The petition shall be verified under oath. A hearing
will then be set by the court and reasonable notice
The court's approval of the annual inventories shall be given to the guardian of the incompetent
and accounts submitted by the guardian, with the and to the incompetent himself. If it be found that
conformity of the U. S. Veterans Administration and the person is no longer incompetent, his
the mother of the minors, where the investment of competency shall be adjudged and the
the properties of the wards made without guardianship shall cease. (Rule 97, Section 1)
securing previous judicial authority, was
mentioned and accounted for, amounts to a Termination of Guardianship
RATIFICATION of the acts of the guardian and 1. Competency of the ward has been judicially
compliance with the provisions of Section 5, Rule determined; (Rule 97, Section 1)
95 of the Rules of Court. (Stegner v. Stegner, G.R. 2. Death of guardian or of ward;
no. L-8532, 1957) 3. Guardianship is no longer necessary. (Rule 97,
Section 3)
2. CONDITIONS OF THE BOND OF Ground for Removal or Resignation of Guardian
THE GUARDIAN 1. Guardian becomes insane;
2. Incapable of discharging trust;
BEFORE an appointed guardian enters upon the 3. Unsuitable to discharge functions;
execution of his trust, or letters of guardianship 4. Wastage or mismanagement of the property of
issue, he shall give a bond. the ward
5. Failure to render account or make a return within
The BOND Shall be CONDITIONED: thirty (30) days after it was due. (Rule 97 of the
To make and return, within three (3) months, the Rules of Court, Sec. )
estate‘s inventory of the estate of his ward
which shall come to his possession or The widow, as legal heir of her deceased husband,
knowledge ; could not validly enter into an agreement with
To faithfully execute the duties of his trust, to herself as natural guardian of her minor son for the
manage and dispose of the estate according to determination and apportionment of their respective
ward‘s best interests, and to provide for the shares in the inheritance. Such extrajudicial
ward‘s proper care/custody/education; settlement is void and of no legal effect. In addition,
To render a true and just account of the estate in since it evinces a conflict of interests between the
his hands and all proceeds/interest derived appellant and the minor as heirs of the deceased,
therefrom; this fact alone suggests the propriety and
At the expiration of his trust, to settle his accounts advisability of relieving the appellant as such
with the court and deliver the remaining guardian. (Ribaya v. Ribaya, G.R. no. 48895, 1943)
estate to the person lawfully entitled thereto;
To perform all court orders. (Rule 94, Section 1) 3. RULE ON GUARDIANSHIP OVER
In case of breach of the bond‘s conditions, the bond
MINORS (A.M. No. 03-02-05-SC,
may be prosecuted in the same proceeding or in a effective May 1, 2003)
separate action, for the use and benefit of the ward
or of any person legally interested in the estate. This Rule applies to petitions for guardianship over
(Rule 94, Section 3) the person, or property, or both of a minor. This
includes incompetent minors.
New bond
Whenever necessary, the court may require a new Rule on Guardianship over Minors
bond to be given by the guardian. After notice to 1. The father and mother shall jointly exercise legal
interested persons, the sureties on the old bond guardianship over the person and property of
may then be discharged from further liability when their unemancipated common child without the
no injury will result to interested parties. (Rule 94, necessity of a court appointment. The Rule shall
Section 2) be suppletory to the provisions of the Family
Code on guardianship (Sec. 1).
Who May Petition for Judicial Determination of 2. FOR RESIDENTS - On grounds authorized by
Ward’s COMPETENCY law, any relative or other person on behalf of a
1. A person who has been declared incompetent; minor OR the minor himself IF fourteen (14)
2. His guardian; years of age or over, may petition the Family
3. Relative; Court for the appointment of a general guardian

231
 over the person or property, or both, of such 5. Availability to exercise the powers and duties of
minor. The petition may also be filed by the a guardian for the full period of the guardianship;
Secretary of DSWD and of the DOH in the case 6. Lack of conflict of interest with the minor; and
of an insane minor who needs to be hospitalized 7. Ability to manage the property of the minor
(Sec. 2).
3. FOR NON-RESIDENTS - When the minor Time and Notice of Hearing (Sec. 8)
resides outside the Philippines but has property After filing of the petition for appointment of a
in the Philippines, any relative or friend of such guardian, the court shall fix a time and place for the
minor, or anyone interested in his property, in hearing. NOTICE shall be given to the persons
expectancy or otherwise, may petition the mentioned in the petition (relatives within the fourth
th
Family Court for the appointment of a guardian (4 ) civil degree, persons for whom letters of
over the property. (Sec. 12) guardianship are prayed), including the minor if
fourteen (14) years or over.
Where to File Petition
A petition for guardianship over the person or For NON-RESIDENTS, notice shall be given by
property or both of a minor may be filed in the publication.
FAMILY COURT of the province or city where the
MINOR RESIDES. The court shall order a social worker to conduct a
case study of the minor and all the prospective
If the minor resides in a foreign country, the petition guardians and submit his report and
shall be filed in the FAMILY COURT where his recommendation to the court for its guidance before
property or part thereof is situated. the scheduled hearing.

Grounds of Petition (Sec. 4) Opposition to Petition - Grounds

1. Death, continued absence, or incapacity of his 1. Reaching of majority age of the minor; or
parents; 2. Unsuitability of the person for whom letters are
2. Suspension, deprivation or termination of prayed. (Sec. 10)
parental authority;
3. Remarriage of his surviving parent, if the latter is Bond of Guardian (Sec. 14)
found unsuitable to exercise parental authority; Before a guardian appointed enters upon the
or execution of his trust, or letters of guardianship
4. When the best interest of the minor so require. issue, he shall give a bond, in such sum as the
court directs, conditioned on the following:
Qualifications of Guardians (Sec. 5) 1. To make and return to the court, within three (3)
1. Moral character; months, a true and complete inventory of all
2. Physical, mental and psychological condition; the estate, real and personal, of his ward which
3. Financial status; shall come to his possession or knowledge of
4. Relationship of trust with the minor; any other person for him;
5. Availability to exercise the powers and duties of 2. To faithfully execute the duties of his trust, to
a guardian for the full period of the guardianship; manage and dispose of the estate according to
6. Lack of conflict of interest with the minor; and these rules for the best interests of the ward,
7. Ability to manage the property of the minor. and to provide for the proper care, custody, and
education of the ward;
Order of Preference in the Appointment of 3. To render a true and just account of all the
Guardian or the Person and/or Property of Minor estate of the ward in his hands, and of all
(Sec. 6) proceeds or interest derived therefrom, and of
1. The surviving grandparent and in case several the management and disposition of the same, at
grandparents survive, the court shall select any the time designated by these rules and such
of them taking into account all relevant other times as the courts directs, and at the
considerations; expiration of his trust to settle his accounts with
2. The oldest brother or sister of the minor over 21 the court and deliver and pay over all the estate,
years of age, unless unfit or disqualified; effects, and moneys remaining in his hands, or
3. The actual custodian of the minor over 21 years due from him on such settlement, to the person
of age, unless unfit or disqualified; and lawfully entitled thereto;
4. Any other person, who in the sound discretion of 4. To perform all orders of the court by him to be
the court, would serve the best interests of the performed.
minor.
Grounds to Petition to Sell or Encumber
Factors to Consider In Appointing a Guardian: Property (Sec. 19)
(Sec. 5) 1. Property is insufficient to maintain and educate
1. Moral character; the ward; or
2. Physical, mental and psychological condition; 2. It is for the ward‘s benefit.
3. Financial status;
4. Relationship of trust with the minor; Grounds for Removal or Resignation of
Guardian: (Sec. 24)

232
1. When a guardian becomes insane or otherwise
incapable of discharging his trust;
2. Found to be unsuitable;
3. Has wasted or mismanaged the property of the
ward;
4. Has failed to render an account or make a return
for thirty days (30) after it‘s due;
5. The court may allow the guardian to resign for
justifiable causes.

Upon removal or resignation of the guardian, the

court shall appoint a new one

Old Age may be a determining factor in the removal

of a guardian. (Francisco v. CA, G.R. No. L-14628,
1960)

Grounds for Termination of Guardianship (Sec.

25)
1. The ward has come of age; and
2. The ward has died.

END OF TOPIC

L. ADOPTION
(Rules 99-100, superseded by Rule
on Adoption, A.M. No. 02-06-02-
SC)

1. DISTINGUISH DOMESTIC
ADOPTION FROM INTER-COUNTRY
ADOPTION
2. DOMESTIC ADOPTION ACT
a. Effects of adoption
b. Instances when adoption may be
rescinded
c. Effects of rescission of adoption
3. INTER-COUNTRY ADOPTION
a. When allowed
b. Functions of the RTC
c. “Best interest of the minor” standard

1. DISTINGUISH DOMESTIC
ADOPTION FROM INTER-
COUNTRY ADOPTION

233
DOMESTIC ADOPTION INTER-COUNTRY ADOPTION
Governed by R.A. 8552, the Domestic Adoption Act of Governed by R.A. 8043, the Inter-Country Adoption
1998; procedure governed by A.M. No. 02-06-02-SC, Act of 1995; procedure governed by the Amended
August 22, 2002. Implementing Rules and Regulations on ICAA.

Applies to domestic adoption of Filipino children, where Applies to adoption of a Filipino child in a foreign
the entire adoption process beginning from the filing of country, where the petition for adoption is filed, the
the petition up to the issuance of the adoption decree supervised trial custody is undertaken and the decree
takes place in the Philippines. of adoption is issued outside of the Philippines.

WHO MAY BE ADOPTED WHO MAY BE ADOPTED

A child legally available for adoption. Only a legally free child may be adopted.

1. Below 18 years of age; and judicially declared Requisites

available for adoption. 1. Below 15 years of age; and
2. Legitimate son/daughter of one spouse by the other 2. Has been voluntarily or involuntarily committed to
spouse; the DSWD in accordance with PD 603.
3. Illegitimate son/daughter by a qualified adopter;
4. Person of legal age if, prior to the adoption said
person has been consistently considered and treated by
the adopter/s as his/her own child since minority.
5. A child whose adoption has been previously rescinded
6. A child whose biological or adoptive parents have
died. Provided, that NO proceedings shall be
commenced within six (6) months from the time of death
of some parents

WHO MAY ADOPT WHO MAY ADOPT

234
 Filipino Citizens Filipino Citizens
1. Of legal age; 1. Permanent resident of a foreign country;
2. In possession of full civil capacity and legal rights; 2. Has the capacity to act and assume all rights and
3. Of good moral character; responsibilities of parental authority under Philippine
4. Has not been convicted of any crime involving moral laws;
turpitude; 3. Has undergone the appropriate counseling from an
5. Emotionally and psychologically capable of caring for accredited counselor in country of domicile;
children; 4. Has not been convicted of a crime involving moral
6. In a position to support and care for his/her children in turpitude;
keeping with the means of the family; 5. Eligible to adopt under Philippine laws;
7. At least sixteen (16) years older than the adoptee but 6. In a position to provide the proper care and support
this latter requirement may be waived if and to give the necessary moral values and example
a) The adopter is the biological parent of the adoptee; to all his children, including the child to be adopted;
or 7. Agrees to uphold the basic rights of the child as
b) The adopter is the spouse of the adoptee‘s parent; embodied under Philippine laws, the UN Convention
and on Rights of the Child, and to abide by the rules and
8. Permanent resident of the Philippines. regulations issued to implement the provisions of the
ICAA;
Aliens 8. Residing in a country with whom the Philippines
1. Same qualifications as above, and in addition: has diplomatic relations and whose government
2. His/her country has diplomatic relations with the maintains a similarly authorized and accredited
Republic of the Philippines; agency and that adoption is allowed in that country;
3. His/her government allows the adoptee to enter 9. Possesses all the qualifications and none of the
his/her country as his/her adopted son/daughter; disqualifications provided in the ICAA and in other
4. Has been living in the Philippines for at least three (3) applicable Philippine laws;
continuous years prior to the filing of the application for 10. At least 27 years of age at the time of the
adoption and maintains such residence until the adoption application; and
decree is entered; and 11. At least 16 years older than the child to be
5. Has been certified by his/her diplomatic or consular adopted at the time of application, unless
office or any appropriate government agency that he/she a) Adopter is the parent by nature of the child to be
has the legal capacity to adopt in his/her country. adopted; or
b) Adopter is the spouse of the parent by nature of
This requirements of RESIDENCY and CERTIFICATION the child to be adopted.
OF ALIEN‘S QUALIFICATION may be WAIVED if Aliens
1. A former Filipino citizens seeks to adopt a relative 1. At least 27 years of age at the time of the
th
within the 4 degree of consanguinity or affinity; application;
2. One seeks to adopt the legitimate son/daughter of 2. At least 16 years older than the child to be
his/her Filipino spouse; adopted at the time of application, unless
3. One who is married to a Filipino citizen and seeks to a) Adopter is the parent by nature of the child to be
th
adopt a relative within the 4 degree of consanguinity or adopted; or
affinity of the Filipino spouse b) Adopter is the spouse of the parent by nature of
the child to be adopted.
Guardians 3. Has the capacity to act and assume all rights and
1. After the termination of the guardianship; and responsibilities of parental authority under his national
2. Clearance of financial accountabilities laws;
4. Has undergone the appropriate counseling from an
accredited counselor in his/her country;
5. Has not been convicted of a crime involving moral
turpitude;
6. Eligible to adopt under his/her national law;
7. In a position to provide the proper care and support
and to give the necessary moral values and example
to all his children, including the child to be adopted;
8. Agrees to uphold the basic rights of the child as
embodied under Philippine laws, the UN Convention
on the Rights of the Child, and to abide by the rules
and regulations issued to implement the provisions of
the ICAA;
9. Comes from a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited
agency and that adoption is allowed under his/her
national laws; and
10. Possesses all the qualifications and none of the
disqualifications provided in the ICAA and in other
applicable Philippine laws.

235
REQUIREMENT OF JOINT ADOPTION BY REQUIREMENT OF JOINT ADOPTION BY
SPOUSES SPOUSES
General Rule - Husband and wife shall jointly adopt; General Rule - If the adopter is married, his/her
otherwise, the adoption shall not be allowed. spouse MUST jointly file for the adoption.

Exceptions
1. If one spouse seeks to adopt the legitimate
son/daughter of the other;
2. If one spouse seeks to adopt his/her own illegitimate
son/daughter but the other spouse must give his/her
consent;
3. If the spouses are legally separated from each other.

PROCEDURE PROCEDURE

236
Where to File Application Where to File Application
In the Family Court of the province or city where the Either in
prospective parents reside. 1. Family Court having jurisdiction over the place
where the child resides or may be found, or
Petition 2. Inter-Country Adoption Board (ICAB) through an
Must be VERIFIED and specifically state at the heading intermediate agency, whether governmental or an
of the initiatory pleading whether the petition contains an authorized and accredited agency, in the country of
application for the prospective adoptive parents.
1. Change of name
2. Rectification of simulated birth After Filing:
3. Voluntary or involuntary commitment of children 1. If filed in the Family Court, court determines
4. Declaration of child as abandoned, dependent or sufficiency of petition in respect to form and
neglected. substance, after which, petition is transmitted to
ICAB;
After Filing 2. If petition is already with ICAB, it conducts
The petition shall not be set for hearing without a case matching of the applicant with an adoptive child;
study report by a licensed social worker. 3. After matchmaking, the child is personally fetched
by the applicant for the trial custody which takes
Supervised Trial Custody place outside of the Philippines.
1. Temporary parental authority is vested in prospective
adopter; Supervised Trial Custody
2. Period is at least six (6) months, but MAY be reduced 1. This process takes place outside of the country
by the court motu propio or upon motion; and under the supervision of the foreign
3. If adopter is alien, the law mandatorily requires adoption agency;
completion of the six (6) month trial custody and may not 2. For a period of 6 months;
be reduced, except if: 3. If unsuccessful, ICAB shall look for another
a) A former Filipino citizen seeks to adopt a relative prospective applicant. Repatriation of the child is to
th
within 4 degree of consanguinity or affinity; be resorted only as a last resort;
b) One seeks to adopt the legitimate son/daughter of 4. If successful, ICAB transmits a written consent for
his/her Filipino spouse; the adoption to be executed by the DSWD, and the
c) One who is married to a Filipino citizen and seeks to applicant then files a petition for adoption in his/her
adopt jointly with his/her spouse a relative within the country.
th
4 degree of consanguinity or affinity of the Filipino
spouse. Decree of Adoption
Issued by a foreign court.
Decree of Adoption
Issued by Philippine Family Court. Consent Required
1. Written consent of biological or adopted children
Consent Required above 10 years of age, in the form of sworn
Written consent of the following to the adoption is statement is required to be attached to the application
required, in the form of affidavit: to be filed with the FC or ICAB;
2. If a satisfactory pre-adoptive relationship is formed
1. Adoptee, if 10 years of age or over; between the applicant and the child, the written
2. Biological parent/s of the child, if known, or the legal consent to the adoption executed by the DSWD is
guardian, or the proper government instrumentality which required.
has legal custody of the child;
3. Legitimate and adopted sons or daughters, 10 years
of age or over, of the adopter/s and adoptee, if any;
4. Illegitimate sons/daughters, 10 years of age of over, of
the adopter if living with said adopter and the latter‘s
spouse, if any;
5. Spouse, if any, of the person adopting or to be
adopted.

237
Venue and Jurisdiction: 1. Repeated physical violence and verbal
1. For Domestic – Family Court of the place maltreatment by the adopter despite having
where the ADOPTER resides (Sec. 6, A.M. undergone counseling;
02-6-02) 2. Attempt on the life of the adoptee;
2. For Inter-country – Family Court of the 3. Sexual assault or violence; or
place where the ADOPTEE resides (IF filed 4. Abandonment or failure to comply with
with Family Court), or Inter-Country Adoption parental obligations. (Section 19, A.M. 02-6-
Board (Sec. 10, RA 8043) 02)
3. For RECISSION OF ADOPTION – Family
Court of the place where ADOPTEE resides c. EFFECTS OF RESCISSION OF
(Sec. 19, A.M. 02-6-02) ADOPTION

2. DOMESTIC ADOPTION ACT 1. Parental authority of biological parent or

R.A. 8552 and A.M. 02-06-02-SC legal custody of DSWD will be restored;
2. Reciprocal rights of adoptee and adopter will
a. EFFECTS OF ADOPTION (ART. V, R.A. be extinguished;
8552) 3. Vested rights acquired prior to judicial
rescission shall be respected;
4. Successional rights shall revert to its status
1. Adopter will exercise parental authority;
prior to adoption, as of the date of judgment
2. All legal ties between biological parents and
of judicial rescission;
the adoptee shall be severed, except when
5. Adoptee shall use the name stated in his
biological parent is spouse of adopter;
original birth or foundling certificate;
3. Adoptee shall be considered legitimate child
6. Civil registrar will reinstate his original birth
of adopter for all intents and purposes;
or foundling certificate. (Sec. 23, A.M. 02-6-
4. Adopters shall have reciprocal rights of 02)
succession without distinction from legitimate
filiation.
Unlike in revocation of guardianship, revocation
of adoption is a SEPARATE proceeding from
The decree of adoption shall have a retroactive
the adoption.
effect from the time of the filing of the
original petition.
3. INTER-COUNTRY ADOPTION
b. INSTANCES WHEN ADOPTION MAY BE [R.A. 8043]
RESCINDED
a. WHEN ALLOWED
Under the Domestic Adoption Act of 1998, the
adopter can NO longer rescind the adoption, he Inter-country adoptions are allowed when the
can merely disinherit the adoptee in accordance same shall prove beneficial to the child‘s best
with the provisions of the Civil Code. Rescission interests, and shall serve and protect his/her
relates only as to the date of the judgment. fundamental rights (Sec. 2).
Hence, vested rights prior to rescission should
be respected. Inter-country adoption shall be the last resort,
and will not be allowed until all possibilities for
Who Files adoption of the child under the Family Code
1. Adoptee: Over eighteen (18) years of age; have been exhausted.
or if still a minor, with assistance of DSWD.
2. Guardian or counsel, if adoptee is over It is allowed when all the requirements and
eighteen (18) BUT incapacitated. (Sec. 19, standards set forth under R.A. 8043 are
A.M. 02-6-02) complied with.

Venue Who May Adopt

Family Court of the city or province where the 1. Any alien or Filipino citizen permanently
ADOPTEE resides. (Sec. 20, A.M. 02-6-02) residing abroad who is at least twenty-seven
(27) years of age.
Period within Which to File Verified Petition 2. Other requirements are the same as with
Within five (5) years from reaching the age of R.A. 8552.
majority or after recovery from incompetency
Who May Be Adopted
Adverse party shall file his answer within fifteen Only a child legally available for domestic
(15) days from receipt of order of court adoption may be the subject of inter-country
requiring him to answer. (Section 21, A.M. adoption.
02-6-02)
A child under the Inter-Country Adoption Act is
Grounds for Rescission defined as any person below 15 years of age.
(Sec. 29)

238
 person entitled thereto except as otherwise
B. FUNCTIONS OF THE REGIONAL TRIAL expressly provided by law. (Rule 102, Section 1)
COURT
It may be analogized to a proceeding IN REM
and instituted for the sole purpose of fixing the
The Regional Trial Court, after finding the
status of a person. (Herrera, Remedial Law III-A
petition (in case of foreigners who file a petition
Special Proceedings and Special Rules
for adoption in the Philippines under the
Implementing the Family Courts Act of 1997,
Domestic Adoption Act of 1998) to be sufficient
2005)
in form and substance and a proper case for
inter-country adoption, shall immediately
Purposes
transmit the petition to the Inter-Country
Adoption Board for appropriate action. (Section Its vital purposes are to obtain immediate relief
30 of the Amended IRR on R.A. 8043) from illegal confinement, to liberate those who
may be imprisoned without sufficient cause, and
to deliver them from unlawful custody. (Velasco
C. “BEST INTEREST OF THE MINOR” v. Court of Appeals, G.R. no. 118644, 1995)
STANDARD
The object of the writ of habeas corpus is to
This refers to the totality of the circumstances inquire into the legality of the detention, and, if
and conditions which are most congenial to the the detention is found to be illegal, to require the
survival, protection, and security of the minor. release of the detainee. (Mangila v. Judge
This is for his physical, psychological and Pangilinan, G.R. no. 160739, 2013)
emotional development. It also means the least
detrimental available alternative for
safeguarding the growth and development of the Habeas Corpus Writ Extends To:
minor. (Section 14, A.M. No. 03-04-04-SC 2003- 1. All cases of illegal confinement/detention by
04-22) which any party is deprived of his liberty;
2. If the rightful custody of a person is withheld
END OF TOPIC from the one entitled to it.
3. If, as a consequence of a judicial proceeding:
a) There is deprivation of a constitutional
right resulting in the person‘s restraint;
b) The court has no jurisdiction to impose
M. WRIT OF HABEAS CORPUS the sentence; or
c) An excessive penalty was imposed,
(RULE 102) because the sentence is void as to the
excess. (Parulan v. Director of Prisons,
G.R. no. L-28519, 1968)
4. Invasion or Rebellion, when public safety
requires it. (Article VII, Section 18 of the
1. CONTENTS OF THE PETITION 1987 Constitution)
2. CONTENTS OF THE RETURN
General rule: Writ of Habeas Corpus shall NOT
3. DISTINGUISH PEREMPTORY issue if the restraint is voluntary. (Sombong v.
WRIT FROM PRELIMINARY CA, G.R. No. 111876, 1996)
CITATION
4. WHEN NOT Exception: Writ of Habeas Corpus is a
PROPER/APPLICABLE proper remedy to enable parents to
regain custody of a minor, even if the
5. WHEN WRIT rd
minor is in the custody of a 3 person
DISALLOWED/DISCHARGED of his own free will. (Sombong v. CA,
6. DISTINGUISH FROM WRIT OF G.R. No. 111876, 1996)
AMPARO AND HABEAS DATA
Rationale: Custody cases involving minors are
7. RULES ON CUSTODY OF prosecuted to determine custody rights over a
MINORS AND WRIT OF HABEAS child.
CORPUS IN RELATION TO
CUSTODY OF MINORS (A.M. NO. Void Judgment of Conviction
03-04-04-SC) In a case where there is a conviction but a
violation of right against self-incrimination is
indeed violated, the Writ of Habeas Corpus shall
Writ of Habeas Corpus issue. Said void judgment of conviction may be
Under Section 1, the WRIT OF HABEAS challenged by an attack through Habeas
CORPUS shall extend to all cases of illegal Corpus. This writ may issue even if another
confinement or detention by which any person is remedy which is less effective may be availed of
deprived of his liberty, or by which the rightful by the defendant. Thus, failure by the accused
custody of any person is withheld from the to appeal does not preclude a recourse to the

239
writ. The writ may be granted upon a judgment 1. CONTENTS OF THE PETITION
already final. (Chavez v. Court of Appeals, G.R.
No. L-29169, 1968)
Who May File an Application for a Writ of
Habeas Corpus
Errors of Fact or Law – not correctible by The application shall be by petition signed and
Habeas Corpus verified by:
Mere errors of fact or law, which did not have 1. The party for whose relief it is intended; or
the effect of depriving the trial court of its 2. Some person on his behalf. (Rule 102,
jurisdiction over the case and the person of the Section 3)
defendant, are not correctible in a petition for the
issuance of the writ of habeas corpus; if at all, The Petition Shall Set Forth the Following
these errors must be corrected on certiorari or 1. The person in whose behalf the application is
on appeal, in the form and manner prescribed made is imprisoned or restrained of his
by law. liberty;
2. Name of the person detaining another or
When Other Remedies are Available assumed appellation;
3. Place where he is imprisoned or restrained
The inquiry in a habeas corpus proceeding is of his liberty; or
addressed to the question of whether the 4. A copy of the commitment or cause of
proceedings and the assailed order are, for any detention, or allegation that there‘s none.
reason, null and void. The writ is not ordinarily (Rule 102, Section 3)
granted where the law provides for other
remedies in the regular course, and in the Who May Grant the Writ
absence of exceptional circumstances. 1. Supreme Court or any member thereof –
enforceable anywhere in the Philippines and
Moreover, habeas corpus should not made returnable before any court
be granted in advance of trial. The 2. Court of Appeals or any member thereof -
orderly course of trial must be pursued enforceable anywhere in the Philippines and
and the usual remedies exhausted made returnable before any court
before resorting to the writ where 3. Regional Trial Court or a judge thereof –
enforceable only within his judicial district,
exceptional circumstances are extant.
returnable only to itself. (Rule 102 , Sec. 2)
In another case, it was held that
habeas corpus cannot be issued as
The Supreme Court, the Court of Appeals
a writ of error or as a means of
and Regional Trial Courts have
reviewing errors of law and
CONCURRENT jurisdiction to issue Writs of
irregularities not involving the
Habeas Corpus.
questions of jurisdiction occurring
during the course of the trial,
In the absence of ALL Regional Trial Court
subject to the caveat that
judges in a province or city, Municipal Trial
constitutional safeguards of human
Court judges MAY hear and decide petitions for
life and liberty must be preserved,
a Writ of Habeas Corpus in that province or city.
and not destroyed. (Mangila v. Judge
Pangilinan, G.R. no. 160739, 2013)
Family Courts have EXCLUSIVE ORIGINAL
JURISDICTION to issue Writ of Habeas Corpus
Exception:
involving the custody of minors. (R.A. 8369)
It does not, however, follow that if
certiorari is available, an application for The Sandiganbayan may grant the writ only if it
a writ of habeas corpus will absolutely is in aid of its appellate jurisdiction (Festin,
be barred. Writ of Habeas Corpus may, Special Proceedings: A Foresight to the Bar
nevertheless, be available in nd
Exam, 2 Ed. 2011)
EXCEPTIONAL CASES, for the writ
should not be considered subservient Procedure for Grant of Writ
to procedural limitations which glorify
Filing of the verified petition;
form over substance. It must be kept in
Allowance of Writ if determined by the judge
mind that although the question most
that the writ ought to issue;
often considered in both habeas corpus
Service of writ by sheriff or other officer;
and certiorari proceedings is whether
Return filed; reply to the return, if any.
an inferior court has exceeded its
Hearing on return
jurisdiction, the former involves a
Judgment on the petition – dismissal of the
collateral attack on the judgment and
petition or order of discharge from
reaches the body but not the record,
imprisonment/restraint.
while the latter assails directly the
judgment and reaches the record but
not the body. (Velasco v. Court of TO WHOM WRIT DIRECTED, AND WHAT TO
Appeals, G.R. no. 118644, 1995) REQUIRE

240
To Whom Writ Served The return or statement shall be signed and
1. In case of imprisonment by an officer – the sworn to by the person who makes it if the
writ shall be directed to such OFFICER and prisoner is not produced, UNLESS the return is
shall command him to have the body of the made and signed by a sworn public officer in his
person restrained before the court official capacity. (Rule 102, Section 11)
designated in the writ.
2. In case of imprisonment by a person NOT an Hearing UPON Return
officer – the writ shall be directed to an When the Writ is returned before the judge, he
OFFICER and shall command him to may forthwith HEAR and examine the return and
a) Take and have to body of the person such other matters as are submitted for
restrained before the court designated in consideration. (Rule 102, Section 12)
the writ; and
b) Summon the private person by whom he Effect of Failure to File a Return
is restrained to appear before said judge Failure of petitioners to file a return of the writ
to show the cause of the imprisonment or WARRANTS DISMISSAL of the petition. Unless
restraint. (Rule 102, Section 6) the allegations in the return are controverted,
they are DEEMED to be true or admitted.
Service of the Writ (Arocha v. Vivo, 21 SCRA 532, G.R. No. L-
Service of the Writ shall be made by made by 24844, 1967; Florendo v. Javier, G.R. no. L-
leaving the original with the person to whom it is 36101, 1979)
directed and preserving a copy on which to
make return of service. (Rule 102, Section 7) When Return Evidence of Cause of Restraint
and When Only a Plea of Facts; Effect of
Defect of Form petitioner’s failure to file a reply to the return
No Writ of Habeas Corpus can be disobeyed for or to controvert statements in the return
defect or form IF it sufficiently states in whose during the hearing.
custody or under whose restraint the party 1. If the return is filed by an officer
imprisoned is held AND the court or judge to who is the respondent detaining the person
whom he is to be brought. (Rule 102, Section 9) concerned - if the prisoner is in custody under a
warrant of commitment (public authority) in
Execution of Writ pursuance of law, the return is considered
The officer to whom the Writ is directed shall PRIMA FACIE EVIDENCE of the legality of the
convey the person imprisoned or restrained commitment, imprisonment or restraint. (Rule
before the court allowing the writ and on such 102, Sec. 13)
date and time specified in the writ UNLESS such
person cannot be produced without danger by Thus, the failure of petitioners to file a reply to
reason of some sickness or infirmity. the return or controvert the matters stated in the
return, WARRANTS DISMISSAL of the petition.
The officer shall make due return of the Writ, Unless the allegations in the return are
together with the day and cause of the caption controverted, they are DEEMED to be true or
and restraint of such person. (Rule 102, Section admitted (Arocha v. Vivo, 21 SCRA 532, G.R.
8) No. L-24844, 1967; Florendo v. Javier, G.R. no.
L-36101, 1979)
2. CONTENTS OF RETURN
2. If the return is filed by an officer in
case the prisoner is restrained by a private
The Return Shall be in Writing and Shall authority or person - the return is considered
State only a PLEA of FACTS, and the party claiming
1. Whether he has or has not the party in his the custody must prove such facts. Failure to
custody or power, or under restraint; reply to the return or controvert the return is
2. The authority and the true and whole NOT fatal to the petition. (Rule 102, Section 13)
cause of restraint, set forth at large, with a
copy of the writ, order execution, or other When LAWFULLY Imprisoned - When
process, if any, upon which the party is held; Recommitted or When Bailed
3. If the party is in his custody or power or is If it appears that the prisoner was LAWFULLY
restrained by him, and is not produced, committed AND is charged with an offense
particularly the nature and gravity of the punishable by death, he shall NOT be released,
sickness or infirmity of such party by discharged or bailed.
reason of which he cannot, without danger,
be bought before the court or judge; If he is LAWFULLY imprisoned AND is charged
4. If he has had the party in his custody or with an offense NOT punishable by death, he
power, or under restraint, and has MAY be recommitted to imprisonment OR
transferred such custody or restraint to admitted to bail in the discretion of the judge.
another, particularly to whom, at what time, (Rule 102, Section 14)
for what cause, and by what authority such
transfer was made. (Rule 102, Section 10)
When Prisoner Discharged IF NO APPEAL

241
When the court is satisfied that a prisoner is 3. Once a person detained is duly charged in
unlawfully imprisoned or restrained, an order will court, he may no longer file a petition for
be made for the DISCHARGE from confinement. habeas corpus. His remedy would be to
Such discharge will not be effective UNTIL a quash the information or warrant. (Rodriguez
copy of the order is SERVED on the officer or v. Judge Bonifacio, A.M. NO. RTJ-99-1510,
person detaining the prisoner. (Rule 102, 2000);
Section 5)
4. Even granting that a person was illegally
Appeal arrested, the petition for a Writ of Habeas
Appeal may be made forty-eight (48) hours from Corpus will NOT prosper because the
notice of the judgment or final order. This shall detention falls under a ―legal process‖ by
be in the form of a NOTICE OF APPEAL. (BP virtue of the complaint filed against him.
no. 129, Sec. 39 as amended by RA 7691) (Velasco v. CA, 245 SCRA 677, 1995);

Prisoner discharged upon a Writ of Habeas 5. If the accused was illegally detained, the
Corpus shall NOT be again imprisoned for the proper remedy would be the quashal of the
SAME OFFENSE, UNLESS, by lawful order or warrant of arrest and NOT a Writ of Habeas
process of a court having jurisdiction over the Corpus. (Ilagan v. Enrile, 139 SCRA 349,
cause or offense. G.R. No. 70748, 1985)

Those who recommits or imprisons or causes to Posting of bail is NOT a bar for the accused to
be committed or imprisoned for the same challenge the validity of his arrest. (Rule 114,
offense any person set at liberty, shall FORFEIT Section 26)
the sum of one thousand pesos (P1000) AND
MAY also be punished for CONTEMPT. (Rule 5. WHEN WRIT DISALLOWED/
102, Section 17)
DISCHARGED
3. DISTINGUISH PEREMPTORY The Writ Is Not Allowed When
WRIT FROM PRELIMINARY 1. Person is in custody of an officer
CITATION a) Under process issued by a court or judge;
or
PEREMPTORY WRIT b) By virtue of a judgment; or
Issued if the cause of the detention appears to c) By virtue of an order of the court;
be patently illegal. Noncompliance with this is AND that the court or judge HAD
punishable. JURISDICTION to issue the process, render
the judgment or make the order.
PRELIMINARY CITATION 2. Jurisdiction appears after writ is allowed
If the person is detained under governmental 3. Person is charged with or convicted of an
authority and the illegality of his detention is not offense in the Philippines
patent from the petition for the writ, the court 4. Person is suffering imprisonment under
issues the citation to the government officer lawful judgment (Rule 102, Section 4)
having custody to show cause why the habeas
corpus writ should not issue. 6. DISTINGUISH FROM WRIT OF
AMPARO AND HABEAS DATA
4. WHEN NOT
PROPER/APPLICABLE Note: See Annex A for comparison of Habeas
Data, Writ of Amparo and Writ of Habeas
Instances When the Writ of Habeas Corpus Is Corpus
NOT Proper
7. RULES ON CUSTODY OF
1. For asserting or vindicating denial of right to MINORS AND WRIT OF HABEAS
bail (Galvez v. CA, 237 SCRA 685, G.R. No. CORPUS IN RELATION TO
114046, 1994);
CUSTODY OF MINORS
2. For correcting errors in appreciation of facts (A.M. NO. 03-04-04-SC)
or appreciation of law – where the trial court
had no jurisdiction over the cause, over the Where Filed
person of the accused, and to impose the The Family Court has exclusive original
penalty provided for by law, the mistake jurisdiction to hear petitions for custody of
committed by the trial court, in the minors and the issuance of the writ of habeas
appreciation of the facts and/or in the corpus in relation to custody of minors. The
appreciation of the law cannot be corrected petition for custody of minors shall be filed with
by habeas corpus (Sotto v. Director of the Family Court of the province or city where
Prisons, G.R. No. L-18871, 1962); the petitioner resides or where the minor
may be found.

242
 separation proceedings. (Sec. 2, A.M. NO.
Such petition shall be enforceable only within 03-04-04-SC)
the judicial region to which the Family Court
belongs. (Sec. 3, A.M. NO. 03-04-04-SC) Motion to Dismiss
A motion to dismiss the petition is NOT allowed
The petition may also be filed with the CA or the EXCEPT on the ground of lack of jurisdiction
Supreme Court and such petition shall be over the subject matter or over the parties. Any
enforceable anywhere within the Philippines. other ground that might warrant the dismissal of
(Sec. 20, A.M. NO. 03-04-04-SC) the petition shall be raised as an affirmative
defense in the answer. (Sec. 6, A.M. NO. 03-04-
The Court is tasked with the duty of 04-SC)
promulgating special rules or procedure for the
disposition of family cases with the best Case Study Report
interests of the minor as primary consideration, Upon the filing of the verified answer of the
taking into account the United Nations expiration of the period to file it, the court may
Convention on the Rights of the Child. It should order a social worker to make a case study of
be clarified that the writ is issued by the the minor and the parties and to submit a report
Family Court only in relation to custody of and recommendation to the court at least three
minors. An ordinary petition for habeas corpus (3) days before the scheduled pre-trial. (Sec. 8,
should be filed in the regular Court. The issue of A.M. NO. 03-04-04-SC)
child custody may be tackled by the Family
Court without need of a separate petition for Pre-trial is MANDATORY. (Sec. 9, A.M. NO. 03-
custody being filed. (Sec. 20, A.M. NO. 03-04- 04-04-SC)
04-SC)
PROVISIONAL ORDER Awarding Custody
Requisites After and answer has been filed or the expiration
1. That the petitioner has the right of custody of the period to file it, the court may issue a
over the minor; provisional order awarding the custody of the
2. That the rightful custody of the minor is being minor.
withheld from the petitioner by respondent;
and The following order of preference shall be
3. That it is to the best interest of the minor observed as far as practicable:
concerned to be in the custody of petitioner 1. Both parents jointly;
and not that of the respondent. (Sombong v. 2. Either parent, taking into account all relevant
CA, G.R. No. 111876, 1996) considerations especially the choice of the
minor over seven (7) years of age and of
The mother who has custody of the child cannot sufficient discernment, unless parent chosen
refuse to present the child to the court after the is unfit;
issuance of the writ on the basis of the child of 3. The grandparent, if there are several, then
tender years doctrine. It is not legal basis to the grandparent chosen by the minor over
deprive the father of custody. Also, Such petition seven (7) years of age and of sufficient
did not grant custody to the father but merely discernment, unless grandparent chosen is
required the mother to bring the child to court to unfit or disqualified;
determine custody. (Salientes v. Abanilla, GR 4. The eldest brother or sister over twenty-one
No. 162734, 2006) (21) years of age, unless he or she is unfit or
disqualified
In cases involving minors, the purpose of a 5. The actual custodian of the minor over
petition for habeas corpus is not limited to the twenty-one (21) years of age, unless the
production of the child before the court. The former is unfit or disqualified; or
main purpose of the petition for habeas corpus 6. Any other person or institution the court may
is to determine who has the rightful custody over deem suitable to provide proper care and
the child. Therefore, mere production of the guidance for the minor. (Sec. 13, A.M. NO.
body of the child does not moot the petition for 03-04-04-SC)
habeas corpus if custody has not yet been
decided. (Bagtas v. Hon. Santos, GR No. Under Section 1, Rule 102 , the writ of habeas
166682, 2009) corpus is available, not only in cases of illegal
confinement or detention by which any person is
Who May File deprived of his liberty, but also in cases
The Committee chose the phrase ―any person involving the rightful custody over a minor.
claiming custody‖ as it is broad enough to cover
the following: The general rule is that parents should have
1. The unlawful deprivation of the custody of a custody over their minor children. But the State
minor; or has the right to intervene where the parents,
2. Which parent shall have the care and rather than care for such children, treat them
custody of a minor, when such parent is in cruelly and abusively, impairing their growth
the midst of nullity, annulment or legal and well-being and leaving them emotional
scars that they carry throughout their lives

243
unless they are liberated from such parents and 10. EFFECT OF FILING OF A
properly counseled. (Vingson Yu v. Cabcaban, CRIMINAL ACTION
UDK No. 14817, 2014, A.M. NO. 03-04-04-SC)
11. CONSOLIDATION
Temporary Visitation Rights 12. INTERIM RELIEFS AVAILABLE
The court shall provide in its order awarding TO PETITIONER AND
provisional custody appropriate visitation rights RESPONDENT
to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or
13. QUANTUM OF PROOF IN
disqualified. (Sec. 15, A.M. NO. 03-04-04-SC) APPLICATION FOR ISSUANCE
OF WRIT OF AMPARO
Hold Departure Order
The minor child subject of the petition shall NOT 1. COVERAGE
be brought out of the country without prior order
from the court while the petition is pending. The
court motu propio OR upon application under Remedy available to those whose right to life,
oath may issue EX PARTE a hold departure liberty and security is violated or threatened
order addressed to the Bureau of Immigration with violation by an unlawful act or omission of a
and Deportation of the Department of Justice a public official or employee or a private
copy of the hold departure order within 24 hours individual or entity. It covers extra-legal killings
from its issuance and through the fastest and enforced disappearances or threats thereof.
available means of transmittal (Sec 16, A.M. (Sec. 1, A.M. No. 07-9-12-SC)
NO. 03-04-04-SC).
The writ of amparo does not cover impairment of
Appeal the right to travel. For it to be granted, petitioner
Notice of Appeal within fifteen (15) days from must show that his right to travel was curtailed
notice of denial of motion for reconsideration or to such an extent as to threaten his right to life,
new trial. liberty and security for which there is no readily
available recourse or remedy. (Reyes v. CA, G.
No appeal shall be allowed UNLESS a motion R. No. 182161, 2009)
for reconsideration or new trial is filed. (Sec. 19,
A.M. NO. 03-04-04-SC) EXTRA-LEGAL KILLINGS
Killings committed without due process of law
Confidentiality of the Proceedings (i.e. without legal safeguards or judicial
The hearings on custody of minors may, at the proceedings).
discretion of the court, be closed to the public
and the records of the case shall not be ENFORCED DISAPPEARANCES
released to non-parties without its approval Attended by the following circumstances:
(Sec. 21, A.M. NO. 03-04-04-SC) 1. Arrest/detention/abduction of a person by a
government official or organized groups or
private individuals acting with the in/direct
END OF TOPIC
acquiescence of the State;
2. Carried out by or with the authorization,
support or acquiescence of the State or a
political organization;
N. WRIT OF AMPARO 3. Refusal of the State to disclose the fate or
whereabouts of the person concerned, or
(A.M. NO. 07-9-12-SC) refusal to acknowledge the deprivation of
liberty, which places such persons outside
the protection of the law.
4. Intention is to remove the person from the
1. COVERAGE protection of law for a prolonged period of
2. DISTINGUISH FROM HABEAS time. (Navia v. Paradico, G.R. No. 18446,
CORPUS AND HABEAS DATA 2012)
3. DIFFERENCES BETWEEN
It is not a writ to protect concerns that are purely
AMPARO AND SEARCH property or commercial. Neither is it a writ that
WARRANT shall issue on amorphous and uncertain
4. WHO MAY FILE grounds. (Spouses Pador v. Arcayan, G.R. no.
5. CONTENTS OF RETURN 183460, 2013)
6. EFFECTS OF FAILURE TO FILE
Distinguish privilege of the Writ of Amparo
RETURN
from Actual Order called Amparo
7. OMNIBUS WAIVER RULE The privilege of the Writ of Amparo should be
8. PROCEDURE FOR HEARING distinguished from the actual order called the
9. INSTITUTION OF SEPARATE Writ of Amparo. The privilege includes availment
ACTION of the entire procedure outlined in A.M. No. 07-

244
9-12-SC, the Rule on the Writ of Amparo. (Sec. Instead, the amparo production order may be
De Lima v. Gatdula, G.R. no. 204528, 2013) likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
The writ of amparo was conceived to provide Procedure. (The Secretary of National Defense
expeditious and effective procedural relief v. Manalo, G.R. No. 180906, 2008)
against violations or threats of violation of the
basic rights to life, liberty, and security of 4. WHO MAY FILE
persons; the corresponding amparo suit,
however, is not an action to determine criminal The Petition Filed By
guilt requiring proof beyond reasonable doubt or
1. Aggrieved Party; or
administrative liability requiring substantial
2. Any qualified person or entity in the following
evidence that will require full and exhaustive
order:
proceedings. (The Secretary of National
a) Any member of the immediate family
Defense v. Manalo, G.R. No. 180906, 2008)
b) Any ascendant, descendant or collateral
relative of the aggrieved within the fourth
th
2. DISTINGUISH FROM HABEAS (4 ) civil degree of consanguinity or
CORPUS AND HABEAS DATA affinity
c) Any concerned citizen, organization,
Note: See Annex A for the comparison of association or institution
Habeas Corpus, Habeas Data and Writ of
Filing by the aggrieved OR representative
Amparo
suspends the right of all others. (Sec. 2, A.M.
No. 07-9-12-SC)
Does non-appearance of the petitioner affect
the validity of a writ of habeas data? WHERE TO FILE
No. That petitioner did not appear in the Where Filed
proceedings at such stage (SC) for fear of 1. Regional Trial Court - of the place where the
reprisals does not affect the validity of the writ threat, act or omission was committed OR
granted by the CA. (In the Matter of the Petition any of its elements occurred; or
for the Writ of Amparo and Habeas Data in 2. Sandiganbayan; or
Favor of Noriel Rodriguez, 696 SCRA 390, 3. Court of Appeals; or
2013) 4. Supreme Court.
Examples on instances when a writ of When issued by the REGIONAL TRIAL COURT,
habeas data may issue the writ shall be returnable to such court or
In the case of Noriel Rodriguez, three separate judge.
acts were committed by the respondents which
justify the issuance by the CA of the Writ of
When issued by the Sandiganbayan or the
Amparo. First is the taking videos of the photos
Court of Appeals, the writ shall be returnable
of petitioner‘s relatives hung on the wall of the
before such court or judge, or to the Regional
house, and the innermost portions of the house.
Trial Court of the place where the threat, act or
There is no reasonable justification for doing
omission was committed or any of its elements
this. Second is the abduction and torture of the
occurred.
petitioner by the respondents. Third, the failure
to conduct a fair and effective investigation
When issued by the Supreme Court, the writ
similarly amounted to a violation of, or threat to
shall be returnable before such court or judge,
Rodriguez‘s rights to life, liberty, and security.
(In the Matter of the Petition for the Writ of the Court of Appeals, the Sandiganbayan, or the
Regional Trial Court of the place where the
Amparo and Habeas Data in Favor of Noriel
Rodriguez696 SCRA 390, 2013) threat, act or omission was committed or any of
its elements occurred.

3. DIFFERENCES BETWEEN The writ shall be enforceable ANYWHERE in

AMPARO AND SEARCH the Philippines. (Sec. 3, A.M. No. 07-9-12-SC)
WARRANT
NO docket fees shall be paid. (Sec. 4, A.M. No.
07-9-12-SC)
The production order under the Amparo Rule
should not be confused with a search warrant Issuance of the Writ
for law enforcement under Article III, Section 2 Upon the filing of the petition, the court, justice
of the 1987 Constitution. This Constitutional or judge shall immediately order the issuance of
provision is a protection of the people from the the writ if on its face it ought to issue. (Sec. 6,
unreasonable intrusion of the government, not a A.M. No. 07-9-12-SC)
protection of the government from the demand
of the people such as respondents.
5. CONTENTS OF RETURN

245
 working days from the date of notice of the
Within five (5) working days after service of the adverse judgment. Appeal shall be given the
writ, the respondent shall file a verified written SAME priority as Habeas Corpus cases. (Sec.
return together with supporting affidavits. 19, A.M. No. 07-9-12-SC)
(Pursuant to an amendment made on Oct. 16,
2007 in A.M. No. 07-9-12) Archival of Cases
The court shall not dismiss the petition, but shall
The Return Shall Contain: archive it, if upon its determination it cannot
1. Lawful defenses; proceed for a valid cause such as the failure of
2. The steps or actions taken to determine the petitioner or witnesses to appear due to threats
fate or whereabouts of the aggrieved party; on their lives. (Sec. 20, A.M. No. 07-9-12-SC)
3. All relevant information in the possession of
the respondent pertaining to the threat, act or 9. INSTITUTION OF SEPARATE
omission against the aggrieved party; and
4. If the respondent is a public official or
ACTION
employee, the return shall further state acts:
a) To verify identity of aggrieved party This Rule shall NOT preclude the filing of
b) To recover and preserve evidence separate criminal, civil or administrative
c) To identify and collect witness statements actions. (Sec. 21, A.M. No. 07-9-12-SC)
d) To determine cause, manner, location,
and time of death or disappearance It would be inappropriate to apply to amparo
e) To identify and apprehend persons proceedings the doctrine of command
involved responsibility as a form of criminal complicity
f) Bring suspected offenders before a through omission, for individual respondents‘
competent court (Sec. 9, A.M. No. 07-9- criminal liability, if there be any, is beyond the
12-SC) reach of amparo. In other words, the Court
does not rule in such proceedings on any
issue of criminal culpability, even if incidentally
6. EFFECTS OF FAILURE TO FILE a crime or an infraction of an administrative
RETURN rule may have been committed. (Rubrico v.
Macapagal-Arroyo, G.R. No. 183871, 2010)
The Court or justice shall proceed to hear the
petition ex parte. (Sec. 12, A.M. No. 07-9-12-
SC)
10. EFFECT OF FILING A CRIMINAL
ACTION
7. OMNIBUS WAIVER RULE
A separate petition for the Writ of Amparo
CANNOT be filed, but the remedies available
All defenses shall be raised in the return, under the WRIT may be availed BY MOTION in
otherwise, they shall be deemed waived. (Sec. the criminal action. (Sec. 22, A.M. No. 07-9-12-
10, A.M. No. 07-9-12-SC) SC)

8. PROCEDURE FOR HEARING 11. CONSOLIDATION

The hearing shall be SUMMARY in nature. When a criminal action is filed subsequent to the
However, the court, justice, or judge MAY call filing of a petition for the Writ, the latter shall be
for a preliminary conference to simplify the consolidated with the criminal action.
issues and look at possibility of obtaining
stipulations and admissions from the parties. When a criminal action and a separate civil
Hearing shall be from day to day until
action are filed subsequent to a petition for a
completed; same priority as petitions for writ of
habeas corpus. (Sec. 13, A.M. No. 07-9-12-SC) Writ of Amparo, the latter shall be consolidated
with the criminal action. After consolidation, the
procedure under this Rule shall continue to
Hearing shall be set NOT LATER than seven (7)
days from the issuance of the writ. apply to the disposition of the reliefs in the
petition. (Sec. 23, A.M. No. 07-9-12-SC)
Judgment
The court shall render judgment within ten (10)
12. INTERIM RELIEFS AVAILABLE
days from the time the petition is submitted for TO PETITIONER AND
decision. (Sec. 6, A.M. No. 07-9-12-SC) RESPONDENT
Appeal Upon Filing of the Petition OR Anytime
Any party may appeal from the final judgment or Before Final Judgment, the Court May Grant
order to the Supreme Court under Rule 45. The Any of the Following Reliefs to PETITIONER
appeal may raise questions of fact or law or 1. Temporary protection order – the court,
both. The period of appeal shall be five (5)
UPON MOTION or MOTU PROPRIO, may

246
 order that the petitioner or the aggrieved
party and any member of the immediate O. WRIT OF HABEAS DATA
family be protected in a government agency (A.M. NO. 08-1-16-SC)
or by an accredited person or private
institution capable of keeping and securing
their safety.
2. Inspection order: the court, UPON MOTION 1. SCOPE OF WRIT
AND HEARING, may order any person in 2. AVAILABILITY OF WRIT
possession or control of a designated
property to permit entry for inspecting
3. DISTINGUISH FROM HABEAS
relevant objects/operations/ property. CORPUS AND AMPARO
3. Production order: the court, UPON 4. WHO MAY FILE
MOTION AND HEARING, may order any 5. CONTENTS OF THE PETITION
person to produce and permit inspection of 6. CONTENTS OF RETURN
documentary or object evidence (i.e.
documents, papers, accounts, etc.) 7. INSTANCES WHEN PETITION BE
4. Witness protection order - The court, HEARD IN CHAMBERS
justice or judge, UPON MOTION or MOTU 8. CONSOLIDATION
PROPRIO, may refer the witnesses to the 9. EFFECT OF FILING OF A
Department of Justice for admission to the
Witness Protection, Security and Benefit
CRIMINAL ACTION
Program, pursuant to Republic Act No. 6981. 10. INSTITUTION OF SEPARATE
(Sec. 14, A.M. No. 07-9-12-SC) ACTION
11. QUANTUM OF PROOF IN
Availability of Interim Reliefs to APPLICATION FOR ISSUANCE
RESPONDENT:
OF WRIT OF HABEAS DATA
Upon verified motion of the respondent and after
due hearing, the court, justice or judge may
issue an inspection order or production order. 1. SCOPE AND AVAILABILITY OF
(Sec. 15, A.M. No. 07-9-12-SC) WRIT

13. QUANTUM OF PROOF IN The Writ of Habeas Data is a remedy available

APPLICATION FOR ISSUANCE to any person whose right to privacy in life,
liberty or security is violated or threatened by
OF WRIT OF AMPARO an unlawful act or omission of a public official or
employee, or of a private individual or entity
Quantum of Proof in Application for Issuance engaged in the gathering, collecting or storing of
of Writ of Amparo: data or information regarding the person, family,
1. Establish claims by substantial evidence home and correspondence of the aggrieved
2. If respondent is a private individual or entity, party. (Sec. 1, A.M. No. 08-1-16-SC)
he must prove that ordinary diligence was
observed in the performance of duty It also involves the right to privacy in life, liberty
3. If public official or employee, he must prove or security of the aggrieved party and covers
that extraordinary diligence was observed in extralegal killings and enforced disappearances.
the performance of duty. (Sec. 17, A.M. No. (Sec. 2, A.M. No. 08-1-16-SC)
07-9-12-SC)
2. DISTINGUISH FROM HABEAS
Totality of evidence
The fair and proper rule is to consider all the
CORPUS AND AMPARO
pieces of evidence adduced in their totality,
and to consider any evidence otherwise Note: See Annex A for the comparison of
inadmissible under our usual rules to be Habeas Corpus, Habeas Data and Writ of
admissible if it is consistent with the admissible Amparo
evidence adduced. In other words, we reduce
our rules to the most basic test of reason— WHO MAY FILE
i.e., to the relevance of the evidence to the
issue at hand and its consistency with all Any aggrieved party may file a petition for the
other pieces of adduced evidence. Thus, Writ of Habeas Data. (Sec. 2, A.M. No. 08-1-16-
even hearsay evidence can be admitted if it SC)
satisfies this basic minimum test. (Rodriguez v.
Macapagal-Arroyo, G.R. no. 191805, 2013) In Cases Of Extra-legal Killings And
Enforced Disappearances, The Petition
END OF TOPIC May Be Filed By (In Order of Preference):
1. Any member of the immediate family of the
aggrieved; or in default thereof,

247
2. Any ascendant, descendant or collateral The Clerk of Court shall cause it to be SERVED
relative of the aggrieved party within the within three (3) days from the issuance.
th
fourth (4 ) civil degree of consanguinity or
affinity. (Sec. 2, A.M. No. 08-1-16-SC) The Writ shall set the date and time for
SUMMARY HEARING which shall NOT be later
than ten (10) work days from the date of its
Where Filed issuance. (Sec. 7, A.M. No. 08-1-16-SC)
1. Regional Trial Court - of the place where
petitioner or respondent resides, or that 4. CONTENTS OF RETURN
which has jurisdiction over the place where
the data or information is gathered,
collected or stored at the option of the The respondent shall file a verified written return
petitioner; or together with supporting affidavits within five (5)
2. Supreme Court; or working days from service of the writ. This
3. Court of Appeals; or period MAY be extended by the court for
4. Sandiganbayan – when the action concerns justifiable reasons.
public data files of government offices (Sec.
3, A.M. No. 08-1-16-SC) The Return Shall Contain The Following:
1. Lawful defenses such as national security,
When issued by the REGIONAL TRIAL COURT, state secrets, privileged communications,
the writ shall be returnable to such court or confidentiality of the source of information of
judge. media and others;
2. In case of respondent in charge, in
When issued by the Sandiganbayan or the possession or in control of the data or
Court of Appeals, the writ shall be returnable information subject of the petition:
such court or justice, or to the Regional Trial a) A disclosure of the data or information
Court of the place where petitioner or about the petitioner, the nature of such
respondent resides, or that which has data or information, and the purpose for
jurisdiction over the place where the data or its collection
information is gathered, collected or stored. b) The steps or actions taken by the
respondent to ensure the security and
When issued by the Supreme Court, the writ confidentiality of the data or information
shall be returnable before such court or judge, c) The currency and accuracy of the data or
the Court of Appeals, the Sandiganbayan, or the information held; and
Regional Trial Court of the place where 3. Other allegations relevant to the resolution of
petitioner or respondent resides, or that which the proceeding (Sec. 10, A.M. No. 08-1-16-
has jurisdiction over the place where the data or SC)
information is gathered, collected or stored
PROCEDURE FOR HEARING
The writ shall be enforceable ANYWHERE in
the Philippines. (Sec. 4, A.M. No. 08-1-16-SC) The hearing shall be SUMMARY in nature.
However, the court, justice, or judge MAY call
No docket fees shall be paid by the indigent for a preliminary conference to simplify the
petitioner. (Sec. 5, A.M. No. 08-1-16-SC) issues and look at possibility of obtaining
stipulations and admissions from the parties.
(Sec. 15, A.M. No. 08-1-16-SC)
3. CONTENTS OF THE PETITION
Judgment
Verified And Written Petition Shall Contain: The court shall render judgment within ten (10)
1. Personal circumstances of petitioner and days from the time the petition is submitted for
respondent; decision.
2. Manner the right to privacy is violated or
threatened and its effects; Upon finality, the judgment shall be enforced by
3. Actions and recourses taken by the petitioner the sheriff or any lawful officer within five (5)
to secure the data or information; working days. (Sec. 16, A.M. No. 08-1-16-SC)
4. The location of files, registers, or databases,
the government office, and the person in Appeal
charge or control; Any party may appeal from the final judgment or
5. The reliefs prayed for; order to the Supreme Court under Rule 45. The
6. Such other relevant reliefs as are just and appeal may raise questions of fact or law or
equitable. (Sec. 6, A.M. No. 08-1-16-SC) both. The period of appeal shall be five (5)
working days from the date of notice of the
Issuance of the Writ adverse judgment or final order. Appeal shall be
Upon FILING of the petition, the court shall given the SAME priority as Habeas Corpus and
immediately order the issuance of the writ if on Amparo cases. (Sec. 19, A.M. No. 08-1-16-SC)
its face it ought to issue.

248
5. INSTANCES WHEN PETITION IS
HEARD IN THE CHAMBERS 1. DIFFERENCES UNDER RULE
103, R.A. 9048 AND RULE 108
A hearing in chambers may be conducted where
the respondent invokes the defense that the
release of the data or information in question
shall compromise national security or state
secrets, or when the data or information cannot
be divulged to the public due to its nature or
privileged character. (Sec. 12, A.M. No. 08-1-16-
SC)

6. CONSOLIDATION

When a criminal action is filed subsequent to the

filing of a petition for the writ, the latter shall be
consolidated with the criminal action.

When a criminal action and a separate civil

action are filed subsequent to a petition for a
Writ of Habeas Data, the latter shall be
consolidated with the criminal action. After
consolidation, the procedure under this Rule
shall continue to govern the disposition of the
reliefs in the petition.

7. EFFECT OF FILING A CRIMINAL

ACTION

When a criminal action has been commenced,

no separate petition for the writ shall be filed.
The relief under the writ shall be available to an
aggrieved party by motion in the criminal case.
(Sec. 22, A.M. No. 08-1-16-SC)

8. INSTITUTION OF SEPARATE
ACTION

The filing of a petition for the Writ of Habeas

Data shall NOT preclude the filing of separate
criminal, civil or administrative actions. (Sec. 20)

9. QUANTUM OF PROOF IN
APPLICATION FOR ISSUANCE
OF WRIT OF HABEAS DATA

SUBSTANTIAL evidence required to prove the

allegations in the petition. (Sec. 16, A.M. No. 08-
1-16-SC)

END OF TOPIC

P. CHANGE OF NAME

1. Differences under Rule 103, R.A.

9048 and Rule 108
2. Grounds for change of name

249
 CHANGE OF CANCELLATION OR REPUBLIC ACT 9048
NAME CORRECTION OF
(RULE 103 ENTRIES IN THE CIVIL
REGISTRY (RULE 108)
RTC of the RTC of the province where the civil Local civil registry office of the city
province where he registry is located or municipality where the record
resides, or in the being sought to be corrected or
City of Manila, to changed is kept; if impractical, it
the Juvenile and can be in the local civil registrar
Venue Domestic where the party is presently
Relations Court residing or domiciled

Substantial Substantial changes and Clerical or typographical error in

changes in the corrections of entries in the civil an entry and/or change of first
name of a register (Regalado, p. 220) as to: name or nickname
person (a) birth;
(Regalado, (b) marriages;
Vol. II, p. 190) (c) deaths;
(d) legal separation;
(e) judgment of annulment of
marriage;
(f) judgments declaring marriages
void from the beginning;
(g) legitimation
(h) adoptions;
Entries (i) acknowledgements of natural
subject to children;
change or (j) naturalization;
(k) election, loss recovery of
correction citizenship;
(l) civil interdiction;
(m) judicial determination of
filiation;
(n) voluntary emancipation of a
minor; and
(o) changes of name

Petition signed and Verified petition Verified petition (form of an

verified affidavit, subscribed and sworn to
before any person authorized by
Petition law to administer oaths)

To whom RTC judge RTC judge City or municipal civil registrar or

petition is consul general
presented

250
 Copy of the order Notice of hearing given to persons Petition posted in conspicuous
for hearing shall be named in the petition and published place provided for that purpose for
published once a once a week for three (3) 10 consecutive days
week for three (3) consecutive weeks in a newspaper
successive weeks of general circulation in the
in some province
newspaper of
Notice and general circulation
publication published in the
province

Any interested Civil registrar or any interested

person may person may file his opposition
appear at the within 15 days from notice of
Opposition hearing and petition, or from last date of
oppose the petition publication

251
VENUE the petition are true, the court shall adjudge that the
Petition shall be filed in the Regional Trial Court of name be changed. (Rule 103, Section 5)
the province where petitioner has been residing for
at least three (3) years prior to the date of such A procedure for correction of entries can be
filing. availed of to change the status from married to
single. Rule 108 cannot be availed of to determine
CONTENTS OF PETITION the validity of marriage, but the court cannot nullify
The Petition Shall be Signed AND Verified by the proceedings before the trial court where all the
1. Person desiring his name changed; or parties had been given the opportunity to contest
2. Some other person on his behalf. (Rule 103, the allegations of respondent; the procedures were
Section 2) followed, and all the evidence of the parties had
already been admitted and examined. If applicant
It Shall Contain The Following indeed sought, not the nullification of marriage as
1. That the petitioner has been a bona fide resident there was no marriage to speak of, but the
of the province where the petition is filed for at correction of the record of such marriage to reflect
least three (3) years prior to the date of such the truth as set forth by the evidence. Otherwise
filing; stated, in allowing the correction of the subject
2. The cause for which the change of the certificate of marriage by cancelling the wife portion
petitioner's name is sought; thereof, the trial court did not, in any way, declare
3. The name asked for. (Rule 103, Section 2) the marriage void as there was no marriage to
speak of. (Republic v. Olaybar, G.R. No. 189538,
2014)
2. GROUNDS FOR CHANGE OF
NAME END OF TOPIC

Grounds for Change of Name

1. When the name is ridiculous, dishonorable, or
extremely difficult to write/pronounce.
2. Consequence of a change in status (e.g. Q. ABSENTEES
legitimation).
3. To avoid confusion.
4. Having continuously used and been known
since childhood by a Filipino name, unaware of 1. PURPOSE OF THE RULE
his/her alien parentage. 2. WHO MAY FILE; WHEN TO FILE
5. A sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith ABSENTEES
and without prejudicing anybody. (Republic v.
Coseteng-Magpayo, GR No. G.R. No. 189476,
2011) 1. PURPOSE OF THE RULE

PROCEDURE FOR CHANGE OF NAME The declaration of absence made according to Civil
Code has the sole purpose of enabling the taking of
Order for Hearing necessary precautions for the administration of the
If the verified petition is sufficient in substance and absentee‘s estate. It also aims to have the court
form, the court shall fix a date and place for a appoint the present spouse as administrator or
HEARING by way of an order. administratrix of the absent spouse‘s properties, or
for the separation of properties of the spouses.
The ORDER shall be published for three (3)
successive weeks in some newspaper of general Rule 107 is proper only where the absentee has
circulation published in the province. (Rule 103, properties to be administered. (Jones v. Hortiguela,
Sec. 3) G.R. No. L-43701, 1937; IN RE: Declaration of
Absence of Robert Reyes, G.R. No. L-32026, 1986)
Hearing
The date of the hearing shall NOT be within thirty APPOINTMENT OF REPRESENTATIVE
(30) days prior to an election nor within four (4)
months after the LAST publication of notice. (Rule A Petition for the Appointment of a
103, Section 3) Representative May be Filed When
1. A person disappears from his domicile, his
Opposition whereabouts being unknown, and without
ANY interested person may oppose. The Solicitor having left an agent to administer his property;
General or the proper fiscal SHALL appear on or
behalf of the Government. (Rule 103, Section 4) 2. There exists an agent for the absentee but his
power has expired. (Rule 107, Section 1)
Judgment
Upon satisfactory proof of compliance with the Where Filed
publication requirement and that the allegations of

252
In the Regional Trial Court of the place where the
ABSENTEE resided before his disappearance. If the absentee left no spouse, or if the spouse
(Rule 107, Section 1) present is a minor or otherwise incompetent, ANY
COMPETENT person may be appointed by the
court. (Rule 107, Section 7)
2. WHO MAY FILE; WHEN TO FILE
TERMINATION OF ADMINISTRATION
Who May Petition for a Declaration of Absence
and Appointment of Administrator? Administration of the Property of the Absentee Shall
1. Spouse present; Cease UPON ORDER in the Following Cases
2. Heirs instituted in a will; 1. When the absentee appears personally or by
3. Relatives who will succeed by intestacy; means of an agent;
4. Those who have some right subordinated to the 2. When the death of the absentee is proved and
condition of his death over the absentee‘s his testate or intestate heirs appear;
property. (Rule 107, Sec. 2) 3. When a third person appears, showing by a
proper document that he has acquired the
Note: Declaration of absence is different from a absentee's property by purchase or other title.
petition for the declaration of presumptive death of (Rule 107, Section 8)
an absentee spouse. The latter is a summary
proceeding, not a special proceeding. (Republic v. END OF TOPIC
CA, G.R. No. 163604, 2005)

When to Petition (based on Section 2, Rule 107

of the Rules of Court and Art. 384 of the Civil
Code) R. CANCELLATION OR
1. After two (2) years:
a) From the disappearance and without any
CORRECTION OF ENTRIES IN
news about the absentee; or THE CIVIL REGISTRY
b) Since the receipt of the last news about him; (Rule 108)
2. After five (5) years, if he left an administrator of
his property. (Rule 107, Section 2)

HEARING
1. ENTRIES SUBJECT TO
Copies of the notice of the time and place fixed for CANCELLATION OR CORRECTION
hearing shall be SERVED upon the known heirs,
legatees, devisees, creditors and other interested UNDER RULE 108, IN RELATION TO
persons at least ten (10) days BEFORE the day of R.A. 9048
the hearing. 2. GROUNDS FOR CHANGE OF NAME
The notice shall be PUBLISHED once a week for FILING OF PETITION
three (3) consecutive weeks prior to the time
designated for the hearing in a newspaper of Who May File
general circulation in the province/city where the ANY person interested in any act, event, order or
absentee resides. (Rule 107, Section 4)
decree concerning the CIVIL STATUS of persons
which had been recorded in the civil register MAY
These requisites MUST be complied with, and such file a VERIFIED PETITION for the cancellation or
compliance must be shown at the hearing before correction of any entry relating thereto. (Rule 108,
the court shall decide on the same. (Rule 107,
Section 1)
Section 6)
Where Filed
Opposition
The petition shall be filed with the REGIONAL
ANYONE may file a written opposition with the TRIAL COURT of the province where the
grounds stated therein. It must be served on the corresponding civil registry is located. (Rule 108,
petitioner on or before the date of the hearing. (Rule
Section 1)
107, Section 5)

Effectivity of Declaration 1. ENTRIES SUBJECT TO

In case of declaration of absence, it shall NOT take CANCELLATION OR CORRECTION
effect until six (6) months AFTER its publication in a UNDER RULE 108, IN RELATION
newspaper of general circulation. (Rule 107,
Section 6)
TO R.A. 9408

WHO MAY BE APPOINTED Upon Good and Valid grounds, the Following
Entries in the Civil register May be Cancelled or
The SPOUSE PRESENT shall be preferred when Corrected
there is no legal separation. Births;

253
Marriage; END OF TOPIC
Deaths;
Legal separations;
Judgments of annulments of marriage;
Judgments declaring marriages void from the
beginning; S. APPEALS IN SPECIAL
Legitimations; PROCEEDINGS
Adoptions;
Acknowledgments of natural children;
Naturalization;
Election, loss or recovery of citizenship; 1. JUDGMENTS AND ORDERS FOR
Civil interdiction; WHICH APPEAL MAY BE TAKEN
Judicial determination of filiation;
Voluntary emancipation of a minor; and 2. WHEN TO APPEAL
Changes of name. (Rule 108, Section 2) 3. MODES OF APPEAL
4. RULE ON ADVANCE DISTRIBUTION
PROCEDURE FOR CANCELLATION OR
CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
1. JUDGMENTS AND ORDERS FOR
WHICH APPEAL MAY BE TAKEN
Parties to the Proceeding
The Civil Registrar AND all interested persons shall ANY interested person may appeal in special
be made parties to the proceeding. (Rule 108, proceedings when such order or judgment
Section 3) 1. Allows or disallows a will;
2. Determines who are the lawful heirs of a
Notice and Publication deceased person, or the distributive share of the
Persons named in the petition must be given estate to which such person is entitled;
NOTICE of the time and place set for hearing the 3. Allows or disallows, in whole or in part, any
petition. Such order must also be PUBLISHED once claim against the estate of a deceased person,
a week for three (3) consecutive weeks in a or any claim presented on behalf of the estate in
newspaper of general circulation in the province. offset to a claim against it;
(Rule 108, Section 4) 4. Settles the account of an executor,
administrator, trustee or guardian;
GR: Notice and publication is mandatory. 5. Constitutes, in proceedings relating to the
Exception: There is substantial compliance when settlement of the estate of a deceased person,
there is publication. It may be deemed sufficient or the administration of a trustee or guardian, a
notice that vests jurisdiction with the court because final determination in the lower court of the rights
an action to correct and cancel entries is an action of the party appealing, except that no appeal
in rem. (Republic v. Kho G.R. No. 170340, 2007) shall be allowed from the appointment of a
special administrator; and
Opposition 6. Is the final order or judgment rendered in the
The Civil Registrar AND any interested person MAY case, and affects the substantial rights of the
file his opposition within fifteen (15) days from person appealing unless it be an order granting
notice of the petition. (Rule 108, Section 5) or denying a motion for a new trial or for
reconsideration.
Judgment
After hearing, the court may dismiss the petition or 2. WHEN TO APPEAL
issue an order granting the cancellation or
correction of entry,
In special proceedings, the period of appeal is thirty
(30) days, a notice of appeal AND a record on
A certified copy of the judgment shall be served
appeal being required. The appeal period MAY BE
upon the Civil Registrar who shall ANNOTATE the
INTERRUPTED by the filing of a Motion for
same in his record. within fifteen (15) days from
Reconsideration/Motion New Trial. Once the appeal
notice of the petition. (Rule 108, Section 7)
period expires without an appeal/Motion for
Reconsideration/Motion New Trial, the order
In Republic v. Cagandahan, the court allowed
becomes final. (Testate Estate of Biascan v.
change of gender and name to conform to the
Biascan, G.R. No. 138731, 2000)
preference of the petitioner because he had a
biological condition known as congenital adrenal
hyperplasia that causes ambiguous genitalia and Appeal period in Habeas corpus,
male/female characteristics. In this situation, the habeas data, amparo –
determining factor in his gender classification would
Appeal Period
be what the individual, like respondent, having
reached the age of majority, with good reason
thinks of his/her sex. (Republic v. Cagandahan,
G.R. No. 166676, 2008)

254
 part of the estate as may NOT be affected by the
Habeas Corpus Habeas Data Writ of Amparo
controversy or appeal be distributed among the
heirs or legatees upon compliance with the
conditions set forth in Rule 90 of these rules. (Rule
48 hours/2 5 working days 5 working days 109, Section 2)
days from from the date of from the date of
notice of notice of notice of
judgment judgment or judgment or END OF TOPIC
appealed from. final order final order

However, note
that in Hui v.
Rodriguez,
G.R. No.
137571,
September 21,
2000, the Court
said that the
period for
appeal is 15
days.

3. MODES OF APPEAL

While under the concept in ordinary civil actions

some of the orders stated in Section 1 may be
considered interlocutory, the nature of special
proceedings declares them as appealable orders,
as exceptions to the provisions of Section, Rule 41.

1. Ordinary appeal – The appeal to the CA in

cases decided by the RTC in the exercise of its
original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered
the judgment or final order appealed from and
serving a copy thereof upon the adverse party.
No record on appeal shall be required except in
special proceedings and other cases of multiple
or separate appeals where the law or the Rules
so require. In such cases, the record on appeal
shall be filed and served in like manner.
2. Petition for review – The appeal to the CA in
cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
3. Petition for review on certiorari – in all cases
where only questions of law are raised or
involved, the appeal shall be to the SC by
petition for review on certiorari in accordance
with Rule 45.

4. RULE ON ADVANCE
DISTRIBUTION

Notwithstanding a pending controversy or appeal in

proceedings to settle the estate of a decedent, the
court may, in its discretion and upon such terms
as it may deem proper and just, permit that such

255
 4. Resolution of investigation
prosecutor
CRIMINAL PROCEDURE
5. Review
6. When warrant of arrest may
A. GENERAL MATTERS issue
1. Distinguish jurisdiction over 7. Cases not requiring a
subject matter from jurisdiction preliminary investigation
over person of the accused 8. Remedies of accused if there
2. Requisites for exercise of was no preliminary investigation
criminal jurisdiction 9. Inquest
3. Jurisdiction of criminal courts
4. When injunction may be issued E. ARREST
to restrain criminal prosecution 1. Arrest, how made
2. Arrest without warrant, when
B. PROSECUTION OF CRIMINAL lawful
OFFENSES 3. Method of arrest
1. Criminal actions, how instituted 4. Requisites of a valid warrant of
2. Who may file them, crimes that arrest
cannot be prosecuted de oficio a. By officer with warrant
3. Criminal actions, when enjoined b. By officer without warrant
4. Control of prosecution c. By Private person
5. Sufficiency of complaint or 5. Determination of probable cause
information for issuance of warrant of arrest
6. Designation of offense 6. Distinguish probable cause of
7. Cause of the accusation fiscal from that of a judge
8. Duplicity of the offense;
exception F. BAIL
9. Amendment or substitution of 1. Nature
complaint or information 2. When a matter of right;
10. Venue of criminal actions exceptions
11. Intervention of offended party 3. When a matter of discretion
4. Hearing of application for bail in
C. PROSECUTION OF CIVIL capital offenses
ACTION 5. Guidelines in fixing amount of
1. Rule on implied institution of bail
civil action with criminal action 6. Bail when not required
2. When civil action may proceed 7. Increase or reduction of bail
independently 8. Forfeiture and cancellation of
3. When separate civil action is bail
suspended 9. Application not a bar to
4. Effect of the death of accused or objections in illegal arrest, lack
convict on civil action of or irregular preliminary
5. Prejudicial question investigation
6. Rule on filing fees in civil action 10. Hold departure order & Bureau
deemed instituted with the of Immigration watch list
criminal action
G. RIGHTS OF THE ACCUSED
D. PRELIMINARY INVESTIGATION 1. Rights of the accused at the trial
1. Nature of right 2. Rights of persons under
2. Purposes of preliminary custodial investigation
investigation
3. Who may conduct determination H. ARRAIGNMENT AND PLEA
of existence of probable cause 1. Arraignment and plea, how
made

256
 2. When should plea of not guilty
be entered L. JUDGMENT
3. When may accused enter a plea 1. Requisites of a judgment
of guilty to a lesser offense 2. Contents of judgment
4. Accused plead guilty to capital 3. Promulgation of judgment;
offense, what the court should instances of promulgation of
do judgment in absentia
5. Searching inquiry 4. When does judgment become
6. Improvident plea final (four instances)
7. Grounds for suspension of
arraignment M. NEW TRIAL OR
RECONSIDERATION
I. MOTION TO QUASH 1. Grounds for new trial
1. Grounds 2. Grounds for reconsideration
2. Distinguish from demurrer to 3. Requisites before a new trial
evidence may be granted on ground of
3. Effects of sustaining the motion newly discovered evidence
to quash 4. Effects of granting a new trial or
4. Exception to the rule that reconsideration
sustaining the motion is not a 5. Application of Neypes doctrine
bar to another prosecution in criminal cases
5. Double jeopardy
6. Provisional dismissal
N. APPEAL
1. Effect of an appeal
J. PRE-TRIAL 2. Where to appeal
1. Matters to be considered during 3. How appeal taken
pre-trial 4. Effect of appeal by any of
2. What the court should do when several accused
prosecution and offended party 5. Grounds for dismissal of appeal
agree to the plea offered by the
accused O. SEARCH AND SEIZURE
3. Pre-trial agreement
1. Nature of search warrant
4. Non-appearance during pre-trial
2. Distinguish from warrant of
5. Pre-trial order
arrest
6. Referral of some cases for court
3. Application for search warrant,
annexed mediation and judicial
where filed
dispute resolution
4. Probable cause
5. Personal examination by judge
K. TRIAL of the applicant and witnesses
1. Instances when presence of 6. Particularity of place to be
accused is required by law searched and things to be
2. Requisite before trial can be seized
suspended on account of 7. Personal property to be seized
absence of witness 8. Exceptions to search warrant
3. Trial in absentia requirement
4. Remedy when accused is not a. Search incidental to lawful arrest
brought to trial within the b. Consented search
prescribed period c. Search of moving vehicle
d. Check points; body checks in
5. Requisites for discharge of airport
accused to become a state e. Plain view situation
witness f. Stop and frisk situation
6. Effects of discharge of accused g. Enforcement of custom laws
as state witness h. Remedies from unlawful search
and seizure
7. Demurrer to evidence

257
P. PROVISIONAL REMEDIES Whereas civil procedure is that branch of remedial
law concerned with civil rights and redress of
1. Nature private wrongs not amounting to crime.
2. Kinds of provisional remedies
CRIMINAL LAW CRIMINAL
PROCEDURE
A. GENERAL MATTERS Substantive Remedial or Procedural

1. DISTINGUISH JURISDICTION OVER It declares what acts are It provides how the act
SUBJECT MATTER FROM punishable is to be punished
JURISDICTION OVER PERSON OF It defines crimes, treats It provides for the
THE ACCUSED for their nature and method by which a
2. REQUISITES FOR EXERCISE OF provides for their person accused of a
punishment crime is arrested, tried,
CRIMINAL JURISDICTION and punished
a. Jurisdiction over the Subject Matter
b. Jurisdiction over the Territory
c. Jurisdiction over the person of the JURISDICTION – power or authority given by the
accused law to a court or tribunal to hear and determine
3. JURISDICTION OF CRIMINAL certain controversies. It is the power of courts to
COURTS hear and determine a controversy involving rights
a. Criminal Jurisdiction of the MTC and which are demandable.
RTC
i. Jurisdiction is based on violations CRIMINAL JURISDICTION – power of a State to
committed and penalty imposed. try and punish a person for a violation of its penal
ii. Jurisdiction where fine is the only laws. (People v. Mariano, G.R. No. L-40527, 1976)
penalty
iii. Jurisdiction over BP 22 Cases Liberal Construction of the rules of procedure
iv. Jurisdiction over Libel Cases The rules of criminal procedure shall be liberally
v. Jurisdiction over Dangerous Drugs construed in favor of the accused and strictly
Act Cases against the State to even the odds in favor of the
vi. Jurisdiction over Complex Crimes accused against whom the entire machinery of the
vii. Jurisdiction over Continuing State is mobilized. It is construed as a legal
Crimes safeguard in furtherance of the rights of the
viii. Jurisdiction over Crimes accused.
Punishable By Destierro
ix. Jurisdiction of Family Courts Retroactive effect of the Rules on Criminal
x. Jurisdiction in illegal recruitment Procedure
cases Rules of criminal procedure are given retroactive
xi. Jurisdiction in trafficking in application in so far they benefit the accused.
persons cases
b. Jurisdiction of the Sandiganbayan 1. JURISDICTION OVER SUBJECT
4. WHEN INJUNCTION MAY BE MATTER VS. JURISDICTION OVER
ISSUED TO RESTRAIN CRIMINAL THE PERSON OF THE ACCUSED
PROSECUTION
JURISDICTION OVER JURISDICTION OVER
SUBJECT MATTER THE PERSON OF THE
CRIMINAL PROCEDURE – it is the method ACCUSED
prescribed by law for the apprehension and
prosecution of persons accused of any criminal Derived from the law Acquired either by his
offense and for their punishment, in case of arrest or his voluntary
conviction. appearance in court.

It is a branch of remedial law concerned with the It can never be acquired May be acquired by
procedural steps through which a criminal case solely by consent of the consent of the accused
passes, commencing with the initial investigation of accused or by waiver of
a crime and concluding with the unconditional objections or failure to
release of the offender. It is the generic term used invoke the objection
to describe the network of laws and rules which
govern the procedural administration of criminal
justice.

258
Objection that the court If he fails to make his 3. Jurisdiction over the person of the accused –
has no jurisdiction over objection in time, he will The person charged with the offense must have
the subject matter may be deemed to have been brought to the court‘s presence for trial,
be made at any stage of waived it. forcibly by warrant of arrest or upon his voluntary
the proceeding and the submission to the court.
right to make such
objection is never General Rule: Lack of jurisdiction may be raised at
waived, even on appeal. any stage of the proceedings, in the trial court or on
appeal. (US v. de la Santa, G.R. No. L-3181, 1907)
Exception: Where there has been estoppel by
2. REQUISITES FOR EXERCISE OF laches on the party who raised the question
CRIMINAL JURISDICTION (Tijam v. Sibonghanoy, G.R. No. L-214530,
1968).
1. Jurisdiction over the Subject Matter – The The exception is only applicable in civil cases.
offense by virtue of the imposable penalty or its
nature is one which the court is by law authorized to
resolve. The operation of estoppel on the question of
jurisdiction seemingly depends on whether the
2. Jurisdiction over the Territory – The offense lower court actually had jurisdiction or not. If it had
must have been committed or any of its essential no jurisdiction, but the case was tried and decided
ingredients took place within the territorial upon the theory that it had jurisdiction, the parties
jurisdiction of the court. It cannot be waived as are not barred, on appeal, from assailing such
venue is jurisdictional. jurisdiction, for the same ―must exist as a matter of
Exception/s: law, and may not be conferred by the consent of the
a) Where the offense was committed under parties or by estoppel.‖
the exceptional circumstances provided for
in Article 2 of the Revised Penal Code However, if the lower court had jurisdiction, and the
b) In cases of piracy case was heard and decided upon a given theory,
c) Where an offense is committed on a such as for instance as the court had no jurisdiction,
railroad train, in an aircraft, or in any other the party who induced it to adopt such theory will
public or private vehicle while in the course not be permitted, on appeal, to assume an
of its trip, the criminal action may be inconsistent position that the lower court had
instituted and tried in the court of any jurisdiction. (Lozon v. NLRC, G.R. No. 107660,
municipality or territory where such train, 1995)
aircraft or other vehicle passed during
such trip, including the place of departure Determination of Criminal Jurisdiction (NPAL)
and arrival 1. Determined by the nature of the offense and/or
d) Where an offense is committed on board a penalty attached thereto and not what may be
vessel in the course of its voyage, the meted out after trial but by the extent of the
criminal action may be instituted and tried penalty which the law imposes for the offense.
in the proper court of the first port of entry It is the imposable penalty over the lower
or of any municipality or territory through penalty that might be adjudged. (People v.
which the vessel passed during such Purisima G.R. No. L-40902, 1976)
voyage subject to the generally accepted 2. Determined by the allegations in the complaint
principles of international law or information, not by the result of proof or by
e) In those cases where the Supreme Court, the trial court‘s appreciation of the evidence
in the interest of truth and impartial justice, presented. It is also not determined by the
transfers the place of trial from one place caption or charges in the complaint.
to another. 3. Determined by the law in force at the time of
f) In cases of written defamation (RA. 4363) the institution of the criminal action (when the
g) In cases of illegal recruitment, the criminal action is filed) and not at the time of the
action can be filed in the Regional Trial commission of the offense. (De la Cruz v.
Court of the province or city where the Moya, G.R. No. L-65192, 1988)
crime was committed or where the
offended party actually resides at the time Principle of Adherence of Jurisdiction
the offense was committed (R.A. 10022, Once jurisdiction is vested in the court, it is retained
Rule IV, § 6). up to the end of litigation. It remains with the court
h) Trafficking in persons, criminal action shall until the case is finally terminated. (Dela Cruz v.
be filed where the offense was committed, Moya, G.R. No. L-65192, 1988)
or where any of its elements occurred, or
where the trafficked person actually Once vested, jurisdiction cannot be withdrawn
resides at the time of the commission of by:
the offense (R.A. 9208, § 9). 1. Subsequent amendment or stipulation (People
v. Chupeco, G.R. No. 19568, 1964)or;
These exceptions may be filed in any 2. Subsequent statutory amendment of the rules
competent court to the exclusion of others. of jurisdiction, unless the amendatory law
expressly provides otherwise or is construed

259
 that it is intended to operate to actions pending 2.Regional Trial Court – MORE than P4,000
before its amendment, in which case, the court EXCEPT in cases of criminal negligence involving
where the action is pending is ousted of damage to property which fall under the
jurisdiction and the pending action will have to EXCLUSIVE original jurisdiction of the Municipal
be transferred to the court having jurisdiction by Trial Court
virtue of the amendatory law (Binay v.
Sandiganbayan, G.R. No. 120011, 1999) Municipal Trial Courts have no jurisdiction over
cases which by provision of special law are to be
Jurisdiction is retained regardless of: heard before the Regional Trial Courts or the
1. Whether the evidence proves a less offense Sandiganbayan, even if the maximum penalty
that that charged in the information prescribed by such special law is less than 6 years.
2. The subsequent happening of events, although Included in such exceptions are election offenses,
of a character which would have prevented libel or written defamation, and violation of Section
jurisdiction from attaching in the first instance. 39 of the Dangerous Drugs Act of 1972 (R.A. No.
6425).
3. JURISDICTION OF CRIMINAL
COURTS Jurisdiction over BP 22 Cases
The rules on summary procedure in Metropolitan
a) Criminal jurisdiction of the MTC and RTC Trial Courts, the Municipal Trial Courts in Cities,
Municipal Trial Courts, and the Municipal Circuit
Jurisdiction is based on violations committed Trial Courts for violations of Batas Pambansa
and penalty imposed. Bilang 22 (Bouncing Checks Law)(A. M. No. 00-11-
01-SC)
1. Municipal Trial Court
Jurisdiction over Libel Cases
a) all violations of city or municipal
Libel cases are within the exclusive jurisdiction of
ordinances committed within their
the RTC. R.A. No. 7691 (Sec. 32 [2]), excludes from
respective territorial jurisdictions;
its application cases falling within the exclusive
b) all offenses (except violations of RA 3019
original jurisdiction of the Regional Trial Courts
and Arts. 210 to 212 of RPC) committed by
(People v. MTC of Quezon City, G.R. No. 123263,
public officers and employees in relation to
1996). Administrative Order No. 104-96, 1996,
their office, including those employed in
designated the RTC as a special court having
GOCCs and by private individuals charged
jurisdiction in libel cases.
as co-principals, accomplices or
accessories, punishable with imprisonment
Where the offense is written defamation, the
of not more than 6 years or where none of
criminal action need not necessarily be filed in the
the accused holds a position classified as
court of the place where the alleged libelous article
Grade ―27‖ and higher;
was printed and first published. It may be filed in the
c) all offenses punishable with imprisonment
place where the offended party held office at the
of not more than 6 years irrespective of the
time of the commission of the offense, if he is a
amount of fine (prision correccional);
public officer, or in the place where he actually
d) in all cases of damage to property through
resided at the time of the commission of the
criminal negligence, regardless of other
offense, in case the offended party is a private
penalties and the civil liabilities arising
individual.
therefrom;
e) for summary procedure, it includes traffic
Jurisdiction over Dangerous Drugs Act Cases
violations, violations of the rental law,
Regardless of its penalty, the jurisdiction falls within
violations of city or municipal ordinances,
the Regional Trial Court designated as Drugs
violations of BP 22, and all other offenses
Court. (People v. Morales, G.R. No. 126623, 1997)
where the penalty does not exceed 6
months imprisonment and/or P1,000 fine,
If the case involves a minor, the jurisdiction lies with
irrespective of other penalties or civil
the Family Courts. (R.A. 8369, §5)
liabilities arising therefrom, and in offenses
involving damage to property through
Jurisdiction over Complex Crimes
criminal negligence where the imposable
Jurisdiction over the whole complex crime is lodged
fine does not exceed P10,000.
with the trial court having jurisdiction to impose the
3. Regional Trial Court – MAXIMUM and MOST SERIOUS penalty imposable
of an offense forming part of the complex crime. It
The Regional Trial Court shall have jurisdiction
must be prosecuted integrally and must not be
over all criminal cases which are not within the
divided into component offenses, which may be
exclusive jurisdiction of any court, tribunal or
made subject of multiple information brought in
body and appeals from all cases decided by
different courts. (Cuyos v. Garcia, G.R. No. L-
lower courts in their respective territorial
46934, 1988)
jurisdiction
Jurisdiction over Continuing Crimes
Jurisdiction where fine is the only penalty
Continuing offenses are consummated in one place
1.Municipal Trial Court – P4,000 or less
yet by the nature of the offense, the violation of the

260
law is deemed continuing (e.g. estafa and libel). As the procedure therefore, which prescribes the
such, the courts of the territories where the penalties for violation thereof)
ESSENTIAL INGREDIENTS of the crime took place 3. Other offenses or felonies whether simple or
have concurrent jurisdiction. complexed with other crimes committed by
public officials and employees mentioned in
The court which FIRST acquires jurisdiction Section 4(a) P.D. No. 1606 as amended by
excludes the other courts. R.A. 7975 in relation to their office
4. Crimes mentioned in Chapter 2 Section 2 Title
Jurisdiction in Crimes involving Moving VII Book 2 of the Revised Penal Code (i.e.
Vehicles Art.210: Bribery, Art.211: Indirect Bribery, Art.
1. Where an offense is committed in a train, 212: corruption of Public Officials)
aircraft, or other public or private vehicle in the
course of its trip, the criminal action shall be The Offense is “in relation to the office” when:
instituted and tried in the court of any 1. The offense is intimately connected with the
municipality or territory where such train, office of the offender and perpetrated while he
aircraft, or other vehicle passed during its trip, was in the performance of his official functions
including the place of its departure and arrival 2. The crime cannot exist without the office
[Rule 110, Sec. 15 (b)]. 3. The office is a constituent element of the crime
2. Where an offense is committed on board a as defined in the statute
vessel in the course of its voyage, the criminal
action shall be instituted and tried in the court If the character of being “in relation to his
of the first port of entry or of any municipality or office” is absent or is not alleged in the
territory where the vessel passed during such information, the crime committed falls within the
voyage, subject to the generally accepted exclusive original jurisdiction of ordinary courts and
principles of international law [Rule 110, Sec. not the Sandiganbayan.
15 (c)].
Officials under the Exclusive Jurisdiction of the
Jurisdiction over Crimes Punishable By Sandiganbayan:
Destierro 1. Those EXPRESSLY enumerated in P.D. No.
Where the imposable penalty is destierro, the case 1606 as amended by R.A. No. 8249, Violations
falls within the EXCLUSIVE jurisdiction of the of R.A. No. 3019 (Anti-Graft and Corrupt
Municipal Trial Court, considering that in the Practices Act), R.A. No. 1379 and Chapter 2,
hierarchy of penalties under Article 71 of the Section, 2, Title VII, Book 2 of the Revised
Revised Penal Code, destierro follows arresto Penal Code.
mayor which involves imprisonment. (People v. 2. Officials of the EXECUTIVE branch, occupying
Eduarte, G.R. No. 88232, 1990) SALARY GRADE 27 or higher, specifically
including:
Jurisdiction of Family Courts a. Provincial Governors, Vice Governors,
R.A. No. 8369 establishing the Family Court Members of the
granting it exclusive jurisdiction over child and SangguniangPanlalawigan, and
family cases names: criminal cases where one or ProvincialTreasurers, Assessors,
more of the accused is below 18 years of age but Engineers and other
not less than 9 years of age or where one or more ProvincialDepartment Heads
of the victim is a minor at the time of the b. City Mayors, Vice Mayors, Members
commission of the offense, provided that if the of the SangguniangPanlungsod and
minor is found guilty, the court shall promulgate City Treasurers, Assessors, Engineers
sentence and ascertain any civil liability which the and other ProvincialDepartment
accused may have incurred. (The sentence shall be Heads
suspended without need of an application pursuant c. Officials of the diplomatic service
to the ―Child and Youth Welfare Code‖). The occupying the position of consul and
jurisdiction depends on the parties not the higher
penalty.(P.D. 603; See R.A. No. 10630) d. Philippine Army and Air Force
Colonels, Naval Captains and all
If the minor involved in the case is already dead, the officers of higher rank
regular courts will have jurisdiction over the case. e. Officers of the PNP, while occupying
(People v. Yadao, G.R. No. 162144-54, 2012). the position of provincial director and
those holding the rank of senior
b) Jurisdiction of the Sandiganbayan superintended or higher
f. City and ProvincialProsecutors and
Exclusive Original Jurisdiction in All Cases their assistants, and officials and
Involving: prosecutors in the Office of the
1. Violations of R.A. No. 3019 as amended (Anti- Ombudsman and special prosecutors
Graft and Corrupt Practices Act) g. President/ Directors/ Trustees/
2. Violations of R.A. No. 1379 (An Act Declaring Managers of GOCCs, state
Forfeiture in favor of the state any property universities, or educational
found to have been unlawfully acquired by institutions/foundations
Public Officer or Employee and providing for

261
3. Members of the CONGRESS and officials Writs of injunction or prohibition to restrain a
thereof classified as Grade 27 and up criminal prosecution are generally NOT
4. Members of the JUDICIARY without prejudice available, EXCEPT:
to Constitutional provisions 1. To afford adequate protection to the
5. Chairmen and members of CONSTITUTIONAL constitutional rights of the accused
COMMISSIONS without prejudice to 2. When necessary for the orderly administration
Constitutional provisions of justice or to avoid oppression or multiplicity
6. All other national and local officials classified as of actions
Grade ‘27‘ and higher under the Compensation 3. When there is a prejudicial question which is
and Position Classification Act of 1989. sub judice
7. Other offenses or felonies whether simple or 4. When the acts of the officer are without or in
complexed with other crimes committed by the excess of authority
public officials and employees mentioned in 5. Where the prosecution is under an invalid law,
subsection a. of this section in relation to their ordinance or regulation
office. 6. When double jeopardy is clearly apparent
7. Where the court has no jurisdiction over the
Note: REPUBLIC ACT 10660 otherwise known as offense
Act Strengthening Further for Functional and 8. Where it is a case of persecution rather than
Structural Organization of the Sandiganbayan, prosecution
increased the number of divisions from five to 9. Where the charges are manifestly false and
seven divisions which are still composed of 3 motivated by the lust for vengeance
members per division. Moreover, it expanded the 10. When there is clearly no prima facie case
jurisdiction of the Sandiganbayan which now against the accused and the motion to quash
includes— on that ground has been denied.

8. Civil and criminal cases filed pursuant to and in Note: Preliminary injunction has been issued by the
connection with Executive Order Nos. 1, 2, 14 Supreme Court to prevent the threatened unlawful
and 14-A, issued in 1986 arrest of petitioners (Lopez v. de la Cruz, G.R. No.
Exception/s: L-6229, March 11, 1954)
1. Election offenses – jurisdiction falls under
the Regional Trial Court as provided for in END OF TOPIC
the Omnibus Election Code even if they
are committed by public officers classified
as Grade 27 and higher and in relation to
their offices
2. Court Martial cases – offenses committed B. PROSECUTION OF CRIMINAL
by members of the Armed Forces and OFFENSES
other persons subject to military law are
cognizable by court martial if such
offenses are ―service connected‖ as
1. CRIMINAL ACTIONS, HOW
expressly enumerated in R.A. No. 7055. If INSTITUTED
the particular offense is not one of those 2. WHO MAY FILE THEM, CRIMES
enumerated in the law, the case falls under THAT CANNOT BE PROSECUTED
either the regular courts or the DE OFICIO
Sandiganbayan, as the case may be.
3. That the Regional Trial Court shall have 3. CRIMINAL ACTIONS, WHEN
exclusive original jurisdiction where the ENJOINED
information: 4. CONTROL OF PROSECUTION
(a) does not allege any damage to the a. Full discretion and control of
government or any bribery; or Prosecutor
(b) alleges damage to the government or b. Private Prosecutor participation
bribery arising from the same or closely c. Prosecution of private crimes
related transactions or acts in an amount 5. SUFFICIENCY OF COMPLAINT OR
not exceeding One million pesos
(P1,000,000.00) (R.A. No. 10660).
INFORMATION
6. DESIGNATION OF OFFENSE
7. CAUSE OF THE ACCUSATION
Note: The civil case initiated first will be suspended 8. DUPLICITY OF THE OFFENSE;
when a criminal case is filed in the Sandiganbayan EXCEPTION
9. AMENDMENT OR SUBSTITUTION
4. WHEN INJUCTION MAY BE ISSUED OF COMPLAINT OR INFORMATION
a. Kinds of amendment
TO RESTRAIN CRIMINAL i. Before the accused enters his plea
PROSECUTION ii. After plea
b. Substitution of the Complaint or
Information

262
 i. Before plea exception of those punishable by arresto
ii. Anytime before judgment mayor, which shall prescribe in 5 years
10. VENUE OF CRIMINAL ACTIONS  Crime of libel or other similar offenses
11. INTERVENTION OF THE OFFENDED shall prescribe in 1 year
 Crime of oral defamation and slander by
PARTY IN CRIMINAL ACTION deed shall prescribe in 6 months
 Light offenses prescribe in 2 months
1. CRIMINAL ACTIONS, HOW Act No. 3326 governs the prescriptive periods of
INSTITUTED violations of special laws, or offenses other than
those penalized under the RPC.
CRIMINAL ACTION – one by which the State
prosecutes a person for an act or omission Violations penalized by special acts shall, unless
punishable by law. otherwise provided in such acts, prescribe:
 After a year for offenses punished only by
For Offenses Where a Preliminary Investigation a fine or by imprisonment for not more
is required: Instituted by filing the complaint with than one month, or both
the proper officer for preliminary investigation  After 4 years for those punished by
Refers to a complaint-affidavit, and is different from imprisonment for more than one month but
the complaint defined in Section 3 of Rule 110, less than two years
Rules of Court  After 8 years for those punished by
imprisonment for two years or more, but
Preliminary investigation is required for offenses less than six years
where the penalty prescribed by law is AT LEAST 4  After 12 years for any other offense
years, 2 months and 1 day (prision correccional punished by imprisonment for six years or
max) of imprisonment without regard to the fine. more, except the crime of treason, which
(Rule 112, Section 1(2)) shall prescribe after twenty years
 After 2 months for violations penalized by
For all other offenses: Instituted DIRECTLY with municipal ordinances
the Municipal Trial Court and Municipal Circuit Trial
Court or the complaint is filed with the Office of the Examples of laws that have their own
Prosecutor. prescriptive periods:
In Manila and other chartered cities, the complaint a. Election offenses – shall prescribe after five
shall be filed with the Office of the Prosecutor years after the date of their commission. If the
unless otherwise provided in their charters. discovery of the offense be made in an election
contest proceedings, the period of prescription
A complaint for offenses cognizable by the Regional shall commence on the date on which the
Trial Court is NOT filed directly with the Regional judgment of such proceedings becomes final
Trial Court either for purposes of preliminary and executory. (BP Blg. 881)
investigation or for commencement of the criminal
prosecution. b. Genocide law – crimes defined and penalized
under the Philippine Act on Crimes Against
For offenses where preliminary investigation is not International Humanitarian Law, Genocide, and
required, for criminal offenses in Metro Manila or Other Crimes Against Humanity, their
chartered cities, the complaint must be filed with the prosecution, and the execution of sentences
Office of the Prosecutor. In contrast, for criminal imposed on their account, shall not be subject
offenses outside Metro Manila, the to any prescription. (R.A. 9851)
complaint/information must be filed with the
provincial prosecutor or Municipal Trial Courts. In Act 3326, the word ―proceedings‖ includes
judicial proceedings and also executive
Effect of Institution of Criminal Action proceedings. This means investigation by the
General Rule: The institution of the criminal action executive department.
interrupts the running of the period of prescription of Thus, when a criminal complaint is filed in SEC for
the offense charged. the investigation of a crime under the Revised
Exception: otherwise provided in special Securities Act, the period is interrupted. (SEC v.
laws. Interport, G.R. No. 135808, 2008)

In a complaint under the Intellectual Property Law,

Art. 90 of the RPC provides for the prescription of the prescription period is interrupted when the
crimes found in the RPC. complaint is filed with the DOJ for preliminary
 Crimes punishable by death, reclusion investigation. (Sanrio v. Lim, G.R. No. 168662,
perpetua or reclusion temporal shall 2008)
prescribe in 20 years
 Crimes punishable by other afflictive For BP22, the filing of the case with the Office of the
penalties shall prescribe in 15 years Prosecutor interrupts the period.(Panaguiton v.
 Crimes punishable by a correctional DOJ, G.R. No. 167571, 2008)
penalty shall prescribe in 10 years with the

263
 the State as represented by the prosecutor, against
With respect to offenses penalized by special laws, the accused. (People v. Arojado, GR No. 207041,
the filing of the complaint or information in court is 2015)
the one that interrupts the prescriptive period and
NOT the filing of the complaint in the proper office A Complaint:
for purposes of conducting a preliminary 1. Sworn written statement;
investigation. (Zaldivar v. Reyes, G.R. No. 102342, 2. Charging a person with an offense; and
1992) 3. Subscribed by:
a. The offended party,
However, the filing of a complaint for purposes of b. Any peace officer, or
preliminary investigation starts the prosecution c. Other public officer charged with the
process. enforcement of the law violated.
THE REAL OFFENDED PARTY: The People of the Where a preliminary investigation is required (i.e.,
Philippines where the imposable penalty is at least 4 years, two
months and 1 day), the complaint is filed with the
Since the crime is also an outrage against the prosecutor. For example, in a case for estafa, the
PRIVATE OFFENDED PARTY, he is entitled to offended party can institute the criminal action by
intervene in its prosecution in cases where the civil filing a complaint with the prosecutor‘s office. Or in
action is IMPLIEDLY instituted therein. But the a case for murder, the widow of the murdered victim
State remains the principal offended party, the (being the offended party) or the PNP (being peace
offense having been committed against the ―People officers) can file the complaint with the prosecutor‘s
of the Philippines. office. If the prosecutor finds probable cause,
he/she will file the information in court charging the
When the criminal action is instituted in the name of accused with estafa, murder, etc.
the private offended party (or not People of the
Philippines), the defect is merely of form and may Where a preliminary investigation is not required
be cured at any stage of the trial. (i.e., where the imposable penalty is less than 4
years, two months and 1 day), the complaint may
The 2000 Rules on Criminal Procedure do not be filed with the prosecutor (in Metro Manila) or
require as a condition sine qua non to the validity of directly with the MTC/MCTC (for cases over which
the proceedings (in the preliminary investigation) MTC has jurisdiction).
the presence of the accused for as long as efforts to
reach him were made, and an opportunity to The complaint as defined under Section 3 is
controvert evidence of the complainant is accorded different from the complaint filed with the
him. The obvious purpose of the rule is to block Prosecutor‘s Office which refers to the one filed in
attempts of unscrupulous respondents to thwart the COURT for the commencement of a criminal
prosecution of offenses by hiding themselves or by prosecution for violation of a crime usually
employing dilatory tactics. (Sierra v. Lopez, Adm. cognizable by Municipal Trial Courts as well as to a
Case No. 7549, 2008) complaint filed by an offended party in PRIVATE
CRIMES or those which cannot be prosecuted de
The Information: oficio.
1. Must be in writing;
2. In the name of the People of the Philippines; The COMPLAINT FILED WITH THE
and PROSECUTOR’S OFFICE, on the basis of which
3. Against all persons who appear to be the prosecutor may conduct a preliminary
responsible for the offense involved. investigation, refers to:
1. Any sworn written complaint;
The information must be ―against all persons who 2. Filed by an offended party or any peace officer,
appear to be responsible for the offense involved.‖ or other public officer charged with the
While the prosecutor has discretion to determine enforcement of law violated.
who should be included in the information, he can
be compelled by mandamus if he abuses his Under the Rule on Summary Procedure:
discretion by refusing to include a person as a co- A complaint may be directly filed in the Municipal
accused despite sufficient evidence. (Guiao v. Trial Court, provided that in Metro Manila and in
Figueroa, et. al, G.R. No. L-6481, 1954) chartered cities, the criminal action may only be
commenced by the filing of information, which
However, before mandamus may be resorted to, means, only by the prosecutor, except when the
the petitioner must exhaust all remedies in the offense cannot be prosecuted de oficio as in private
ordinary course of law (i.e. filing a motion in the trial crimes.
court for such inclusion) (Aquino, et al. v. Mariano,
et al., G.R. No. L-30485, 1984) An Information Defined under Section 4
1. An accusation in writing;
Note: An information is, for all intents and 2. Charging a person with an offense;
purposes, considered an initiatory pleading 3. Subscribed by the prosecutor; and
because it is a written statement that contains the 4. Filed with the court.
cause of action of a party, which in criminal cases is

264
 COMPLAINT INFORMATION 2. In appropriate cases, by the courts when the
Subscribed by the Subscribed by the prosecutor acts with grave abuse of discretion
offended party, any prosecutor. It does not amounting to lack of jurisdiction.
peace officer or other have to be subscribed
officer charged with the by the offended party or Remedies of the Offended Party if the
enforcement of the law any peace officer or Prosecutor Refuses to File an Information:
violated. other peace officer 1. File an appeal with the Secretary of Justice,
charged with the who in the exercise of his/her supervisory
enforcement of the law. powers as department head, my reverse the
Filed either in the Filed in court. opinion of the investigator and designate a
Municipal Trial Court or special prosecutor to review and handle the
with the provincial/city case.
prosecutor‘s office. 2. Institute administrative charges against the
erring prosecutor.
2. WHO MAY FILE THEM, CRIMES 3. File criminal charges under Art. 208 of the
THAT CANNOT BE PROSECUTED Revised Penal Code.
DE OFICIO 4. File civil action for damages under Art. 27 of
Civil Code.
Persons Authorized to File an Information 5. File an action for mandamus to compel the
1. City or provincial prosecutor and their prosecutor to file such information only if there
assistants is grave abuse of discretion. But the general
2. Duly appointed special prosecutors rule is that a prosecutor cannot be compelled to
Except: file an Information by mandamus.
1. In private offenses (concubinage, adultery,
seduction, abduction, acts of There is merit in the appeal. The public prosecutor
lasciviousness); and is entitled to use his judgment and discretion in the
2. Defamations imputing any of the aforesaid appreciation of evidence presented to him and, in
offenses wherein a sworn written the exercise thereof, he may not be controlled by
complaint is required in accordance with mandamus. Whether an information should be filed
Section 5 of this Rule. in court is a matter addressed to the sound
discretion of the fiscal according to whether the
Prosecution in the Regional Trial Courts is always evidence is in his opinion sufficient to establish the
commenced by information. guilt of the accused beyond a reasonable doubt.
Otherwise stated, the fiscal cannot be compelled to
Complaint containing private offenses and act in a distinct manner whether to prosecute or not
defamation must be filed by the offended party. to prosecute and, instead, is allowed to stand on his
opinion and conviction, "reserving only to the
In case of variance between the complaint filed by Secretary, in any appropriate case when the latter
the offended party and the information in crimes believes public interest impels that a different
against chastity, the complaint controls. (People v. course of action should be taken, to temporarily
Oso, G.R. No. L-42571, 1935) relieve the fiscal of the duty to act by designating
somebody else to take his place solely and only for
A defectively crafted information, such as that the purpose of such particular case. (Abela vs. Hon.
alleging multiple offenses in a single complaint or Golez, G.R. No. L-32849, 1984)
information transgresses Section 13, Rule 110 of
the Rules of Court. The failure to make a timely 3. CRIMINAL ACTIONS, WHEN
objection to such defect however is deemed to be a ENJOINED
waiver of the said objection. (People v. Santiago,
G.R. No. 137281, 2001)
General Rule: Criminal prosecution cannot be
restrained by injunction.
In upholding People v. Garfin, the court firmly
instructs that the filing of an Information by an
REASON: Public interest requires that criminal acts
officer without the requisite authority to file the same
be immediately investigated and prosecuted for the
constitutes a jurisdictional infirmity which cannot be
protection of society.
cured by silence, waiver, acquiescence, or even by
express consent. Hence, such ground may be
Exception/s:
raised at any stage of the proceedings (Quisay v.
1. To afford adequate protection to the
People G.R. No. 216920, 2016).
constitutional rights of the accused
2. When necessary for the orderly
Decision of the Prosecutor Subject to Review
administration of justice or to avoid
by:
oppression or multiplicity of actions
1. The Secretary of Justice who exercises
3. When there is a prejudicial question sub
supervision and control over the prosecutor‘s
judice
actions and who may sustain, modify or set
4. When the acts of the officer are without or
aside the prosecutor‘s resolution on the matter;
ion excess of authority
and

265
 5. Where the prosecution is under an invalid public prosecutor was absent during the trial,
law, ordinance, or regulation the evidence presented could not be
6. When double jeopardy is clearly apparent considered valid evidence of the People.
7. Where the court has no jurisdiction over
the offense Note: This rule applies ONLY to courts, which are
8. Where it is a case of persecution rather provided by law with prosecutors, and not to
than prosecution municipal courts that have no trial prosecutors, in
9. Where the charges are manifestly false which case the evidence presented by the private
and motivated by the lust for vengeance, prosecutor can be considered as evidence for the
or People.
10. When there is clearly no prima facie case
against the accused and the motion to General Rule: Only the SOLICITOR GENERAL
quash on that ground has been denied may bring or defend actions in behalf of the
11. Preliminary injunction has been issued by Republic of the Philippines, or represent the People
the Supreme Court to prevent the or State in criminal proceedings elevated before the
threatened unlawful arrest of petitioners. Court of Appeals and the Supreme Court.
(People vs. Grey, G.R. No. 180109, 2010) Exception/s:
1. When the State and the offended party are
deprived of due process because the
4. CONTROL OF PROSECUTION prosecution is remiss in its duty to protect the
interest of the State and the offended party;
a. Full Discretion and Control of the Prosecutor and
All criminal actions commenced by complaint or 2. When the private offended party questions
information shall be prosecuted under the direction the civil aspect of a decision of a lower court.
and control of the prosecutor.
The Solicitor General (SolGen) has control of
b. Private Prosecutor May Prosecute the Case in appeals. The Office of the Solicitor General (OSG)
Case of: may abandon or discontinue the prosecution of the
1. Heavy work schedule of the public prosecutor; case in the exercise of its sound discretion and may
or even recommend the acquittal of an accused when
2. In the event of lack of public prosecutors. it believes that the evidence does not warrant the
accused‘s conviction.
Provided:
1. Authorized in writing by the Chief of the However, in all cases elevated to the Supreme
Prosecution Office or the Regional State Court by way of petition for review against decisions
Prosecution; and or final orders of the Sandiganbayan, it is the
2. Subject to the approval of the Court. Office of the Ombudsman, through its Special
Prosecutor, which shall represent the People of the
Once so authorized, private prosecutor shall Philippines pursuant to the second sentence, third
continue to prosecute the case up to the end of trial to the last paragraph of Section 4 of P.D. No. 1606,
unless the authority is revoked or withdrawn. as amended by R.A. No. 8249.
Prior to the filing of the information in court, the
prosecutor has full control of the case. He The meaning of ―the requirement of Article 344 of
decides who should be charged in court and who the Revised Penal Code is jurisdictional,‖ is that it
should be excluded from the information. is the complaint that starts the prosecution. It is not
what confers jurisdiction on the court to try the case.
But once the case is already filed in court, the same
can no longer be withdrawn or dismissed without Even when a complaint is defective for being signed
the tribunal‘s approval. Should the prosecutor find it and filed by the chief of police and not by the
proper to conduct a reinvestigation of the case at complainant, the court may still acquire jurisdiction
such stage, the permission of the Court must be over the case. The complaint required in Article 344
secured (Crespo v. Mogul, G.R. No. L-53373, 1987) of the RPC is but a condition precedent to the
exercise by the proper authorities of the power to
Private Prosecutor Participation: A public prosecute the guilty parties. The complaint simply
prosecutor may allow a private prosecutor (i.e., a starts the prosecutory proceeding but does not
lawyer engaged by the private offended party) to confer jurisdiction in the court to try the case.
actively handle the conduct of the trial: Article 344 is not determinative of the jurisdiction of
1. Where the civil action arising from the crime is courts over private offenses because the same is
deemed instituted in the criminal action. governed by the Judiciary Law and not the
2. The Public Prosecutor must be present during RPC.(People v. Yparraguire, G.R. No. 124391,
the proceedings and must take over the 2000)
conduct of the trial from the private prosecutor
at any time the cause of the prosecution may c. Prosecution of Private Crimes
be adversely affected. Thus, where the
prosecutor has turned over the active conduct Who May Prosecute
of the trial to the private prosecutor who 1. Adultery and Concubinage – Only by the
presented testimonial evidence even when the offended spouse who should have the status,

266
 capacity, and legal representation at the time of adultery
filing of the complaint regardless of age; In order to absolve the In order to absolve the
accused from liability accused from liability,
Both guilty parties must be included in the must be extended to it is sufficient even if
complaint; and both offenders granted only to the
offending spouse
The offended party did not consent to the
offense nor pardoned the offenders. General Rule: The SUBSEQUENT MARRIAGE
between the party and the accused extinguishes the
2. Seduction, Abduction and Acts of criminal liability of the latter, together with that of the
Lasciviousness – Prosecuted exclusively and co-principals, accomplices and accessories.
successively by the following persons in this
order: Note: Pursuant to Article 344 of the Revised Penal
a. By the offended woman; Code, seduction, abduction, acts of
b. By the parents, grandparents or legal/ lasciviousness and rape, the marriage of the
judicial guardians in that successive order, offender with the offended party shall extinguish the
if the offended party is a minor or of age criminal action or remit the penalty already imposed
but suffers from physical or mental upon him.
disability;
c. By the State pursuant to the doctrine of Exception/s:
parenspatriae, when the offended party 1. Where the marriage was invalid or
dies or becomes incapacitated before she contracted in bad faith in order to escape
could file the complaint and she has no criminal liability;
known parents, grandparents or guardians. 2. In ―private libel‖ or the libelous imputation
of the commission of the crimes of
3. Defamation imputing to a person any of the concubinage, adultery, seduction,
foregoing crimes of concubinage, adultery, abduction, rape, or acts of lasciviousness,
seduction, abduction, rape or acts of and in slander by deed;
lasciviousness – Only by the party or parties 3. In multiple rape, insofar as the other
defamed (Article 360 of the Revised Penal accused in the other acts of rape
Code). respectively committed by them are
concerned
If the offended party is of legal age and does not
suffer from physical or mental disability, she alone The acquittal or death of one of the accused in the
can file the complaint to the exclusion of all. crime of adultery does not bar the prosecution of
the other accused. (United States v. Topiño, G.R.
Who Can Give Pardon No. 11895, 1916)
1. Adultery and Concubinage – Only the
offended spouse not otherwise incapacitated, However, the death of the offended spouse before
can validly extend the pardon or consent the filing of the complaint for adultery bars further
contemplated therein. prosecution, BUT if the offended spouse died
2. Seduction, abduction and acts of AFTER the filing of the corresponding complaint, his
lasciviousness death will not prevent the proceeding from
a. The offended minor, if with sufficient continuing to its ultimate conclusion.
discretion can validly pardon the accused
by herself if she has no parents or where Effect of Desistance of Complainant
the accused is her own father and her It does not bar the People from prosecuting the
mother is dead; criminal action. BUT it does operate as a waiver of
b. The parents, grandparents or guardian the right to pursue civil indemnity.
of the offended minor, in that order, cannot
extend a valid pardon in said crimes An offended party in a criminal case has sufficient
without the conformity of the offended personality to file a special civil action for certiorari,
party, even if the latter is a minor; in proper cases, even without the imprimatur of the
c. If the offended woman is of age and not State. In so doing, the complainant should not bring
otherwise incapacitated, only she can the action in the name of the People of the
extend a valid pardon. Philippines. The action may be prosecuted in the
name of the said complainant. (Perez v. Hagonoy
The pardon refers to pardon BEFORE filing of the Rural Bank, Inc., G.R. No. 126210, 2000)
criminal complaint in court. Pardon effected after
the filing of the complaint in court does not prohibit 5. SUFFICIENCY OF COMPLAINT OR
the continuance of the prosecution of the offense
EXCEPT in case of marriage between the offender INFORMATION
and the offended party.
A complaint or information is sufficient if it
Distinction between pardon and consent states the: (NDANAP)
PARDON CONSENT 1. Name of the accused;
Refers to past acts of Refers to future acts 2. Designation of the offense by a statute

267
3. Acts or omission complained of as constituting  The statement of the acts or omissions
the offense; constituting the offense, in ordinary, concise
4. Name of the offended party; and particular words.
5. Approximate date of the commission of the  The specific qualifying and aggravating
offense; and circumstances must be stated in ordinary and
6. Place where the offense was committed. concise language.

The non-inclusion of some of the names of the Note: For qualifying and aggravating
eyewitnesses in the information does not preclude circumstances to be appreciated, it must be
the prosecutor from presenting them during trial. alleged in the complaint or information. (People
(People v. Dela Cruz, G.R. No. 137967, April 19, v. Lapore, G.R. No. 191197, 2015)
2001)
Rationale: The seriousness of a criminal
(a) PURPOSE prosecution requires a clear specification of the
offense charged, consistently with the right of the
To safeguard the constitutional right of an accused accused to be informed of the nature and cause of
to be informed of the nature and cause of the the accusation against him. Also, this is essential to
accusation against him so that he can duly prepare avoid surprise on the part of the accused and to
his defense afford him the opportunity to prepare his defense
accordingly.
Substantial defect in the information cannot be
cured by evidence that would jeopardize the The real question is not, ―Did he commit a crime
accused‘s right to be informed of the true nature of given in the law some technical and specific name?‖
the offense he is charged with. BUT, ―Did he perform the acts alleged in the body of
the information?‖ If he did, it is of no consequence
(b) NAME OF THE ACCUSED to him, either as a matter of procedure or of
substantive right, how the law denominates the
i. If name is known: The name and surname of the crime.
accused or any appellation or nickname by which
he has been or is known ―Try and attempt to rape‖ in the information is not
sufficient. (People v. Dimaano, G.R. No. 168168,
ii. If name cannot be ascertained: A fictitious 2005)
name with a statement that his true name is
unknown. In People vs. Ching, the Supreme Court held that
“That the said accused by means of force and
iii. If true name thereafter disclosed: Such true intimidation, to wit: by then and there, willfully,
name shall be inserted in the complaint or unlawfully and feloniously drag said AAA, his own
information and record. daughter, 12 years of age, minor, inside a bedroom
and undressed her and put himself on top of her
While one or more persons, along with specified and thereafter have carnal knowledge with said
and named accused, may be sued as ―John Does,‖ AAA against her will and without her consent”
an information against all accused described as complies with the requirements of a sufficient
“John Does” is void; an arrest warrant against information.
them is also void.
In case of allegation of the aggravating
An error in the name of the accused is not circumstance of HABITUAL DELINQUENCY, it
reversible as long as his identity is sufficiently should NOT be generally averred. The information
established. This defect is curable at any stage of must SPECIFY:
the proceedings as insertion of the real name of 1. The commission of the crimes;
the accused is merely a matter of form (People v. 2. The date of last conviction or release;
Padica, G.R. No. 102645, 1993) 3. The other previous conviction or release
of the accused and dates.
Note: Filing of Information instead of complaint by
the prosecutor in private offenses, is valid provided The qualifying and aggravating circumstances
that the complaint affidavit is attached thereto. cannot be appreciated even if proved, unless
alleged in the information. (People v. Perreras, G.R.
(c) DESIGNATION OF THE OFFENSE No. 139622, 2001)

The Information or Complaint Must State or It is not the designation of the offense in the
Designate the Following Whenever Possible: complaint or information that is controlling. (People
v. Samillano, G.R. No. L-31375, 1974)
 The designation of the offense given by the
statute. (If there is no designation of the
The facts alleged therein, and not its title, determine
offense, reference shall be made to the section
the nature of the crime. (El Pueblo de Filipinas v.
or subsection of the statute punishing it)
Magdowa, G.R. No. L-48457, 1941)

268
In rape cases, the concurrence of the minority of the  Prohibits generally acts therein defined;
victim and her relationship with the offender is a  Is intended to apply to all persons
special qualifying circumstance which should be indiscriminately;
both alleged (People v. Cantos, G.R. No. 129298,  But prescribes certain limitations or
1999)and proved (People v. Manggasin, G.R. Nos. exceptions from its violation the
130599-600, 1999) with certainty in order to information is sufficient if it alleges facts
warrant the imposition of the (maximum) penalty. which the offender did as constituting a
violation of law, without explicitly negating
The accused may be convicted of a crime more the exception, as the exception is a matter
serious than that named in the title or preliminary of defense which the accused has to
part if such crime is covered by the facts alleged in prove. (People vs. San Juan, G.R. No. L-
the body of the information and its commission is 22944, 1968)
established by evidence. (Buhat v. Court of
Appeals, G.R. No. 119601, 1996) There, the Information alleged that the
accused prevented the offended party from
An accused could not be convicted under one act entering the polling precinct, in violation of
when he is charged with a violation of another if the the Election Code. The law provided that
change from one statute to the other involves: ―The voters shall have the right to freely
 A change in the theory of the trial; enter the polling place as soon as they arrive
 Requires of the defendant a different defense; unless there are more than forty voters
or waiting inside, in which case they have the
 Surprises the accused in any way. (U.S. v. right to enter in the order of their arrival as
Panlilio, G.R. No. L-9876, 1914) those who are inside go out, which the latter
shall immediately do after having cast their
(d) ACTS OR OMISSIONS COMPLAINED OF AS votes.‖ The accused argued that the
CONSTITUTING THE OFFENSE Information failed to allege an offense
because the Information did not state that
The acts or omissions complained of must be there were forty or less voters. The Supreme
alleged in such form as is sufficient to enable a Court held that, ―The limitation — when there
person of common understanding to know what are more than forty voters waiting inside —
offense is intended to be charged, and enable the on the right of a voter to freely enter the
court to pronounce proper judgment. No information polling place does not constitute an essential
for a crime will be sufficient if it does not accurately part of the definition of the crime
and clearly allege the elements of the crime contemplated in section 133 of the Revised
charged. Every element of the offense must be Election Code. Instead, it is but a matter
stated in the information. What facts and which the accused must assert, and
circumstances are necessary to be included therein establish as a defense, and not for the
must be determined by reference to the definitions prosecution to anticipate, allege, and
and essentials of the specified crimes. (People v. disprove.‖
Canceran, GR No. 206442, 2015)
Where the law alleged to have been violated:
If one or more elements of the offense have not  Applies only to specific classes of persons
been alleged in the information, the accused cannot and special conditions; and
be convicted of the offense charged, even if the  The exemptions from its violation are so
missing elements have been proved during the trial. incorporated in the language defining the
crime that the ingredients of the offense
Even the accused‘s entering a plea of guilty to such cannot be accurately and clearly set forth if
defective information will not cure the defect, nor the exemption is omitted, the information
justify his conviction of the offense charged. must show that the accused does not fall
within the exemptions.(U.S. v. Pompeya,
The new rule requires that the qualifying and G.R. No. L-10255, August 6, 1915)
aggravating circumstances be alleged in the
information. There, the Supreme Court gave the following
example: ―Suppose xxx that there was a law
i. PURPOSES: providing that all persons who performed manual
 To enable the court to pronounce a proper labor on Sunday should be punished, with a
judgment; provision that if such labor should be performed out
 To furnish the accused with such a of necessity, the person performing it would not be
description of the charge as to enable him liable. In such a case, in the complaint, in order to
to make a defense; show a good cause of action, it would be necessary
 As a protection against further prosecution to allege that the labor was not performed under
for the same cause. necessity. In other words, the complaint, in order to
be free from objection raised by a demurrer, must
ii. RULES ON NEGATIVE AVERMENTS: show that the person accused of the crime, in the
absence of proof, is punishable under the law. One
Where the law alleged to have been violated: who performed labor under necessity would not be
liable.‖

269
 general terms but which sufficiently charges the
When an exception or negative allegation is not an accused with a definite crime. Besides, the exact
ingredient of the offense and is a matter of defense, date of the commission of the crime is not an
it need not be alleged. (U.S. v. Chan Toco, G.R. No. essential element of the crime. (People v. Elpedes,
L-3851, 1908) G.R. No. 137106-07, January 31, 2001)

iii. COMPLEX CRIMES (g) NAME OF THE OFFENDED PARTY

Where what is alleged in the information is a The complaint or information must state the:
complex crime and the evidence fails to support  Name and surname of the persons against
the charge as to one of the component offenses, whom or against whose property the
the defendant can be convicted of the offense offense was committed or any appellation
proven. or nickname by which such person has
been or is known.
(e) PLACE OF COMMISSION OF THE OFFENSE  If there is no better way of identifying him,
he must be described under a fictitious
General Rule: A complaint or information is name. If true name is thereafter disclosed
sufficient if it appears from the allegation that the or ascertained, the Court must cause true
offense was committed or some of its essential name to be inserted in the complaint or
ingredients occurred at some place, within the information and record.
territorial jurisdiction of the court.  In crimes against property, if the name of
the offended party is unknown, the
Exception: When the place of commission is an property must be described with such
essential element of the offense, the place of particularity as to properly identify the
commission must be alleged with particularity e.g. particular offense charged.
trespass to dwelling, destructive arson, robbery in
an inhabited house. To constitute larceny, robbery, embezzlement,
obtaining money by false pretenses, malicious
Purpose: To show territorial jurisdiction of the mischief, etc., the property obtained must be that of
court. another person, and indictment for such offense
must name the owner and a variance in this
There may be conviction if it appears that the respect between the indictment and the proof will be
crime was committed not at the place alleged in fatal.
the information, provided that:
1. The place of actual commission was within the
(h) DUPLICITY OF THE OFFENSE
jurisdiction of the court; and
2. The particular place of commission is not an
essential element of the offense charged. The information is defective when it charges two or
more DISTINCT or DIFFERENT offenses. A
For example, in a case for murder, where the complaint or information must charge only one
Information alleges that the victim was shot on offense, EXCEPT when the law prescribes a
Ayala Avenue but the evidence presented shows single punishment for various offenses.
that the shooting took place along Paseo de Roxas,
the accused may still be convicted since the place i. DUPLICITOUS INFORMATION
of actual commission is within Makati City and the
place of commission is not an essential place of the Duplicity (sic) in criminal pleading is the joinder of
offense charged. two or more distinct and separate offenses in the
same count of an indictment or information. It is
(f) DATE OF COMMISSION OF THE OFFENSE duplicitous if it charges two or more different
offenses.
General Rule: It is not necessary to state in the
complaint or information the precise date the ii. PURPOSE
offense was committed. (People v. Bacus, GR No.
208354, 2015) To give the defendant the necessary knowledge of
the charge to enable him to prove his defense. The
Exception: Date is material ingredient of the State should not heap upon the defendant two or
offense. (Examples: Election offenses, Infanticide) more charges which might confuse him in his
defense.
The remedy against an indictment that fails to
allege the time of commission of the offense with iii. WAIVER
sufficient definiteness is a motion for bill of
particulars (Rule 116, Section 10). The failure to When the accused fails, BEFORE ARRAIGNMENT
move or specification or the quashal of the (entering a ―plea‖) is completed, to move for the
information on any of the grounds provided for in quashal of the information which charges 2 or more
the Rules deprives the accused of the right to object offenses, he thereby waives the objection and may
to evidence which could be lawfully introduced and be found guilty of as many offenses as those
admitted under an information of more or less charged and proved during the trial.

270
  Formal amendment only with:
iv. EXCEPTIONS TO THE RULE ON  Leave of court; and
DUPLICITY:  Without causing prejudice to the
 Continuous crimes; rights of the accused.
 Complex crimes;  But when a fact supervenes which
 Special complex crimes; changes the nature of the crime
 Crimes susceptible of being charged in the information or
committed in various modes; and upgrades it to a higher crime, in which
 Crimes of which another offense is an case, there is a need for another
ingredient. arraignment of the accused under the
amended information.
v. REQUISITES OF CONTINUOUS CRIMES:
1. Plurality of acts performed separately iii. TEST AS TO WHETHER A DEFENDANT IS
during a period of time; PREJUDICED BY AN AMENDMENT:
2. Unity of penal provision infringed upon 1. Whether a defense under the information
or violated; as it originally stood would be available after
3. Unity of criminal intent which means the amendment is made; and
that two or more violations of the 2. Whether any evidence defendant might
same penal provision are united in have would be equally applicable to the
one and the same intent leading to the information in the new form as in the other.
perpetration of the same criminal
purpose or claim. An amendment which does not change the nature
of the crime alleged therein, does not expose the
For example: robbery that took place in several accused to a charge which could call for a higher
houses belonging to different persons, when not penalty, does not affect the essence of the offense
absolutely unconnected. or cause surprise or deprive the accused of an
opportunity to meet the new averment had each
Where the law with respect to an offense may be been held to be one of form and not of substance-
committed in any of the different modes provided by not prejudicial to the accused and, therefore, not
law, the indictment in the information is sufficient if prohibited by Section 14, Rule 110. (People v.
the offense is alleged to have been committed in Casey, G.R. No. L-30146, 1981)
one, two or more modes specified therein. The
various ways of committing the offense should be General Rule: After arraignment, the prosecutor
considered as a description of only one offense and may no longer amend the information which
the information cannot be dismissed on the ground changes the nature of the crime, as it will prejudice
of multifariousness. the substantial rights of the accused.

Exception: When a fact supervenes which changes

6. AMENDMENT OR SUBSTITUTION OF the nature of the crime charged in the information or
THE INFORMATION upgrades it to a higher crime, the prosecutor, with
leave of court, may amend the information to allege
(a) KINDS OF AMENDMENT such supervening fact and upgrade the crime
charged to the higher crime brought about by such
i. BEFORE THE ACCUSED ENTERS HIS supervening fact provided it will not prejudice the
PLEA, THE PROSECUTOR MAY rights of the accused.

Without leave of court, in form and substance, HOWEVER, if the supervening event which
provided there is evidence thereon which has been changes the nature of the crime to a more serious
presented during the preliminary investigation: one occurred after the accused has been convicted,
 Upgrade the offense; which makes the amendment of the information no
 Allege qualifying and aggravating longer the remedy of the prosecution, the
circumstances; or prosecution can and should charge the accused for
 Change the offense charged. such more serious crime, without placing the
accused in double jeopardy, there being no identity
With leave of court, motion by the prosecutor of the offense charged in the first information and in
and notice to the offended party when the second one.
amendment:
 Downgrades the offense charged; or Amendments to Information May Be Allowed
when:
 Excludes from the information a co-
accused.  It does not deprive the accused of the right
to invoke prescription;
The court shall state the reasons in resolving the  It does not affect or alter the nature of the
motion and copies thereof furnished all parties, offense originally charged;
especially the offended party.  It does not involve a change in the basic
theory of the prosecution so as to require
ii. AFTER THE PLEA: the accused to undergo any material
charge or modification in his defense;

271
  It does not expose the accused to a information after the
charge which would call for a higher plea has been taken
penalty; cannot be made over
 It does not cause surprise or deprive the the objection of the
accused of an opportunity to meet the accused, for if the
new averment. original would be
withdrawn, the accused
A defendant may file a counterclaim for interpleader could invoke double
against the plaintiff and a third party also claiming jeopardy.
the subject matter of the suit. (Gabionza v. CA, G.R.
No. 140311, 2001) Variance between Indictment and Proof:
 When the offense proved is less
(b) SUBSTITUTION OF THE COMPLAINT OR serious than and is necessarily
INFORMATION included in the offense charged, in
which case, the defendant shall be
i. BEFORE PLEA - double jeopardy does not convicted of the offense proved;
arise.  When the offense proved is more
ii. ANYTIME BEFORE JUDGMENT (no double serious than and includes the offense
jeopardy and bail for witness) charged, in which case the defendant
 Mistake has been made in charging shall be convicted of the offense
the proper offense or the accused charged;
cannot be convicted of the offense  When the offense proved is neither
charged, included in, nor does it include, the
 Court shall dismiss the original offense charged and is different
complaint or information upon the therefrom, in which case the court
filing of a new one, should dismiss the action and order
 Provided, accused will not be placed the filing of new information charging
in double jeopardy the proper offense. (Substitution of
information applies in this case).
When it becomes manifest at any time before
judgment that a mistake has been made in charging
the proper offense and the accused cannot be
7. VENUE OF CRIMINAL ACTIONS
convicted of the offense charged or any other
offense necessarily included therein, the accused (a) VENUE IN CRIMINAL CASE IS
shall not be discharged if there appears good cause JURISDICTIONAL, BEING AN ESSENTIAL
to detain him. In such case, the court shall commit ELEMENT OF JURISDICTION
the accused to answer for the proper offense and
dismiss the original case upon the filing of the Purpose: Not to compel the defendant to move to
proper information. and appear in a different court from that of the
territory where the crime was committed as it would
AMENDMENT SUBSTITUTION cause him great inconvenience in looking for his
May involve either Involves substantial witnesses and other evidence in another place.
formal or substantial change from original
changes. charge. General Rule: Penal laws are territorial; hence
Amendment before the Substitution of Philippine courts have no jurisdiction over crimes
plea has been entered information must be committed outside the Philippines. It cannot be
can be effected without with leave of court as waived or changed by the agreement of the parties
leave of court. the original information or by consent of the defendant.
has to be dismissed.
When an amendment is Another preliminary Exception/s:
only as to form, there is investigation is  Where an offense is committed on a
no need for another entailed and the railroad train, in an aircraft or other
preliminary investigation accused has to plead public or private vehicle in the course
and the retaking of the anew to the new of its trip, the criminal action shall be
plea of the accused. information. instituted and tried in the court of any
An amended Requires or municipality or territory where such train,
information refers to the presupposes that the aircraft or other vehicle passed during its
same offense charged new information trip, including the place of its departure and
in the original involves a different arrival.
information or to an offense which does not  Where an offense is committed on board
offense which include or is not a vessel in the course of its voyage, the
necessarily includes or necessarily included in criminal action shall be instituted and tried
is necessarily included the original charge, in the court of the first port of entry or of
in the original charge, hence the accused any municipality or territory where the
hence substantial cannot claim double vessel passed during such voyage, subject
amendments to the jeopardy. to the generally accepted principles of
international law.

272
  Crimes committed outside the opposed to Estafa, where the money
Philippines but punishable under belongs to a private person);
Article 2 of the Revised Penal Code shall  Where the offended party has waived the
be cognizable by the court where the right to civil indemnity (e.g., Estafa,
criminal action is first filed. where the offended party states that
he/she waives recovery of actual and
Piracy – has no territorial limits as it is a crime other damages); or
against all mankind.  Where the offended party has already
instituted an action (e.g., Estafa, where
Libel – the action may be instituted at the election the offended party has filed a separate
of the offended party in the province or city: civil action to recover actual and other
 Where the libelous article is printed or damages).
first published;
 If one of the offended parties is a Where the offended party withdrew a reservation to
private individual, where said private file a separate civil action, the private prosecutor
individual actually resides at the time of may still intervene in the prosecution of the criminal
the commission of the offense; case, by conducting the examination of witnesses
 If the offended party is a public official, under the control of the prosecutor.
where the latter holds office at the time
of the commission of the offense. HOWEVER: Once the offended party has filed a
(Artilce 360, RPC) separate civil action arising from the crime, he may
not withdraw such civil case in order to intervene in
Trafficking in Persons – the action shall be filed the criminal prosecution. He loses the right to
where: intervene. He no longer has any standing in the
 Where the offense was committed criminal case, except to be a prosecution witness.
 Where any of its elements occurred
 Where the trafficked persons actually Q: Where a criminal action has been
resides at the time of the commission provisionally dismissed upon motion of the
of the offense prosecutor, can the case be revived upon
The court where the criminal action is first filed shall motion of the offended party?
acquire jurisdiction to the exclusion of other courts.
(R.A. 9208, §9) A: NO, because the offended party or complaining
In exceptional circumstances, to ensure a fair trial witness cannot act for the prosecutor.
and impartial inquiry, the Supreme Court shall have
the power to order a change of venue or place of
trial to avoid the miscarriage of justice (1987 END OF TOPIC
Constitution, Section 5(4), Art. VIII)

B.P. 22 cases - One can file either in the place of

issuance of the check or where the check was C. PROSECUTION OF CIVIL
deposited and bounced. (Isip v. People, G.R. No.
170298, 2007)(The Court held that the venue was ACTION
properly laid where the accused delivered the
checks and/or transactions occurred). 1. RULE ON IMPLIED INSTITUTION OF
Estafa cases – elements may be committed in CIVIL ACTION WITH CRIMINAL
different places. ACTION
2. WHEN CIVIL ACTION MAY
8. INTERVENTION OF THE PROCEED INDEPENDENTLY
OFFENDED PARTY IN THE 3. WHEN SEPARATE CIVIL ACTION IS
CRIMINAL ACTION SUSPENDED
4. EFFECT OF THE DEATH OF
General Rule: Offended party has the right to ACCUSED OR CONVICT ON CIVIL
intervene by counsel in the prosecution of the ACTION
criminal action where the civil action for recovery of a. After arraignment and during the
civil liability is instituted in the criminal action pendency of the criminal action
pursuant to Rule 111, Rules of Court b. Before arraignment
c. Pending appeal of his conviction
Exception/s: d. Prior to final judgment
 Where from the nature of the crime and 5. PREJUDICIAL QUESTION
law defining and punishing, no civil
6. RULE ON FILING FEES IN CIVIL
liability arises in favor of the offended
party (e.g., charge of Plunder, which ACTION DEEMED INSTITUTED
involves government funds only, as WITH THE CRIMINAL ACTION

273
 those provided in Articles 32, 33, 34 and 2176
1. RULE ON IMPLIED INSTITUTION OF of the Civil Code.
CIVIL ACTION WITH CRIMINAL Although the criminal and civil actions may be
ACTION joined in the criminal case, they are distinct
from each other. The plaintiffs in the two
General Rule: The institution or filing of the criminal actions are different.
action includes therein the institution of civil action
for recovery of civil liability arising from the offense THEREFORE: Even if the accused started serving
charged. his sentence within the 15-day period from the
promulgation of the judgment of conviction by the
Exception/s: When the offended party: lower court, thereby making the judgment against
1. Waives the civil action; him final, the complainant may, within the 15-day
2. Reserves his right to institute the civil reglementary period, still ask that the civil liability be
action separately; or fixed by the court, if the judgment does not
3. Institutes the civil action prior to the adjudicate any civil liability, as the judgment
criminal action. regarding civil liability has not become final and the
court still has jurisdiction to adjudge the civil liability.
Note on juridical persons: Nowhere in B.P. Blg.
22 is it provided that a juridical person may be Note: Only civil liability arising from crime charged
impleaded as an accused or defendant in the (cause of action arising from delict) as a felony is
prosecution for violations of that law, even in the deemed instituted. Civil liability arising from other
litigation of the civil aspect thereof. Nonetheless, the sources of obligations (law, quasi-contract and
substantive right of a creditor to recover due and quasi-delict) are no longer deemed instituted such
demandable obligations against a debtor- as those under Article 32, 33, 34 and 2176 of the
corporation cannot be denied or diminished by a Civil Code which can be prosecuted even without
rule of procedure. Technically, nothing in Section reservation. The employer may not be held civilly
1(b) of Rule 111 prohibits the reservation of a liable for quasi-delict in the criminal action since
separate civil action against the juridical person on quasi-delict is not deemed instituted with the
whose behalf the check was issued. What the rules criminal. (Maniago v. Court of Appeals, G.R. No.
prohibit is the reservation of a separate civil action 104392, 1996)
against the natural person charged with violating
B.P. Blg. 22, including such corporate officer who Recent Jurisprudence: Institution of a criminal
had signed the bounced check. The civil action that case includes the civil action for the recovery of the
is impliedly instituted based on B.P. 22 is only the civil liability arising from the offense charged. The
civil liability of the signatory and not of the inclusion of the civil action is to avoid multiplicity of
corporation itself. The distinctness of the cause of suits. Article 100 of the Revised Penal Code states
action against the signatory and that against the that every person criminally liable for a felony is
corporation is rendered beyond dispute. (Gosiaco also civilly liable. (People v. Rayos, G.R. No.
vs. Ching, G.R. No. 173807, 2009) 200942, 2015)

When Reservation Shall Be Made: If at all, the only civil liability of the employer in the
1. Before the prosecution starts to present its criminal action would be his subsidiary liability
evidence; and under the Revised Penal Code.
2. Under circumstances affording the offended
party a reasonable opportunity to make such 2. WHEN CIVIL ACTION MAY PROCEED
reservation.
INDEPENDENTLY
Instances where No Reservation Shall Be
Allowed: General Rule: Independent civil actions under
1. Criminal action for violation of B.P. 22 – unless Articles 32, 33, 34 and 2176 of the Civil Code:
a separate civil action has been filed before the 1. May be brought by the offended party;
institution of the criminal action, no such civil 2. Proceed independently of criminal action; and
action can be instituted after the criminal action 3. Require only a preponderance of evidence
has been filed as the same has been included Exception: A plaintiff cannot recover damages
therein. twice for the same act or omission of the
2. A claim arising from an offense which is defendant.
cognizable by the SB – a civil action filed prior
to the criminal action has to be transferred to Purpose: To make the court‘s disposition of the
the subsequently filed criminal action for joint criminal case of no effect whatsoever on the
hearing (Section 4, P.D. No.1606 as amended separate civil case.
by R.A. No. 8249);
3. Tax cases (Section 7, paragraph b, no.1, R.A. 3. WHEN A SEPARATE CIVIL ACTION
No. 9282); and IS SUSPENDED
4. Civil actions, which can be filed and prosecuted
independently of the criminal action, namely,

274
General Rule: PRIMACY OF CRIMINAL ACTION Note : The acquittal of petitioner does not bar the
OVER CIVIL ACTION offended party from pursuing a subsequent civil
After the filing of the criminal action, the civil action, case based on the delict, UNLESS, the judgment of
which has been reserved, cannot be instituted until acquittal expressly declares that the act or omission
final judgment has been rendered in the criminal from which the civil liability may arise did not exist.
action. (Coscuella v. Sandiganbayan. G.R. No. 191411,
July 15, 2013)
If the civil action is instituted before the criminal
action and the criminal action is subsequently 4. EFFECT OF DEATH ON CIVIL
commenced, the pending civil action shall be
suspended until final judgment of the criminal action ACTIONS
has been rendered.
After Arraignment and During the Pendency of
Exception/s: the Criminal Action:
9. In cases of independent civil actions based General Rule: Death extinguishes the civil liability
upon Articles 32, 33, 34 and 2176 of the arising from delict or the offense.
Civil Code; Exception: Where civil liability is predicated on
10. In cases where the civil action presents a other sources of obligations such as law,
prejudicial question; and contract, quasi-contract, and quasi-delict: (Asilo
11. Where the civil action is not one intended to v.People G.R. Nos. 159017-18, March 09,
enforce the civil liability arising from the 2011)
offense.
The action may be continued against the estate or
Note: Article 29 of the Civil Code merely legal representative of the accused after proper
emphasizes that a civil action for damages is not substitution, or against said estate, whatever the
precluded by the acquittal of an accused for the case may be. Heirs of the deceased shall be
same criminal act or omission. It does not state that substituted for the deceased defendant. The
the remedy can be availed of only in a separate civil criminal case is reduced to a civil action.
action.
However, if the civil action has been reserved and
Consolidation of Criminal and Civil Cases subsequently filed or such civil action has been
Before Judgment on the Merits instituted, when the accused died, then such civil
Before judgment on the merits is rendered in the action will proceed and substitution of parties shall
civil action, the same may, upon motion of the be ordered by the court pursuant to Section 16 Rule
offended party be consolidated with the criminal 3 of the Rules of Court.
action in the court trying the criminal action. This is
a modification on the rule on primacy of criminal Before Arraignment:
action. The civil action impliedly instituted in the criminal
action shall be dismissed without prejudice to the
Where Effected offended party‘s filing a civil action against the
The consolidation must be effected in the criminal estate of the deceased.
court, irrespective of the nature of the offense, the
amount of the civil claim or the rank of the court Pending Appeal of His Conviction:
trying the civil case. In cases where consolidation is It extinguishes his criminal liability as well as the
given due course, the evidence presented and civil liability based solely thereon. (People v. Bayot,
admitted in the civil case shall be deemed G.R. No. 127444, September 13, 2000)
automatically reproduced in the criminal action. The
consolidated criminal and civil cases shall be tried Prior to Final Judgment:
and decided jointly. It terminates his criminal liability and only the civil
liability directly arising from and based solely on the
General Rule: offense committed.
Extinction of penal action does not carry extinction
of civil action where: Judgment in Civil Action Not A Bar
1. The acquittal is based on reasonable doubt, if The judgment in civil actions based on Articles 32,
the civil case has been reserved. 33, 34 and 2176 absolving the defendant from civil
2. The decision contains a declaration that the liability does not bar the criminal action.
liability is not criminal but only civil in nature.
3. The civil liability is not derived from or based on Note: Where the criminal case was dismissed
the criminal act of which the accused is before trial because the offended party executed an
acquitted. (Sapiera v. Court of Appeals, G.R. affidavit of desistance, the civil action thereof is
No. 128927, 1999). similarly dismissed.
Exception: If there is a finding in the final
judgment in the criminal action that the act or 5. PREJUDICIAL QUESTION
omission from which the civil liability may arise
did not exist. (Ching v. Nicdao, G.R. No.
PREJUDICIAL QUESTION - One which arises in a
141181, April 27, 2007)
case, the resolution of which is a logical antecedent

275
of the issue involved therein and the cognizance of complaint or information, the corresponding
which pertains to another tribunal. filing fees should be paid, otherwise, the trial
court will not acquire jurisdiction over such
Suspension of the criminal case due to a prejudicial other damages.
question is only a procedural matter, and is subject 2. If not specified in the complaint or
to a waiver by virtue of prior acts of the accused. information, the grant and amount thereof are
There is no prejudicial question where one case is left to the sound discretion of the trial court, the
administrative and the other is civil. corresponding filing fees need not be paid and
shall simply constitute a first lien on the
Purpose: To avoid two conflicting decisions. judgment.
3. In an appeal of a criminal case, the appellate
Where to File Petition for Suspension By court may impose additional damages or
Reason of Prejudicial Question: increase or decrease the amounts of damages
Office of the Prosecutor or the court conducting the upon the accused-appellant.
preliminary investigation. 4. Additional penalties cannot be imposed
upon a co-accused who did not appeal, but
Time to Plead modifications of the judgment beneficial to him
When the criminal action has been filed in court for are considered in his favor.
trial, the petition to suspend shall be filed in the 5. The offended party in a criminal case may
same criminal action at any time before the appeal the civil aspect despite the acquittal
prosecution rests. of the accused. Where the trial court
convicted the accused, but dismissed the civil
Elements of Prejudicial Question: action instituted therein, the offended party may
1. The civil case involves facts intimately related to appeal the dismissal to the CA.
those upon which the criminal prosecution would be 6. If aggravating circumstance is not alleged
based but proven in trial, the court will not consider
2. In the resolution of the issue or issues raised in such aggravating circumstance in the award of
the civil action, the guilt or innocence of the damages
accused would necessarily be determined; and
3. Jurisdiction to try said question must be lodged in Compromise on Civil Aspect
another tribunal. (People v. Arambulo, G.R. No. The offended party may compromise the civil
186597, 2015) aspect of a crime, provided that it must be entered
before or during the litigation, and not after final
Note: The annulment of marriage is not a judgment. A compromise on the civil aspect is valid
prejudicial question in the criminal case for even if it turns out to be unsatisfactory either to one
parricide. (Joselito Pimentel v. Maria C. Pimentel, or both of the parties.
G.R.172060, September 13, 2010). A prejudicial
question need not conclusively resolve the guilt or IMPORTANT: Section 1, Rule 111, Rules of Court
innocence of the accused. It is enough that it tests now expressly provides that no counterclaim, cross-
the sufficiency of the allegations in the information claim or third-party complaint may be filed by the
in order to sustain further prosecution of the criminal accused in the criminal case, but any cause of
case. (San Miguel Properties v. Perez, G.R. No. action which could have been subject thereof may
192253, September 18, 2013) be litigated in a separate civil action.

6. RULES ON FILING FEES IN CIVIL REASONS:

1. The counterclaim of the accused will
ACTION DEEMED INSTITUTED WITH unnecessarily complicate and confuse the
THE CRIMINAL ACTION criminal proceedings;
2. The trial court should confine itself to the
Actual Damages criminal aspect and the possible civil liability of
General Rule: No filing fees are required for the accused arising out of the crime.
amounts of actual damages.
Exception: Criminal action for violation of B.P.
22 which is deemed to include the END OF TOPIC
corresponding civil action. The offended party
shall, upon the filing of the criminal and civil
actions, pay in full the filing fees based on the
face value of the check as the actual damages.
D. PRELIMINARY INVESTIGATION
Purpose of Execution: to prevent the offended
party from using the prosecutor‘s office and the
court as vehicles for recovery of the face value of 1. NATURE OF RIGHT
the check, without paying the corresponding filing 2. PURPOSES OF PRELIMINARY
fees therefor. INVESTIGATION
Damages Other Than Actual
1. If these damages are specified in the

276
3. WHO MAY CONDUCT 1. NATURE OF RIGHT
DETERMINATION OF EXISTENCE
OF PROBABLE CAUSE The right of an accused to a preliminary
4. RESOLUTION OF INVESTIGATION investigation is not a constitutional but merely a
statutory right. Nonetheless, it is a component part
PROSECUTOR of due process in criminal justice and is a
5. REVIEW substantive right. It is subject to the requirements of
a. Role of the Secretary of Justice both substantive and procedural due process.
b. Effects of exclusion of other persons
form the Information The right to a Preliminary Investigation is a
c. Effect if the Information is filed by personal right and may be waived expressly or
someone not authorized by law by implication. Lack of preliminary investigation is
6. WHEN WARRANT OF ARREST MAY not a ground to quash or dismiss a complaint or
ISSUE information, nor does it affect the court‘s jurisdiction.
7. CASES NOT REQUIRING A
If there was no Preliminary Investigation and an
PRELIMINARY INVESTIGATION objection was raised, the court, instead of
8. REMEDIES OF ACCUSED IF THERE dismissing the complaint or information, should
WAS NO PRELIMINARY order the conduct of such investigation. (Doromal v.
INVESTIGATION Sandiganbayan, G.R. No. 85468, 1989)
9. INQUEST
a. Concept
Waiver:
b. Inquest Prosecutor
1. Failure of accused to invoke his right to a
c. Filing of Complaint or Information
preliminary investigation constituted a waiver of
d. Conditions before an accused may ask
such right and any irregularity that attended it.
for a preliminary investigation
The right may be forfeited by inaction and can
e. Motion for Reinvestigation
no longer be invoked for the first time at the
f. Right to bail pending preliminary
appellate level. (Pilapil v. Sandiganbayan, G.R.
investigation
No. 101978, 1993)
g. Records
2. Failure to request it within 5 days from the time
h. Issuance of warrant of arrest
he learns of the filing of the complaint or
information in those instances where the
PRELIMINARY INVESTIGATION - is an inquiry or accused is lawfully arrested without a warrant.
proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a No Right of Preliminary Investigation
crime has been committed and that the respondent When a person is lawfully arrested without a
is probably guilty thereof and should be held for warrant unless there is a waiver of the provisions of
trial. Article 125 of the Revised Penal Code.

It is purely executive in nature. The courts can Note: Article 125 of the Revised Penal Code
only come in when there is grave abuse of provides for the periods within which the public
discretion on the part of the prosecution. PI is based officer or employee detaining a person for some
on probable cause. It does not import absolute legal ground is directed to deliver such person to
certainty, and need not be based on clear and the judicial authorities (12, 18 or 36 hours
convincing evidence. The investigating officer acts depending upon the penalties prescribed for the
upon reasonable belief. It implies probability of guilt offense).
and requires more than bare suspicion but less than
evidence to justify a conviction. (Manebo v. Acosta, HOWEVER, the Accused Can Ask for
G.R. No. 169554, 2009) Preliminary Investigation in the Following
Cases:
When Required: EXCEPT as provided in Section 7 If a person is subjected to lawful arrest or inquest
of Rule 112, BEFORE the filing of a complaint or proceeding, he can ask for preliminary investigation
information for an offense where the penalty BEFORE the filing of the complaint/ information
prescribed by law is at least 4 years, 2 months and BUT he must sign a waiver in accordance with
1 day without regard to the fine. Article 125, Revised Penal Code.
It is not part of the trial of the criminal action in
court. Nor is its record part of the record of the AFTER the filing of the information/complaint, the
case in the Regional Trial Court. The dismissal of accused may, within 5 days from the time he learns
the case by the investigator will not constitute of its filing ask for preliminary investigation.
double jeopardy and will not bar the filing of another
complaint for the same offense, but if re-filed, the If the accused is already arraigned, he waives his
accused is entitled to another preliminary right to preliminary investigation.
investigation. (U.S. v. Marfori, G.R No. 10905,
1916) Note: This rule has been partially amended by A.M.
05-0-8-26-SC. The amendments took effect on

277
October 3, 2005. The amendment removed the
conduct of preliminary investigation from the judges Regarding Offenses Falling Within the Original
of the first level courts. Jurisdiction of the Sandiganbayan:
Prosecutors of offenses falling within the original
jurisdiction of the Sandiganbayan shall, after their
2. PURPOSES OF PRELIMINARY conclusion, transmit the records and their
INVESTIGATION resolutions to the Ombudsman or his deputy for
appropriate action.
Purposes:
1. To determine whether a crime has been Moreover, the prosecutor cannot dismiss the
committed and whether there is probable cause complaint without the prior written authority of the
to believe that the accused is guilty thereof. Ombudsman or his deputy, nor can the prosecutor
2. To preserve evidence and keep the witnesses file an information with the Sandiganbayan without
within the control of the State. being deputized by, and without prior written
3. To determine the amount of bail, if the offense authority of, the Ombudsman or his deputy.
is bailable.
The Ombudsman is clothed with the authority to
Note: It must be stressed that a preliminary conduct preliminary investigation and to prosecute
investigation is essentially prefatory and all criminal cases involving public officers and
inquisitorial. It is not a trial based on the merits of employees, not only those within the jurisdiction of
the case. Its main purpose is to determine whether the SB, but also those within the jurisdiction of the
a crime has been committed and whether there is regular courts. Section 15 of R.A. No. 6770
probable cause that the accused is guilty of the (Ombudsman Act of 1989) does not make any
crime. (Community Rural Bank of Guimba, Inc. v. distinction. “Any illegal act or omission of any public
Judge Talavera, A.M. No. RTJ-05-1909, April 6, official” is broad enough to embrace any crime
2005) committed by a public officer or employee. Such
grant of primary jurisdiction over cases cognizable
by the SB does not necessarily imply the exclusion
3. WHO MAY CONDUCT from its jurisdiction of cases involving public officers
DETERMINATION OF EXISTENCE and employees cognizable by other courts. (Uy v.
OF PROBABLE CAUSE Sandiganbayan, G.R. Nos. 105965-70, 1999)

Officers Authorized To Conduct Preliminary In criminal prosecutions, a reinvestigation, like an

Investigation appeal, renders the entire case open for review,
1. Provincial or city prosecutor and their regardless of whether a motion for reconsideration
assistants or reinvestigation was sought. The Ombudsman
2. National and regional state prosecutors should not be limited in its review. It is clear from
3. Such other officers as may be authorized by R.A. No. 6770 that the Ombudsman may motu
law such as the COMELEC, Ombudsman and propio conduct a reinvestigation. (Roxas v.
PCGG Vasquez, G.R. No. 114944, 2002)

Note: Their authority to conduct preliminary Election Offenses:

investigations shall include all crimes cognizable by The exclusive jurisdiction of the COMELEC to
the proper court in their respective territorial investigate and prosecute election offenses inheres
jurisdictions. (As amended by A.M. No. 05-8-26-SC, even if the offender is a private individual or public
effective October 3, 2005) officer or employee, and in the latter instance,
irrespective of whether the offense is committed in
No Longer Authorized to Conduct Preliminary relation to his official duties or not. In other words, it
Investigation: is the nature of the offense, namely, an election
By implication, Municipal Trial Court judges in offense as defined in the Omnibus Election Code
Manila and in chartered cities have not been and in other election laws, and not the personality of
granted the authority to conduct Preliminary the offender that matters.
Investigation, as the officers authorized to do so are
the prosecutors The Ombudsman:
The power of the Ombudsman to make
Note: A.M. No. 05-8-26-SC, which took effect on 3 investigation extends to any illegal act or omission
October 2005, amending Rules 112 and 114 of the of any public official, whether or not the same is
Revised Rules on Criminal Procedure by removing committed in relation to his office.
the conduct of preliminary investigation from judges Moreover, the jurisdiction of the Office of the
of the first level courts. Thus, under Section 2 of Ombudsman should not be equated with the limited
Rule 112, only the following officers are authorized authority of the Special Prosecutor under Section
to conduct preliminary investigations: (a) Provincial 11 of RA 6770. Certainly, the lawmakers did not
or City Prosecutors and their assistants; (b) intend to confine the investigatory and prosecutory
National and Regional State Prosecutors; and (c) power of the Ombudsman to these types of cases.
Other officers as may be authorized by law. The Ombudsman is mandated by law to act on all
(Conquilla v. Bernardo, A.M. No. MTJ-09-1737, complaints against officers and employees of the
2011) government and to enforce their administrative, civil

278
 and criminal liability in every case where the
evidence warrants. The law likewise allows him to Rights of Respondent in a Preliminary
direct the Special Prosecutor to prosecute cases Investigation:
outside the Sandiganbayan's jurisdiction in 1. To examine the evidence submitted by the
accordance with Section 11 (4c) of RA 6770. (Uy v. complainant.
Sandiganbayan, G.R. Nos. 105965-70, 1999) 2. To submit counter-affidavit.
3. To be present in the clarificatory hearing.
Section 4(d) of Administrative Order No. 07
disallows the filing of a motion to quash or dismiss a Note: The Rules do not require the presence of the
complaint filed with the Ombudsman, except on the respondent in the Preliminary Investigation. What is
ground of lack of jurisdiction. required is that he be given the opportunity to
controvert the evidence of the complainant by
Which remedy may an aggrieved party avail of submitting counter-affidavits.
against resolutions of the Ombudsman in
criminal or non-administrative cases?
The law is silent. Hence, appeal is not available as A clarificatory hearing is not indispensable during
a remedy because the right to appeal is a statutory preliminary investigation. It is optional on the part of
privilege and may be availed of only if there is a the investigating officer. If the investigating
statute to that effect. However, an aggrieved party prosecutor is already satisfied that he can
is not without remedy, as he can resort to the reasonably determine the existence of probable
special civil action of certiorari under Rule 65. cause based on the parties‘ evidence thus
presented, he may terminate the proceedings and
The Ombudsman DOES NOT Have the Following resolve the case. What is determined during
Powers: preliminary investigation is only probable cause, not
1. To prosecute before the SB any impeachable proof beyond reasonable doubt. (De Ocampo v.
officers with any offense which carries with it Secretary of Justice, G.R. No. 147932, 2006)
the penalty of removal from office, or any
penalty service of which would amount to
removal from office because by constitutional 4. RESOLUTION OF INVESTIGATING
mandate, they can only be removed from office PROSECUTOR
on impeachment for, and conviction of,
culpable violation of the Constitution, treason, After having filed the information, the prosecutor is
bribery, graft and corruption, other high crimes, called upon to prosecute the case in court. It has
or betrayal of public trust been said that at this stage, unlike judges who are
2. To prosecute public officers or employees who mandated to display cold neutrality in hearing
have committed election offenses. cases, the prosecutors are not required to divest
3. To file an information for an offense cognizable themselves of their personal convictions and refrain
by the regular courts. from exhibiting partiality. But while he may strike
hard blows, he is not at liberty to strike foul ones.
Effects of an Incomplete Preliminary
Investigation He Shall Certify Under Oath in the Information
1. It does not warrant the quashal of the information that:
2. It does not affect the court‘s jurisdiction or the 1. He/she or an authorized officer personally
validity of the information. examined the complainant and his witnesses;
2. There is reasonable ground that a crime has
By reason of the abbreviated nature of Preliminary been committed and the accused is probably
Investigation, a dismissal of the charges as a result guilty thereof;
thereof is not equivalent to a judicial 3. The accused was informed of the complaint
pronouncement of acquittal. and of the evidence against him/her; and
4. The accused was given an opportunity to
A motion to dismiss is now a prohibited pleading submit controverting evidence.
during preliminary investigation.
Note: Under Sec. 1 Rule 112, the investigating
The respondent is now required to submit counter- prosecutor is tasked to determine whether there is
affidavits and other supporting documents relied sufficient ground to engender a well-founded belief
upon by him for his defense. that a crime has been committed and that the
respondent is herein guilty. If he finds probable
The respondent has now the right to examine the cause, he executes a certification t the bottom of
evidence submitted by the complainant of which he the information. However, such certification by itself
may not have been furnished and to obtain copies is ineffective and not binding to the court. It cannot
thereof at his expense. be the sole basis for the finding of probable cause
of the trial judge. (Samuel Lee v. KBC Bank N.V.,
If respondent cannot be subpoenaed, or if G.R. No. 164673, January 15, 2010)
subpoenaed but does not submit his counter-
affidavit within 10 days, investigating officer shall
resolve the complaint based on the evidence 5. REVIEW
presented by the complainant.

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No complaint or information may be filed or
dismissed by an investigating prosecutor without Effect if the Information is Filed by Someone
the prior written authority or approval of the Not Authorized by Law
provincial or city prosecutor or the Ombudsman or The court does not acquire jurisdiction. The
his deputy. accused‘s failure to assert lack of authority on the
part of the prosecutor in filing the information does
Where an assistant fiscal or state prosecutor who not constitute a waiver thereof. (People v. Garfin,
has investigated the case recommends the G.R. No. 153176, 2004. Quisay v. People G.R. No.
dismissal of the case but his findings are reversed 216920, 2016).
by the Provincial or City Fiscal or by the Chief State
Prosecutor on the ground that a prima facie case Upon the effectivity of these amendments, First
exists, the Provincial or City Fiscal or the Chief Level Courts shall no longer accept new cases
State Prosecutor may, by himself, and on the basis for preliminary investigation, which fall under
of the same sworn statements and evidence the exclusive jurisdiction of courts of other
submitted: levels.
1. File the information against the respondent; or
2. Direct any other assistant fiscal or state These amendments shall take effect on October
prosecutor to do so, without conducting another 3, 2005 following their publication in a newspaper of
preliminary investigation general circulation not later than September 15,
2005.
Role of Secretary of Justice
The Secretary of Justice is not prevented from
entertaining an appeal from the accused or from the
6. WHEN WARRANT OF ARREST MAY
offended party even after the information has been ISSUE
filed and the trial court has arraigned the accused.
Section 4 of DOJ 223 should be construed as If the judge, upon the filing of the complaint or
merely enjoining the Secretary of Justice to refrain, information with the court, finds probable cause,
as far as practicable, from entertaining a petition for he/she shall issue a warrant of arrest or a
review or appeal from the action of the prosecutor commitment order (if the accused had already been
once the complaint or information is filed in court. arrested) and hold him/her for trial. If the judge is
satisfied that there is no necessity for placing the
If the Secretary reverses the ruling of the provincial accused under custody, he/she may issue
or city prosecutor or chief state prosecutor or the summons instead of warrant of arrest.
Ombudsman or his deputy, the Secretary shall:
1. Direct the prosecutor to file the corresponding If the judge does not find probable cause, he may
information without conducting another either dismiss the case or give the prosecutor a
preliminary investigation; or period of 10 days to file additional evidence. If the
2. Dismiss or move for the dismissal of the judge dismisses the case, he must state the basis
complaint or information with notice to the of his dismissal.
parties
However, if the evidence on record shows that,
Note: A provincial or city prosecutor has neither the more likely than not, the crime charged has been
personality nor the legal authority to review or committed and that respondent is probably guilty of
overrule the decision of the secretary. The only time the same, the judge should not dismiss the case
that a motion for reinvestigation may be filed is and thereon, order the parties to proceed to trial.
when there is newly discovered evidence. Such (People vs. Young, GR No. 213910, 2016)
must be filed before the secretary of justice rules on
an appeal of the resolution in the preliminary The judge will order the arrest if the imposable
investigation. (Community Rural Bank of Guimba, penalty of the offense is more than 4 years, 2
Inc. v. Judge Talavera, A.M. No. RTJ-05-1909, April months and 1 day.
6, 2005)
For crimes under summary procedure, an
Effects of Exclusion of Other Persons from the arraignment has to be set.
Information
1. If during the trial, evidence is shown that such What the Constitution underscores is the exclusive
persons should have been charged, the fact and personal responsibility of the issuing judge to
that they were not included in the information satisfy himself of the existence of probable cause.
does not relieve them of criminal liability, and In satisfying himself of the existence of probable
they can be subsequently prosecuted. cause for the issuance of a warrant of arrest, the
2. The accused that has been charged with the judge is not required to personally examine the
offense is not allowed to escape punishment complainant and his witnesses. Following
merely because it develops in the course of the established doctrine and procedure, he shall:
trial that there were other guilty participants in 1. Personally evaluate the report and the
the crime. supporting documents submitted by the fiscal
3. It does not vitiate the validity of the information. regarding the existence of probable cause and,
Neither is the same a ground for a motion to on the basis thereof, issue a warrant of arrest;
quash. or

280
2. If on the basis thereof he finds no probable discretion.
cause, he may disregard the fiscal‘s report and
require the submission of supporting affidavits IMPORTANT: The rule now is that the investigating
of witnesses to aid him in arriving at a judge‘s power to order the arrest of the accused is
conclusion as to the existence of probable limited to instances in which there is a necessity for
cause. placing him in custody in order not to frustrate the
ends of justice. Thus, even if the judge finds
Sound policy dictates this procedure, otherwise probable cause, he cannot, on such ground alone,
judges would be unduly laden with the preliminary issue a warrant of arrest. He must further find if
examination and investigation of criminal complaints there is a necessity of placing the accused under
instead of concentrating on hearing and deciding immediate custody in order not to frustrate the ends
cases filed before their courts. (Soliven v. Makasiar, of justice.(See A.M. No. 05-8-26-SC)
G.R. Nos. L-82585, L-82827, and L-83979, 1988)
The investigating judge has no power to reduce
Invalid: A warrant issued by the judge solely on the or change the crime charged in order to justify
basis of the report and recommendation of the the grant of bail to the accused. The power
investigating prosecutor, without personally belongs to the prosecutor.
determining the existence of probable cause by
independently examining sufficient evidence After the conclusion of his PI, the judge has to
submitted by the parties during the Preliminary transmit to the provincial prosecutor his resolution
Investigation. and entire records of the case, regardless of
whether he finds a probable cause or sufficient
Effect of a Finding of Probable Cause ground to issue a warrant of arrest.
It merely binds the suspect to stand trial. It is not a
pronouncement of guilt. When Warrant of Arrest Not Necessary:
1. When the accused is already under detention
Remedies of the Accused Who Believes that 2. When the accused is lawfully arrested without a
there is No Probable Cause to Hold Him for warrant
Trial: 3. When the offense is penalized by a fine only
1. Motion to dismiss on such ground
2. Motion for the determination of probable cause. When accused is lawfully arrested without
warrant:
The mere fact that a warrant of arrest has been General Rule: No complaint or information shall be
issued means that there is already probable cause. filed for an offense which is penalized by
imprisonment of at least 4 years, 2 months and 1
Where an information has already been filed in day without Preliminary Investigation.
court and the Secretary of Justice reversed the Exception: In case a person is ARRESTED
prosecutor’s finding of probable cause, what WITHOUT A WARRANT, a complaint or
should the trial court do upon the prosecutor’s information may only be filed after an inquest
motion to dismiss? is conducted in accordance with existing rules.
The judge should make his/her own assessment of
the evidence and not just rely on the conclusion of
the prosecutor; otherwise the court becomes a
7. CASES NOT REQUIRING
mere rubber stamp. PRELIMINARY INVESTIGATION NOR
COVERED BY THE RULE ON
―Once a complaint or information is filed in Court SUMMARY PROCEDURE
any disposition of the case, [either] dismissal or the
conviction or acquittal of the accused, rests in the
Cases where the penalty imposed is less than 4
sound discretion of the Court. Although the fiscal
years 2 months and 1 day.
retains the direction and control of the prosecution
of criminal cases even while the case is already in
Upon the finding of probable cause, a warrant of
Court he cannot impose his opinion on the trial
arrest must be issued and arraignment has to be
court. The Court is the best and sole judge on what
set. (Rule 112, Section 6)
to do with the case before it. The determination of
the case is within its exclusive jurisdiction and
Procedure to Be Followed if
competence. (Crespo v. Mogul, G.R. No. L-53373,
Complaint/Information filed with the MTC/MCTC:
1987)
1. Evaluate the evidence presented;
Reinvestigation: 2. Examine the witnesses in the form of searching
questions or answers; and
Once the complaint or information is filed in court,
3. Require the submission of additional evidence
any motion for reinvestigation is addressed to the
if necessary.
sound discretion of the court.
While the trial court judge has the power to order
If a complaint or information is filed directly with the
the reinvestigation of the case by the prosecutor, he
Municipal Trial Court, [xxx] the judge is given the
may not, before the prosecutor concluded the
discretion to merely issue summons instead of a
reinvestigation, recall said order, set the case for
warrant of arrest if he does not find it necessary to
arraignment and trial, without gravely abusing his

281
place the accused under custody. [xxx] Whether it is of the RPC.
necessary to place the accused in custody in order
not to frustrate the ends of justice is left to the Provided that in the absence or unavailability of an
judge‘s sound judgment. (Sesbreo v. Aglugub, A.M. inquest prosecutor, the complaint may be filed by
No. MTJ-05-1581, 2005) the offended party or a peace officer directly with
the proper court on the basis of the affidavit of the
For cases under the Revised Rules on Summary offended party or arresting officer or person.
Procedure, upon finding of probable cause, the
judge will order the arraignment of the accused. Accused may ask for a preliminary
investigation; condition
8. REMEDIES OF THE ACCUSED IF Before the filing of a complaint or information, the
THERE WAS NO PRELIMINARY person arrested without a warrant may ask for a
preliminary investigation by a proper officer, but he
INVESTIGATION must sign a waiver of the provisions of Article 125 of
the RPC.
Remedies of the Accused: 1. If the accused allows himself to be arraigned
1. Refuse to enter a plea upon arraignment and without asking for a preliminary investigation,
object to further proceedings on ground of he is deemed to have waived the right to such
absence of preliminary investigation. PI.
2. Insist on a preliminary investigation. 2. If the complaint or information was filed without
3. Raise lack of preliminary investigation as error PI, the accused may, within 5 days from the
on appeal. time he learns of the filing of the information,
4. File a petition for prohibition and certiorari. ask for a preliminary investigation with the
same right to adduce evidence in his favor in
If the accused files a petition for prohibition and the manner prescribed in this Rule. (5–day
certiorari, he can also ask for the remedy for period is MANDATORY; failure to file within
injunctive relief. If the court where the petition was the said period amounts to a waiver)
filed does not grant the injunctive relief within 10 3. Where the information was amended without a
days from the filing of the petition, the lower court new PI having been conducted, the 5-day
shall proceeding with the hearing of the case or period is computed from the time the accused
arraignment. [Rule 65, Sec. 7]. learns of the filing of said amended information.

The absence of a preliminary investigation does not Where a Motion for Reinvestigation is Granted
impair the validity of the information or otherwise Where the trial court has granted a motion for
render it defective. Neither does it affect the reinvestigation, it must hold in abeyance the
jurisdiction of the court or constitute a ground for arraignment and trial of the accused until the
quashing the information. The trial court, instead of prosecutor shall have conducted and made a report
dismissing the information, should hold in abeyance on the result of the reinvestigation.
the proceedings and order the public prosecutor to
conduct a preliminary investigation. (Villaflor v. Viva, Right to Bail Pending Preliminary Investigation
G.R. No. 134744, 2001) A person lawfully arrested may post bail before the
filing of the information or even after the filing
9. INQUEST without waiving his right to PI, provided that he asks
for a PI by the proper officer within the period fixed
Concept in the said rule.
Inquest is an informal and summary investigation
conducted by a public prosecutor in criminal cases Records
involving persons arrested and detained without the An information or complaint filed in court shall be
benefit of a warrant of arrest issued by the court for supported by the affidavits and counter-affidavits of
the purpose of determining whether or not said the parties and their witnesses, together with the
persons should remain under custody and other supporting evidence and the resolution on the
correspondingly charged in court. (DOJ Department case.
Circular No. 61, 1993)
Records of the preliminary investigation shall NOT
Conducted by Inquest Prosecutor automatically form part of the records of the case.
When the accused has been LAWFULLY arrested Courts are not compelled to take judicial notice
without warrant, in which case, an inquest must be thereof. It must be introduced as evidence.
conducted by an inquest prosecutor who will
determine whether his arrest without warrant is Conditions for the Issuance of Warrant of
lawful. Arrest:
1. Must EXAMINE in writing and under oath the
Filing of Complaint or Information complainant and his witnesses by searching
The inquest prosecutor may order the release of the questions and answers (must be
arrested person if he/she finds no sufficient ground searching/probing; not merely questions
to hold the accused, without prejudice to conducting answerable by ―yes‖ or ―no‖).
further investigation, or filing a complaint or 2. Be satisfied that a PROBABLE CAUSE exists.
information within the periods specified in Art. 125 3. That there is a need to place respondent under

282
 IMMEDIATE CUSTODY in order not to Modes of Arrest:
frustrate the ends of justice. 1. Arrest by virtue of a warrant; and
2. Arrest without a warrant under exceptional
circumstances as may be provided by statute.
END OF TOPIC
Duty of Arresting Officer
1. Arrest the accused; and
2. Deliver him to the nearest police station or jail
without unnecessary delay.
E. ARREST
Execution of Warrant
1. ARREST, HOW MADE A warrant of arrest has no expiry date. It remains
a. Modes of arrest valid until arrest is effected or the warrant is lifted.
b. Duty of arresting officer
c. Execution of warrant However, head of the office shall cause the warrant
to be executed within 10 days from receipt thereof.
2. ARREST WITHOUT WARRANT, Within 10 days after expiration of the period, the
WHEN LAWFUL arresting officer assigned to execute the same shall
3. METHOD OF ARREST submit a report to the judge who issued the warrant.
a. By officer with warrant In case of his failure to execute the warrant, he shall
b. By officer without warrant state the reasons thereof.
c. By Private person
4. REQUISITES OF A VALID Unlike a search warrant, the validity of which is
limited to ten days, after which it becomes void
WARRANT OF ARREST (Rule 126, Section 9), no time limit is fixed for the
5. DETERMINATION OF PROBABLE validity of a warrant of arrest. The arrest warrant
CAUSE FOR ISSUANCE OF continues to be in force so long as it has not been
WARRANT OF ARREST recalled or the person named therein arrested or
6. DISTINGUISH PROBABLE CAUSE had otherwise submitted himself to the jurisdiction
of the court. This must be so, for the return
OF FISCAL FROM THAT OF A mentioned in the section refers not to the physical
JUDGE delivery of the very same copy of the process to the
issuing court, but to the report of the officer charged
with its execution on the action taken by him
thereon. In short, the 10-day period provided in
1. ARREST, HOW MADE
Rule 113, Section 4 is only a directive to the officer
executing the warrant to make a return to the court.
ARREST- is the taking of a person into custody in (People vs. Givera, G.R. No. 132159, 2001)
order that he may be bound to answer for the
commission of an offense. The Judge Issues a Warrant of Arrest in 2
On diplomatic and parliamentary immunity – it is a Instances:
well-recognized principle of international law that 1. Upon the filing of the information by the
diplomatic representatives are exempt from the prosecutor.
criminal and civil jurisdiction of foreign courts. This In issuing this kind of warrant, the judge does
exemption includes the freedom from arrest, not personally examine the complainant and the
prosecution, and punishment for violation of penal witnesses he may produce, but he merely
laws. evaluates personally the report and supporting
documents and other evidence adduced during
How an Arrest is Made: the preliminary investigation and submitted to
1. By actual restraint of the person to be arrested; him by the prosecutor, and if he finds probable
or cause on the basis thereof, he issues the
2. By his/her submission to the custody of the warrant for the arrest of the accused.
person making the arrest.
2. Upon application of a peace officer
No violence or unnecessary force shall be used in In this kind of warrant, the judge must personally
making an arrest. The person arrested shall not be examine the applicant and the witnesses he
subject to greater restraint than is necessary for his may produce, to find out whether there exists
detention. probable cause, otherwise, the warrant issued is
null and void. He must subject the complainant
It may thus be stated that a police officer, in the and the witnesses to searching questions. The
performance of his duty, must stand his ground and reason for this is there is yet no evidence on
cannot, like a private individual, take refuge in flight; record upon which he may determine the
his duty requires him to overcome his opponent. existence of probable cause.
The force which he may exert therefor differs
somewhat from that which may ordinarily be offered 2. ARREST WITHOUT A WARRANT,
in self-defense. WHEN LAWFUL (Rule 113, Section 5)

283
 The usual procedure in a buy-bust operation is for
Lawful Warrantless Arrest: the police officers to arrest the pusher of drugs at
1. When IN HIS/HER PRESENCE, the person to the very moment he hands over the dangerous
be arrested has committed, is actually drugs to the poseur-buyer. In a case where the
committing or is attempting to commit an poseur-buyer calls up his superior after receiving
offense (IN FLAGRANTE DELICTO the money, and only thereafter gives a go-signal to
ARRESTS). arrest the suspect, the operation is an illegal raid
2. When an offense has just been committed and rather than a buy-bust operation. (People v. Lim,
he has probable cause to believe based on G.R. No. 141699, August 7, 2002)
PERSONAL KNOWLEDGE of fact and
circumstance that the person to be arrested Time of Making Arrest
has committed it (DOCTRINE OF HOT It may be made on any day and at any time of the
PURSUIT). day or night.

Note: The standards for evaluating the 3. METHOD OF ARREST

factual basis supporting a probable cause
assessment are not less stringent in a. BY OFFICER WITH WARRANT
warrantless arrest situation than in a case
where a warrant is sought from a judicial Inform the person to be arrested of the:
officer. The probable cause determination 1. Cause of the arrest and
of a warrantless arrest is based on 2. The fact that a warrant has been issued for his
information that the arresting officer arrest.
possesses at the time of the arrest and not
Exception/s:
on the information acquired later. (People 1. When a person flees; or
vs. Pestilos, GR No. 182601, 2014) 2. When a person forcibly resists before the
officer has opportunity to so inform him; or
3. When the person to be arrested is a prisoner 3. When the giving of such information will
who has escaped from a penal establishment imperil his arrest.
or place where he is serving final judgment or
temporarily confined while his case is pending The officer need not have the warrant in his
or has escaped while being transferred from possession at the time of the arrest but after the
one confinement to another. arrest, if the person arrested so requires, the
4. When a person who has been lawfully arrested warrant shall be shown to him as soon as
escapes or is rescued (Rule 113, Section 13). practicable.
5. By the bondsman for the purpose of
surrendering the accused (Rule 113, Section
23). b. BY OFFICER WITHOUT WARRANT
6. Where the accused attempts to leave the
country without permission of the court (Rule Inform the person to be arrested of:
114, Section 23). 1. His authority and
2. The cause of the arrest.
Law enforcers may search an arrested person for
dangerous weapons or anything that may be used Exception/s:
as proof of the commission of an offense, without 1. When the person is engaged in the
need of a search warrant. commission of an offense; or
2. Pursued immediately after its commission;
Section 5(b) authorizes warrantless arrest ―when an or
offense has in fact just been committed.‖ The word 3. Has escaped, flees; or
―just‖ implies immediacy in point of time. 4. Forcibly resists before the officer has
opportunity to so inform him; or
Delivery of the detained person to the proper 5. When giving of such information will
judicial authorities means the filing of the complaint imperil the arrest.
or information with the municipal trial court or with
the inquest fiscal or prosecutor who shall then c. BY PRIVATE PERSON
decide either to order the release of the detained
person or to file the corresponding information in Inform the person to be arrested of:
court. 1. Intention to arrest him and
An accused who enters his plea of NOT guilty and 2. The cause of the arrest.
participates in the trial waives the illegality of the
arrest. Objection to the illegality must be raised Exception/s:
before arraignment, otherwise it is deemed waived, 1. The person to be arrested is engaged in
as the accused had voluntarily submitted the commission of an offense;
himself/herself to the jurisdiction of the court. 2. Pursued immediately after its commission;
3. Has escaped, flees;
4. Forcibly resists before the officer has
opportunity to so inform him; or

284
 5. When giving of such information will Pendency of a motion for reconsideration, motion
imperil the arrest. for reinvestigation, or petition for review is not a
cause for the quashal of a warrant of arrest
Officer May Summon Assistance previously issued because the quashal of a warrant
Arresting officer may orally summon as many of arrest may only take place upon the finding that
persons as he deems necessary to assist him in no probable cause exists. (Aguinaldo vs Ventus,
effecting the arrest. GR No.176033, 2015)

Note: This rule does not cover a private individual The probable cause determination of a warrantless
making an arrest. arrest is based on information that the arresting
officer possesses at the time of the arrest and not
Right of Officer to Break Into Building or on the information acquired later. (People vs
Enclosure Pestilos, GR No. 182601, 2014)
Requisites:
1. That the person to be arrested is or is 6. DISTINGUISH PROBABLE CAUSE OF
reasonably believed to be in the said building;
2. That the officer has announced his/her
FISCAL FROM THAT OF A JUDGE
authority and purpose for entering therein;
There is distinction between the preliminary inquiry
3. That the officer has requested and been denied
which determines probable cause for the issuance
admittance.
of warrant of arrest and the preliminary investigation
Note: Rule is applicable both where there is a proper which ascertains whether the offender
should be held for trial or to be released. The
warrant and where there is a valid arrest without a
determination of probable cause for purposes of
warrant.
issuing the warrant of arrest is made by the judge.
Note: This rule also does not cover a private
The preliminary investigation proper – whether or
individual making an arrest.
not there is reasonable ground to believe that the
Right to Break Out of the Building or Enclosure accused is guilty of the offense charged – is the
function of the investigating prosecutor. (AAA v.
to Effect Release
Carbonell, G.R. No. 171465, 2007)
An officer making an arrest who has entered a
building or enclosure may break out therefrom when
Note: Determination of probable cause is either
necessary to liberate himself/herself.
executive or judicial in nature. The first pertains to
Arrest after Escape or Rescue the duty of the public prosecutor during preliminary
investigation for the purpose of filing an information
If a person arrested escapes or is rescued, any
in court. At this juncture, the investigating
person may immediately pursue or retake him
prosecutor evaluates if the facts are sufficient to
without a warrant at any time and in any place
engender a well-founded belief that a crime has
within the Philippines.
been committed and that the accused is probably
Right of an Attorney or Relative to Visit the guilty thereof. On the other hand, judicial
Person Arrested determination of probable cause refers to the
prerogative of the judge to ascertain if a warrant of
The attorney of the person arrested has the right to
arrest should be issued against the accused. At this
visit and confer privately with such person in jail or
stage, the judge makes a preliminary examination
any place of custody at any hour of the day or night.
of the evidence submitted, and on the strength
thereof, and independent from the findings of the
4. REQUISITES OF A VALID WARRANT public prosecutor, determines the necessity of
OF ARREST placing the accused under immediate custody in
order to frustrate the ends of justice. (People v.
Essential Requisites of a Valid Warrant of Young, GR 213910, 2016)
Arrest:
1. The arrest warrant must be issued upon END OF TOPIC
PROBABLE CAUSE.
2. Probable cause must be DETERMINED
PERSONALLY by a judge.
3. There must be an examination UNDER OATH
OR AFFIRMATION of the complainant and the F. BAIL
witnesses he may produce.
4. The warrant must PARTICULARLY DESCRIBE
the person to be seized. 1. NATURE
a. Concept
b. Purpose of bail
5. DETERMINATION OF PROBABLE
c. Forms of bail
CAUSE FOR ISSUANCE OF i. Corporate surety
WARRANT OF ARREST ii. Property bond
iii. Cash deposit
(See discussion under Preliminary Investigation) iv. Recognizance

285
2. WHEN A MATTER OF RIGHT;
EXCEPTIONS BAIL BOND RECOGNIZANCE
An obligation given by An obligation of record,
3. WHEN A MATTER OF DISCRETION the accused with one or entered into before
4. HEARING OF APPLICATION FOR more sureties and made some court or
BAIL IN CAPITAL OFFENSES payable to the proper magistrate duly
a. Capital offense officer with the condition authorized to take it,
b. Evidence of guilt to be void upon with the condition to do
c. A.M. No. 12-11-2-SC: Guidelines for performance by the some particular act
Decongesting Holding Jails by accused of such acts as
Enforcing the Rights of Accused he may legally be
Persons to Bail and to Speedy Trial required to perform.
5. GUIDELINES IN FIXING AMOUNT
Note: A person is ―in the custody of law‖ when he
OF BAIL
has been arrested or otherwise deprived of his
a. Corporate surety bail bond
freedom or when he has voluntarily submitted
b. Property bond
himself to the jurisdiction of the court by
c. Deposit of cash as bail
surrendering to the proper authorities.
d. Recognizance As bail is intended to obtain or secure one‘s
6. BAIL WHEN NOT REQUIRED provisional liberty, the same cannot be posted
7. INCREASE OR REDUCTION OF before the court has acquired custody over him.
BAIL Upon assumption of the obligation of bail, the
8. FORFEITURE AND CANCELLATION sureties become in law the jailers of their principal.
OF BAIL Prosecution Witness May also be Required to
9. APPLICATION NOT A BAR TO Post Bail to Ensure Their Appearance at the
OBJECTIONS IN ILLEGAL ARREST, Trial of the Case where:
LACK OF OR IRREGULAR 1. There is a substitution of information. (Rule
110, Section 4)
PRELIMINARY INVESTIGATION 2. Where the court believes that a material
10. HOLD DEPARTURE ORDER & witness may not appear at the trial. (Rule 119,
BUREAU OF IMMIGRATION WATCH Section 14)
LIST
Requiring Arraignment Before Grant of Bail Is
Not Valid Because
1. NATURE Bail does not require arraignment. As long as there
is deprivation of liberty or voluntary surrender, one
Bail can apply for bail. (Serapio v. Sandiganbayan, G.R.
It is the security given for the release of a person in No. 148468, 2003)
custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any The trial court could ensure the presence of the
court as required under the conditions hereinafter accused at the arraignment precisely by granting
specified. (Rule 114, Section 1) bail and ordering his presence at any stage of the
proceedings such as arraignment. (Rule 114,
The strength of the Prosecution‘s case, albeit a Section 2[b])
good measure of the accused‘s propensity for flight
or for causing harm to the public, is subsidiary to The accused will be placed in a position where he
the primary objective of bail, which is to ensure that has to choose between 1) filing a motion to quash
the accused appears at trial. (Enrile vs. and thus delay his release on bail and; 2) foregoing
Sandiganbayan, GR No. 213847, 2015) the filing of a motion to quash so that he can be
arraigned at once and thereafter be released on
Note: The term ―punishable‖ under Sections 4 and bail. (Lavides v. Court of Appeals, G.R. No.
7 of Rule 114 refers to the prescribed and not 129670, 2000)
imposable penalty. (Peope v. Valdez and
Sandiganbayan, G.R. Nos. 216007-09, 2015) The Surety’s Liability Covers All These 3
Stages:
Purpose of a Bail: 1. Trial;
1. To honor the presumption of innocence until his 2. Promulgation; and
guilt is proven beyond reasonable doubt; 3. The execution of the sentence.
2. To enable him to prepare his defense without
being subject to punishment prior to conviction. All Kinds of Bail are Subject to the Following
Conditions:
Forms of Bail: 1. Unless the court directs otherwise, the bail
1. Corporate surety; bond posted by an accused remains in force at
2. Property bond; all stages of the case until promulgation of the
3. Cash deposit; and judgment of the Regional Trial Court.
4. Recognizance. 2. The accused shall appear before the proper

286
 court whenever required by the court or rules. death, reclusion perpetua or life imprisonment
3. Failure of the accused to appear at the trial 2. After conviction by the RTC of a non-capital
without justification despite due notice shall be offense.
deemed a waiver of his right to be present
thereat. The trial may proceed in absentia. Note: Prosecution is entitled to present evidence for
4. The bondsman shall surrender the accused to its denial.
court for execution of the final judgment.
In hearing the petition for bail, the prosecution has
The original papers shall state the full name and the burden of showing that the evidence of guilt is
address of the accused, the amount of the strong pursuant to § 8 Rule 114. In bail
undertaking and the conditions required by this proceedings, the prosecution must be given ample
section. Photographs (passport size) taken within opportunity to show that the evidence of guilt is
last six (6) months showing the face, left and right strong. While the proceeding is conducted as a
profiles of the accused must be attached to the bail. regular trial, it must be limited to the determination
of the bailability of the accused. It should be brief
Note: If the accused presents his notice of appeal, and speedy, lest the purpose for which it is
the trial court will order the accused to be taken into available is rendered nugatory. (People v. Singh, et.
custody in the absence of a new bail bond on al., G.R. No. 129782, 2001)
appeal duly approved by the court. If the accused
does not appeal, the bondsman must produce the The test is not whether the evidence establishes
accused on the 15th day from promulgation of guilt beyond reasonable doubt but rather whether it
sentence for service of sentence. shows evident guilt or a great presumption of guilt.
As such, the court is ministerially bound to decide
The prohibition against requiring excessive bail is which circumstances and factors are present which
enshrined in the Constitution. The obvious rationale would show evident guilt or presumption of guilt.
is that imposing bail in an excessive amount could (People v. Cabral, G.R. No. 131909, February 18,
render meaningless the right to bail. The court has 1999)
wide latitude in fixing the amount of bail. Courts are
advised that they must not only be aware but should Right to Bail May Be Waived
also consider the Bail Bond Guide due to its The right to bail is personal in nature and is
significance in the administration of criminal justice. therefore, waivable.(Paderanga v. CA, G.R. No.
(Yap v. CA and the People, G.R. No. 141529, 2001) 115407, 1995)

No release or transfer except on court order or Bail in Court-Martial Offenses

bail The right to bail of an accused military personnel
No person under detention by legal process shall be triable by courts-martial does not exist, as an
released or transferred except upon order of the exception to the general rule that an accused is
court or when he is admitted to bail. entitled to bail (except in a capital offense where the
evidence of guilt is strong).
Motion for bail requires jurisdiction over the
person of the accused RATIONALE: The unique structure of the military
Except in applications for bail, it is NOT necessary justifies exempting military men from the
for the court to first acquire jurisdiction over the constitutional coverage on the right to bail.
person of the accused (i.e. warrant of arrest,
voluntary appearance) to dismiss the case or grant The right to bail is not available to military personnel
other relief. The outright dismissal of the case even or officer charged with a violation of the Articles of
before the court acquires jurisdiction over the War. (Aswat v. Galido, G.R. No. G.R. No. 88555,
person of the accused is authorized under § 6(a) 1991)
Rule 112 of the Revised Rules of Criminal
Procedure and the Revised Rules on Summary Bail in Extradition Proceedings:
Procedure (§ 12a). (Miranda v. Tuliao, G.R. No. The constitutional right to bail is available only in
158763, 2006) criminal proceedings. It does not apply to
extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
2. BAIL, A MATTER OF RIGHT; The person subject of the extradition should apply
EXCEPTIONS for bail before the courts trying the criminal case
against him, not before the extradition court. Bail is
When Bail is a Matter of Right: not a matter of right in extradition cases.
1. Before or after conviction by the MTC; and
2. Before conviction by RTC for all offenses Bail may be applied for and granted as an
punishable by lower than reclusion perpetua. exception, only upon clear and convincing evidence
that once granted, the applicant will not be a flight
Note: Prosecution does not have the right to risk or a danger to the community; and that there
oppose or to present evidence for its denial. exist special, humanitarian and compelling
circumstances. (Government of USA v. Purganan&
When Bail is a Matter of Discretion: Jimenez, G.R. 148571, 2002)
1. Before conviction, in offenses punishable by

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Bail in Deportation Proceedings
Aliens in deportation proceedings have no inherent After appeal is perfected, the trial court loses
right to bail. An order of deportation is not a jurisdiction to grant bail and to approve bail
punishment for a crime, the right to bail guaranteed bond.
by the Constitution may not be invoked by an alien However, the accused may apply for bail or
in said proceedings. (Ong See Hang v. provisional liberty with the appellate court.
Commissioner of Immigration, Np. L-9700, 1962)
If the penalty imposed by the trial court is
Notice of hearing required imprisonment exceeding 6 years, the accused
Whether bail is a matter of right or of discretion, shall be denied bail or his bail be cancelled
reasonable notice of hearing is required to be given upon a showing by the prosecution of the
to the prosecutor or fiscal or at least he must be following:
asked for his recommendation because in fixing the 1. Accused is a recidivist, quasi-recidivist or
amount of bail, the judge is required to take into habitual delinquent or has committed the crime
account a number of factors such as the applicant‘s aggravated by the circumstance of reiteration;
character and reputation, forfeiture of other bonds 2. That he has previously escaped from legal
or whether he is a fugitive from justice. confinement, evaded sentence or violated the
condition of his bail without valid justification;
Hearing is not required: 3. That he committed the offense while under
1. If bail is recommended by prosecution; or probation, parole or conditional pardon;
2. If it is a matter of right. 4. That the circumstances of his case indicate the
probability of flight if released on bail; or
Summary of the evidence for the prosecution 5. that there is undue risk that he may commit
The court‘s order granting or refusing bail must another crime during the pendency of the
contain a summary of the evidence for the appeal.
prosecution, otherwise the order granting or
denying bail may be invalidated because the Two Scenarios under Rule 112, Section 5:
summary of the evidence for the prosecution which 1. If the accused is convicted and sentenced by
contains the judge‘s evaluation of the evidence may the RTC to imprisonment exceeding 6 years
be considered as an aspect of procedural due but not more than 20 years AND none of the
process for both the prosecution and the above circumstances (recidivist, etc.) is
defense.(Cortes v. Catral, Adm. Matter No. RTJ-97- present, the grant of bail is a matter of
1387, 1997) discretion. The court may or may not grant
bail.
2. If the accused is convicted and sentenced by
3. BAIL, WHEN DISCRETIONARY the RTC to imprisonment exceeding 6 years
but not more than 20 years AND one or more
Not entitled to bail of the above circumstances (recidivist, etc.) is
An accused who has been convicted of an offense present, bail should be denied. (Leviste v. CA,
which carries a penalty of more than 20 years is not G.R. No. 189122, 2010)
entitled to bail during the pendency of his appeal.

An accused who is convicted of a capital offense is 4. HEARING OF APPLICATION FOR

no longer entitled to bail on appeal since his BAIL IN CAPITAL OFFENSES
conviction imports that the evidence of guilt is
strong. CAPITAL OFFENSE is an offense which, under
the law existing at the time of its commission
Trial court may grant bail before appeal is and of the application for admission to bail may be
perfected punished with death.
Whether bail is a matter of right or discretion, the Note: R.A. No. 9346 entitled ‖An Act Prohibiting
trial court may grant bail and approve the amount of the Imposition of Death Penalty in the Philippines‖
the bail bond before the accused has perfected his was enacted on June 24, 2006 repealing R.A. No.
appeal, appeal being perfected upon filing of a 8177 and R. A. No. 7659 and abolishing the death
written notice of appeal and furnishing the adverse penalty.
party copy thereof.
After conviction by the trial court, the accused
However, if the decision of the trial court convicting convicted of a capital offense is no longer entitled to
the accused changed the nature of the offense from bail as a matter of right, and can only be released
non-bailable to bailable, the application for bail can when the conviction is reversed by the appellate
only be filed with and resolved by the appellate court. (1987 Constitution, Article III, Section 13)
court.
Burden of proof in bail application
Even if there is no notice of appeal, if the decision When the offense is punishable by reclusion
of the TC convicting the accused changed the perpetua or life imprisonment, the prosecution has
nature of the offense from non-bailable to bailable, the burden of showing that evidence of guilt is
the application for bail can only be filed with and strong.
resolved by the appellate court.

288
EVIDENCE OF GUILT in the Constitution and the
Rules refers to a finding of innocence or culpability, Privileged mitigating circumstance of minority shall
regardless of the modifying circumstances. be considered for the purposes of recommending
the amount of bail.(R.A. No. 9344, Section 34)
Evidence Presented Automatically Reproduced
at Trial Duty of judge to conduct hearing
The evidence presented during the bail hearing Where the prosecution agrees with the accused‘s
shall be considered automatically reproduced at the application for bail or forgoes the introduction of
trial but, upon motion of either party, the court may evidence, the court must nonetheless set the
recall any witness for additional examination unless application for hearing. It is mandatory for the judge
the latter is dead, outside the Philippines, or to conduct a hearing and ask searching and
otherwise unable to testify. clarificatory questions for the purpose of
determining the existence of strong evidence
A.M. No. 12-11-2-SC: Guidelines for against the accused; and the order, after such
Decongesting Holding Jails by Enforcing the hearing, should make a finding that the evidence
Rights of Accused Persons to Bail and to against the accused is strong.
Speedy Trial (“Guidelines”)
Bail hearing in offenses punishable by death, The grant or denial of bail is not a ground for
reclusion perpetua, or life imprisonment: inhibition of the judge.
1. The hearing of the accused‘s motion for bail in
offenses punishable by death, reclusion
perpetua, or life imprisonment shall be
5. GUIDELINES IN FIXING AMOUNT OF
summary, with the prosecution bearing the BAIL
burden of showing that the evidence of guilt is
strong. The accused may at his option, if he The judge shall fix a reasonable amount of bail
wants the court to consider his evidence as considering primarily, but not limited to the
well, submit in support of his motion the following factors:
affidavits of his witnesses attesting to his 1. Financial ability of the accused to give bail;
innocence. 2. Nature and circumstances of the offense;
2. At the hearing of the accused‘s motion for bail, 3. Penalty for the offense charged;
the prosecution shall present its witnesses 4. Character and reputation of the accused;
with the option of examining them on direct or 5. Age and health of the accused;
adopting the affidavits they executed during 6. Weight of the evidence against the accused;
the preliminary investigation as their direct 7. Probability of the accused appearing at the
testimonies. trial;
3. The court shall examine the witnesses on their 8. Forfeiture of other bail;
direct testimonies or affidavits to ascertain if 9. The fact that the accused was a fugitive from
the evidence of guilt of the accused is strong. justice when arrested; and
The court‘s questions need not follow any 10. Pendency of other cases where the accused is
particular order and may shift from one on bail.
witness to another. The court shall then allow
counsels from both sides to examine the Excessive bail shall not be required.
witnesses as well. The court shall afterwards
hear the oral arguments of the parties on Whatever the fiscal recommends as the amount of
whether or not the evidence of guilt is strong. bail for the provisional release of an accused is only
4. Within 48 hours after hearing, the court shall recommendatory. The Judge still retains the
issue an order containing a brief summary of discretion to apply the precedents laid down by the
the evidence adduced before it, followed by its SC regarding the reasonable nature of the bail to be
conclusion of whether or not the evidence of required. It is not bound by the Fiscal‘s
guilt is strong. Such conclusion shall not be recommendation. (Amaya v. Ordoñez, G.R. No.
regarded as pre-judgment on the merits of the 80906, 1988)
case that is to be determined only after a full-
blown trial. (Section 6 of Guidelines) Corporate Surety Bail Bond
May be provided by any domestic or foreign
Regarding Minors Charged with a Capital corporation, licensed as surety in accordance with
Offense law and currently authorized to act as such
If the person charged with a capital offense, such as
murder, admittedly a minor, which would entitle him, Subscribed jointly by the accused and an officer of
if convicted, to a penalty next lower than that the corporation duly authorized by the board of
prescribed by law, he is entitled to bail regardless of directors.
whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death Note: The term of the bail bond is not dependent
sentence has a particularly strong temptation to upon faithful payment of the bond premium.
flee. This reason does not hold where the accused
has been established without objection to be minor Property Bond; How Posted
who by law cannot be sentenced to death.(See R.A. PROPERTY BOND is an undertaking constituted as
No. 9165, Section 98) a lien on the real property given as security for the

289
amount of the bail. Respondent judge is only authorized to receive the
cash bail bond under Section 17 (a), Rule 114 of
Within 10 days after the approval of the bond, the the Revised Rules on Criminal Procedure which
accused shall annotate the lien on the certificate of says that the bail bond may be filed either with the
title with the Registry of Deeds and on the court where the case is pending, or with any
corresponding tax declaration in the office of the Regional Trial Court (RTC) of the place of arrest, or
provincial, city and municipal assessor concerned. with any judge of the Metropolitan Trial Court or the
Municipal Trial Court of the place of arrest. (Tormis
Failure to do so shall be sufficient cause for v. Judge Paredes, A.M No. RTJ-13-2366, 2015)
cancellation of the property bond and his re-arrest
and detention. A judge cannot receive cash for bail nor keep it in
his office or residence. (Lachica v. Judge Tormis,
Qualifications of sureties in property bond A.M. No. MTJ-05-1609, 2005)
1. Each must be a resident owner of real property
within the Philippines. Recognizance
2. Where there is only one surety, his real estate It is an obligation of record, entered into before
must be worth at least the amount of the some court or officer authorized to take it with a
undertaking. condition to do some particular act, the most usual
3. If there are two or more sureties, each may condition in criminal cases being the appearance of
justify in an amount less than that expressed in the accused for trial.(See R.A. No. 10389)
the undertaking but the aggregate of the
justified sums be equivalent to the whole The following are cases where the court may
amount of the bail demanded. order the release on recognizance of any person
4. Every surety must be worth the amount under detention:
specified in his own undertaking over and 1. When the offense charged is for violation of an
above all just debts, obligations and properties ordinance, a light, or a criminal offense, the
exempt from execution. imposable penalty of which does not exceed 6
months imprisonment and/or P2,000 fine,
Before accepting a surety or bail bond, the under the circumstances provided in R.A. No.
following requisites must be complied with: 6036.
1. Photographs of the accused; 2. Where a person has been in custody for a
2. Affidavit of justification; period equal to or more than the minimum of
3. Clearance from the supreme court; the imposable principal penalty, without
4. Certificate of compliance with Circular No. 66 application of the Indeterminate Sentence Law
dated September 19, 1996; or any modifying circumstance, in which case
5. Authority of the agent; and the court, in its discretion, may allow his
6. Current certificate of authority issued by the release on his own recognizance.
insurance commissioner with a financial 3. Where the accused has applied for probation,
statement showing the maximum underwriting pending resolution of the case but no bail was
capacity of the surety company. filed or the accused is incapable of filing one.
4. In case of a youthful offender held for physical
Note: The purpose of requiring the affidavit of and mental examination, trial, or appeal, if he is
qualification by the surety before the judge is to unable to furnish bail and under circumstances
enable the latter to determine whether or not the envisaged in PD No. 603 as amended. (Espiritu
surety possesses the qualification to act as such, v. Jovellanos, A.M. No. MTJ-97-1139, 1997)
especially his financial worth as required in the 5. In summary procedure, when the accused has
previous section. been arrested for failure to appear when
required. His release shall be either on bail or
Deposit of cash as bail recognizance.
The accused or any person acting on his behalf
may deposit in cash the amount of bail fixed by the If it has been determined that the child taken into
court or recommended by the prosecutor who custody is 15 years old or below, the authority
investigated or filed the case with the: which will have an initial contact with the child has
1. Nearest collector of internal revenue; the duty to immediately release the child to the
2. Provincial, city or municipal treasurer; or custody of his/her parents or guardian, or in the
3. Clerk of court where case is pending. absence thereof, the child's nearest relative.(R.A.
No. 9344, Section 20)
Money considered as bail, applied to payment of
fine and costs while the excess if any, shall be If the parents, guardians or nearest relatives cannot
returned to the accused or whoever made the be located, or if they refuse to take custody, the
deposit. child may be released to any of the following (R.A.
No. 9344, Section 20):
The trial judge has no authority to strictly require  a duly registered nongovernmental or religious
that only cash bond, instead of a surety bond, be organization;
deposited for the provisional release of the  a barangay official or a member of the
accused. Barangay Council for the Protection of Children
(BCPC);

290
 a local social welfare and development officer; said place or if no judge is available, with any
or first court judge therein;
 when and where appropriate, the DSWD. 4. Where bail is a matter of discretion or the
accused seeks to be released on
The court shall not order the detention of a child in a recognizance, it may only be filed in the court
jail pending trial or hearing of his/her case. where the case is pending, whether on trial or
Institutionalization or detention of the child pending appeal;
trial shall be used only as a measure of last resort 5. Any person not yet charged in court may apply
and for the shortest possible period of time. for bail with any court in the province, city or
Whenever detention is necessary, a child will municipality where he is held;
always be detained in youth detention homes 6. If the accused was convicted and the nature of
established by local governments. (R.A. No. 9344, the offense changed from non-bailable to
Section 35-36) bailable, the application can be made with and
resolved by the appellate court.
6. BAIL, WHEN NOT REQUIRED Note: A judge presiding in one branch has no
power to grant bail to an accused who is being tried
Bail is not required when the law or rules in another branch presided by another judge who is
provide: not absent or unavailable, and his act of releasing
1. Offense charged is violation of an ordinance, him on bail constitutes ignorance of law which
light felony or criminal offense the imposable subjects him to disciplinary sanction.
penalty does not exceed 6 months of
imprisonment and/or fine of P2,000 under RA Notice of application to prosecutor
6036. Court to give reasonable notice of the hearing to the
2. Where the accused applied for probation and prosecutor or require him to submit his
before the same has been resolved but no bail recommendation.
was filed or the accused is incapable of filing
one, in which case he may be released on his Hearing for application for bail is mandatory.
own recognizance. Whether bail is a matter of right or discretion, there
3. In case of a youthful offender held for physical must be a reasonable notice given to or at least a
or mental examination, trial or appeal, if recommendation sought from the prosecutor.
unable to furnish bail and under the (Mabutas v. Perello, A.M. No. RTJ-03-1817, 2005)
circumstances provided by P.D. 603, as
amended. Release on Bail
4. A person who has been in custody for a period Upon approval of the bail by the judge, the accused
equal to or more than the possible maximum must be discharged.
imprisonment prescribed for the offense
charged, without prejudice to the continuation An officer who fails or refuses to release him from
of the trial or the proceedings on appeal. detention notwithstanding the approval by the
5. A person accused of an offense with a proper court of his bail bond may be held liable
maximum penalty of destierro shall be under Art. 126 if the Revised Penal Code for
released after 30 days of preventive delaying release.
imprisonment.
Bail in the amount fixed may be filed with the court
Reduced Bail where the case is pending, or in the absence or
A person in custody for a period to or more than the unavailability of the judge thereof, with any regional
minimum of the principal penalty prescribed for the trial judge, metropolitan trial judge, municipal trial
offense charged, without application of the judge, or municipal circuit trial judge in the province,
Indeterminate Sentence Law or any modifying city, or municipality. If the accused is arrested in a
circumstance, shall be released on a reduced bail province, city, or municipality other than where the
or on his own recognizance at the discretion of the case is pending, bail may also be filed with any
court. regional trial court of said place, or if no judge
thereof is available, with any metropolitan trial
Bail, Where Filed judge, municipal trial judge, or municipal circuit trial
May be filed with the court where the case is judge therein.
pending:
1. With the court where the case is pending (e.g., Where the grant of bail is a matter of discretion, or
if a case for homicide is pending before Branch the accused seeks to be released on recognizance,
1 of RTC Manila, the accused should post/file the application may only be filed in the court where
bail in Branch 1); the case is pending, whether on preliminary
2. In the absence or unavailability of the judge investigation, trial, or on appeal.
thereof, with the regional trial judge or any first
court judge in the province, city or municipality; Any person in custody who is not yet charged in
3. If the accused was arrested in a province, city court may apply for bail with any court in the
or municipality other than where the case is province, city, or municipality where he is held.
pending, bail may be filed with the RTC of the

291
7. INCREASE OR REDUCTION OF BAIL Conditional and Not independent of the
interlocutory. It is order of forfeiture. It is a
not appealable judgment ultimately
Court may either increase or reduce the amount
determining the liability of
of the bail:
the surety thereunder and
1. After the accused admitted to bail; AND
therefore final. Execution
2. Upon good cause
may issue at once.
If the accused does not give the increased amount
Bail is Cancelled:
of bail within a reasonable time will be committed to
custody. 1. Upon application of the bondsmen with due
notice to the prosecutor, upon surrender of the
Accused Released Without Bail May: accused or proof of his death;
1. At any subsequent stage 2. Upon acquittal of the accused;
2. Whenever a strong showing of guilt appears to 3. Upon dismissal of the case; or
the court 4. Execution of judgment of conviction.
3. Be required to give bail or in lieu thereof,
committed to custody In all instances, without prejudice to any liability on
the bail.
Where the offense is bailable, the mere probability
Arrest of Accused Out on Bail
that the accused will escape or if he had previously
escaped while under detention does not deprive The bondsmen who put the bail bond for the
him of his right to bail. The remedy is to increase accused become the jailers and they or the police
the amount of bail, provided the amount is not officer to whom authority is endorsed may arrest the
excessive. (Sy Guan v. Amparo, G.R. No. L-1771, accused for the purpose of surrendering him to the
1947) court. The accused cannot leave the country
without the permission of the bondsmen and the
court.
8. FORFEITURE OF BAIL
How sureties may be relieved from
Bail is Forfeited: responsibility over the accused:
1. Where the presence of the accused is 1. Arrest the principal and deliver him to the
specifically required by the court or the Rules of proper authorities.
Court; and 2. They may cause the arrest of the accused to
2. Despite due notice to the bondsmen to produce be made by any police officer or other person
him before the court on a given date, the of suitable age or discretion.
accused fails to appear in person as so 3. By endorsing the authority to arrest upon a
required. certified copy of the undertaking and delivering
it to such officer or person.
To justify exemption from liability on a bail bond
or reduction thereof, two requisites must be An accused released on bail may be re-arrested
satisfied: without the necessity of a warrant if he attempts to
1. Production or surrender of the person of the depart from the Philippines without permission of
accused within 30 days from notice of the order the court where the case is pending.
of the court to produce the body of the accused
or giving reasons for its non-production; and No Bail After Judgment; Exception
2. Satisfactory explanations for the non- General Rule: No bail shall be allowed after the
appearance of the accused when first required judgment has become final, as what is left is for him
by the trial court to appear. to serve the sentence.

Failure to PRODUCE the body of the principal or Exception: When he has applied for probation
give a reason for his non-production and EXPLAIN before commencing to serve sentence, the penalty
why the accused did not appear before the court and the offense being within the purview of the
when first required to do so, the court shall render a Probation Law. The application for probation must
judgment against the bondsmen, jointly and be filed within the period of perfecting an appeal.
severally for the amount of the bail. Such filing operates as a waiver of the right to
appeal.
The period of 30 days cannot be shortened by the
court but may be extended for good cause shown. Exception to the exception: The accused shall not
be allowed to be released on bail after he has
ORDER OF ORDER OF CONFISCATION commenced to serve his sentence.
FORFEITURE
Once a child who is under 18 years of age at the
commission of the offense is found guilty of the
offense charged, the court shall place the child
under suspended sentence, without need of
application. The suspension of sentence shall still
be applied even if the juvenile is already 18 years of

292
age or more at the time of the pronouncement of
his/her guilt. (R.A. No. 9344, Section 38)

Court Supervision Of Detainees G. RIGHTS OF THE

The court shall exercise supervision over all ACCUSED
persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of
RTCs shall conduct monthly personal inspections of 1. RIGHTS OF THE ACCUSED AT
provincial, city or municipal jails and the prisoners TRIAL
within their respective jurisdictions. a. To be presumed innocent
b. To be informed of the nature and the
9. APPLICATION NOT A BAR TO cause of the accusation against him
c. To be present and defend in person and
OBJECTIONS IN ILLEGAL ARREST,
by counsel at every stage of the
LACK OF OR IRREGULAR proceeding
PRELIMINARY INVESTIGATION d. To testify as a witness in his own behalf
e. Right against self-incrimination
Bail is not a bar to objections on illegal arrest, f. Right of confrontation
lack of or irregular preliminary investigation g. To have compulsory process issued to
secure the attendance of witnesses and
An application for admission to bail shall not production of other evidence in his
bar the accused from: behalf
1. Challenging the validity of his arrest; or h. Right to speedy, impartial, and public
2. The legality of the warrant issued therefore; or trial
3. From assailing the regularity or questioning the
absence of a preliminary investigation of the 2. RIGHTS OF PERSONS UNDER
charge against him. CUSTODIAL INVESTIGATION
PROVIDED: That the accused raises them before
This rule enumerates the rights of the accused
entering his plea.
during trial and custodial investigations, both of
constitutional and statutory origins. This rule does
The court shall resolve the matter as early as
not cover the right of an accused to appeal, which
practicable, but not later than the start of the trial of
will be discussed in Rule 122.
the case.
RA 7438 provides for the rights of the accused
10. HOLD DEPERTURE ORDER & during custodial investigation.
BUREAU OF IMMIGRATION WATCH
LIST Rights of the Accused (Rule 115,
Section 1)
Hold-Departure Orders 1. To be presumed innocent until the contrary is
Supreme Court Circular No. 39-97 dated June proved beyond reasonable doubt;
19, 1997 limits the authority to issue hold departure 2. To be informed of the nature and cause of the
orders to the RTCs in criminal cases within their accusation against him;
exclusive jurisdiction. 3. To be present and defend in person and by
counsel at every stage of the proceedings, from
Consequently, MTC judges have no authority to arraignment to promulgation of the judgment.
issue hold-departure orders, following the maxim, The accused may, however, waive his
express mention implies the exclusion. Neither presence at the trial pursuant to the stipulations
does he have authority to cancel one, which he set forth in his bail, unless his presence is
issued. specifically ordered by the court for purposes of
identification. The absence of the accused
A criminal case is required before a Hold- without justifiable cause at the trial of which he
Departure Order may be issued had notice shall be considered a waiver of his
Hold-Departure Orders shall be issued only in right to be present thereat. When an accused
criminal cases within the exclusive jurisdiction of the under custody escapes, he shall be deemed to
Regional Trial Courts. have waived his right to be present on all
subsequent trial dates until custody over him is
Sandiganbayan may issue Hold Departure Order regained. Upon motion, the accused may be
Sandiganbayan is a special court, of the same level allowed to defend himself in person when it
as the Court of Appeals and possessing all the sufficiently appears to the court that he can
inherent powers of a court of justice.(R.A. 8249, properly protect his right without the assistance
1997) of counsel;
4. To testify as a witness in his own behalf but
END OF TOPIC subject to cross-examination on matters

293
 covered by direct examination. His silence shall offense. However, moral certainty is required in
not in any manner prejudice him; every proposition of proof requisite to constitute the
5. To be exempt from being compelled to be a offense (Mupas v. People, G.R. No. 172834).
witness against himself;
6. To confront and cross-examine the witnesses Reason: the slightest possibility of an
against him at the trial. Either party may utilize innocent man being convicted for an
as part of its evidence the testimony of a offense he has not committed would be far
witness who is deceased, out of or cannot with more dreadful than letting a guilty person
due diligence be found in the Philippines, go unpunished for a crime he may have
unavailable or otherwise unable to testify, given perpetrated.
in another case or proceeding, judicial or
administrative, involving the same parties and Equipoise/ Equiponderance Rule
subject matter, the adverse party having the Where the evidence of the parties in a criminal case
opportunity to cross-examine him; is evenly balanced, the constitutional presumption
7. To have compulsory process issued to secure of innocence is not overthrown. Thus, the accused
the attendance of witnesses and production of must be acquitted.
other evidence in his behalf;
8. To have speedy, impartial and public trial; and Exception to the Presumption Of Innocence
9. To appeal in all cases allowed and in the The legislature may enact certain conditions, which,
manner prescribed by law. if proved, shall constitute as prima facie evidence of
guilt of the accused. The burden of proof, then,
Due Process shifts to the accused to prove his innocence. Prima
a. Substantive – it considers the intrinsic facie evidence of guilt must have a rational
validity of the law. connection between the facts proven and the
b. Procedural – it is based on the principle ultimate fact presumed. The inference of one from
that a court hears before it condemns. the proof of the others is not unreasonable and
Procedural due process requires notice and arbitrary because of the lack of connection between
hearing. the two in common experience. (People v. Mingoa,
G.R. No. L-5371, 1953) For example, technical
1. RIGHTS OF ACCUSED AT TRIAL malversation.

A. To be presumed innocent Note: In cases of self-defense, the person who

invokes self-defense is presumed guilty. In this case
In all criminal prosecutions, the accused is a REVERSE TRIAL will be held.
presumed innocent until the contrary is proved
beyond reasonable doubt. (1987 Philippine B. To be informed of the nature and the
Constitution, Article III, Section 14 (2)) cause of the accusation against him

The accused can only be convicted if the The right requires that the information should state
Constitutional presumption of innocence is the facts and the circumstances constituting the
overthrown by such quantum of evidence, which is crime charged in such a way that a person of
proof beyond reasonable doubt. (People v. Sy, G.R. common understanding may easily comprehend
No. 185284, 2009) and be informed of what it is about.

This presumption prevails over the presumption of An accused may not be convicted of an offense
regularity in the performance of official duty (People unless it is clearly charged in the complaint or
v. Sy, G.R. No. 185284) information. To convict him of an offense other than
that charged in the complaint or information would
Accusation is not synonymous with guilt. (People v. be a violation of an accused‘s constitutional right.
Ladrillo, G.R. No. 124342, 1999) (People v. Ortega, Jr., G.R. No. 116736, 1997)

The conviction should be based on the strength of When a person is charged in a complaint with a
the prosecution and not on the weakness of the crime and the evidence does not show that he is
defense. (People v. Lagarde, G.R. No. 182549, guilty thereof, but of some other crime or of a lesser
2009) offense, the court may sentence him for the lesser
offense, PROVIDED that the essential ingredients
There is only one type of quantum of evidence of the offense charged form part of the elements of
which overcomes the presumption of innocence and the offense proven. (People v. Noque, G.R. No.
that is proof beyond reasonable doubt (Sec. 2 Rule 175319, 2010)
133 Rules of Court)
This right is subject to waiver if counsel did not
Reasonable Doubt object and did not inform the court of the
It is the doubt engendered by an investigation of the deficiencies in the complaint or information. If the
whole set of evidence and the inability, after such accused actively participated in the trial, this
investigation, to let the mind rest easy upon the indicates that the accused was fully aware of the
certainty of guilt. Absolute certainty of guilt is not charges against him. (People v. Pangilinan, G.R.
required by the law to convict anyone of a criminal No. 171020, 2007)

294
 Such waiver of a right of the accused does not
Failure to file a motion to quash the information is mean a release of the accused from his obligation
not a waiver of the right to be informed. (Burgos v. under bond to appear in court when so required.
Sandiganbayan, G.R. No. 123144, 2003) The accused may waive his right but not his duty or
obligation to the court.
Any qualifying or aggravating circumstances must
be ALLEGED and PROVED in order to be Requirements For Trial In Absentia (ANU)
considered by the court. 1. Accused has been arraigned
2. He has been duly notified of the trial
While it is necessary to allege the essential 3. His failure to appear is unjustified
elements of the crime in the information, the failure
to do so is not an irremediable vice. When the An escapee who has been duly tried in absentia
complaint or the resolution by the public prosecutor waives his right to present evidence on his own
which contain the missing averments is attached to behalf and to confront and cross-examine witnesses
the information and forms part of the records, the that have testified against him. (Gimenez v.
defect in the latter is effectively cured, and the Nazareno, G.R. No. L-37933, 1988)
accused cannot successfully invoke the defense
that his right to be informed is violated. In a case Right to Counsel
involving Anti-Child Abuse Law, the averment of Without the aid of counsel, a person may be
age when attached to the Complaint and mentioned convicted, not because he is guilty but because he
in the Information was considered as not violative of does not know how to establish his innocence.
the accused‘s right to be informed. (Olivarez v. CA,
G.R. No. 163866, 2005) The right covers custodial investigation up to the
rendition of judgment and even on appeal. The right
C. To be present and defend in person and to counsel can be invoked at any stage of the
by counsel at every stage of the proceedings, even on appeal. (People v. Serzo, Jr.,
proceeding G.R. No. 118435, 1997)

Presence of The Accused Is Required Custodial Investigation

1. During arraignment. (Rule 116, Section It is the questioning by law enforcement officers of a
1[b]) SUSPECT taken into custody or otherwise deprived
2. Promulgation of judgment EXCEPT of his freedom of action in a significant way. It
when the conviction is for a light offense, in includes the practice of issuing an ―invitation‖ to a
which case, it may be pronounced in the person who is investigated in connection with an
presence of his counsel or representative. offense he is suspected to have committed. (R.A.
3. When ordered by the court for purpose of No. 7438)
identification.
The stage of investigation where the police
Not Applicable In the SC and CA investigation is no longer a general inquiry into an
The right of an accused to be present at every unsolved crime but has begun to focus on a
stage at the proceedings has no application before particular suspect taken into custody by the police,
the Court of Appeals and the Supreme Court or to who carry out a process of interrogation that lends
the entry and promulgation of judgments. The itself to elicit incriminating statements. (People v.
defendant need not be present during the hearing of Sunga, G.R. No. 126029, 2003)
the appeal. (Rule124, Section 9)
If during the investigation the assisting lawyer
The accused may waive his right to be present leaves, comes and goes, the statement signed by
during the trial. However, his presence may be the accused is still inadmissible because the lawyer
compelled when he is to be identified. (Aquino v. should assist his client from the time the confessant
Military Commission, G.R. No. L-37364, 1975) answers the first question asked by the
investigating officer until the signing of the
Effects of waiver of the right to appear by the extrajudicial confession. (People v. Morial, G.R. No.
accused 129295, 2001)
1. Waiver of the right to present evidence
2. Prosecution can present evidence if the The right to counsel and the right to remain silent do
accused fails to appear not cease even after a criminal
3. The court can decide without the evidence of complaint/information has already been filed against
the accused the accused AS LONG AS he is still in custody.

Trial in absentia The duty of the court to appoint a counsel de oficio

The provision of the Constitution authorizing the trial (when the accused has no legal counsel of choice
in absentia of the accused in case of his non- and a desire to employ one) is MANDATORY only
appearance AFTER ARRAIGNMENT despite due at the time of ARRAIGNMENT (Rule 116, Section
notice simply means that he waives his right to 6). However, no such duty exists where the
meet the witnesses face to face, among others. accused has proceeded to arraignment and then
trial with a counsel of his own choice. Thus the
failure of petitioner‘s newly hired lawyer to appear at

295
the subsequent hearings without reason was violation of his constitutional right. (People v.
sufficient legal basis for the trial court to order the Santiago, G.R. No. 17584, 1922)
striking from the records of his direct testimony. At
the most, the appointment of a counsel de oficio in If the accused testifies, he may be cross-examined
such situation is discretionary, which discretion will ONLY on matters covered by his direct
not be interfered with in the absence of grave abuse examination, unlike an ordinary witness who can be
(People v. Libuit, G.R. No. 154363, 2005 ) cross-examined as to any matter stated in the direct
examination or connected therewith. (Rule 132,
Difference between the right to counsel during Section 6)
custodial investigation and during the trial
1. During trial – the right to counsel means His failure to testify will not be taken against him but
EFFECTIVE counsel. Counsel is present not to his failure to present evidence in his behalf shall be
prevent the accused from confessing but to taken against him. (US v. Bay, G.R. No. L-9341,
defend the accused. 1914)
2. Custodial Investigation – stricter requirement,
it requires the presence of COMPETENT and The testimony of an accused who testifies on his
INDEPENDENT counsel who is preferably the own behalf but refuses to be cross-examined will
choice of the accused. Since a custodial not be given weight and will have no probative
investigation is not done in public, there is a value because the prosecution will not be able to
danger that confessions can be exacted test its credibility.
against the will of the accused.
E. Right against self-incrimination
Right to Counsel is Not Absolute
The right to counsel is NOT ABSOLUTE — it is The scope of this right covers only testimonial
subject to being exercised within a reasonable time compulsion and not the compulsion to produce
and manner. (Larranaga v. Ca, G.R. No. 130644, real and physical evidence using the body of the
1997) accused.
DNA TESTING is not covered under the right
The accused cannot insist on one that he cannot against self-incrimination (Herrera v. Alba G.R. No.
afford, one who is not a member of the bar and one 148220, 2005).
who declines for a valid reason such as conflict of
interest. (People v. Serzo, Jr., G.R. No. 118435, Rationale for protecting the right against self-
1997) incrimination:
1. Humanitarian reasons, to prevent the
Waiver of Right to Counsel state from using its coercive powers.
This is when the accused voluntarily submits 2. Practical reasons- the accused is more
himself to the jurisdiction of the court and proceeds likely to commit perjury.
with his defense.
The accused is protected under this rule from
Jurisprudence provides that the defendant cannot questions that tend to incriminate him, which means
raise the question of his right to have an attorney those that may subject him to penal liability.
the first time on appeal.
The right may be waived by the failure of the
The accused may defend himself in person only if accused to invoke the privilege at the proper time.
the court is convinced that he can properly protect The proper time to invoke this privilege is AFTER
his rights even without the assistance of counsel. the incriminating question is asked and BEFORE
his answer.
If the question is not raised in the trial court, the
prosecution may go to trial. (US v. Escalante, G.R. The privilege involves a prohibition against
No. L-12442, 1917) testimonial compulsion and the production by the
accused of incriminating documents and articles
The question will not be considered in the appellate demanded off him. (US v. Tan Teng, G.R. No.
court for the first time when the accused fails to 7081, 1912)
raise it in the lower court. (People v. Nang Kay,
G.R. No. L-3565, 1951) Exception/s: Immunity statutes such as:
1. R.A. 1379 (Forfeiture of illegally obtained
The mistake of counsel will bind his client. The only wealth)
exception is when the counsel represents himself 2. R.A. 749 (Bribery and Graft cases)
as a lawyer and is not one because in that case the
accused is denied of his right to counsel and due Right of the accused vs. Right of an ordinary
process. (Delgado v. CA, G.R. No. L-46392, 1986) witness
ACCUSED ORDINARY WITNESS
D. To testify as a witness in his own behalf May refuse to take the May be compelled to
witness stand and refuse take the witness stand
A denial of the defendant‘s right to testify on his to answer any and all and is only allowed to
own behalf would constitute an unjustifiable questions claim the privilege as
each and every

296
 incriminating question Witness can still be Witness cannot be
is thrown at him prosecuted but the prosecuted at all
However, if the accused compelled testimony
testifies in his own behalf, cannot be used
then he may be cross- against him.
examined as any other
witness on matters General Rule: Silence or refusal to testify should
covered by his direct not prejudice the accused.
examination. He may
NOT, on cross Exception/s: Unfavorable inference is drawn
examination, refuse to when:
answer any question on (a) The prosecution has already
the ground that the established a prima facie case, the
answer he will give or accused must present proof to
that the evidence he will overturn the evidence
produce would have the (b) The defense of the accused is an
tendency to incriminate alibi and he does not testify, the
him for the crime charged interference is that the alibi is not
against him. believable.

When Accused May Refuse to Answer: F. Right to confront and cross examine
1. Questions on his past criminality only if he can witnesses against him at trial (Right of
still be prosecuted for it Confrontation)
2. Questions incriminating him for an offense
distinct from that for which he is charged CONFRONTATION is the act of setting a witness
face to face with the accused so that the latter may
Rights of the Accused in the Matter of Testifying make any objection he has to the witness, and the
or Producing Evidence witness may identify the accused, and this must
Even before the case is filed in court but after the take place in the presence of the court having
suspect has been taken into custody or otherwise jurisdiction to permit the privilege of cross
deprived of liberty, the suspect has the following examination.
rights:
1. Right to be informed of the cause of his Purpose
arrest; The main purpose of this right to confrontation is (1)
2. Right to remain silent and to counsel; to secure the opportunity of cross examination and
3. Right not to be subjected to force or the second purpose is (2) to enable the judge to
violence or any other means which vitiate free observe the demeanor of the witness.
will; and
4. Right to have evidence, which was obtained When witness is deceased or cannot be reached
in violation of these rights, be deemed with due diligence
inadmissible. By way of exception to this rule, it is provided that
the court may utilize, as part of its evidence, the
In addition to the rights above, after the case is testimony of a witness who is deceased, out of or
filed in court, the accused has the following with due diligence cannot be found in the
rights: Philippines, unavailable or otherwise unable to
1. Right to be informed of the nature and the testify, given in another proceeding, judicial or
cause of the accusation against him; administrative, involving the same parties and
2. Right to refuse to take the witness stand; subject matter, the adverse party having had the
3. Right not to be prejudiced by such refusal opportunity to cross-examine him (Rule 130, Sec
to take the witness stand; 47).
4. Right to testify on his own behalf subject to
cross-examination by the prosecution on Waiver Of Right To Confrontation
matters taken up during direct examination; 1. May be done expressly or impliedly
and 2. It is implied when the accused waives his right
5. While testifying, the right to refuse a specific to be present at trial or when he was given the
question which tends to incriminate him for opportunity but fails to take advantage of it.
some other crime.
G. To have compulsory process issued to
USE IMMUNITY TRANSACTIONAL secure the attendance of witnesses and
IMMUNITY production of other evidence in his
Witness‘ compelled Witness immune from behalf
testimony and the prosecution of a crime to
fruits thereof cannot which his compelled The right of the accused to have a subpoena and/or
be used in testimony relates. a subpoena duces tecum issued in his behalf in
subsequent order to compel the attendance of witnesses and
prosecution of a the production of other evidence.
crime against him

297
If a witness refuses to testify when required, he is in
contempt of court. The court may order a witness to Unless a shorter period is provided by special law
give bail or to be arrested. or Supreme Court circular, the arraignment shall be
held within thirty (30) days from the date the court
H. Right to speedy, impartial and public acquires jurisdiction over the person of the accused.
trial (SIP) (Rule 116, Section 1[g])

The right to a speedy trial is intended to avoid When shall Trial Commence after Arraignment
oppression and to prevent delay by imposing on the Within 30 days from arraignment; HOWEVER, it
courts and on the prosecution an obligation to may be extended BUT only:
proceed with reasonable dispatch. 1. For the 180 days for the first 12 calendar
month period from the effectivity of the law;
Facts considered in determining if right to 2. 120 days for the second 12-month period; and
speedy trial has been violated: 3. 80 days for the third 12-month period.
1. Length of the delay;
2. Reason for the delay; Remedies available to the accused when his
3. The accused‘s assertion or non-assertion of the right to a speedy trial is violated
right; and 1. He should ask for the trial of the case, not the
4. Prejudice to the accused resulting from the dismissal.
delay 2. Unreasonable delay of the trial of a criminal
case as to make the detention of the defendant
The limitation of this right is that the State must not illegal gives ground for habeas corpus as a
be deprived of its day in court and the right of the remedy for obtaining release as to avoid
State and the prosecution of due process must be detention for a reasonable period of time.
respected. 3. Accused would be entitled to relief in a
mandamus proceeding to compel the dismissal
There is NO violation of the right where the delay is of the information.
imputable to the accused. (Solis v. Agloro, G.R. No. 4. Ask for the trial of the case and then move to
L-39254, 1975) dismiss. (Gandicela v. Lutero, G.R. No. L-4069,
1951).
The right to a speedy trial is violated when there are
UNJUSTIFIED postponements. (People v. Declaro, Impartial Trial
G.R. No. L-64362, 1989) Due process requires a hearing before an impartial
and disinterested tribunal and that every litigant is
The Speedy Trial Act of 1998 (RA 8493) entitled to nothing less that the cold neutrality of an
impartial judge. (Mateo, Jr. v. VIllaluz, G.R. No. L-
Duty of the Court after the Arraignment of the 34756-59, 1973).
Accused
The court SHALL order a pre-trial conference to Public Trial
consider the following: One held openly or publicly; anyone interested in
1. Plea bargaining; observing the way the judge conducts his
2. Stipulation of facts; proceedings in a courtroom may do so. (Garcia v.
3. Marking and identification of evidence; Domingo, G.R. No. L-30104, 1973)
4. Waiver of objections to admissibility of
evidence; and It is sufficient that relatives and friends who want to
5. Such other matters as will promote a fair watch the proceedings are given the opportunity to
and expeditious trial. witness the proceedings. It is done in public to
prevent abuses that may be committed by the court
Time Limit for the Trial of Criminal Cases and the accused is entitled to moral support from
General Rule: Trial shall not exceed 180 days from his friends and relatives. If it is done in the judge's
the first day of trial, however the rule is not chambers, it is still valid because the public is not
absolute. excluded. (Garcia v. Domingo, G.R. No. L-30104,
1973)
Exception/s:
1. Those governed by the Rules on Summary Exclusion of the public is valid when:
Procedure; 1. Evidence to be produced is offensive to
2. Where the penalty prescribed by law does NOT decency or public morals; and
exceed 6 months imprisonment or a fine of 2. Upon motion of the accused (Rule 119, Section
P1,000 or both; and 21)
3. Those authorized by the Chief Justice of the
SC. Rule on trial by publicity
The right of the accused to a fair trial is NOT
Period of Arraignment of the Accused incompatible with free press. Pervasive publicity is
Within 30 days from the filing of the information, or not per se as prejudicial to the right to a fair trial. To
from the date the accused appeared before the warrant the finding of prejudicial publicity, there
court in which the charge is pending, whichever must be allegations and proof that judges have
date last occurs. (Speedy Trial Act, Section 7) been unduly influenced and not simply that they

298
might be due to the barrage of publicity. (People v. authority to fulfill the threat or promise, the
Teehankee, G.R. Nos. 111206-08, 1995) confession of the accused is inadmissible.

Right to appeal on all cases allowed by law and Presumption of regularity in the performance of
in the manner prescribed by law duties
The right to appeal from a judgment of the It does not apply during in-custody investigation, nor
conviction is fundamentally of statutory origin. It is can it prevail over the constitutional right of the
not a matter of absolute right that is independent of accused to be presumed innocent.
constitutional or statutory provisions allowing such
appeal. The arresting officer may be held civilly liable for
damages under Art. 32 of the Civil Code. The very
Waiver of right to appeal nature of Art. 32 is that the wrong may be civil or
The right to appeal is personal to the accused and it criminal. It is not necessary that there should be
may be waived either expressly or by implication. malice or bad faith.
HOWEVER, where the death penalty is imposed,
such right cannot be waived as the review of the On CIVIL PROCEDURE, as applicable to criminal
judgment by the SUPREM. COURT is automatic cases
and mandatory. (A.M. No. 00-5-03 SC) Section 20 Rule 14 of the 1997 Rules of Civil
Procedure provides in part that the inclusion in a
Anyone who seeks to exercise the right to appeal motion to dismiss of other grounds aside from lack
must comply with the requirements of the rules. of jurisdiction over the person of the defendant shall
Otherwise the right to appeal is lost. (Ozaeta v. CA, not be deemed a voluntary appearance. Section 8
G.R. No. 83281, 1989) Rule 15 provides that subject to the provisions of
Section 1 Rule 9, a motion attacking a pleading,
When the accused flees, after the case has been order, judgment, or proceeding shall include all
submitted to court for decision, he will be deemed to objections then available, and all objections not so
have waived his right to appeal from the judgment included shall be deemed waived.
rendered against him. (People v. AngGioc, G.R. No.
L-48547, 1941) These changes in the 1997 Rules of Civil Procedure
are applicable to criminal cases as Section 3 Rule 1
Note: Such may not be reviewed by the CA. thereof provides that ―these rules shall govern the
procedure to be observed in actions, civil or
2. RIGHTS OF A PERSON UNDER criminal, and special proceedings.‖ Moreover, the
CUSTODIAL INVESTIGATION omnibus motion rule applies to motions to quash.

R.A. 7438 defined the rights of persons arrested, Section 26 of Rule 114 of the New Rules of Criminal
detained or under custodial investigation with Procedure provides that bail is not a bar to objection
on illegal arrest, lack of or irregular preliminary
the penalties for violation thereof.
investigation. This is an abandonment of the
Cojuangco, Jr. v. Sandiganbayan ruling.
Custodial Investigation
Involves any questioning initiated by law
END OF TOPIC
enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of
action in any significant way.

When RA 7438 applies H. ARRAIGNMENT AND PLEA

It is only after investigation ceases to be a general
inquiry into an unsolved crime and begins to focus
on a particular suspect, that the suspect is taken 1. ARRAIGNMENT AND PLEA, HOW
into custody, and the police carry out a process of MADE
interrogations that lends itself to eliciting
incriminating statements that the rule begins to
2. WHEN SHOULD PLEA OF NOT
operate. GUILTY BE ENTERED
3. WHEN MAY ACCUSED ENTER A
Embraced in custodial investigation:
1. Invited for questioning
PLEA OF GUILTY TO A LESSER
2. Re-enactment OFFENSE
a. Plea bargaining
Not embraced in custodial investigation: b. Plea to lesser offense during
1. Police line-up arraignment
2. Ultraviolet ray examination c. Plea to lesser after arraignment but
3. Normal audit examination by the COA of the before trial
accountability of a public officer d. Plea to lesser offense after trial has
begun
When the threat or promise was made by, or in the
presence of, a person in authority, who has, OR is
supposed by the accused to have power or

299
4. ACCUSED PLEAD GUILTY TO days from filing and accused shall be arraigned
within 10 days from receipt by the judge of the
CAPITAL OFFENSE, WHAT THE records of the case. (R.A. 8493 Speedy Trial
COURT SHOULD DO Act)
5. SEARCHING INQUIRY 2. Where the complainant is about to depart
from the Philippines with no definite date of
6. IMPROVIDENT PLEA return, the accused should be arraigned
a. Effects of improvident plea without delay. (R.A. 4908)
b. Plea of guilty to a non-capital offense 3. Cases under R.A. 7610 (Child Abuse Act), the
c. Plea of guilty to a capital offense trial shall be commenced within 3 days from
d. Withdrawal of improvident plea of guilty arraignment.
7. GROUNDS FOR SUSPENSION 4. Cases under the Dangerous Drugs Act
OF ARRAIGNMENT 5. Cases under SC AO 104-96, i.e., heinous
crimes, violations of the Intellectual
8. DEFENSES/ REMEDIES CUT OFF Property Rights Law, these cases must be
BY ARRAIGNMENT tried continuously until terminated within 60
days from commencement of the trial and to be
decided within 30 days from the submission of
the case
1. ARRAIGNMENT AND PLEA, HOW
MADE (Rule 116) Notes:
Trial in absentia may be conducted only after valid
ARRAIGNMENT means the proceeding in a arraignment.
criminal case, whose object is to fix the identity of
the accused, to inform him of the charge and to give Accused must personally appear during
him an opportunity to plead, or to obtain from the arraignment and enter his plea (counsel cannot
accused his answer, in other words, his plea to the enter plea for accused)
information. (People v. Pillado, G.R. No. L-7254,
1954) Accused is presumed to have been validly
arraigned in the absence of proof to the contrary
It is at this state wherein the mode and manner
required by the Rules, an accused, for the first time Generally, judgment is void if accused has not been
is granted the opportunity to know the precise validly arraigned.
charge that confronts him.
If accused went into trial without being arraigned,
Purpose: The procedural due process mandate of subsequent arraignment will cure the error
the Constitution requires that the accused be provided that the accused was able to present
arraigned so that he may be informed as to why he evidence and cross-examine the witnesses of the
was indicted and what penal offense he has to face, prosecution during trial.
to be convicted only on a showing that his guilt is
proved beyond reasonable doubt with full 2. WHEN A PLEA OF “NOT GUILTY”
opportunity to disprove the evidence against him. WILL BE ENTERED
How Arraignment is Made:
A plea of ―not guilty‖ will be entered:
1. In open court where the complaint or
1. When accused so pleaded
information has been filed or assigned for trial
2. When he refuses to plead
2. By the judge or clerk of court
3. When he makes a conditional or qualified plea
3. By furnishing the accused with a copy of the
of guilt (Ex. Accused pleads guilty but adds
complaint or information
―pero hindi ko sinasadya‖)
4. Reading it in a language or dialect known to
4. When the plea is indefinite or ambiguous
the accused
5. When he pleads guilty but presents exculpatory
5. Asking accused whether he pleads guilty or
evidence (ex. Evidence to prove complete self-
not guilty
defense)
When Arraignment Should Be Held
Note: If the accused who pleaded guilty presents
Accused should be arraigned within 30 days from
exculpatory evidence, his plea of guilty is deemed
the date the court acquires jurisdiction over his
withdrawn. The judge must order the accused to
person, unless a shorter period is provided for by
plead again or at least direct that a new plea of ―not
law. The time of the pendency of a motion to quash
guilty‖ be entered for him, otherwise there shall be
or a bill of particulars or other causes justifying
no standing plea for the accused. This is significant
suspension of arraignment shall be excluded in
because if there is no standing plea, the accused
computing the period.
cannot invoke double jeopardy later on.
When Arraignment is Held Within a Shorter
Presence of Offended Party
Period:
The private offended party is required to appear in
1. When an accused is under preventive
the arraignment for the purpose of plea bargaining,
detention, his case should be raffled within 3

300
determination of civil liability and other matters Presence and Consent of the Offended Party
requiring his presence. The consent of the offended party is necessary
before the accused may be allowed to plead guilty
In case the offended party fails to appear despite to a lesser offense. If the plea of guilty to a lesser
due notice, the trial court may allow the accused to offense is made without the consent of the
plead guilty to a lesser offense necessarily included prosecutor and the offended party, the conviction of
in the offense charged with the conformity of the the accused shall not be a bar to another
trial prosecutor alone. prosecution for an offense which necessarily
includes the offense charged in the former
3. WHEN ACCUSED MAY ENTER A information (No double jeopardy).
PLEA OF GUILTY TO A LESSER
If the offended party fails to appear during
OFFENSE arraignment, the court may allow the accused to
plead guilty to a lesser offense with the conformity
PLEA BARGAINING is the process whereby the of the trial prosecutor alone.
accused, the offended party and the prosecution
work out a mutually satisfactory disposition of the
case subject to the court‘s approval. 4. ACCUSED PLEADS GUILTY TO
CAPITAL OFFENSE, WHAT THE
It usually involves the defendant‘s pleading guilty to COURT SHOULD DO
a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a IMPROVIDENT PLEA is a plea without information
lighter sentence than that for the graver charge. as to all the circumstances affecting it; based upon
a mistaken assumption or misleading information or
Only facts, and not conclusions of law alleged in the advice.
information, are admitted by a plea of guilty.
(People v. De la Cruz, G.R. No. L-2204, 1948). A Duty of the Court When Accused Pleads Guilty
plea of guilty to an information alleging aggravating to a Capital Offense:
or qualifying circumstances will not be considered 1. Conduct a searching inquiry into the
an admission of said circumstances if the evidence voluntariness and full comprehension of the
subsequently presented by the prosecution fails to consequences of the plea.
prove the same. (People v. Comendador, G.R. No. 2. Require prosecution to present evidence to
L-38756, 1984) prove the guilt and precise degree of culpability
of the accused.
It precludes the filing and prosecution of the offense 3. Ask the accused if he desires to present
originally charged in the information, except when evidence in his behalf and allow him to do so if
the plea of guilty to a lesser offense is without the he desires.
consent of the offended party and the prosecutor.

Plea to Lesser Offense During Arraignment

5. SEARCHING INQUIRY
During arraignment, the accused may enter a plea
of guilty to a lesser offense PROVIDED there is Elements of “Searching Inquiry”
consent of the offended party AND of the 1. Judge must convince himself that accused is
prosecutor to the plea of guilty to a lesser offense entering the plea voluntarily and intelligently.
that is necessarily included in the offense charged. 2. Judge must convince himself that there exists a
rational basis for the finding of guilt based on
The accused may also enter a plea of guilty to a accused‘s testimony.
lesser offense if the offended party was notified and 3. Inform the accused of the exact length of
did not appear in the arraignment of the accused. imprisonment and the certainty that he will
serve it in a national penitentiary.
Plea to Lesser After Arraignment But Before
Trial 6. IMPROVIDENT PLEA
After arraignment but BEFORE trial, the accused
may still be allowed to plead guilty to a lesser Effects of Improvident Plea
offense after withdrawing his previous plea of not The conviction will be set aside if the plea of guilty
guilty. No amendment to the complaint or is the sole basis for the judgment.
information is necessary.
But, the court may validly convict the accused if
Plea to Lesser Offense after Trial Has Begun such conviction is supported by adequate evidence
After the prosecution has rested its case, a change of guilt independent of the plea itself.
of plea to a lesser offense may be granted by the
judge, with the approval of the prosecutor and the Consequences of Plea of Guilty
offended party if the prosecution does not have As a rule, a plea of guilty is an UNQUALIFIED
sufficient evidence to establish the guilt of the ADMISSION of the crime and of the attending
accused for the crime charged. The judge cannot circumstances (aggravating and/or qualifying)
on its own grant the change of plea. alleged in the complaint.

301
No Need for Further Evidence trial court. (People v. Lambino, G.R. No. L-10875,
Such plea removes the necessity of presenting 1958)
further evidence and for all intents and purposes the
case is deemed tried on its merits and submitted for There should be a categorical declaration from the
decision. accused that he is withdrawing his plea of guilty and
substituting it with a plea of not guilty. There must
Mitigating and Aggravating Circumstances either be a motion to withdraw his plea of guilty or
However, the court may, upon motion, allow the any unequivocal manifestation of the withdrawal of
presentation of evidence to prove aggravating and such plea. Convictions based on an improvident
mitigating circumstances. plea of guilty are set aside only if such plea is the
sole basis of the judgment. If the trial court relied on
The trial court may allow an accused to plead guilty sufficient and credible evidence to convict the
and at the same time allow him to prove other accused, the conviction must be sustained. (People
mitigating circumstances. However, if what the v. Solamillo, G.R. No. 123161, 2003)
accused would prove is an exempting
circumstance, which would amount to a withdrawal The reason behind the rules is that trial has already
of his plea of not guilty. begun and the withdrawal of the plea will change
the theory of the case and put all past proceedings
Plea of Guilty to a Non-Capital Offense to waste. Moreover, at this point, there is a
If the accused is permitted to present evidence after presumption that the plea was made voluntarily.
his plea of guilty to a non-capital offense and such
shows that the accused is not guilty of the crime Four-Fold Duty of Court when Accused Appears
charged, the accused must be acquitted, for there is without Counsel:
no rule which provides that simply because the 1. INFORM the defendant that he has a right to
accused pleaded guilty to the charge that his an attorney before being arraigned
conviction automatically follows. Additional 2. After informing him, court must ASK the
evidence independent of the plea may be defendant if he desires to have the aid of an
considered to convince the judge that it was attorney
intelligently made. 3. If he desires but is unable to employ one, the
court must ASSIGN an attorney de oficio to
For non-capital offenses, the reception of evidence defend him
is merely discretionary on the part of the court. If the 4. If the accused desires to procure an attorney of
information or complaint is sufficient for the judge to his own, the court must grant him
render judgment on a non-capital offense, he may REASONABLE TIME to do so
do so.
Failure to comply with this 4-fold duty amounts to a
Plea of Guilty to a Capital Offense violation due process
But if the case involves a capital offense, the
reception of evidence to prove the guilt and degree COUNSEL DE OFICIO is counsel appointed by the
of culpability of the accused is mandatory. court to represent and defend the accused in case
he cannot afford to employ one himself
Withdrawal of Improvident Plea of Guilty
At any time before judgment of conviction becomes Who May Be Appointed Counsel De Oficio:
final, the court may permit an IMPROVIDENT PLEA 1. Members of the bar in good standing who can
of guilty to be withdrawn and be substituted by a competently defend the accused
plea of not guilty. 2. In localities where such members of the bar are
not available, any resident of the province of
The substitution of a plea of guilty by one of not good repute for probity and ability.
guilty is subject to the discretion of the court and
may be granted if the prosecution does not have Duty of the Court to Appoint Counsel During
sufficient evidence to establish the guilt of the Arraignment and During Trial
accused. (People v. Kayanan, G.R. No. L-30355, During arraignment, the court has an affirmative
1978) duty to inform the accused of his right to counsel
and to provide him with one in case he cannot
Instances of Improvident Plea: afford it. The court must act on its own volition
1. Plea of guilty was compelled by violence or unless the right is waived by the accused.
intimidation
2. Accused did not fully understand the meaning During trial, it is the accused who must assert his
and consequences of his plea right to counsel. The court will not act unless the
3. Insufficient information to sustain conviction of accused invokes his rights.
the offense charged
4. Information does not charge an offense What Constitutes “Reasonable Time”
5. Court has no jurisdiction It depends on the circumstances surrounding the
case such as the gravity of the offense, complexity
The withdrawal of a plea of guilty is not a matter of of the allegations, whether a motion to quash or a
right to the accused but of sound discretion to the bill of particulars has to be filed, etc.

302
Generally, reasonable time to prepare for trial is the prosecution. It authorizes the defense to
between 2-15 days. inspect, copy or photograph any evidence of the
prosecution in its possession after obtaining
The accused has at least 15 to 30 days from receipt permission of the court.
of pre-trial order to prepare for trial (Rule 119,
Section 1). The purpose of such right is to prevent surprises to
the accused and the suppression or alteration of
Generally, reasonably time to prepare for evidence.
arraignment is 30 minutes to 1 hour.
Such right is available even during preliminary
Note: Counsel for the accused must expressly investigation when such is necessary to protect the
demand the right to be given reasonable time to constitutional right to life, liberty and property of the
consult with the accused. Only when so demanded accused. It enables the respondent to obtain
does denial thereof constitute reversible error and a evidence which he could incorporate in the counter-
ground for new trial. affidavits or to substantiate his allegations therein.

Bill of Particulars The rules applicable for the right to modes of

Accused must move for a bill of particulars discovery in criminal case is Section 12 and 13 of
BEFORE arraignment to enable him to properly Rule 119. Rules 23 to 29 of the Rules of Court is
plead and prepare for trial, otherwise it is deemed not applicable.
waived.
7. GROUNDS FOR SUSPENSION OF
The motion for bill of particulars must contain: ARRAIGNMENT
1. Alleged defects in the complaint or information
and
The grounds for suspending arraignment are:
2. Details desired. 1. There exists a prejudicial question
2. Accused appears to be suffering from an
Rule 12 on Bill of Particulars applies by analogy to unsound mental condition which renders him
Bill of Particulars as provided in Section 9 of Rule
unable to understand the charge against him
116.
and to plead intelligently thereto.
3. There is a petition for review pending
The remedy against an information that fails to
before the DOJ or Office of the President,
allege the time of the commission of the crime with however the period of suspension shall not
sufficient definiteness is a bill of particulars, not a exceed 60 days counted from the filing of
motion to quash.
the petition for review.
It is Not the Office of the Bill of Particulars to:
While the pendency of a petition for review is a
1. Supply material allegation necessary to the
ground for suspension of the arraignment, the Rules
validity of a pleading
on Criminal Procedure limits the deferment of the
2. Change a cause of action or defense stated in
arraignment to a period of 60 days reckoned from
the pleading, or to state a cause of action or
the filing of the petition with the reviewing office. It
defense other than the one stated.
follows, therefore, that after the expiration of said
3. Set forth the pleader‘s theory of his cause of
period, the trial court is bound to arraign the
action or a rule of evidence on which he
accused or to deny the motion to defer arraignment.
intends to rely. (Aguinaldo vs. Ventus, GR No. 176033, 2015)
4. Furnish evidentiary information whether such
information consists of evidence which the
Note: Other grounds for suspension include
pleader proposes to introduce or of facts which
pending incidents like motion to quash, motion for
constitute a defense or offset for the other party
inhibition, motion for bill of particulars.
or which will enable the opposite party to
establish an affirmative defense not yet
END OF TOPIC
pleaded.

The filing of a motion for bill of particulars suspends

the period to file a responsive pleading.
I. MOTION TO QUASH
If the motion is granted, the moving party has the
remaining period or at least 5 days to file his answer
from service of the bill of particulars. 1. GROUNDS
2. DISTINGUISH FROM DEMURRER
If the motion is denied, he has the same period to
file his responsive pleading from receipt of the order TO EVIDENCE
denying the motion. 3. EFFECTS OF SUSTAINING THE
MOTION TO QUASH
Right to Modes of Discovery 4. EXCEPTION TO THE RULE THAT
This is the right of the accused to move for the
production of material evidence in the possession of SUSTAINING THE MOTION IS NOT

303
 A BAR TO ANOTHER
PROSECUTION Note: The court in resolving the motion cannot
consider –
5. DOUBLE JEOPARDY 1. Facts contrary to those alleged in the
6. PROVISIONAL DISMISSAL information
2. Facts w/c do not appear on the face of the
information
Motion to Quash is a special pleading filed by the
Except: Those admitted by the prosecution.
defendant before entering his plea, which
hypothetically admits the truth of the facts spelled Officer who Filed the Information Had No
out in the complaint or information at the same time Authority to Do So
that it sets up a matter which, if duly proved, would
Occurs when a state prosecutor lacked the authority
preclude further proceedings. By a motion to quash,
to file the information because there was neither a
the defendant assumes the facts alleged in the
directive from the Secretary of Justice designating
information to be true. (People v. Lim Hoa, G.R. No.
him as a special prosecutor nor the written approval
L-10612, 1958)
of the information by the city prosecutor as required
under Section 5, Rule 110 of the Rules of Court.
An order denying a motion to quash is interlocutory
in character and absent a clear showing that the Does Not Conform Substantially to the
judge has committed a grave abuse of discretion or Prescribed Form
acted in excess of jurisdiction, the order is not
The defects contemplated are defects in form, as
appealable.
where the requirements for the sufficiency of
information are not complied with.
Time to move to quash
May be filed only before the accused has entered Prescription
his plea to the accusatory pleading, except when
The following are the prescriptive periods of the
the same does not charge an offense or where the
criminal liability or penalties:
court has no jurisdiction over the case or when the
1. Death and reclusion perpetua - 20 years
offense or penalty had already been extinguished,
2. Other afflictive penalties - 15 years
or when further prosecuting the accused would
3. Other correctional penalties - 10 years;
thereby place him in double jeopardy.
however, if penalty is arresto mayor - 5 years
4. Light penalties - 1 year
1. GROUNDS
Legal Excuse For Justification
The grounds to quash the information are: The legal excuse or justification referred to are
1. Facts charged do not constitute an offense those provided for in the Revised Penal Code:
2. Court has no jurisdiction over offense charged 1. Justifying circumstances. (Art. 11)
3. Court has no jurisdiction over the person of the 2. Exempting circumstances. (Art. 12)
accused 3. Absolutory causes. (Arts. 6 [par.3], 16, 20, 247
4. Officer who filed the information had no and 332)
authority to do so
5. Does not conform substantially to the 2. MOTION TO QUASH V. DEMURRER
prescribed form TO EVIDENCE
6. More than one offense is charged except when
a single punishment for various offense is MOTION TO QUASH DEMURRER TO
prescribed by law EVIDENCE
7. Criminal action or liability has been Filed before the Filed after the
extinguished by prescription defendant enters his prosecution has rested
8. Contains averments w/c, if true, would plea its case
constitute a legal excuse or justification Does not require prior May be filed either w/ or
9. Accused has been previously convicted or leave of court w/o leave of court
acquitted of offense charged, or case has been Based on matters found Predicated upon matters
dismissed or otherwise terminated w/o the on the complaint or outside of the complaint
express consent of the accused (double information or information such as
jeopardy) the evidence or lack of it
If granted, dismissal of If granted, is deemed an
An affidavit of desistance or pardon is not a ground the case will not acquittal of the accused
for the dismissal of an action, once it has been necessarily follow
instituted in court. (People v. Salazar, G.R. No. [See Sections 5 and 6
181900, 2010) of this Rule, where
another complaint or
Facts Charged Do Not Constitute an Offense information may be filed
The test for the correctness of this ground is the by order of the court]
sufficiency of the averments in the information, that If denied by grave If denied, shall not be
is, whether the facts alleged, if hypothetically abuse of discretion, reviewable by appeal or
admitted, constitute the elements of the offense.

304
then certiorari or certiorari before to withdraw that plea in order to file a motion to
prohibition lies judgment but may be quash. (Mill v. People, et al., G.R. No. L-10427,
reviewable via Rule 65 1957)
(Choa v. Choa, G.R. No.
143376. November 26, 3. EFFECTS OF SUSTAINING THE
2002). MOTION TO QUASH
Forms and Contents
GROUNDS EFFECT
1. In writing
2. Signed by the accused or his counsel  Facts charged do not Court may order
constitute an offense that another
3. Distinctly specify the factual and legal grounds
of the motion  Officer who filed the information be filed
information had no or an amendment
Note: Court shall consider no ground other than authority to do so thereof be made
what is stated in the motion, except lack of  It does not conform
jurisdiction over the offense charged. substantially to the
prescribed form
Time for Filing the Motion to Quash  More than one offense is
Any time before the accused enters his plea charged
 Criminal action or liability Court must state, in
General Rule: Filing of a motion to quash is not has been extinguished its order granting
allowed in a summary procedure  Averments would the motion, the
Exception/s: constitute a legal excuse release of the
1. On the ground of lack of jurisdiction over or justification accused if he is in
the subject matter  Accused has been custody or the
2. Failure to comply w/ the barangay previously convicted or cancellation of his
conciliation proceedings acquitted of the offense bond if he is on bail
charged
Effect of Failure to Assert Any Ground of a  Court has no jurisdiction Court should
Motion To Quash Before Pleading to a over the offense remand or forward
Complaint or Information  Court has no jurisdiction the case to the
This failure to assert a ground may either be over the person of the proper court, not to
because: accused quash the complaint
1. Accused did not file a motion to quash or information
2. Accused filed a motion to quash but failed to
allege the ground in said motion IF COURT ORDERS THAT ANOTHER
COMPLAINT OR INFORMATION BE FILED AND
General Rule: Failure to assert or timely assert a IS –
motion to quash shall be deemed a waiver of any
objections. NOT ORDERED OR IF
Exception/s: In the following cases, a motion ORDERED AND HAVING ORDERED, NO
to quash cannot be waived and can be filed MADE NEW INFORMATION IS
and entertained at any stage of the FILED
proceedings: The accused, if in The accused, if in custody,
1. Facts charged do not constitute an offense custody, shall not shall be discharged unless
2. Court has no jurisdiction over offense be discharged he is also in custody for
charged unless admitted to another charge
3. Criminal action or liability has been bail
extinguished
4. Accused has been previously convicted or Granting A Motion To Quash Appealable
acquitted of offense charged, or case has An order granting a motion to quash is appealable,
been dismissed or otherwise terminated and the accused cannot claim double jeopardy as
w/o express consent of accused the dismissal is procured not only with his consent
(defendant has been in former jeopardy) but at his own instance.

Where, in a motion to quash an information for libel,

the prosecution objected to evidence showing the 4. EXCEPTION TO THE RULE THAT
privileged nature of the communication, the court SUSTAINING THE MOTION IS NOT
cannot quash the case as such defense must be A BAR TO ANOTHER
raised at the trial. (Duque, et al. v. Santiago, etc. et PROSECUTION
al., G.R. No. L-16916, 1962).But where the
prosecution failed to object and such proof of
General Rule: When a motion to quash is
privilege was admitted into the record, quashal was
sustained, the court may order that another
proper. (People v. Balao, G.R. No. L-22250, 1968)
complaint or information be filed.
If the accused had already entered his plea, it is
Exception/s: When the ground relied upon is:
discretionary on the part of the court to permit him

305
 1. Extinction of criminal action or liability the first information or is an attempt or
2. Accused has been previously convicted or frustration thereof.
acquitted of the offense charged
3. Case against him was dismissed or When Double Jeopardy Shall Not Apply Despite
otherwise terminated w/o the accused‘s a Prior Conviction
express consent 1. Graver offense developed due to supervening
facts arising from the same act or omission
Denial of a Motion to Quash constituting the former charge
A petition for certiorari is not the proper remedy 2. Facts constituting graver charge were
absent any showing of arbitrariness. The remedy is discovered only after a plea was entered in the
for the movant to go to trial w/o prejudice to former complaint or information
reiterating the defenses invoked in the motion to 3. Plea of guilty to a lesser offense was made w/o
quash. consent of the prosecutor and of the offended
party except if they fail to appear in any of
When Denial May Be Subject of a Petition for these cases, where the accused satisfies or
Certiorari, Prohibition or Mandamus in Another serves the whole or in part the judgment, he
Court of Coordinate Rank shall be credited with the same in the event of
In justifiable cases where appellate courts have conviction for the graver offense.
intervened to review the lower court‘s denial of a
motion to quash (ex. Constitutionality of the statute An offense charged necessarily includes the
which is the basis of the prosecution is assailed or offense proved when some of the essential
on jurisdictional grounds raised in the petition). elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.
When Court Shall Order the Amendment of the
Information or Complaint An offense charged is necessarily included in the
General Rule: If the motion to quash is based on a offense proved, when the essential ingredients of
defect which can be cured (ex. Allegations in the the former form part of those constituting the latter.
information do not constitute an offense, information
does not conform substantially to the prescribed Where Double Jeopardy Not Applicable
form), the court shall not immediately grant the 1. Preliminary investigation stage
motion but order that an amendment be made. 2. Administrative cases
3. Civil aspect of the criminal case
Exception/s: The motion shall be granted if despite
such opportunity, the prosecution: Dismissal Must Be Without the Express Consent
1. Fails to make an amendment of the Accused
2. If despite the amendment, the complaint or General Rule: The termination of the case must be
information still suffers from the same without the express consent of the accused so that
defect jeopardy will attach.
Exception/s: Dismissal is equivalent to acquittal
5. DOUBLE JEOPARDY even with the consent of the accused if grounded
on –
As a rule, when an accused has been convicted or 1. Speedy trial
acquitted, or the case against him dismissed or 2. Demurrer to evidence
otherwise terminated without his express consent,
the conviction or acquittal shall be a bar to another Rules Regarding State Witnesses
prosecution for: An order discharging an accused as a state witness
1. The offense charged amounts to an acquittal, hence double jeopardy will
2. Any attempt to commit the same or frustration apply.
thereof
3. Any offense which necessarily includes or is If the state witness fails or refuses to testify against
necessarily included in the offense charged his co-accused in accordance with his sworn
statement, he may be prosecuted again.
Requisites to Raise Double Jeopardy:
1. First jeopardy must have attached Double Jeopardy in Quasi-Offenses
a. Accused must have been convicted or Once convicted or acquitted of a specific act of
acquitted, or the case against him was reckless imprudence the accused may not be
dismissed or terminated without his prosecuted again for the same act.
express consent
b. Made by a court of competent jurisdiction Only the single act of recklessness is punished and
c. Valid complaint or information not the effect/s thereof (damage to property,
d. Accused has been arraigned resulting in injury or homicide), for it merely
2. First jeopardy must have been validly determines the penalty.
terminated
3. The second jeopardy must be for the same Ex: Conviction of reckless imprudence resulting in
offense or the second offense includes or is slight physical injuries shall bar prosecution for
necessarily included in the offense charged in reckless imprudence resulting in homicide and

306
damage to property. (Ivler v. Modesto-San Pedro, END OF TOPIC
G.R. No. 172716, 2010)

6. PROVISIONAL DISMISSAL
J. PRE-TRIAL
Contemplates that the dismissal of the criminal
action is not permanent and can be revived within (Rule 118)
the period set by the Rules of Court.
1. MATTERS TO BE CONSIDERED
Requisites of a Provisional Dismissal
1. Consent of the prosecutor DURING PRE-TRIAL
2. Consent of the accused; 2. WHAT THE COURT SHOULD DO
3. Notice to the offended party; and WHEN PROSECUTION AND
4. Public prosecutor is served w/ a copy of the OFFENDED PARTY AGREE TO THE
order of provisional dismissal.
PLEA OFFERED BY THE ACCUSED
Examples on Grounds on Which Provisional 3. PRE-TRIAL AGREEMENT
Dismissal May Be Granted 4. NON-APPEARANCE DURING PRE-
 Prosecution was not prepared for trial TRIAL
 Repeated absences in court 5. PRE-TRIAL ORDER
 Witness did not appear at the trial 6. REFERRAL OF SOME CASES FOR
When Provisional Dismissal Becomes COURT ANNEXED MEDIATION AND
Permanent JUDICIAL DISPUTE RESOLUTION
The provisional dismissal shall become permanent a. Cases subject to mediation for JDR
if not revived within: b. Salient features of the JDR
Penalty is 6 years and 1 year after issuance of c. Court-annexed mediation guidelines
below, or a fine of any order
amount, or both Courts where Pre-Trial is Mandatory
1. Sandiganbayan
Penalty exceeds 6 2 years after issuance of
2. Regional Trial Court
years order
3. Metropolitan Trial Court, Municipal Trial Court
in Cities, Municipal Trial Court, Municipal
Circuit Trial Court
When Period Shall Commence
Although the Rules provide that the period shall Purposes of Pre-Trial:
commence from ―after the issuance‖ of the order, it 1. To simplify the issues
shall be construed to mean as ―after the service of 2. To shape up the testimonial and documentary
the order of dismissal on the public prosecutor‖ who evidence
has control of the prosecution. (People v. Lacson, 3. To clear the desks for trial
G.R. No. 149453, 2003)
Pre-trial is not a mere technicality in court
When New Preliminary Investigation if Case is proceedings for it serves a vital objective: the
Reinstated simplification, abbreviation, and expedition of trial, if
1. Original witnesses or some of them recant their not indeed its dispensation. (Tolentino v. Heirs of
testimony, are no longer available (died), or Laurel-Ascalon, G.R. No. 181368, 2012)
when new witnesses have emerged
2. Other persons are charged under the new
complaint 1. MATTERS CONSIDERED IN A PRE-
3. Original charge has been upgraded
4. Criminal liability of the accused has been
TRIAL
upgraded (ex. accomplice principal)
The matters considered in a pre-trial are:
Quashal vs. Provisional Dismissal 1. Plea bargaining
Quashal and provisional dismissal are different 2. Stipulation of facts
concepts whose respective rules refer to different 3. Marking for identification of evidence
situations that should not be confused with one 4. Waiver of objections to admissibility of
another. If the problem relates to an intrinsic or evidence
extrinsic deficiency of the complaint or information, 5. Modification of the order of trial if the accused
as shown on its face, the remedy is a motion to admits the charge but interposes a lawful
quash under the terms of Section 3, Rule 117. All defense
other reasons for seeking the dismissal of the 6. Such matters as will promote a fair and
complaint or information, before arraignment and expeditious trial of the criminal and civil aspects
under the circumstances outlined in Section 8, fall of the case
under provisional dismissal. (Los Baños v. Pedro,
G.R No. 173588, 2009) Plea Bargaining

307
The process whereby the accused, the offended complainant or the complaining witness is not
party, and the prosecution work out a mutually required. Even the presence of the accused is NOT
satisfactory disposition of the case subject to court required unless directed by the trial court. It is
approval. enough that the accused is represented by his
counsel. (People v. Tac-an, G.R. No. 148000, 2003)
When Pre-Trial Conducted
General Rule: Within 30 days from acquisition of If the counsel for the accused/prosecutor does NOT
jurisdiction over the person of the accused AND appear at the pre-trial conference and does NOT
after arraignment offer an acceptable excuse for his lack of
cooperation, the court may sanction/penalize
Exception/s: When a shorter period is provided in: counsel for the accused if any of the following
1. Special laws concur:
2. Supreme Court circulars 1. Counsel does NOT appear at the pre-trial
conference; AND
2. WHAT THE COURT SHOULD DO 2. Counsel does NOT offer an acceptable excuse.
WHEN PROSECUTION AND (Atty. Emelia H. Garayblas and Atty. Renato G.
dela Cruz v. Hon. Gregory Ong, et al., G.R. No.
OFFENDED PARTY AGREE TO THE 174507-30, 2011)
PLEA OFFERED BY THE ACCUSED
5. PRE-TRIAL ORDER
Duty of the court when the prosecution and the
offended party agree to the plea offered by the Issued w/in 10 days after termination of pre-trial
accused conference (A.M. No. 03-1-09-SC, Guidelines to be
1. During the pre-trial, the judge shall consider Observed by Trial Court Judges and Clerks of Court
plea bargaining arrangements except in cases in the Conduct of Pre-Trial and Use of Deposition-
for violations of the Comprehensive Dangerous Discovery Measures as cited in Alviola v. Avelino,
Drugs Act of 2002. A.M. No. MTJ-P-08-1697, 2008)
2. If a plea bargaining is agreed upon, the court
shall: Sets forth:
a. Issue an order to that effect; 1. Actions taken during the pre-trial conference
b. Proceed to receive evidence on the 2. Facts stipulated
civil aspect of the case; and 3. Admissions made
4. Evidence marked
c. Render and promulgate judgment of 5. Witnesses to be presented
conviction, including the civil liability or
6. Schedule of the trial
damages duly established by the
evidence. (I-B[5], A.M. No. 03-1-09-
Pre-trial order is not necessary to make pre-trial
SC)
stipulations binding. The court‘s approval,
mentioned in the last sentence of Sec. 2, Rule 118,
3. PRE-TRIAL AGREEMENT is not needed to make the stipulations binding on
the parties. Such approval is necessary merely to
All agreements or admissions made or entered emphasize the supervision by the court over the
during the pre-trial conference shall be: case and to enable it to control the flow of the
1. Reduced in writing; AND proceedings. (Bayas v. Sandiganbayan, G.R No.
2. Signed by the accused AND counsel. 143689-91, 2002)

Otherwise, they cannot be used against the

accused. The agreements covering matters in a 6. REFERAL OF SOME CASES FOR
pre-trial shall be approved by the court. COURT ANNEXED MEDIATION
(CAM) AND JUDICIAL DISPUTE
But admissions during trial binds the accused even RESOLUTION (JDR)
if it is not in writing or signed.
CAM = mediation presided over by an accredited
4. NON-APPEARANCE AT PRE TRIAL mediator.
CONFERENCE
JDR = mediation presided over by the judge.
The court may impose proper sanction or penalties,
if the counsel or prosecutor absent does NOT offer Mediation and conciliation at the level of the judge
an acceptable excuse. would contribute significantly to the:
• Satisfaction of litigants
Note: There is NO similar provision on sanctions • Help decongest the dockets of the judiciary
and penalties in civil cases.
• Expedite the resolution of cases
The absence during pre-trial of any witness for the
Cases Subject to Mediation for JDR
prosecution is NOT a valid ground for the dismissal
1. All civil cases
of a criminal case. The presence of the private
2. Settlement of estates

308
3. Cases covered by the Summary Procedure, - Substance of the upcoming mediation, such
except: as:
a. Traffic violations ▪ Substantive issues involved
b. Violation of municipal or city
ordinances
▪ Study of the other side‘s position
4. Cases cognizable by the Lupong ▪ Information necessary for informed
Tagapamayapa decision-making
5. Civil aspect of BP22 (bouncing checks) cases ▪ Possible bargaining options
6. Civil aspect of quasi-offenses ▪ Best, worst, and most likely alternative
7. Civil aspect of estafa and libel to negotiated agreement
8. Civil aspect of theft
Where necessary, a lawyer may ask for a recess,
Stages in the Judicial Proceeding with JDR as often as may be necessary, in order to give
1. From the filing of a complaint, to the conduct of advice or suggestions to client in private
CAM and JDR during the pre-trial stage
2. Pre-trial proper to trial and judgment Should mediation fail, the case is referred back to
the Court
Salient Features of the JDR
The judges conducting the JDR and the pre-trial Duty of the Court when the Accused Enters a
proper are different. Plea of Guilty to a Capital Offense
1. Ascertain from the accused himself –
Notes taken during the JDR shall not form part of  Circumstance of arrest or surrender
the records of the case  Whether accused was assisted during
custodial and preliminary investigations
Timeline for mediation:  Conditions of detention and interrogation
- Second level courts: 60 days 2. Ask accused‘s counsel whether the
- First level courts: 30 days consequences of a plea of guilty had been
completely explained
The JDR judge may talk to the parties, jointly or 3. Elicit information about the personality profile
separately, w/o their lawyers of the accused, such as his age, socio-
economic status, and educational background
JDR judge could facilitate the creation of options 4. Inform the accused the exact length of
that would provide solutions to the dispute imprisonment or nature of the penalty
5. Require the accused to fully narrate the
If there is NO settlement reached: incident or make him reenact, or cause him to
- JDR judge issues an order returning the supply missing details or significance. (People
case to the Office of the Clerk of Court v. Feliciano Ulit y Tampoy, G.R. Nos. 131799-
801, 2004)
a. The clerk shall raffle the case to
another judge who will conduct the pre-trial
END OF TOPIC
proper

If Settlement is reached in JDR

Drafting of compromise agreement w/ the
assistance of their lawyers K. TRIAL
(Rule 119)
Prior to the signing, the JDR judge may opt to
explain the contents of the agreement
1. INSTANCES WHEN PRESENCE OF
Signing of the compromise agreements and the ACCUSED IS REQUIRED BY LAW
filing of a joint motion to approve the compromise
2. REQUISITE BEFORE TRIAL CAN BE
Judge renders a judgment based on compromise SUSPENDED ON ACCOUNT OF
ABSENCE OF WITNESS
Copy of the judgment is sent to the Phil. Mediation 3. TRIAL IN ABSENTIA
Center for statistical purposes
4. REMEDY WHEN ACCUSED IS NOT
Court-Annexed Mediation Guidelines BROUGHT TO TRIAL WITHIN THE
The role of a counsel becomes less dominating and PRESCRIBED PERIOD
less directive to allow the parties more opportunities 5. REQUISITES FOR DISCHARGE OF
to craft their own agreement ACCUSED TO BECOME A STATE
Counsel shall confer and discuss w/ his client the WITNESS
following: 6. EFFECTS OF DISCHARGE OF
- Stress its difference w/ litigation, its ACCUSED AS STATE WITNESS
advantage and benefits 7. DEMURRER TO EVIDENCE

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 the date trial begins, minus the excluded
Consolidation of Trials of Related Offenses delays and postponement.
Charges for offenses founded on the same facts or
forming part of a series of offenses of similar The case against the detained accused may be
character may be tried jointly at the discretion of the dismissed on ground of denial of the right to speedy
court. trial in the event of failure to observe the above time
limits (Section 9, A.M. No. 12-11-2-SC, 2014).
Trial of Several Accused
General Rule: When two accused are jointly Exclusions
charged with an offense, joint trial is automatic, The following shall be excluded in computing the
without need of court order. 180-day period:

Exception: The court, in its discretion, AND upon A. Delay by reason of the accused
motion of the prosecutor or any accused, orders 1. Examination of the physical and medical
separate trial. condition
2. Proceedings with respect to other criminal
A motion for separate trial must be filed before the charges
commencement of trial and cannot be raised for the 3. Extraordinary remedies and interlocutory
first time on appeal. orders
4. Pre-trial proceedings not exceeding 30 days
Even if a joint trial is conducted, the accused can 5. Orders of inhibition, or proceedings related to
always be permitted to present evidence separately. change of venue or transfer from other courts
6. Existence of a prejudicial question
Periods Relevant to Trial 7. Reasonably attributable to any period, not
exceeding 30 days
ACTION FROM DAYS
B. Delay resulting from absence or
Prepare for Plea of not guilty at least unavailability of an essential witness
trial 15
Initiate trial Receipt of pre-trial within 30 ABSENT UNAVAILABLE
order
Trial period First day of trial 180* Whereabouts are Whereabouts are known
unknown or whereabouts but his presence for trial
cannot be determined by cannot be obtained by
Except when:
due diligence due diligence
1. Authorized by the SC
2. Exclusions

A violation of Section 1, Rule 119 - time to prepare C. Mental incompetence or physical inability of
for trial, or the total absence of notice of trial, is a the accused to stand trial
denial of due process and a new trial may be
granted. (People v. Magdang, et al., G.R. No. L- D. Information dismissed upon motion of the
836, 1950) prosecutor
And thereafter a charge is filed against the
It shall be the duty of the trial court, the public or accused for the same offense, any period of
private prosecutor, and the defense counsel to delay from the date the charge was dismissed
ensure, subject to the excluded delays specified in to the date the time limitation would commence
Rule 119 of the RoC and the Speedy Trial Act of to run as to the subsequent charge had there
1998, to observe the following (Section 8, A.M. No. been no previous charge.
12-11-2-SC, 2014):
 The case shall be raffled and referred to E. Accused is joined for trial with a co-
the trial court within 3 days from filing of accused
the information When applicable:
 The accused shall be arraigned within 10 1. Court has not acquired jurisdiction over co-
days from the raffle accused, or
2. Co-accused‘s trial has not run and no
 The court shall hold the pre-trial
motion for separate trial has been granted
conference within 30 days after
arraignment or within 10 days if the
F. Continuance
accused is under preventive detention
Granting of postponement by the court is
 The court shall set the trial not later than
discretionary. Factors:
30 days from the termination of the pre-
trial conference
 The court shall terminate the regular trial REASONABLE NOT JUSTIFIED BY
within 180 days or the trial by judicial
affidavits within 60 days, reckoned from

310
 Defense counsel • Denial of the right to practice
• If failure to grant a • Congestion of or prosecutor
continuance would likely court‘s dockets before the court trying the
make a continuation of case for a max of 30 days
• Lack of diligent
such proceeding preparation • Criminal sanctions if any
impossible or result to • Failure to obtain
miscarriage of justice witness for The Modes of Discovery under Rules 23 to 29 do
• Case is novel, unusual prosecution not apply to criminal procedure. The applicable
and complex, due to the provision is Sections 12 and 13 of Rule 119.
number of accused or
nature of the prosecution 1. INSTANCES WHEN THE PRESENCE
OF THE ACCUSED IS REQUIRED
Time Limit Following Order for New Trial
General Rule: Trial shall commence within 30 days Accused is required to be present during:
from notice of the new trial order 1. Arraignment
2. Whenever required by the court for purposes of
Exception/s: Within 180 days if: identification
1. Period impractical due to unavailability of 3. Promulgation of sentence
witness Exception (to no. 5): In light offenses, when
2. Other factors the accused may appear by counsel or
representative

Public Attorney’s Duties Where Accused Is 2. REQUISITES BEFORE TRIAL CAN

Imprisoned
If the public attorney assigned to defend a person
BE SUSPENDED ON ACCOUNT OF
charged with a crime knows that the latter is ABSENCE OF WITNESS
preventively detained, either because he is charged
with a bailable crime but has NO means to post bail Requisites before trial can be suspended on
or is charged with a non-bailable crime, or, is account of absence of witness
serving a term of imprisonment in any penal 1. Witness is essential
institution, it shall be his duty to do the following: 2. The party who applies has been guilty of no
1. Promptly obtain his presence for trial or give neglect
notice to person having custody to advise the 3. The witnesses can be had at the time to which
prisoner of his right to demand trial the trial is deferred and incidentally that no
2. If the prisoner demands trial, the custodian similar evidence could be obtained
shall notify the lawyer of such demand 4. An affidavit showing the existence of the above
3. Upon receipt of notice, public attorney shall circumstances must be filed.
obtain presence of the prisoner for trial; and
4. The custodian shall make the accused Bail to Secure Appearance of Material Witness
available for trial upon receipt of such notice. When the court is satisfied, upon proof or oath, that
a material witness will not testify when required, it
Grounds and Sanctions may, upon motion of either party:
If the private counsel for the accused, the public 1. Order witness to post bail
attorney, or the prosecutor: 2. If witness refuses to post bail, court shall commit
1. Knowingly allows the case to be set for trial him to prison until he complies or testifies
without disclosing that a necessary witness
would be unavailable Examination of Witness Before Trial
2. Files a frivolous motion (and w/o merit) solely
for delay; FOR THE FOR THE
3. Makes a false statement to obtain continuance; ACCUSED PROSECUTION
OR
4. Willfully fails to proceed to trial w/o justification; GROUNDS/ • Sick, infirm or • Sick, infirm or
WITNESS unavailable unavailable
Then the court may punish such counsel, attorney, IS
or prosecutor, as follows: • Resides more • About to depart
than 100km from the PH w/
PERSON SANCTIONS from the place no definite
where the date of return
Private defense • Max fine of P20,000 hearing is to be
counsel • Criminal sanctions if any conducted and
has no means
Counsel de • Max fine of P5,000 to attend the
oficio, PAO or • Criminal sanctions if any same
prosecutor • Other similar
circumstances

311
BEFORE • Any judge in the • Before the Note: When the accused admits the act or omission
WHO PH court or judge charged in the complaint or information but
• Any lawyer where the case interposes a lawful defense, the order of trial may
good standing is pending be modified.
designated by
Lack of Formal Offer of Evidence During Trial
the judge
Documents w/c may have been identified and
• An inferior court marked as exhibits during pre-trial or trial but w/c
if ordered by a were not formally offered in evidence cannot in any
superior court manner be treated as evidence.
Nowhere in the said rule (119) permits the taking of When Mistake Has Been Made in Charging the
deposition (for the prosecution) outside the Proper Offense
Philippines whether the deponent is sick or not. When accused cannot be convicted of the offense
Certainly, to take the deposition of the prosecution charged or any other offense included therein –
witness elsewhere and not before the very same 1. Accused shall not be discharged if
court where the case is pending would not only there appears good cause to detain him
deprive a detained accused of his right to attend the 2. Court shall:
proceedings but also deprive the trial judge of the a. Commit the accused to answer for the
opportunity to observe the prosecution witness' proper offense; and
deportment and properly assess his credibility, b. Dismiss original case upon filing of
which is especially intolerable when the witness' proper information
testimony is crucial to the prosecution's case
against the accused. (Go v. People, G.R No. Exclusion of the Public
185527, 2012) Judge may exclude the public from the
courtroom/trial:
Applicability of Judicial Affidavit Rule in
Criminal Cases
The Judicial Affidavit Rule shall apply to all criminal MOTU PROPIO MOTION OF THE
actions: ACCUSED
1. Where the maximum of the imposable penalty
does not exceed six years; When evidence to be May exclude the public
2. Where the accused agrees to the use of judicial produced is offensive except court personnel
affidavits, irrespective of the penalty involved; to decency or public and the counsel of the
or morals parties
3. With respect to the civil aspect of the actions,
whatever the penalties involved are. (A.M. NO.
12-8-8-SC Judicial Affidavit Rule, §9) 3. TRIAL IN ABSENTIA

Order of Trial An accused need not always be present in every

1. Prosecution shall present evidence to prove the hearing although it is his right to be present if he so
charge and, in the proper case, the civil liability. desires from arraignment to the rendition of the
2. Accused may present evidence to prove his judgment.
defense and damages, if any, arising from the
issuance of a provisional remedy in the case. Requisites of a Trial in Absentia
3. Prosecution and defense may, in that order, 1. Accused has already been arraigned
present rebuttal and sur-rebuttal evidence 2. Accused has been duly notified of the trial or
unless the court, in furtherance of justice, hearings
permits them to present additional evidence 3. Absence of the accused is unjustified
bearing upon the main issue.
4. Upon admission of the evidence of the parties, 4. REMEDY WHERE ACCUSED IS NOT
the case shall be deemed submitted for BROUGHT TO TRIAL WITHIN THE
decision unless the court directs them to argue PRESCRIBED PERIOD
orally or to submit written memoranda.
The information may be dismissed on the motion of
In cases under Summary Procedure, affidavits the accused on the ground of denial of speedy trial.
submitted by the parties shall constitute the direct
testimonies of the witnesses who executed it. The Accused has the burden of proving the motion BUT
witness who testified may be subject to cross- the prosecution has the burden of going forward
examination, redirect, or re-cross-examination. with the evidence to establish the exclusion of time.
Should the affiant fail to testify, his affidavit shall not
be considered as competent evidence for the party Bar to speedy trial does not bar the right to speedy
presenting the affidavit, but the adverse party may disposition under the Constitution. These remedies
utilize his affidavit for any admissible purpose. are independent.
(Revised Rule on Summary Procedure, §15)
Substantial compliance with the time limitation
prescribed by the law for the resolution of the case

312
by the prosecutor is part of the procedural due 1. An acquittal on the case; AND
process guaranteed by the Constitution. Not only 2. A bar to future prosecution for the same
under the broad umbrella of the due process offense
clause, but under the constitutional guarantee of
―speedy disposition‖ of cases as embodied in
Section 16 of the Bill of Rights, the inordinate delay
7. DEMURRER TO EVIDENCE
is violative of the petitioner's constitutional rights.
(Tatad v. Sandiganbayan, G.R. No. 72335-39, A motion to dismiss filed by the accused after the
1988) prosecution has rested its case; the grounds being
insufficiency of the evidence of the prosecution
Dismissal shall be subject to the rules on double
jeopardy. The granting of demurrer is an acquittal.

Failure of the accused to move for dismissal prior to Denial of Leave of Court Not Appealable
trial is a waiver of the right to dismiss. An order denying the motion for leave of court to file
a demurer cannot be reviewed by appeal or by
Discharge as State Witness certiorari before judgment for it is merely an
Requires motion of the prosecution before resting interlocutory order. (People v. Laguio, G.R. No.
its case 128587, 2007)

Discharge must be w/ the consent of the accused When Prosecution Has Rested Its Case
To conclude the case for the prosecution, the rules
More than one accused may be discharged require that there must have been a prior formal
offer of evidence, hence a demurrer filed before
Evidence adduced in support of the discharge shall then is premature. (Valencia v. Sandiganbayan,
automatically form part of the trial. G.R. No. 165996, 2005)

The prosecution should complete the presentation

5. REQUISITES FOR AN ACCUSED TO or offer of evidence. To grant a demirrer prior to the
BE DISCHARGED AS STATE WITNESS complete presentation of evidence by the
prosecution would be a denial of due process.
For an accused to be discharged to be a state
witness, the following elements must concur: Effect of Grant of Demurrer
1. There is absolute necessity for the testimony of An accused who files a demurrer to evidence has
the accused whose discharge is requested not yet adduced evidence on either the criminal or
2. No other direct evidence available for the civil aspects of the case. If granted, the accused is
prosecution acquitted and still has the right to submit evidence
3. Testimony of said accused can be substantially against the civil liability imposed. (Salazar v.
corroborated in its material points People, et al., G.R. No. 151931, 2003)
4. Accused does not appear to be the most guilty;
AND Effect of Denial of Demurrer
5. Accused has never been convicted of moral
turpitude
W/ LEAVE OF W/O LEAVE OF COURT
COURT
Two Types of Immunity

Accused may still Accused waives the right to

TRANSACTIONAL USE-AND- adduce evidence in present evidence and
IMMUNITY DERIVATIVE-USE his defense submits the case for
IMMUNITTY judgment
Witness can no longer be Witness is only assured
prosecuted for any that his or her particular Demurrer to Evidence in a Civil Case and
offense whatsoever testimony and evidence Demurrer to Evidence in a Criminal Case
arising out of the act or derived from it will not
transaction be used against him or CIVIL CASE CRIMINAL CASE
her in a subsequent
Based on plaintiff‘s Predicated upon
prosecution
failure to prove his insufficiency of evidence
entitlement to relief
6. EFFECTS OF DISCHARGE OF Requires no prior leave May be filed w/ or w/o
ACCUSED TO BE STATE WITNESS of court leave of court
Defendant may still Accused may adduce
Unless the accused fails or refuses to testify against adduce evidence if evidence only if the
his co-accused in accordance w/ his sworn denied demurrer was filed w/
statement constituting the basis for his discharge, leave of court
the discharge shall operate as:

313
Plaintiff may appeal if No appeal if granted party, who is unable to pinpoint possible errors of
granted, and if reversed, the court for review by a higher tribunal. (Lumanog,
defendant is deemed to et al. v. People, G.R. No. 182555, 2010)
have waived his right to
present his evidence
2. CONTENTS OF A JUDGMENT

Reopening of the Proceedings A. Judgment of Conviction

The proceedings may be reopened to prevent 1. Legal qualification of the offense constituted by
miscarriage of justice – the acts committed by the accused
2. Aggravating and mitigating circumstances
WHEN HOW 3. Participation of the accused whether as
principal, accomplice or accessory
Before the finality of Either – 4. Penalty imposed
judgment of the conviction 5. Civil liability or damages, unless
• Court motu propio, reserved or waived
the judge or
• Upon motion B. Judgment of Acquittal
1. State whether or not evidence of the
prosecution:
Note: The proceedings shall be terminated within a. Absolutely failed to prove guilt
30 days from the order granting it. b. Merely failed to prove guilt beyond
reasonable doubt
END OF TOPIC 2. In either case, judgment shall determine if the
act or omission from which the civil liability
might arise did not exist

A verdict of acquittal is immediately final. (People v.

L. JUDGMENT Serrano, G.R. No. 135451, 1999)
(Rule 120)
Conditional and Alternative Penalties
1. REQUISITES OF A JUDGMENT The penalty imposed in a judgment cannot be
conditional, nor can it be in the alternative as, even
2. CONTENTS OF JUDGMENT if the law provides for alternative penalties, the court
3. PROMULGATION OF JUDGMENT; must choose and impose either of said alternative
INSTANCES OF PROMULGATION penalties.
OF JUDGMENT IN ABSENTIA
When Two or More Offenses Contained in a
4. WHEN DOES JUDGMENT BECOME Single Information or Complaint
FINAL (FOUR INSTANCES) Accused may file a motion to quash.

If accused fails to object to it before trial, the

JUDGMENT accused is deemed to have waived the defect and
It is the adjudication by the court that the accused is the court may convict him of as many offenses as
guilty or not guilty of the offense charged and the charged and proved, and impose a penalty for each
offense. (Rule 120, Section 3)
imposition on him of the proper penalty and civil
liability, if any. (Rule 120, Section 1)
Judgment Rendered by Judge Who Did not Hear
the Case
1. REQUISITES OF A JUDGMENT The fact that the trial judge who rendered judgment
was not the one who had the occasion to observe
Requisites of a judgment the demeanor of the witnesses during trial, but
1. Written in official language merely relied in the records of the case, does not
2. Personally and directly prepared by the judge render the judgment erroneous, especially when the
and signed by him evidence on record is sufficient to support its
3. Shall contain clearly and distinctly: conclusion. (People v. Alfredo, G.R. No. 188560,
a. Statement of the facts 2010)
b. Law upon which it is based
Where the judge who penned the decision had
The parties to a litigation should be informed of how ceased to be a member of the judiciary without said
it was decided, with an explanation of factual and decision having been promulgated, and his
legal reasons that led to the conclusions of the trial successor caused its promulgation to be made
court. A decision that does not clearly and distinctly thereafter, such judgment is null and void. A
state the facts and the law on which it is based decision penned by a judge during his incumbency
leaves the parties in the dark as to how it was cannot be validly promulgated after his retirement.
reached and is precisely prejudicial to the losing When a judge retired all his authority to decide any
case, i.e., to write, sign and promulgate the decision

314
thereon also retired with him. (Nazareno v. CA, et 1. Jumped bail; or
al, G.R. No. 111610, 2002) 2. Escaped from prison.

Judgment in Case of Variance Between If Accused Fails to Appear in the Promulgation

Allegation and Proof (Variance Doctrine)
General Rule: The accused may be convicted only FOR FOR
of the crime with which he is charged. ACQUITTAL CONVICTION
Exception: Rule on Variance. Promulgation shall be made by:
1. Recording the judgment in the criminal docket;
When there is variance between the crime charged and
and the crime proved, and the offense as charged is 2. Serving accused a copy thereof at his last
included or necessarily includes offense proved, the known address or thru his counsel
accused shall be convicted of the offense proved  If absence without justifiable
which is included in the offense charged, or of the cause, accused shall lose all
offense charged which is included in the offense remedies against the
proved. (People v. Chi Chan Liu, GR No. 189272, judgment and the court shall
2015) order his arrest
 But within 15 days from
An offense charged necessarily includes the promulgation, accused may
offense proved when some essential elements of surrender and file a motion
the former, as alleged in the complaint or for leave of court to avail of
information, constitute the latter. the remedies and prove the
reason of his absence. If
An offense charged is necessarily included in the justified, he may then avail of
offense proved when the essential ingredients of the remedies within 15 days
the former constitute the latter. from notice

If there is variance, the accused can only be If the accused was duly notified, his absence is not
convicted of the lesser offense which is included in a ground for the suspension of the promulgation.
the graver offense. (People v. Pareja, G.R. No.
202122, 2014) Absence of some of the accused during
promulgation of judgment
3. PROMULGATION OF JUDGMENT If an accused that is part of multiple accused in one
case is absent at promulgation of judgment, and
such judgment is of conviction, he loses his
General Rule: The judgment must be read in the
remedies in law even if an appeal is perfected by
presence of the accused and any judge of the court his co-accused, who was present, including his
in which it was rendered name.
Exception/s: (People v De Grano, G.R. No. 167710, 2009)
1. Judgment in light offenses
a. May be pronounced in the Modification of Judgment
presence of the accused‘s A judgment of conviction may be modified or set
counsel or representative aside upon motion of the accused, before the
b. May be promulgated by the clerk judgment becomes final or before appeal is
of court if the judge is absent or perfected.
outside the province or city
2. Judgment if accused is confined or General Rule: Judgment should be rendered
detained in another province or city within 90 days from submission
a. May be promulgated by the Exceptions:
executive judge of the RTC 1. It must be rendered within 30 days in cases under
having jurisdiction over the place Summary Procedure
of confinement or detention 2. It must be rendered within 15 days in drug cases
b. Upon request of the court which
rendered judgment
4. WHEN JUDGMENT BECOMES FINAL
Manner of Promulgation
Judgment is promulgated by filing the signed copy Judgment becomes final after:
thereof with the clerk of court who causes true 1. Lapse of period for appeal
copies to be served upon the parties. 2. Sentence partially or totally served
3. Accused waives in writing his right to appeal
How Accused Is Notified of the Promulgation
4. Accused has applied for probation
Notice shall be given personally by the clerk of court
to the accused or to his bondsman or warden and Exception is when the death penalty is
counsel imposed.
Notice shall be served at the accused‘s last known Youthful Offenders
address if the latter:

315
In case of youthful offenders, instead of
pronouncing a final judgment of conviction, the END OF TOPIC
court should automatically suspend the sentence
and commit the minor to the DSWD or other
institution until he reaches the age of majority.
Exception/s:
1. If the offender has enjoyed a previous M. NEW TRIAL OR
suspension of sentence; RECONSIDERTION
2. If the offender is convicted of an offense
punishable by death or life imprisonment;
3. If the offender is convicted by a military 1. GROUNDS FOR NEW TRIAL
tribunal; 2. GROUNDS FOR
4. If, at the time of sentencing, the offender is RECONSIDERATION
already of age, even if he was a minor at 3. REQUISITES BEFORE A NEW
the time of the commission of the offense
TRIAL MAY BE GRANTED ON
Probation GROUND OF NEWLY DISCOVERED
Probation is a mere privilege, and the grant is EVIDENCE
discretionary upon the court. 4. FORM OF MOTION AND NOTICE TO
The offender should apply for probation after
THE PROSECUTOR
conviction within the period for perfecting an appeal. 5. EFFECTS OF GRANTING A NEW
TRIAL OR RECONSIDERATION
An application for probation may no longer be filed 6. APPLICATION OF NEYPES
once the defendant has already perfected an
appeal from the judgment of conviction.
DOCTRINE IN CRIMINAL CASES

On the other hand, the filing of an application for

probation is deemed a waiver of the right to appeal. New Trial or Reconsideration
At any time before a judgment of conviction
The Probation Law never intended to deny an becomes final, the court may, on motion of the
accused his right to probation through no fault of accused or at its own instance but with the consent
his. The underlying philosophy of probation is one of the accused, grant a new trial or reconsideration.
of liberality towards the accused. Thus, when the
accused is found guilty only of a lesser crime, it
Motion for Reconsideration; New Trial; and
would be but fair to allow him the right to apply for
Reopening of the Case
probation upon remand of the case to the RTC. If
the Court allows the accused to apply for probation
MOTION NEW REOPENING OF
because of the lowered penalty, it is still up to the
FOR TRIAL THE CASE
trial judge to decide whether or not to grant him the
RECONSI-
privilege of probation, taking into account the full
DERATION
circumstances of his case. (Colinares v. People,
G.R. No. 182748, 2011) To reconsider To permit the reception of new
its findings of evidence and extend the
In cases where the penalty is a fine, and the law proceedings
defendant cannot pay, he has to serve subsidiary Filed after judgment is Made by the court
imprisonment. In this case, probation or suspension rendered but before the before judgment is
of sentence becomes relevant. finality thereof rendered, in the
exercise of sound
A probation order shall take effect upon its discretion
issuance. On motion of the accused May be at the
or on motion of the court instance of either
Probation does not release civil liability. but with the consent of the party or by the
accused court motu proprio,
A denied application for probation cannot be with a hearing in
appealed. either case, for the
purpose of
When Should the Court Deny the Application for presenting
Probation additional evidence
1. The offender is in need of correctional
treatment that can be provided most effectively When to File Motion for New Trial or
by his commitment to an institution. Reconsideration
2. There is undue risk that during the period or The motion should be filed within 15 days from the
probation, the offender will commit another promulgation of the judgment.
crime.
3. Probation will depreciate the seriousness of the
crime committed.

316
If an appeal has already been perfected, a motion
for new trial on the ground of newly discovered A new trial may not be had on the basis of
evidence may be filed in the appellate court. evidence which was available during trial but was
not presented due to its negligence. (People v.
Effect of Filing of Motion for New Trial or Senit, GR No. 192914, 2016)
Reconsideration
The filing of either motion interrupts the period for Form of Motion and Notice to the Prosecutor
perfecting an appeal from the time of its filing until The motion for new trial or reconsideration
notice of the order overruling the motion shall have 1. Shall be made in writing
been served upon the accused or his attorney. 2. Shall state the grounds on which it is based
3. Notice shall be given to the prosecutor
1. GROUNDS FOR NEW TRIAL If based on newly discovered evidence, motion
must be supported by affidavits of witnesses by
A motion for new trial may be filed upon any of the whom such evidence is expected or by
following grounds: authenticated copies of documents which are
1. Errors of law during trial proposed to be introduced to evidence
2. Irregularities prejudicial to the substantial rights
of the accused during trial A hearing shall be conducted when the motion for
3. New and material evidence has been new trial calls for a resolution of a question of fact.
discovered Court may hear evidence on the motion by affidavits
or otherwise. (Rule 121, Section 5)
Note: A new trial can be granted only
1. On motion of the accused; or
2. On motion of the court but with the consent of 4. EFFECTS OF GRANTING A NEW
the accused. TRIAL OR RECONSIDERATION
The rule does not provide for a motion for new trial GROUNDS OF ERRORS GROUND OF
by the prosecution as the reopening of the case OF LAW OR NEWLY-
would result in double jeopardy. IRREGULARITIES DISCOVERED
EVIDENCE
2. GROUNDS FOR  Notice shall be given to the prosecutor
RECONSIDERATION  Judgment shall be set aside and vacated
 New judgment shall be rendered accordingly
A motion for reconsideration may be filed upon All the proceedings and Evidence already
any of the following grounds: evidence affected thereby adduced shall stand
1. Errors of law. shall be:
2. Errors of fact in the judgment. 1. Set aside and taken Newly discovered
anew and other evidence
Note: Requires no further proceedings 2. The court, in the as the court may, in
interest of justice, the interest of justice,
may allow additional allow to be introduced
3. REQUISITES BEFORE A NEW TRIAL evidence shall be taken and
MAY BE GRANTED ON GROUND considered together
OF NEWLY DISCOVERED with evidence already
EVIDENCE in record
Requires no further Supported by
proceeding affidavits of witnesses
Elements of Newly Discovered Evidence or by authenticated
1. New evidence discovered after trial copies of documents
2. It could not have been previously discovered which are proposed
and produced at the trial even with reasonable to be introduced
diligence
3. It is new and material evidence
4. If introduced and admitted, it would probably 5. APPLICATION OF NEYPES RULE IN
change judgment CRIMINAL CASES
Note: The Rules do not give an exact definition of
The Court deems it practical to allow a fresh period
due diligence, and whether the movant has of 15 days within which to file the notice of appeal in
exercised due diligence depends upon the the RTC, counted from receipt of the order
particular circumstances of each case. dismissing a motion for a new trial or motion for
Nonetheless, it has been observed that the phrase reconsideration. (Yu v. Hon. Tatad, G.R. No.
is often equated with ―reasonable promptness to 170979, 2011)
avoid prejudice to the defendant.‖ In other words,
the concept of due diligence has both a time Recantation
component and a good faith component. (People v.
Chua, GR No. 196853, 2015)

317
The public and formal withdrawal of a witness‘ prior may be exercised only in the manner and in
statement made under oath, in the presence of the accordance with the provisions of law. (Estrallado-
judge, and with the opportunity to cross-examine. Mainar v. People, G.R. No. 184320, 2015)

General Rule: Recantation is not a ground for new Who May Appeal
trial because it makes a mockery of the court and Any party may appeal from a judgment or final
would place the investigation of truth at the mercy of order, unless the accused will be placed in double
the unscrupulous witness. jeopardy
Exception: When the testimony is material, its
recantation creates doubt of the guilt of the Note: Since the rule refers to ―any party,‖ the
accused. prosecution may appeal provided the accused will
not be placed in double jeopardy. (Riano, Criminal
RECANTATION AFFIDAVIT OF Procedure: The Bar Lecture Series, 2011)
DESISTANTCE
A witness who The complainant The prosecution cannot appeal from a judgment of
previously gave a states that he did not acquittal because a verdict of that nature is
testimony really intend to institute immediately final and to try him on the merits, even
subsequently declares the case and that he is in an appellate court, is to put him a second time in
jeopardy for the same offense. (Central Bank of the
that his statements no longer interested in
Phils. v. CA, G.R. No. 41859, 1989)
were not true testifying or
prosecuting
Despite acquittal, however, either the offended
A ground for
party or the accused
dismissing the case
may appeal, but only with respect to the civil aspect
only if the prosecution
of the decision. Or, said judgment of acquittal may
can break the
be assailed through a petition for certiorari under
elements of the case
Rule 65 of the Rules of Court showing that the
against the accused
lower court, in acquitting the accused, committed
not merely reversible errors of judgment, but also
END OF TOPIC exercised grave abuse of discretion amounting to
lack or excess of jurisdiction, or a denial of due
process, thereby rendering the assailed judgment
null and void.16 If there is grave abuse of
N. Appeal discretion, granting petitioner‘s prayer is not
tantamount to putting private respondents in double
(Rule 122) jeopardy. (AAA v. CA, G.R. No. 183652, 2015)

1. EFFECT OF AN APPEAL The doctrine that "double jeopardy may not be

invoked after trial" may apply only when the Court
2. WHERE TO APPEAL finds that the ―criminal trial was a sham‖ because
a. Regional Trial Court
the prosecution representing the sovereign people
b. Court of Appeals
in the criminal case was denied due process. The
c. Supreme Court
Court in People v. Bocar rationalized that the
3. HOW APPEAL TAKEN "remand of the criminal case for further hearing
a. In the MTC, RTC, CA, and SC and/or trial before the lower courts amounts merely
b. In the Sandiganbayan to a continuation of the first jeopardy, and does not
4. EFFECT OF APPEAL BY ANY OF expose the accused to a second jeopardy. (People
SEVERAL ACCUSED v. Hon. Velasco, G.R. 127444, 2000)
5. GROUNDS FOR DISMISSAL OF
The right of the offended party to appeal insofar as
APPEAL his civil liability is concerned is independent of the
right of, and the perfection of his own appeal, by the
accused.
1. EFFECT OF APPEAL
In the case of the People of the Philippines, only the
state, through its appellate counsel, the Office of the
An appeal throws the case wide open for review Solicitor General, has the sole right and authority to
and the reviewing tribunal can correct errors or institute proceedings before the CA or SC. (Carino
even reverse the trial court‘s decision on grounds v. De Castro, G.R. No. 176084, 2008)
other than those that the parties raised as errors.
Conversely, appeal by the People in the following
Note: Accused‘s release on parole does not affect cases is permissible:
his appeal. 1. When the right of the offended parties to
appeal an order of the trial court which deprives
Not a Natural Right them of due process;
The right to appeal is not a natural right nor part of 2. Where the information was quashed
due process but merely a statutory privilege and prior to arraignment, the prosecution may

318
 appeal the order sustaining the motion to proper cases provided by law - in cases decided
quash because before a plea is entered, no by the Regional Trial Court
jeopardy attaches;
3. When the case was provisionally Supreme Court - in cases decided by the Court of
dismissed with the express consent of the Appeals
accused, the same may be refilled by the fiscal
without violating the right against double
jeopardy; or
4. When the trial court gravely abused its
discretion, as when it dismissed the case due
to non-appearance of a vital witness who was
not properly notified of the date of trial,
certiorari will lie because such a grave abuse of
discretion is tantamount to lack or excess of
jurisdiction,

Subject Matter for Review on Appeal

It is settled that in a criminal case, an appeal throws
the whole case open for review, and it becomes the
duty of the appellate court to correct such errors as
may be found in the judgment appealed from,
whether they are made the subject of the
assignment of errors or not. (People v. Michael
Lindo y Vergara, G.R. No. 189818, 2010)

Change of Theory on Appeal

Points of law, theories, issues and arguments not
adequately brought to the attention of the trial court
ordinarily will not be considered by a reviewing
court as they cannot be raised for the first time on
appeal because this would be offensive to the basic
rules of fair play, justice and due process. (People
v. Mamaril, G.R. No. 171980, 2010)

When Appeal to be Taken

APPEAL OF A APPEAL OF AN
JUDGMENT ORDER
Must be perfected Must be perfected
within 15 days from within 15 days from
promulgation of the notice of the final order
final judgment

Period Suspended
The period for appeal is suspended from the time
the motion for new trial or reconsideration is filed up
to the service to the accused or his counsel of the
notice of the order overruling the motion.

Modes of Review
The Rules of Court recognizes 4 modes by which
the decision of the final order of the court may be
reviewed by a higher tribunal:
1. Ordinary appeal
2. Petition for review
3. Petition for review on certiorari
4. Automatic appeal

2. WHERE TO APPEAL
Regional Trial Court – in cases decided by the
Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, or Municipal Circuit
Trial Court

Court of Appeals or the Supreme Court in the

319
3. HOW TO APPEAL
A. In the MTC, RTC, CA and SC

FROM PENALTY TO HOW TO HOW

Automatic
Review Automatic review
Death Render but not
enter Petition for Review
on Certiorari if CA
imposes lesser
RTC penalty
Life or reclusion CA SC
(original
jurisdiction) perpetua Notice of appeal if
CA merely affirms
RTC
Ordinary appeal

Exceeding 6 years Petition for Review

but not DLR on Certiorari

Not exceeding 6
MTC years RTC CA Petition for Review

NOTE: In all other cases to SC, it shall be by Petition for Review on Certiorari

320
 If the record has been forwarded, withdrawal may
B. In the SANDIGANBAYAN only be allowed if:
1. A motion to withdraw is filed
2. Motion is filed before the RTC renders
ORIGINAL JURISDICTION judgment
Not Death, life or Petition
reclusion perpetua for review Appeal Not Mooted by Accused’s Release on
SC
on Parole
certiorari Appeal not mooted by accused-appellant‘s release
Life or reclusion on parole. Parole refers to the conditional release of
Notice of appeal
perpetua an offender from a correctional institution after he
Death Automatic review serves the minimum term of his prison sentence.
APPELLATE JURISDICTION Parole is not one of the modes of totally
Death, life or Render but not extinguishing criminal liability under Article 89 of the
SC
reclusion perpetua enter RPC. (People v. Abesamis, G.R. No. 140985, 2007)

Service of Notice of Appeal 4. EFFECT OF APPEAL BY ANY OF

If personal service of the copy of notice of appeal SEVERAL ACCUSED
cannot be made upon the adverse party or his
counsel, service may be done by registered mail or An appeal taken by one or more of several accused
substituted service shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is
Appellee may waive right to a notice that an appeal favorable and applicable to him.
has been taken
Appeal of the offended party of the civil aspect shall
The appellate court may, in its discretion, entertain not affect the criminal aspect of the judgment or
an appeal notwithstanding failure to give such order appealed from.
notice if the interests of justice so require
Upon perfection of appeal, the execution of
The fact that no copy of the notice of appeal is judgment or final order appealed from shall be
served upon the adverse party is not fatal to the stayed as to the appealing party.
perfection of the appeal as long as the notice of
appeal had been filed on time. (People v.
Villanueva, G.R. No. L-1876, 1966)
5. GROUNDS FOR DISMISSAL OF
APPEAL
Transmission of Papers to Appellate Court
Within 5 days from the filing of notice of appeal: An appeal may be dismissed on any of the following
1. Clerk of court with whom notice of appeal was grounds:
filed must transmit to the clerk of court of the 1. Appellant failed to file his brief within the time
appellate court the complete record of the prescribed by this Rule, except when he is
case, together with such notice. represented by counsel de oficio.
2. Original and 3 copies of the transcript of 2. Appellant escapes from prison or confinement.
stenographic notes shall also be transmitted. 3. Appellant jumps bail.
3. Retain one copy in the lower court. 4. Appellant flees to a foreign country during the
pendency of the appeal.
In all cases where death penalty is imposed by the
trial court, the records shall be forwarded to the Appointment of Counsel De Oficio
Court of Appeals for automatic review and judgment It is the duty of the clerk of court of the trial court,
within 20 but not earlier than 15 days from upon filing of a notice of appeal
promulgation of judgment or notice of denial of 1. To ascertain from appellant, if confined in
motion for new trial or reconsideration. prison, whether he desires the RTC, CA or SC
to appoint a counsel de oficio to defend him
Appeal to the Regional Trial Courts 2. Transmit with the record, upon form to be
1. Within 5 days from perfection of appeal, clerk prepared by the clerk of court of the appellate
of court shall transmit original record to the court, a certificate of compliance with this duty
appropriate RTC; and response to his inquiry
2. Upon receipt of complete record, clerk of court
of the RTC shall notify parties; PROCEDURE IN THE MUNICIPAL TRIAL
3. Within 15 days from receipt of notice, parties COURTS
may submit memoranda or briefs, or may be Uniform Procedure
required to do so. After submission, RTC shall General Rule: Same as in the Regional Trial
decide the case based on the entire record Courts.

Withdrawal of Appeal in RTC Exception/s:

The appellant may withdraw his appeal filed in MTC 1. Particular provision applies only to either of
before the record has been forwarded to the RTC said courts.

321
2. Criminal cases governed by the Revised Rule Accused need not be present in court during the
on Summary Procedure. hearing of the appeal.

PROCEDURE IN THE COURT OF APPEALS Judgment not to Be Reversed or Modified

Appointment of Counsel De Oficio General Rule: The findings of the lower court shall
Clerk of Court of the CA shall designate a counsel not be disturbed in appeal.
de oficio if it appears from the case record that Exception: Error was committed which
1. Accused is confined in prison; affected substantial rights.
2. Is without counsel de oficio; or
3. Signed notice of appeal himself. Scope of Judgment

Appellant not confined in prison may, upon request, JUDGMENT Reverse, affirm or modify
be assigned a counsel de oficio within 10 days from PENALTY Increase or reduce
receipt of notice to file brief and he establishes his REMAND TO RTC For new trial or retrial
right thereto Or simply dismiss the case

When Brief for Appellant Be Filed Period of Appeal

Within 30 days from receipt by the appellant or his Trials and hearings in the CA must be completed
counsel from the clerk of court of the CA of the within 3 months, unless extended by the Chief
notice that evidence is attached to the record, Justice.
appellant shall file:
1. 7 copies of his brief with the clerk of court; and Certification or Appeal of Case to the SC
2. 2 copies to the appellee, with proof of service. 1. If the penalty imposed by the RTC is death, the
CA shall render judgment but not enter;
WHEN BRIEF FOR APPELLEE TO BE FILED 2. Where the judgment also imposes a lesser
Within 30 days from receipt of appellant‘s brief, offenses committed that gave rise to the more
appellee shall file: severe offense for which the death is imposed,
(a) 7 copies of his brief with the clerk of court; and the accused appeals, such appeal shall be
and included in the case certified for review to the
(b) 2 copies to the appellant, with proof of SC;
service. 3. If the CA imposes reclusion perpetua, life or a
lesser penalty, it shall render and enter for it
Note: The appellant may file a reply within 20 days may be ordinarily appealed in the SC
from such receipt.
PROCEDURE IN THE SUPREME COURT
Extension of Time for Filing Uniform Procedure
General Rule: Not allowed General Rule: Same as in the Court of Appeals.
Exception: For good and sufficient cause Exception: Provided by the Constitution or
law.
Form and Content of Briefs
Division if Opinion is Equally Divided
FORM CONTENT When the SC en banc is equally divided or the
 Printed, encoded or  See Rule 44, Secs. 13 necessary majority cannot be had on whether to
type-written and 14 acquit the appellant, the case shall be re-
 Double-spaced  Certified true copy of deliberated upon.
 On legal size the decision or final
 Unglazed paper order must be If no decision is reached after re-deliberation, the
appended accused shall be acquitted.

Dismissal of Appeal for Abandonment or Failure END OF TOPIC

to Prosecute
When an appeal can be dismissed:
1. Brief filed out of time, except if represented by
a counsel de oficio. O. SEARCH AND SEIZURE
2. Appellant escapes from prison.
3. Appellant jumps bail.
4. Appellant flees to a foreign country. 1. NATURE OF SEARCH WARRANT
2. DISTINGUISH FROM WARRANT OF
Note: May be done upon motion of the appellee or ARREST
motu proprio.
3. APPLICATION FOR SEARCH
Prompt Disposition of Appeals WARRANT, WHERE FILED
Appeals of accused under detention shall be given 4. PROBABLE CAUSE
precedence over other appeals. 5. PERSONAL EXAMINATION BY
JUDGE OF THE APPLICANT AND
WITNESSES

322
6. PARTICULARITY OF PLACE TO BE 5. Commanding him to search for personal
SEARCHED AND THINGS TO BE property described therein
6. To bring the property before the court
SEIZED
7. PERSONAL PROPERTY TO BE
SEIZED 2. SEARCH WARRANT AND WARRANT
8. EXCEPTIONS TO SEARCH OF ARREST
WARRANT REQUIREMENT
a. Search incidental to lawful arrest SEARCH WARRANT WARRANT OF
b. Consented search ARREST
c. Search of moving vehicle Applicant must show Applicant must show:
d. Check points; body checks in airport that the items sought 1. Probable cause
e. Plain view situation are in fact: that an offense has
f. Stop and frisk situation 1. Seizable by virtue been committed
g. Enforcement of custom laws of being and
h. Remedies from unlawful search and connected w/ 2. The person to be
seizure criminal activity arrested has
2. Will be found in committed it
the place to be
searched
1. NATURE OF SEARCH WARRANT Personal examination of Judge not required to
the complaint and the make a personal
A search warrant is an order in writing issued in the witness is required from examination but the
name of the People of the Philippines, signed by a the judge judge must make an
judge and directed to a peace officer, commanding independent evaluation
him to search for personal property described of the records forwarded
therein and bring it before the court. to him/her after
preliminary
Not a criminal action nor does it represent a investigation.
commencement of a criminal prosecution even if it
is entitled like a criminal action. Note: In cases where
no preliminary
Not a proceeding against a person but is solely for investigation is required
the discovery and to get possession of personal (offense is less than 4
property. years, 2 months and 1
day), the complaint or
Applies to both natural and juridical persons. information may be filed
directly with the
Exclusively issued by trial judges. MeTC/MTC without a
preliminary
Cannot be validly issued against chattels and investigation. The
effects of persons enjoying diplomatic immunity MeTC/MTC judge
pursuant to RA 75. should conduct a
personal examination
Application is heard Ex Parte. before issuing a warrant
of arrest.
Note: The rule that venue is jurisdictional does NOT Generally served at day May be made at any
strictly apply in proceedings for the application time, unless there be a time of the day or night
of search warrants. A warrant, such as a warrant direction in the warrant
of arrest or a search warrant, merely constitutes that it may be served at
process. It is a special criminal process. A search any time of the day or
warrant is in the nature of a criminal process akin to night
a writ of discovery. It is a special and peculiar Prescribes in 10 days Until served
remedy, drastic in its nature, and made necessary from date of issue
because of a public necessity (Pilipinas Shell
Petroleum Corporation and Petron Corporation v. 3. APPLICATION FOR SEARCH
Romars International Gases Corporation
G.R. No. 189669, 2015).
WARRANT, WHERE FILED
General Rule: Before any court w/in whose
Requisites of a Search Warrant
territorial jurisdiction a crime was committed. (De
1. Order in writing
Joya v. Marquez, citing Regalado, Remedial Law
2. Issued in the name of the People of the
Compendium, Vol. 1, pp. 7-9; Sps. Marimla v.
Philippines
People, G.R. No. 158467, 2009)
3. Signed by a judge
Exception/s:
4. Directed to a peace officer
1. Before any court w/in the judicial region
where the crime was committed if the

323
 place of the crime is known. (A.M. No. 00- If a search warrant is issued as an incident in a
5-03-SC as cited in Sps. Marimla v. pending criminal case, the quashal of a search
People, G.R. No. 158467, 2009) warrant is merely interlocutory. In contrast, where a
2. Before any court w/in the judicial region search warrant is applied for and issued in
where the warrant shall be enforced. (A.M. anticipation of a criminal case yet to be filed, the
No. 00-5-03-SC as cited in Sps. Marimla v. order quashing the warrant ends the judicial
People, G.R. No. 158467, 2009) process (final order) and an appeal may be properly
Note: In both exceptions, filing in such courts taken therefrom. (World Wide Web Corporation, et
requires compelling reasons stated in the al. v. People of the Philippines, et al. & Planet
application. Internet Corporation v. Philippine Long Distance
3. Application shall be made only in the court Telephone Company, G.R. Nos. 161106 & 161266,
where the criminal action is pending, if 2014)
criminal action has already been filed.
4. PROBABLE CAUSE TO ISSUE A
Authority of the Executive Judge and Vice- SEARCH WARRANT
Executive Judge Re Search Warrants in Manila
and Quezon City
Executive Judges of the RTC‘s of Manila and Refers to such facts and circumstances, w/c would
Quezon City may issue search warrants outside lead a reasonably discreet and prudent man to
their territorial jurisdiction for the following crimes: believe that objects sought in connection w/ an
1. Heinous crimes; offense are in the place to be searched
2. Illegal gambling;
3. Dangerous drugs; The probable cause must be shown to be within the
4. Illegal possession of firearms; personal knowledge of the complainant or the
5. Anti-Money Laundering Act; witnesses and not based on mere hearsay.
6. Violation of Tariff and Customs Code; and
7. Special Commercial Courts of Manila, No exact test exists as to what acts constitute
Makati, Pasig and Quezon City can issue probable cause but the requirement is less than
warrants effective nationwide. certainty of proof, but more than suspicion or
possibility
For these crimes, there is a need to apply before
the executive judge in Manila or Quezon City to be ―Reliable information‖ is insufficient
effective anywhere. (Marimla v. People, G.R. No.
158467, 2009, citing A.M. 99-10-09-SC and A.M. Note: A probable cause to arrest does not
No. 03-8-02-SC entitled Guidelines On The necessarily involve a probable cause to search and
Selection And Designation Of Executive Judges vice versa.
And Defining Their Powers, Prerogatives And
Duties) 5. WHERE TO FILE
One Search Warrant per Offense
No search warrant shall issue for more than one General Rule:
specific offense. A. If no criminal action has yet been filed
1. Any court within whose territorial
Thus, when a search warrant was issued for jurisdiction the crime was committed.
robbery but the information however was quashed, 2. For compelling reasons stated in the
the things seized on the basis of such search application, any court within the judicial
warrant cannot be used for re-filing of an region where the crime was committed if
information for qualified theft on the same case. (Sy the place of the commission of the crime is
Tan v. SyTion, G.R. No. 174570, 2010) known, or any court within the judicial
region where the warrant shall be
Motion to Quash a Search Warrant and Motion enforced.
to Suppress Evidence
Under paragraph (b) of Section 2, Rule 126 of the
MOTION TO QUASH A MOTION TO Revised Rules of Criminal Procedure, the
SEARCH WARRANT SUPPRESS EVIDENCE application for search warrant should state
Filed before service of Filed after the search compelling reasons why the same was filed with the
the search warrant warrant has been court that do not territorial jurisdiction over the place
served where the alleged crime was committed and
Where to file: also the place where the search warrant was
 Court where case is pending enforced. The wordings of the provision is of a
 If no case is pending, the court w/c issued mandatory nature, requiring a statement of
the warrant compelling reasons if the application is filed in a
 If a case is filed subsequently, the motion court which does not have territorial jurisdiction over
shall be resolved by the court where the case the place of commission of the crime.
has been filed.
Since Section 2, Article III of the 1987 Constitution
guarantees the right of persons to be free from

324
unreasonable searches and seizures, and search particularly describe therein the places to be
warrants constitute a limitation on this right, then searched and/or the property or things to be seized
Section 2, Rule 126 of the Revised Rules of as prescribed in the Rules of Court. The Executive
Criminal Procedure should be construed strictly Judges and Vice-Executive Judges concerned shall
against state authorities who would be enforcing issue the warrants, if justified, which may be served
the search warrants (Pilipinas Shell Petroleum in places outside the territorial jurisdiction of the
Corporation and Petron Corporation v. Romars said courts.
International Gases Corporation
G.R. No. 189669, 2015). The Executive Judges and the authorized Judges
shall keep a special docket book listing names
Where Filed: of Judges to whom the applications are assigned,
1. Any court within whose territorial jurisdiction a the details of the applications and the results of
crime was committed. the searches and seizures made pursuant to the
2. For compelling reasons stated in the warrants issued.
application, any court within the judicial
region where the crime was committed if the This Section shall be an exception to Section 2 of
place of the commission of the crime is Rule 126 of the Rules of Court.
known, or any court within the judicial region B. If the nature of the violation would
where the warrant shall be enforced. (Pilipinas constitute a transitory or continuing
Shell vs Romars, GR No. 189699, 2015) offense, application for search warrant may
be filed in any court where any element of
2
Note: However, if the criminal action has already the alleged offense was committed.
been filed, the application shall only be made in the
court where the criminal action is pending.
6. PERSONAL EXAMINATION BY
B. If criminal action has already been filed
JUDGE OF THE APPLICANT AND
1. The application shall only be made in the
court where the criminal action is pending.
WITNESSES, REQUIRED
PROCEDURE
Exceptions:
A. Section 12, A.M. No. 03-8-02-SC, 2004 Personal examination by judge of the applicant
Sec. 12. Issuance of search warrants in and witnesses
special criminal cases by the Regional Trial Courts 1. Examination must be personally conducted by
of Manila and Quezon City. – The Executive Judges the judge
and, whenever they are on official leave of absence 2. Examination must be in the form if searching
or are not physically present in the station, the Vice- questions and answers
Executive Judges of the RTCs of Manila and
Quezon City shall have authority to act
on applications filed by the National Bureau of
Investigation (NBI), the Philippine National Police case that nothing in A.M. No. 99-10-09-SC prohibits
(PNP) and the Anti-Crime Task Force (ACTAF), for the heads of the PNP, NBI, PAOC-TF and REACT-
search warrants involving TF from delegating their ministerial duty of
endorsing the application for search warrant to their
1. heinous crimes, assistant heads. Under Section 31, Chapter 6, Book
2. illegal gambling, IV of the Administrative Code of 1987, an assistant
3. illegal possession of firearms and ammunitions head or other subordinate in every bureau may
as well as perform such duties as may be specified by their
4. violations of the Comprehensive Dangerous superior or head, as long as it is not inconsistent
Drugs Act of 2002, with law.
5. the Intellectual Property Code,
6. the Anti-Money Laundering Act of 2001, 2
Note: Sony Computer v. Supergreen, Inc., 2007.
7. the Tariff and Customs Code, as amended, and The alleged acts of Supergreen where it imitated
8. other relevant laws that may hereafter be the general appearance of Sony‘s goods was
enacted by Congress, and included herein by the allegedly done in Cavite, and sold in Mandaluyong
Supreme Court. City. The NBI applied with RTC of Manila for
warrants to search Supergreen‘s premises in
The applications shall be personally endorsed by Paraňaque City and Cavite. RTC of Manila issued
1
the heads of such agencies and shall warrants, constitute transitory or continuing offense.

The Court held that under Rule 126, Section 2(b) of

1
Note: Marimla vs People, G.R. No. 158467, 2009. the Revised Rules of Criminal Procedure, Section
Even if the application for search warrant was not 168 of Rep. Act No. 8293 and Article 189 (1) of the
personally endorsed by the NBI Head, but by the Revised Penal Code, the petitioner may apply for a
Deputy Director (who was commissioned to sign the search warrant in any court where any element of
authorization letter in behalf of the Director, but the alleged offense was committed, including any of
such claim was not substantiated, this could not be the courts within the National Capital Region (Metro
considered as a fatal defect. The Court held in this Manila).

325
3. Complainant and witnesses shall be examined 1. Subject of the offense (i.e. the gun in a case for
on those facts personally known to them illegal possession of firearms, the drugs in a
4. Statements must be in writing and under oath case for violation of the Dangerous Drugs Act.)
5. Sworn statements of the complainant and the 2. Stolen or embezzled and other proceeds, or
witnesses, together w/ the affidavits submitted, fruits of the offense (i.e. the stolen watch in a
shall be attached to the record case for theft)
3. Instruments of the offense (i.e. the hammer
Notes: used by accused to break the glass window in
Examination must be probing and exhaustive, not a case for robbery).
merely routinary or pro forma.
Ownership of Property Seized Not Required
The judge must not simply rehash the contents of It is sufficient that the person against whom the
the affidavit but make his own inquiry on the intent warrant is directed has control and possession of
and justification of the application. the property sought to be seized.

Time of Making Search

General Rule: Day time.
7. PARTICULARITY OF SEARCH AND Exception: Affidavit asserts that the property is
SEIZURE on the person or in the place to be searched,
the warrant may insert a direction that it may be
PLACE TO BE A description of the place to served at any time of the day or night.
SEARCHED be searched is sufficient if the
officer with the warrant can, Right to Break Door or Window
with reasonable effort, The searching officer may break any door or
ascertain and identify the window, or any part of the house if refused
place intended and distinguish admittance.
it from other places in the
community. (People v. Search of Premises to be Made in Presence of
Posada, GR. No. 196052, Two Witnesses
2015) The following should at least be present during the
PROPERTY Description must be so search:
TO BE particular that the officer 1. Lawful occupant or any family member,
SEIZED charged with the execution of or
the warrant will be left with no 2. Two witnesses of sufficient age and
discretion respecting the discretion residing in the same locality
property to be taken
The absence of the lawful occupant does not taint
Test: whether the things the regularity of the search provided that two
described are limited to those witnesses are present. (Rule 126, Section 8; Lucito
which bear direct relation to v. People, G.R. No. 192050, 2013)
the offense for which the
warrant is issued. (Chan v. Receipt for Property Seized
Honda Motors, G.R. No. The searching officer must give a detailed receipt to
172775, 2007). [Note: The SC the lawful occupant.
allowed the seizure of ―Wave
110 S‖ and ―Wave 125 S‖ In the absence of such occupant, must, in the
motorcycles where the search presence of at least two witnesses of sufficient age
warrant was for ―Wave‖ and discretion residing in the same locality, leave
motorcycles.] the receipt in the premises.
PERSON TO It may be said that the person
BE to be searched is ―particularly In Dangerous Drugs Act cases, the two-witness rule
SEARCHED described‖ in the search shall not apply and shall instead follow Section 21
warrant when his name is of DDA:
stated in the search warrant,
or if the name is unknown, he Section 21.Custody and Disposition of
is designated by words Confiscated, Seized, and/or Surrendered
sufficient to enable the officer Dangerous Drugs, Plant Sources of
to identify him without difficulty Dangerous Drugs, Controlled Precursors and
Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory
8. PERSONAL PROPERTY TO BE Equipment. – The PDEA shall take charge
SEIZED and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well
Personal property to be seized
as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized

326
and/or surrendered, for proper disposition in legitimate purposes: Provided, further, That a
the following manner: representative sample, duly weighed and
recorded is retained;
(1) The apprehending team having initial
custody and control of the drugs shall, (5) The Board shall then issue a sworn
immediately after seizure and confiscation, certification as to the fact of destruction or
physically inventory and photograph the burning of the subject item/s which, together
same in the presence of the accused or the with the representative sample/s in the
person/s from whom such items were custody of the PDEA, shall be submitted to
confiscated and/or seized, or his/her the court having jurisdiction over the case. In
representative or counsel, a representative all instances, the representative sample/s
from the media and the Department of shall be kept to a minimum quantity as
Justice (DOJ), and any elected public official determined by the Board;
who shall be required to sign the copies of
the inventory and be given a copy thereof; (6) The alleged offender or his/her
representative or counsel shall be allowed to
(2) Within twenty-four (24) hours upon personally observe all of the above
confiscation/seizure of dangerous drugs, proceedings and his/her presence shall not
plant sources of dangerous drugs, controlled constitute an admission of guilt. In case the
precursors and essential chemicals, as well said offender or accused refuses or fails to
as instruments/paraphernalia and/or appoint a representative after due notice in
laboratory equipment, the same shall be writing to the accused or his/her counsel
submitted to the PDEA Forensic Laboratory within seventy-two (72) hours before the
for a qualitative and quantitative examination; actual burning or destruction of the evidence
in question, the Secretary of Justice shall
(3) A certification of the forensic laboratory appoint a member of the public attorney's
examination results, which shall be done office to represent the former;
under oath by the forensic laboratory
examiner, shall be issued within twenty-four (7) After the promulgation and judgment in
(24) hours after the receipt of the subject the criminal case wherein the representative
item/s: Provided, That when the volume of sample/s was presented as evidence in
the dangerous drugs, plant sources of court, the trial prosecutor shall inform the
dangerous drugs, and controlled precursors Board of the final termination of the case
and essential chemicals does not allow the and, in turn, shall request the court for leave
completion of testing within the time frame, a to turn over the said representative sample/s
partial laboratory examination report shall be to the PDEA for proper disposition and
provisionally issued stating therein the destruction within twenty-four (24) hours from
quantities of dangerous drugs still to be receipt of the same; and
examined by the forensic laboratory:
Provided, however, That a final certification (8) Transitory Provision: a) Within twenty-four
shall be issued on the completed forensic (24) hours from the effectivity of this Act,
laboratory examination on the same within dangerous drugs defined herein which are
the next twenty-four (24) hours; presently in possession of law enforcement
agencies shall, with leave of court, be burned
(4) After the filing of the criminal case, the or destroyed, in the presence of
Court shall, within seventy-two (72) hours, representatives of the Court, DOJ,
conduct an ocular inspection of the Department of Health (DOH) and the
confiscated, seized and/or surrendered accused/and or his/her counsel, and, b)
dangerous drugs, plant sources of Pending the organization of the PDEA, the
dangerous drugs, and controlled precursors custody, disposition, and burning or
and essential chemicals, including the destruction of seized/surrendered dangerous
instruments/paraphernalia and/or laboratory drugs provided under this Section shall be
equipment, and through the PDEA shall implemented by the DOH.
within twenty-four (24) hours thereafter
proceed with the destruction or burning of the Note: As regards cases involving drugs, settled is
same, in the presence of the accused or the the rule that the absence of a prior surveillance or
person/s from whom such items were test buy does not affect the legality of the buy-bust
confiscated and/or seized, or his/her operation. The Court has left to the discretion of
representative or counsel, a representative police authorities the selection of effective means to
from the media and the DOJ, civil society apprehend drug dealers. A prior surveillance, much
groups and any elected public official. The less a lengthy one, is not necessary, especially
Board shall draw up the guidelines on the where the police operatives are accompanied by
manner of proper disposition and destruction their informant during the entrapment (Quinicot v.
of such item/s which shall be borne by the People, G.R. No. 179700, 2009).
offender: Provided, That those item/s of
lawful commerce, as determined by the Delivery of Property and Inventory Thereof
Board, shall be donated, used or recycled for

327
Any violation thereof shall constitute contempt of The consent to a warrantless search must be
court: voluntary, that is, it must be unequivocal, specific,
1. The searching officer must deliver to the judge: and intelligently given, uncontaminated by any
a. Property seized duress or coercion. Consent to a search is not to be
b. Inventory thereof under oath lightly inferred, but must be shown by clear and
2. Judge shall summon the officer and ask for an convincing evidence. It is the State which has the
explanation, if the search warrant is not served burden of proving, by clear and positive testimony,
after 10 days from its date that the necessary consent was obtained and that it
3. The return of the search warrant shall be filed was freely and voluntary given. (Valdez v. People,
and kept by the custodian of the log book on G.R. No. 170180, 2007)
search warrants
4. For DDA cases, refer to section 21 of DDA. A peaceful submission to a search and seizure is
Inventory must be made at the scene of the not a consent or invitation thereto, but is merely
crime. demonstration of regard for the supremacy of the
law. (People v. Nuevas, G.R. No. 170233, 2007)
The searching officer may be held in contempt of
court if he/she fails to comply with court directive. c. SEARCH OF MOVING VEHICLES

Justified on the ground that it is not practicable to

9. EXCEPTIONS TO THE SEARCH secure a search warrant because the vehicle can
WARRANT REQUIREMENT be quickly moved out of the locality or jurisdiction in
w/c the warrant must be sought.
Search warrant is not required in the following
instances: d. CHECKPOINTS; BODY CHECKS IN
1. Search incidental to lawful arrest AIRPORT
2. Seizure of evidence in ―plain view‖
3. Search of a moving vehicle Requisites
4. Consented warrantless search 1. Passengers not subjected to body search
5. Customs search 2. Limited to visual search
6. Stop and frisk (Terry searches) 3. Under exceptional circumstances, as where:
7. Checkpoints a. Survival of the government is on the
8. Exigent and emergency circumstances balance, or
9. Search of vessels and aircraft b. Lives and safety of the people are in
10. Inspection of buildings and other premises for peril
the enforcement of fire, sanitary and building 4. Vehicle not searched
regulations
e. PLAIN VIEW SITUATION
Note: A public officer who effects a search in a
residence w/o a warrant may be liable for violation Requisites
of domicile and the private individual for trespass to 1. A prior valid intrusion.
dwelling. 2. Evidence was inadvertently discovered by the
police.
a. SEARCH INCIDENT TO A LAWFUL ARREST 3. The evidence must be immediately apparent.
4. Plain view is justified seizure of evidence
The arrest must precede the lawful search without further search.

Nevertheless, a search substantially f. STOP AND FRISK SITUATION

contemporaneous with an arrest is permissible if the
police have probable cause to make the arrest at Requisites
the outset of the search 1. Police officer observes unusual conduct.
2. Reasonable suspicion that person is engaged
The search is limited to the following: in some type of criminal activity.
1. For dangerous weapons 3. Identifies himself as a policeman upon
2. Anything which may have been used in the approach.
commission of an offense 4. Makes reasonable inquiries.
3. Anything which constitute proof in the 5. There is reasonable fear for his own or other‘s
commission of the crime safety thus he is entitled to conduct limited
Immediate possession and control rule: search of the outer clothing of such persons in
1. Search may be done not only on the person of an attempt to discover weapons that might be
the suspect but also w/in the permissible area used for assault.
w/in the latter‘s reach
2. The area from w/c he might gain possession of g. ENFORCEMENT OF CUSTOM LAWS
a weapon or destroy evidence is covered by a
search incident to a lawful arrest h. REMEDIES FROM UNLAWFUL SEARCH
AND SEIZURE
b. CONSENTED SEARCH

328
A search warrant illegally obtained or secured or
which is issued in violation of the constitution or the
rules may be quashed through the proper motion as
in a motion to quash the search warrant. Also, when
evidence is illegally obtained, a motion to suppress
the evidence is in order. (Riano, pp. 298-299)

END OF TOPIC

P. PROVISIONAL REMEDIES

1. NATURE
2. KINDS OF PROVISIONAL
REMEDIES

1. NATURE

The provisional remedies in civil actions, in so far as

they are applicable, may be availed of in connection
with the criminal action deemed instituted.

Note: The requisites and procedure for availing of

these provisional remedies shall be the same as
those for civil cases.

2. KINDS OF PROVISIONAL REMEDIES

Kinds of provisional remedies

1. Attachment (Rule 57)
2. Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support pendent lite (Rule 61)
All these provisional remedies may be applied for in
criminal cases with respect to its civil aspect

Attachment, When Proper

1. Accused is about to abscond from the
Philippines;
2. Criminal action is based on a claim of
money or property embezzled or fraudulently
misapplied or converted;
3. When the accused has concealed,
removed, or disposed of his property, or is
about to do so; and
4. When the accused resides outside the
Philippines.

Note: Under R.A. 9208, in cases of trafficking in

persons, the court may motu propio issue
attachment and injunction.

END OF TOPIC

329
 C. OBJECT (REAL) EVIDENCE
1. Nature of object evidence
2. Requisites of admissibility
3. Categories of object evidence
4. Demonstrative evidence
5. View of an object scene
RULES ON EVIDENCE 6. Chain of custody, in relation to
Section 21 of the
A. GENERAL PRINCIPLES Comprehensive Dangerous
1. Concept of evidence Drugs Act of 2002
2. Scope of the rules of evidence 7. Rule on DNA evidence (A.M. No.
3. Evidence in civil cases versus 06-11-5-SC)
evidence in criminal cases a. Meaning of DNA
4. Proof versus evidence b. Application for DNA testing order
5. Factum probans versus factum c. Post-conviction DNA testing;
Remedy
probandum
d. Assessment of probative value of
6. Admissibility of evidence DNA evidence; Admissibility
a. Requisites for admissibility of
evidence e. Rules on evaluation of reliability of
b. Relevance of evidence and the DNA testing methodology
collateral matters
c. Multiple admissibility D. DOCUMENTARY EVIDENCE
d. Conditional admissibility
1. Meaning of documentary
e. Curative admissibility
f. Direct evidence and circumstantial evidence
evidence 2. Requisites of admissibility
g. Positive evidence and negative 3. Best evidence rule
evidence a. Meaning of the rule
h. Competent evidence and credible b. When applicable
evidence c. Meaning of the original
7. Burden of proof; burden of d. Requisites for introduction of
evidence secondary evidence
8. Presumptions 4. Rules on Electronic Evidence
a. Conclusive Presumptions (A.M. No. 01-7-01-SC)
b. Disputable Presumptions a. Scope; Coverage; Meaning of
9. Liberal construction of the rules electronic evidence; Electronic data
message
of evidence b. Probative value of electronic
10. Quantum of evidence (Weight documents or evidentiary weight;
and sufficiency of evidence) Method of proof
a. Proof beyond reasonable doubt c. Authentication of electronic
b. Preponderance of evidence documents and electronic
c. Substantial evidence signatures
d. Clear and convincing evidence d. Electronic documents vis-à-vis
hearsay rule
e. Audio, photographic, video, and
B. JUDICIAL NOTICE; JUDICIAL ephemeral evidence
ADMISSIONS 5. Parol evidence rule
1. What need not be proved a. Application
2. Matters of judicial notice b. When parol evidence can be
a. Mandatory introduced
b. Discretionary c. Distinctions between the best
3. Judicial admissions evidence rule
a. Effect of judicial admission 6. Authentication; proof of
b. How judicial admissions may be documents
contradicted a. Meaning of authentication
4. Judicial notice of foreign laws, b. Public documents; Private
law on nations and municipal documents
ordinance

330
 c. When a private writing requires c. Exceptions to the hearsay rule
authentication; Proof of private i. Dying declaration
writing ii. Declaration against
d. When evidence of authenticity of a interest
private writing is not required; iii. Act or declaration about
Ancient documents pedigree
e. How to prove genuineness of a iv. Family reputation or
handwriting tradition regarding
f. Public documents as evidence; pedigree
Proof of official record v. Common reputation
g. Attestation of a copy vi. Part of the res gestae
h. Public record of a public document vii. Entries in the course of
i. Proof of lack of record business
j. How a judicial record is impeached viii. Entries in official records
k. Proof of notarial documents ix. Commercial lists and the
l. How to explain alterations in a like
document x. Learned treaties
m. Documentary evidence in an xi. Testimony or deposition at
unofficial language a former trial
7. Opinion rule
E. TESTIMONIAL EVIDENCE a. Opinion of expert witness
1. Qualifications of a witness b. Opinion of ordinary witness
2. Competency versus credibility 8. Character evidence
of a witness a. Criminal cases
3. Disqualifications of a witnesses b. Civil cases
a. By reason of mental capacity or 9. Rule on Examination of a Child
immaturity Witness (A.M. No. 04-07-sc)
b. By reason of marriage a. Applicability
c. By reason of death or insanity of b. Meaning of child witness
adverse part c. Competency of a child witness
d. By reason of privileged d. Examination of a child witness
communication e. Live-link TV testimony of a child
4. Examination of a witness witness
a. Rights and obligations of a witness f. Videotaped deposition of a child
b. Order in the examination of an witness
individual witness g. Hearsay exception in child abuse
i. Direct examination cases
ii. Cross examination h. Sexual abuse shield rule
iii. Re-direct examination i. Protective orders
iv. Re-cross examination
v. Recalling the witness
c. Leading questions; Misleading
F. OFFER AND OBJECTION
questions 1. Offer of evidence
d. Methods of impeachment of 2. When to make an offer
adverse party’s witness 3. Objection
e. How the witness is impeached by 4. Repetition of an objection
evidence of inconsistent
statements; Laying the predicate 5. Ruling
f. Evidence of the good character of a 6. Striking out an answer
witness 7. Tender of excluded evidence
g. Judicial Affidavit Rule (A.M. No. 12-
8-8-SC)
5. Admissions and confessions
a. Res inter alios acta rule
b. Admission by a party
c. Admission by a third party
d. Admission by a co-partner or agent
e. Admission by a conspirator
f. Admission by privies
g. Admission by silence
h. Confessions
i. Similar acts as evidence
6. Hearsay rule
a. Meaning of hearsay
b. Reason for exclusion of hearsay

331
 2. When the pleadings in a civil case do not
tender an issue of fact;
3. When parties to the action have agreed
upon/stipulated to the facts involved in the
litigation (Rule 30, Sec. 6); and
4. On matters of judicial notice (Rule 129, Sec. 1
to 3); and
5. On matters judicially admitted (Rule 129, Sec.
4)

A. GENERAL PRINCIPLES Question of Law and Question of Fact

A question of law exists when the doubt or
controversy concerns the correct application of law
1. CONCEPT OF EVIDENCE
or jurisprudence to a certain set of facts, or when
2. SCOPE OF THE RULES OF the issue does not call for an examination of the
EVIDENCE probative value of the evidence presented, the truth
3. EVIDENCE IN CIVIL CASES or falsehood of facts being admitted. A question of
VERSUS EVIDENCE IN CRIMINAL fact exists when the doubt or difference arises as to
the truth or falsehood of facts or when the query
CASES invites calibration of the whole evidence considering
4. PROOF VERSUS EVIDENCE mainly the credibility of the witnesses, the existence
5. FACTUM PROBANS VERSUS and relevancy of specific surrounding
FACTUM PROBANDUM circumstances as well as their relation to each other
and to the whole, and the probability of the
6. ADMISSIBILITY OF EVIDENCE situation. (Eastern Shipping Lines, Inc. v. BPI/MS
a. Requisites for admissibility of evidence
Insurance Corp., and Mitsui Sumitomo Insurance
b. Relevance of evidence and collateral
Co., Ltd., G.R. No. 193986, 2014)
matters
c. Multiple admissibility
Waiver of the Rules of Evidence
d. Conditional admissibility
General Rule: The rules of evidence may be
e. Curative admissibility
waived. When an otherwise objectionable piece of
f. Direct evidence and circumstantial
evidence is not objected to, the evidence becomes
evidence
admissible because of a waiver.
g. Positive evidence and negative
Exception: When the waiver amounts to a
evidence
transgression of the law, principles of morality, good
h. Competent evidence and credible
customs and public policy or when the rights of third
evidence
persons are violated, then there can be no waiver.
7. BURDEN OF PROOF; BURDEN OF
EVIDENCE 2. SCOPE OF THE RULES OF
8. PRESUMPTIONS EVIDENCE
a. Conclusive Presumptions
b. Disputable Presumptions General Rule - The rules of evidence shall be the
9. LIBERAL CONSTRUCTION OF THE same in all courts and in all trials and hearings.
RULES OF EVIDENCE Exception – Except as provided by law or by the
10. QUANTUM OF EVIDENCE (WEIGHT Rules of Court (Rule 128, Section 2)
1. Naturalization Proceedings
AND SUFFICIENCY OF EVIDENCE) 2. Insolvency Proceedings
a. Proof beyond reasonable doubt 3. Cadastral Proceedings
b. Preponderance of evidence 4. Land Registration Cases
c. Substantial evidence 5. Election Cases
d. Clear and convincing evidence 6. Other cases as may be provided for
by law
(Rule 1, Sec. 4)
1. CONCEPT OF EVIDENCE
Applicability
EVIDENCE is the means sanctioned by the Rules The rules on evidence, being part of the Rules of
of Court, ascertaining in a judicial proceeding the Court, apply only to judicial proceedings.
truth respecting a matter of fact (Rule 128, Sec. 1)
While the definition of ―evidence‖ under the Rules of
When Evidence is Required Court makes reference only to judicial proceeding,
There is a need for the introduction of evidence the provisions of the Rules on Electronic Evidence
when the court has to resolve a question of fact. apply to all civil actions and proceedings, as well as
quasi-judicial and administrative cases (Rules on
When Evidence is NOT Required Electronic Evidence, Sec. 2)
1. When no factual issue exists in a case or
where the case presents only a question of law; When Applicable
It is applicable to both civil and criminal cases.

332
 there is no
When NOT Applicable presumption
It does not apply to administrative or quasi-judicial and due to the
proceedings as administrative bodies are not bound fact that the
by the technical niceties of the rules obtaining in the proof will only
court of law. (El Greco Ship Maning and result in a
Management Corporation vs Commissioner of judgment of
Customs, G.R. No. 177188, 2008) pecuniary
damages or
As evidence that they were being prevented from establish civil
cultivating the land, the tenants presented affidavits right.
but the affiants were not cross-examined. The Court A plea of
held that the affidavits were admissible because in guilty later
Agrarian cases, the Rules of Court are not Judicial withdrawn or
applicable even in suppletory character. (Reyes vs. admission unaccepted
Court of Appeals, G.R. No. 96492, 1992) withdrawn offer of a plea
becomes of guilty to a
In administrative proceedings, the complainant has Withdrawal of
extrajudicial lesser offense
the burden of proving with substantial evidence the Plea/
admission is not
allegations in the complaint. While rules of evidence Admission
admissible in
prevailing in courts of law and equity shall not be evidence
controlling, this assurance of a desirable flexibility in against the
administrative procedure does not go as far as to accused who
justify orders without basis in evidence having made the
rational probative force. (First United Construction plea/offer
Corp v. Valdez, G.R. No. 154108, 2008) Applicable
only to
Circumstantial
3. EVIDENCE IN CIVIL CASES Evidence
Not applicable criminal cases
VERSUS EVIDENCE IN CRIMINAL (Rule 133,
Sec. 4)
CASES
Not
Doctor-Patient
Applicable
CIVIL CASES CRIMINAL Privileged Applicable
(Rule 130,
CASES Communication
Sec. 24(c))
The accused A party or a
Attendance in Parties attend
attends by defendant may
Court by accord
compulsion be compelled
Presumption to be a witness
of innocence provided
attends the written
accused Whether or not The accused
interrogatories
There is no throughout a party can be cannot be
and request for
Presumption of presumption the trial until compelled to compelled to
admission
Innocence as to either the same has testify testify
have been
party been served upon
overcome by him. (Rule 25,
prima facie Sec. 6 and
evidence of Rule 26, Sec.
his guilt 5)
An offer of
compromise 4. PROOF VERSUS EVIDENCE
is an implied
An offer to admission of
PROOF EVIDENCE
compromise guilt
Offer of does not, as a Except: The result or the
Compromise general rule, 1. In cases probative effect of
(Rule 130, Sec. amount to an involving evidence. When the
27) admission of quasi- requisite quantum of The medium or means
liability offenses evidence of a particular by which a fact is proved
2.Those fact has been duly or disproved.
allowed by admitted and given
law to be weight, the result is
compromised called the proof of such
Must prove by fact.
Guilt beyond
Quantum of preponderance
reasonable 5. FACTUM PROBANS VERSUS
Proof of evidence:
doubt
Reason is that FACTUM PROBANDUM

333
 be inadmissible because a special rule forbids its
FACTUM inception. (People v. Turco, G.R. No. 137757, 2000)
FACTUM PROBANS
PROBANDUM
The probative or b. RELEVANCE OF EVIDENCE AND
evidentiary fact tending COLLATERAL MATTERS
to prove the fact in issue The ultimate fact to be
or the FACTUM proved or proposition to RELEVANCY – Evidence is relevant if it has such a
PROBANDUM. It is the be established. relation to the fact in issue as to induce belief in its
material evidencing the existence or non-existence (Rule 128, Sec. 4). The
proposition. evidence adduced should be directed to the matters
in dispute and any evidence which has neither
Factum probandum does not include matters of direct nor indirect relationship to such matters must
judicial notice, conclusive presumptions and judicial be set aside as irrelevant. This is determined by
admissions as these matters need not be logic, common sense and human experience. The
established or proven. matter of relevance is one that is addressed to the
discretion of the court. (Riano, Evidence, 19)
6. ADMISSIBILITY OF EVIDENCE
The components of RELEVANT Evidence are:
a. REQUISITES FOR ADMISSIBILITY OF
EVIDENCE 1. Material – evidence offered upon a matter
properly in issue. It is directed toward a fact
The Evidence MUST Be: within the range of allowable controversy.
1. Relevant – Relevant to the issue
2. Competent – Not excluded by the Rules on 2. Probative – Tendency of evidence to establish
Evidence, the law and the Constitution the proposition that it is offered to prove

These two elements correspond to the Two Competency – Facts having rational probative
Axioms of Admissibility: value are admissible unless some rule or law
forbids their admission. If a rule or law excludes the
1. Axiom of Relevancy - That none but facts evidence, it is incompetent.
having rational probative value are admissible.
2. Axiom of Competency - All facts having Rules of Exclusion – governed by the Rules or by
rational probative value are admissible unless Statute
some specific rule forbids their admission.
Some Exclusionary Rules:
If in doubt as to admissibility of the testimony given 1. 1987 Constitution
in the court, the court should favor admissibility.  Section 2 The right of the people to be
Otherwise, if the trial court judge erred in ruling and secure in their persons, houses, papers,
excluded the same, the appeals court would be and effects against unreasonable searches
precluded from reversing the ruling and taking such and seizures of whatever nature and for
testimony. any purpose shall be inviolable, and no
search warrant or warrant of arrest shall
Admissibility Distinguished from Weight of issue except upon probable cause to be
Evidence: determined personally by the judge after
examination under oath or affirmation of
ADMISSIBILITY WEIGHT the complainant and the witnesses he may
Has to do with whether produce, and particularly describing the
the item of evidence Has to do with the place to be searched and the persons or
meets the test of effect of the evidence things to be seized.
relevancy and admitted or its  Section 3 (1) The privacy of
competency so as to be tendency to convince communication and correspondence shall
admitted in evidence. It is and persuade the be inviolable except upon lawful order of
an affair of logic court. It depends on the court, or when public safety or order
(relevance) and law judicial evaluation. requires otherwise, as prescribed by law.
(competence). (2) Any evidence obtained in violation of
this or the preceding section shall be
The admissibility of the evidence depends on its inadmissible for any purpose in any
relevance and competency, while the weight of proceeding.
evidence pertains to its tendency to convince and  Section 12 (1) Any person under
persuade. (Tating v. Marcella, G.R. No. 15508, investigation for the commission of an
2007) offense shall have the right to be informed
of his right to remain silent and to have
While evidence may be admissible, it may be competent and independent counsel
entitled to little or no weight at all. Conversely, preferably of his own choice. If the person
evidence which may have evidentiary weight may cannot afford the services of counsel, he
must be provided with one. These rights
cannot be waived except in writing and in

334
 the presence of counsel. (2) No torture,
force, violence, threat, intimidation, or any 8. R.A. 9285, Alternative Dispute Resolution Act
other means which vitiate the free will shall of 2004 - Information obtained through mediation
be used against him. Secret detention proceedings shall be subject to the following
places, solitary, incommunicado, or other principles and guidelines:
similar forms of detention are prohibited.
(3) Any confession or admission obtained (a) Information obtained through mediation shall be
in violation of this or Section 17 hereof privileged and confidential.
shall be inadmissible in evidence against
him. (4) The law shall provide for penal (b) A party, a mediator, or a nonparty participant
and civil sanctions for violations of this may refuse to disclose and may prevent any other
section as well as compensation to and person from disclosing a mediation communication.
rehabilitation of victims of torture or similar
practices, and their families. (c) Confidential Information shall not be subject to
 Section 17 No person shall be compelled discovery and shall be inadmissible if any
to be a witness against himself. adversarial proceeding, whether judicial or quasi-
judicial, However, evidence or information that is
2. Section 201, Tax Reform Act of 1997 - A otherwise admissible or subject to discovery does
document required by law to be stamped shall not not become inadmissible or protected from
be admitted or used in evidence until the requisite discovery solely by reason of its use in a mediation.
stamps are affixed thereto.
(d) In such an adversarial proceeding, the following
3. R.A. 1405, Law on Secrecy of Bank Deposits: persons involved or previously involved in a
All deposits of whatever nature are absolutely mediation may not be compelled to disclose
confidential and may not be examined, inquired, confidential information obtained during mediation:
looked into except upon written permission of the (1) the parties to the dispute; (2) the mediator or
depositor, or in cases of impeachment, or upon mediators; (3) the counsel for the parties; (4) the
order of a competent court in cases of bribery or nonparty participants; (5) any persons hired or
dereliction of duty of public officials or in cases engaged in connection with the mediation as
where the money is the subject matter of litigation secretary, stenographer, clerk or assistant; and (6)
any other person who obtains or possesses
4. R.A. 4200, Wire-Tapping Act - Any confidential information by reason of his/her
communication or spoken word or the existence, profession.
contents, substance or any information contained
therein secured in violation of the Act shall not be (e) The protections of this Act shall continue to
admissible in evidence in any judicial, quasi-judicial, apply even of a mediator is found to have failed to
legislative or administrative hearing or investigation. act impartially.

5. R.A. 9372, Human Security Act - Any listened (f) a mediator may not be called to testify to provide
to, intercepted, and recorded communications, information gathered in mediation. A mediator who
messages, conversations, discussions, or spoken is wrongfully subpoenaed shall be reimbursed the
or written words, or any part or parts thereof, or any full cost of his attorney's fees and related expenses.
information or fact contained therein, including their
existence, content, substance, purport, effect, or 9. R.A. 8505, Rape Victim Assistance and
meaning, which have been secured in violation of Protection Act of 1998
the pertinent provisions of this Act, shall absolutely
not be admissible and usable as evidence against In prosecutions for rape, evidence of complainant's
anybody in any judicial, quasi-judicial, legislative, or past sexual conduct, opinion thereof or of his/her
administrative investigation, inquiry, proceeding, or reputation shall not be admitted unless, and only to
hearing. the extent that the court finds, that such evidence is
material and relevant to the case. (Section 6)
6. R.A. 9745, Anti-Torture Act - Any confession,
admission or statement obtained as a result of The Exclusionary Rule – Commonly used for
torture shall be inadmissible in evidence in any evidence excluded by the Constitution. It is applied
proceedings, except if the same is used as to cases where the challenged evidence is quite
evidence against a person or persons accused of clearly direct or primary in its relationship to the
committing torture. prior arrest or search. (Herrera, Remedial Law Vol
V, 37)
7. A.M. 02-6-02-SC, Confidentiality Rule in
Adoption Cases - All hearings in adoption cases, Petitioner argues that the urine samples collected
after compliance with the jurisdictional requirements are inadmissible as this was done without the
shall be confidential and shall not be open to the assistance of counsel and hence violative of his
public. All records, books and papers relating to the constitutional rights. Petitioner is wrong, what the
adoption cases in the files of the court, the Constitution prohibits is the use of physical or moral
Department, or any other agency or institution compulsion to extort communication from the
participating in the adoption proceedings shall be accused, but not an inclusion of his body in
kept strictly confidential. evidence, when it may be material. The situation in

335
the case at bar falls within the exemption under the However, the confession of the accused may still be
freedom from testimonial compulsion since what admissible as evidence of his own guilt. (People v.
was sought to be examined came from the body of Yatco, G.R. No. L-9181, 1955)
the accused. This was a mechanical act the
accused was made to undergo which was not d. CONDITIONAL ADMISSIBILITY
meant to unearth undisclosed facts but to ascertain
physical attributes determinable by simple When a piece of evidence appears to be relevant as
observation. (Gutang v. People, G.R. No. 135406, it is connected with other pieces of evidence not yet
2000) offered or proved, such piece of evidence may be
conditionally admitted subject to the condition that
The SC ruled that the extrajudicial confession of its relevancy and competency be established at a
appellant, to the bantay bayan which was taken later time. If the condition is not met, the evidence
without counsel is inadmissible in evidence. The should be rejected.
court ruled that the bantay bayan may be deemed
to be a law enforcement officer within the Example: In an action by A against B for recovery
contemplation of Article III, Section 12 of the of a real property, plaintiff offered a document
Constitution. Thus, without ruling on the legality of showing that the property belonged to X. On
the actions taken particularly on the authority to objection of the defendant upon the ground of
conduct a custodial investigation, any inquiry he irrelevancy, plaintiff stated that he would prove later
makes has the color of a state-related function and by other evidence that X, the original owner sold the
objective insofar as the entitlement of a suspect to property to Y and the latter sold it to Z from whom
his constitutional rights provided for under Article III, plaintiff acquired title by purchase. The Court may
Section 12 of the Constitution, otherwise known as admit the evidence conditionally until the other facts
the Miranda Rights, is concerned. (People v. Lauga, mentioned by plaintiff are proved. (Herrera,
G.R. No. 186228, 2010) Remedial Law, Vol V, 29)

COLLATERAL MATTERS – refers to matters other In a case of any intricacy it is impossible for a judge
than the fact in issue. These are matters outside of first instance, in the early stages of the
the controversy, or are not directly connected with development of the proof, to know with any certainty
the principal matter or issue in dispute, as indicated whether testimony is relevant or not; and where
in the pleadings of the parties. there is no indication of bad faith on the part of the
attorney offering the evidence, the court may as a
General Rule: Evidence on collateral matters is not rule safely accept the testimony upon the statement
allowed. of the attorney that the proof offered will be
Exception: Evidence on collateral matters may be connected later. (Prats Co. vs. Phoenix Assurance,
admitted if it tends in any reasonable degree to G.R. No. L-28607, 1929)
establish the probability or improbability of the fact
in issue (Rule 128, Sec. 4). e. CURATIVE ADMISSIBILITY

For instance, when a witness testifies having seen When a party is allowed to present inadmissible
the killing of the victim by the accused, his evidence over the objection of the opposing party,
testimony is direct evidence for it tends to prove the such opposing party may be allowed to introduce
fact in issue without the aid of inference or otherwise inadmissible evidence to contradict the
presumption; but when he testifies to the conduct of previously admitted inadmissible evidence and to
the accused prior to the commission of the crime or remove any prejudice caused by its admission.
immediately thereafter from which an inference may
be made as to the probability or improbability of the Example: At the trial, plaintiff testified that
fact in issue, his testimony is circumstantial defendant is a man who never pays his debts as
evidence for it tends to prove collateral matters shown by his refusal to pay his debts to other
which with the aid of inference may tend to persons. This evidence is inadmissible but was
establish that probability or improbability of the fact admitted by mistake. In such case, in fairness to the
in issue. (Herrera, Remedial Law Vol V, 63 – 64) defendant, the Court may allow him to explain his
dealings with such other persons. (Herrera,
c. MULTIPLE ADMISSIBILITY Remedial Law Vol V, 26)

When a proffered evidence is admissible for two or In our jurisdiction, the principle of curative
more purposes. It may be admissible for one admissibility should not be made to apply where the
purpose but inadmissible for another or vice versa. evidence was admitted without objection because
It may also mean that it may be admissible against the failure to object constitutes a waiver of the
one party but not against another inadmissibility of the evidence. Inadmissible
evidence not objected to becomes admissible.
Example: Admissions admissible against the (Riano, Evidence, 33)
declarant but not against his co-accused under the
res inter alios acta rule. f. DIRECT AND CIRCUMSTANTIAL EVIDENCE

The confession of the accused was not competent DIRECT CIRCUMSTANTIAL

as against his co-accused for being hearsay. EVIDENCE EVIDENCE

336
 Evidence that indirectly who practices a noble
That which proves the proves a fact in issue profession and he is
fact in dispute without through an inference neutral witness.
the aid of any inference which the fact finder
or presumption. draws from the evidence 7. BURDEN OF PROOF AND BURDEN OF
established. EVIDENCE
Example: Witness
testified that he saw the Burden Of Proof (Rule 131, Sec. 1)
accused with blood on
his shirt and hands and Burden of proof is the duty of a party to present
running from the scene of evidence on the facts in issue necessary to
the crime where the establish his claim or defense by the amount of
Example: Witness saw
victim was lying dead. evidence required by law.
the accused inflict a
The next day, the
blow which caused the
accused was nowhere to Upon Whom the Burden of Proof Rests
victim‘s death
be found in his place of
residence. Taken CIVIL CASES - the plaintiff has the burden of proof
altogether, inference of to show the truth of his allegations if the defendant
guilt can be drawn that raises a negative defense.
the accused killed the
victim. The defendant has the burden of proof if he raises
an affirmative defense on the complaint of the
Direct and circumstantial evidence are of the same plaintiff.
probative value because no greater degree of
certainty is required when the evidence is NOTE:
circumstantial than when it is direct.  In a civil case, the plaintiff is always
compelled to allege affirmative assertions
g. POSITIVE AND NEGATIVE EVIDENCE in his complaint. When he alleges a cause
of action, he must necessarily allege that
POSITIVE EVIDENCE NEGATIVE EVIDENCE he has a right and that such right was
When the witness violated by the other party. Thus, he has
affirms that a fact did or the duty to prove the existence of this
did not occur. Such When the witness states affirmative allegation.
evidence is entitled to that an event did not
greater weight since the occur or that the state of CRIMINAL CASES - The burden of proof is on the
witness represents of facts alleged to exist prosecution by reason of presumption of innocence.
his or her personal does not actually exist.
knowledge the presence The burden of proof as to the guilt of the accused
or absence of a fact. must be borne by the prosecution. (Except in cases
Example: X said he where the accused pleads self-defense, in which
drank liquor. Y says X case, the accused has the burden of proving the
did not. existence of the self-defense) It is required that
Note: They have the courts determine first if the evidence of the
Example: Y said that he prosecution has at least shown a prima facie case
same weight because
does not know that X before considering the evidence of the defense. If
they are both positive. It
drank liquor. the prosecution does not have a prima facie case, it
is different from Y
saying that he does not is futile to waste time in considering the evidence
know that X drank presented by the defense. Should the prosecution
liquor. succeed in establishing a prima facie case against
the accused, the burden is shifted upon the
accused to prove otherwise.
h. COMPETENT AND CREDIBLE EVIDENCE
Under the Speedy Trial Act, if the accused was
COMPETENT NOT brought to trial within the time required, the
CREDIBLE EVIDENCE information shall be dismissed on the motion of the
EVIDENCE
When evidence is not accused. In this case, the burden of proof of
only admissible supporting such motion is with the accused. (R.A.
One that is not excluded 8483, Sec. 13)
evidence but is
by the Rules, statutes or
believable and used by
Constitution. Degree of Proof That Satisfies the Burden of
the court in deciding a
case. Proof
Example: School
teacher who passed by Civil Cases – Preponderance of evidence
saw the accused shoot
the victim. His testimony Criminal Cases -
is credible. He is one

337
a) To sustain conviction – Evidence of guilt Does not generally shift May shift from one
beyond reasonable doubt. during the course of the side to the other as
b) Preliminary investigation – probable cause - trial. trial unfolds.
engenders a well-founded belief of the fact of
the commission of a crime.
c) Issuance of warrant of arrest– Probable cause
(i.e., that there is reasonable ground to believe Principle of Negative Averments
that a criminal offense has been committed and General Rule: Negative allegations need not be
that the accused committed the offense). proved, whether in a civil or criminal action.
Exception: When such negative allegations are
Administrative Cases – Substantial evidence essential parts of the cause of action or defense in
a civil case, or are essential ingredients of the
Hierarchy of Evidence offense in a criminal case or defenses thereto.
1. Proof beyond reasonable doubt Exception to the exception:
2. Clear and convincing evidence In CIVIL CASES, even if the negative
3. Preponderance of evidence allegation is an essential part of the cause
4. Substantial evidence of action or defense, such negative
allegation does not have to be proved if it
Burden of Evidence is only for the purpose of denying the
Burden of evidence is the duty of a party to go existence of a document which should
forward with the evidence to overthrow any prima properly be in the custody of the adverse
facie presumption against him. (Bautista v. party.
Sarmiento, G.R. No. L-45137, 1985)
In CRIMINAL CASES, if the subject of a negative
In both civil and criminal cases, the burden of averment inheres to the offense as an essential
evidence lies on the party who asserts an ingredient thereof, the prosecution has the burden
affirmative allegation. of proving the same. In view, however, of the
difficult office of proving a negative allegation, the
Upon Whom the Burden of Evidence Rests prosecution, under such circumstance, needs to do
1. Civil Cases - The plaintiff has to establish his no more than make a prima facie case from the
case by preponderance of evidence. If he best evidence obtainable.
claims a right granted or created by law, he
must prove such right. (Sps. Guidangen v. 8. PRESUMPTIONS
Wooden G.R. No. 174445, 2012)
Presumption – is an assumption of fact resulting
2. Criminal Cases - The prosecution has to prove from a rule of law which requires such fact to be
its affirmative allegations in the information assumed from another fact found or otherwise
(i.e., the elements of the crime as well as the established in the action.
attendant circumstances); while the defense
has to prove its affirmative allegations A presumption is an inference as to the existence or
regarding the existence of justifying or non-existence of a fact which courts are permitted
exempting circumstances, absolutory causes or to draw from the proof of other facts.
mitigating circumstances.
Difference between Inference and Presumption:
BURDEN OF PROOF BURDEN OF
EVIDENCE INFERENCE PRESUMPTION
Obligation of a party to Duty of a party to go A factual conclusion It is mandated by law
present evidence on the forward with the drawn from other facts
facts in issue necessary to evidence to overthrow that is not mandated by
establish his claim or any prima facie law
defense by the amount of presumption against This does not This has legal effect and
evidence required by law him necessarily establish a establishes a legal
legal relation between relation between or
or among the facts among the facts

Effect of Presumption
The burden of proof is Generally determined
A party in whose favor the legal presumption exists
fixed by the pleadings by the developments
may invoke such presumption to establish a fact in
of the trial or by
issue and need not introduce evidence to prove the
provisions of
fact for the presumption is prima facie proof of the
substantive law or
fact presumed.
procedural rules which
may relieve the party
A presumption shifts the burden of evidence or the
from presenting
burden of going forward with the evidence. It
evidence on the facts
imposes on the party against whom it is directed the
alleged.
burden of going forward with evidence to meet or

338
rebut the presumption. It does not, however, shift relationship. Estoppel may attach even if the
the burden of proof. landlord does not have the title at the
commencement of the relations. If the title asserted
Classification of Presumptions is one that is alleged to have been acquired
1. PRESUMPTION JURIS OR OF LAW – is a subsequent to the commencement of that relation,
deduction which the law expressly directs to the presumption will not apply (Rule 131, Sec. 2(b)).
be made from particular facts.
2. PRESUMPTION HOMINIS OR OF FACT –is a 2. DISPUTABLE PRESUMPTION (Rule 131, Sec.
deduction which reason draws from facts 3)
proved without an express direction from the
law to that effect. Disputable presumptions are satisfactory if
uncontradicted, but they may be contradicted and
PRESUMPTION OF PRESUMPTION OF overcome by other evidence.
LAW FACT
Certain inference must Discretion is vested in The following are DISPUTABLE PRESUMPTIONS:
be made whenever the the tribunal as to drawing
facts appear which the inference (a) That a person is innocent of crime or
furnish the basis of the wrong;
inference
Reduced to fixed rules Derived wholly and (b) That an unlawful act was done with an
and form a part of the directly from the unlawful intent;
system of jurisprudence circumstances of the
particular case by means (c) That a person intends the ordinary
of the common consequences of his voluntary act;
experience of mankind
(d) That a person takes ordinary care of his
concerns;
PRESUMPTION JURIS may be divided into:
1. CONCLUSIVE PRESUMPTION (juris et de
(e) That evidence willfully suppressed would
jure) – inferences which the law makes so
be adverse if produced;
peremptory that it will not allow them to be
overturned by any contrary proof however
(f) That money paid by one to another was
strong. (Rule 131, Sec. 2)
due to the latter;
Conclusive Presumptions (Rule 131, Sec. 2)
(g) That a thing delivered by one to another
belonged to the latter;
a. ESTOPPEL IN PAIS – whenever a party has,
by his own declaration, act, or omission,
(h) That an obligation delivered up to the
intentionally and deliberately lead another to believe
debtor has been paid;
a particular thing to be true and act upon such
belief, he cannot, in any litigation arising out of such
(i) That prior rents or installments had been
declaration, act or omission, be permitted to falsify
paid when a receipt for the later one is
it. (Rule 131, Sec. 2(a))
produced;
Estoppel is effective only as between the parties
(j) That a person found in possession of a
thereto or their successors in interest. (Civil Code,
thing taken in the doing of a recent
Art. 1439)
wrongful act is the taker and the doer of
the whole act; otherwise, that things which
Requisites as to the Party to be Estopped:
a person possess, or exercises acts of
1. Conduct amounting to false representation or
ownership over, are owned by him;
concealment;
2. Intent or at least expectation that the conduct
(k) That a person in possession of an order on
shall be acted upon; and
himself for the payment of the money, or
3. Knowledge, actual or constructive of the real
the delivery of anything, has paid the
facts
money or delivered the thing accordingly;
Requisites as to the Party CLAIMING Estoppel:
(l) That a person acting in a public office was
1. Lack of knowledge of truth as to the facts in
regularly appointed or elected to it;
question;
2. Reliance in good faith upon the conduct or
(m) That official duty has been regularly
statements of the party to be stopped; and
performed;
3. Action or inaction based thereon led to his
detriment or prejudice
(n) That a court, or judge acting as such,
whether in the Philippines or elsewhere,
b. ESTOPPEL against Tenant – the tenant is not
was acting in the lawful exercise of
permitted to deny title of his landlord at the time of
jurisdiction;
the commencement of the land-lord tenant

339
 (o) That all the matters within an issue raised contracting a subsequent marriage.
in a case were laid before the court and However, in any case, before marrying
passed upon by it; and in like manner that again, the spouse present must institute a
all matters within an issue raised in a summary proceedings as provided in the
dispute submitted for arbitration were laid Family Code and in the rules for
before the arbitrators and passed upon by declaration of presumptive death of the
them; absentee, without prejudice to the effect of
reappearance of the absent spouse.
(p) That private transactions have been fair
and regular; (x) That acquiescence resulted from a belief
that the thing acquiesced in was
(q) That the ordinary course of business has conformable to the law or fact;
been followed;
(y) That things have happened according to
(r) That there was a sufficient consideration the ordinary course of nature and ordinary
for a contract; nature habits of life;

(s) That a negotiable instrument was given or (z) That persons acting as copartners have
indorsed for a sufficient consideration; entered into a contract of co-partnership;

(t) That an endorsement of negotiable (aa) That a man and woman deporting
instrument was made before the themselves as husband and wife have
instrument was overdue and at the place entered into a lawful contract of marriage;
where the instrument is dated;
(bb) That property acquired by a man and a
(u) That a writing is truly dated; woman who are capacitated to marry each
other and who live exclusively with each
(v) That a letter duly directed and mailed was other as husband and wife without the
received in the regular course of the mail; benefit of marriage or under void marriage,
has been obtained by their joint efforts,
(w) That after an absence of seven years, it work or industry.
being unknown whether or not the
absentee still lives, he is considered dead (cc) That in cases of cohabitation by a man and
for all purposes, except for those of a woman who are not capacitated to marry
succession. each other and who have acquire properly
through their actual joint contribution of
The absentee shall not be considered dead for the money, property or industry, such
purpose of opening his succession till after an contributions and their corresponding
absence of ten years. If he disappeared after the shares including joint deposits of money
age of seventy-five years, an absence of five years and evidences of credit are equal.
shall be sufficient in order that his succession may
be opened. (dd) That if the marriage is terminated and the
mother contracted another marriage within
The following shall be considered dead for all three hundred days after such termination
purposes including the division of the estate among of the former marriage, these rules shall
the heirs: govern in the absence of proof to the
contrary:
1. A person on board a vessel lost during a
sea voyage, or an aircraft with is missing, 1. A child born before one hundred eighty
who has not been heard of for four years days after the solemnization of the
since the loss of the vessel or aircraft; subsequent marriage is considered to
2. A member of the armed forces who has have been conceived during such
taken part in armed hostilities, and has marriage, even though it be born within the
been missing for four years; three hundred days after the termination of
3. A person who has been in danger of death the former marriage.
under other circumstances and whose 2. A child born after one hundred eighty days
existence has not been known for four following the celebration of the subsequent
years; marriage is considered to have been
4. If a married person has been absent for conceived during such marriage, even
four consecutive years, the spouse present though it be born within the three hundred
may contract a subsequent marriage if he days after the termination of the former
or she has well-founded belief that the marriage.
absent spouse is already death. In case of
disappearance, where there is a danger of (ee) That a thing once proved to exist continues
death the circumstances hereinabove as long as is usual with things of the
provided, an absence of only two years nature;
shall be sufficient for the purpose of

340
 (ff) That the law has been obeyed; conviction and the appellate court then will presume
the accused guilty.
(gg) That a printed or published book,
purporting to be printed or published by By reason of this presumption, an accused is not
public authority, was so printed or called upon to offer evidence on his behalf for his
published; freedom is forfeited only if the requisite quantum of
proof necessary for conviction be in existence.
(hh) That a printed or published book,
purporting contain reports of cases EQUIPOISE RULE: Where the evidence gives rise
adjudged in tribunals of the country where to two probabilities, one consistent with defendant‘s
the book is published, contains correct innocence, and another indicative of his guilt, that
reports of such cases; which is favorable to the accused should be
considered.
(ii) That a trustee or other person whose duty
it was to convey real property to a 2. A person takes ordinary care of his concerns
particular person has actually conveyed it All men are presumed to be sane and normal and
to him when such presumption is subject to be moved by substantially the same
necessary to perfect the title of such motives.
person or his successor in interest;
When of age and sane, they must take care of
(jj) That, except for purposes of succession, themselves. Courts operate not because one
when two persons perish in the same person has been defeated or overcome by another
calamity, such as wreck, battle, or but because he has been defeated or overcome
conflagration, and it is not shown who died illegally. There must be a violation of law, the
first, and there are no particular commission of what the law known as an actionable
circumstances from which it can be wrong before the courts is authorized to lay hold of
inferred, the survivorship is determined the situation and remedy it.
from the probabilities resulting from the
strength and the age of the sexes, 3. Possession of stolen goods
according to the following rules: This is not in conflict with the presumption of
innocence. At the start of the criminal case, the
1. If both were under the age of fifteen years, court will apply the presumption of innocence. But
the older is deemed to have survived; once the prosecution is able to prove that a certain
2. If both were above the age sixty, the object has been unlawfully taken, that there is a
younger is deemed to have survived; crime of theft committed and that the prosecution
3. If one is under fifteen and the other above has also proven that the accused is in possession
sixty, the former is deemed to have of this object unlawfully taken, and then the
survived; presumption of innocence disappears. The new
4. If both be over fifteen and under sixty, and presumption of guilt takes place.
the sex be different, the male is deemed to
have survived, if the sex be the same, the 4. A person acting in a public office was
older; regularly appointed or elected to it
5. If one be under fifteen or over sixty, and
the other between those ages, the latter is REASON - It would cause great inconvenience if in
deemed to have survived. the first instance strict proof were required of
appointment or election to office in all cases where
(kk) That if there is a doubt, as between two or it might be collaterally in issue.
more persons who are called to succeed
each other, as to which of them died first, The burden of proof is on the adverse party to show
whoever alleges the death of one prior to that he was not appointed or designated.
the other, shall prove the same; in the
absence of proof, they shall be considered 5. An official duty has been regularly performed
to have died at the same time.
REASONS
Some Disputable Presumptions Explained: a. Innocence and not the wrongdoing is to be
presumed;
1. Presumption of innocence– Applies to both civil b. An official oath will not be violated;
and criminal cases. c. A republican form of government cannot
survive unless a limit is placed upon
BASIS - founded on the principles of justice and is controversies and certain trust and confidence
intended not to protect the guilty but to prevent the reposed in each government, department, or
conviction of an innocent person. agent at least to the extent of such
presumption.
This presumption accompanies the accused
throughout the trial down to the moment of 6. The presumption of regularity and legality of
conviction. This presumption disappears after official acts is applicable to criminal as well as
civil cases.

341
This presumption of authority is not confined to
official appointees. It has been extended to
10. QUANTUM OF EVIDENCE (WEIGHT
persons who have been appointed pursuant to a AND SUFFICIENCY OF EVIDENCE)
local or special statute to act in quasi-public or
quasi-official capacities and to professional men like Proof Beyond Reasonable Doubt (Rule 133 Sec.
surgeons and lawyers. 2)
In a criminal case, the accused is entitled to an
7. Regularity of judicial proceedings acquittal unless his guilt is shown beyond
The court rendering the judgment is presumed to reasonable doubt.
have jurisdiction over the subject matter and the
parties and to have rendered a judgment valid in Proof beyond reasonable doubt does not mean
every respect. such a degree of proof as excluding the possibility
of error, produces absolute certainty.
Jurisdiction is presumed in all cases, be it superior
or inferior court. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced
However, jurisdiction to render a judgment in a mind.
particular case or against a particular case, or
against persons may not be presumed when the Clear And Convincing Evidence
record itself shows that jurisdiction has not been Evidence is clear and convincing if it produces in
acquired or there was something on the record the mind of the trier of fact a firm belief or conviction
showing the absence of jurisdiction. as to allegations sought to be established. (Black’s
th
Law Dictionary, 5 ed., 596)
8. Private transactions have been done with
regularity and fairly Clear and convincing evidence is evidence
An individual intends to do right rather than wrong indicating that the thing to be proved is highly
and intends to only what he has the right to do. probable or reasonably certain.

In the absence of proof to the contrary, there is a This is a greater burden than preponderance of
presumption that all men act fairly honestly, and in evidence, the standard applied in most civil trials,
good faith. but less than evidence beyond a reasonable doubt,
the norm for criminal trials. (Black’s Law Dictionary,
th
9. Ordinary course of business has been 8 ed., 596)
followed
Those who were engaged in a given trade or The rule is that charges of misconduct against
business are presumed to be acquainted with the judges should be proven by clear and convincing
general customs and usages of the occupation and evidence, otherwise they should be dismissed.
with such other facts as are necessarily incident to (Pesole v. Rodriguez, A.M. No. 755-MJ, 1978)
the proper conduct of the business.
Preponderance Of Evidence (Rule 133, Sec. 1)
10. Evidence willfully suppressed would be
adverse if produced. In civil cases, the party having the burden of proof
The natural conclusion is that the proof, if produced, must establish his case by a preponderance of
instead of rebutting, would support the inference evidence. (Rule 133, Sec. 1)
against him and the court is justified in acting upon
the conclusion. In civil cases, the party having the burden of proof
must establish his case by preponderance of
No presumption of legitimacy or illegitimacy evidence, or that evidence which is of greater
(Rule 131, Sec. 4) weight or is more convincing than that which is in
A child born after three hundred days following the opposition to it. (BPI v. Reyes, G.R. 157177, 2008)
dissolution of a marriage or the separation of the
spouses will not be presumed legitimate or It does not mean absolute truth; rather, it means
illegitimate. Whoever alleges the legitimacy or that the testimony of one side is more believable
illegitimacy of such child must prove his allegation. than that of the other side, and that the probability
of truth is on one side than on the other. (Rivera v.
9. LIBERAL CONSTRUCTION OF THE Court of Appeals, G.R. No. 115625, 1998)
RULES OF EVIDENCE Land Bank failed to prove that the amount allegedly
―miscredited‖ to Oñate‘s account came from the
These rules shall be liberally construed in order to proceeds of the pre-terminated loans of its clients. It
promote their objective of securing a just, speedy, is worth emphasizing that in civil cases, the party
and inexpensive disposition of every action and making the allegations has the burden of proving
proceeding. (Rule 1, Sec. 6) them by preponderance of evidence. Mere
Rules on Electronic Evidence shall be liberally allegation is not sufficient. (Land Bank of the
construed to assist the parties in obtaining a just, Philippines v. Emmanuel C. Oñate, G.R. No.
expeditious, and inexpensive determination of 192371, 2014)
cases. (A.M. No. 01-7-01-SC, Rule 2, Sec. 2)

342
 f. Facts peculiarly within the knowledge
Factors which the court may consider in of the opposite party (Gesmundo,
determining where the preponderance or superior Evidence Basic Principles and
weight of evidence lies: Selected Problems, 1, 2011,)
1. All the facts and circumstances of the case;
2. The witnesses‘ 2. MATTERS OF JUDICIAL NOTICE
 manner of testifying;
 their intelligence; JUDICIAL NOTICE – cognizance of certain facts
 their means and opportunities of which judges may properly take and act on without
knowing the facts to which they are proof because they already know them.
testifying;
 the nature of the facts to which they Object of Judicial Notice
testify; Judicial notice is based on convenience and
 the probability or improbability of their expediency. It would certainly be superfluous,
testimony; inconvenient, and expensive both to parties and the
 their interest or want of interest; court to require proof, in the ordinary way, of facts
 personal credibility so far as the same which are already known to the courts.
may legitimately appear upon the trial.
3. The number of witnesses (though Direct Effect of Judicial Notice
preponderance is not necessarily with the Judicial notice relieves the parties from the
greater number.) (Rule 133, Sec. 1) necessity of introducing evidence to prove the fact
noticed. It makes evidence unnecessary.
Substantial Evidence (Rule 133, Sec. 5)
In cases filed before administrative and quasi- The stipulation and admission of the parties or
judicial bodies, a fact may be deemed established if counsel cannot prevail over the operation of the
it is supported by substantial evidence. doctrine of judicial notice, and such stipulation and
Substantial evidence is that amount of relevant admissions are all subject to the operation of the
evidence which a reasonable mind might accept as doctrine.
adequate to justify a conclusion.
Judge’s Personal Knowledge of the Facts
END OF TOPIC Judicial notice is not judicial knowledge. The mere
personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to
make his individual knowledge of a fact, not
generally or professionally known, the basis of his
B. JUDICIAL NOTICE; action. Judicial cognizance is taken only of those
JUDICIAL ADMISSIONS matters which are ―commonly‖ known. (Spouses
Omar And Moshiera Latip v. Chua, G.R. No.
177809, 2009)
1. WHAT NEED NOT BE PROVED
2. MATTERS OF JUDICIAL NOTICE a. WHEN MANDATORY
a. Mandatory
b. Discretionary MANDATORY- takes place at the court‘s own
3. JUDICIAL ADMISSIONS initiative and it needs no hearing.
a. Effect of judicial admission
When Judicial Notice is Mandatory
b. How judicial admissions may be
(Rule 129, Sec. 1)
contradicted
4. JUDICIAL NOTICE OF FOREIGN 1. Existence and territorial extent of states
LAWS, LAW ON NATIONS AND
MUNICIPAL ORDINANCE The territorial extent of the nation and of the several
states and the division of states into towns,
countries and other political subdivisions are
1. WHAT NEED NOT BE PROVED generally regulated by public laws and also matters
a. Facts which are subject to judicial of general notoriety. Hence the courts do not
notice require proof of such facts. (Herrera, Remedial Law
b. Facts which are legally presumed Vol V, 78-79)
c. Facts which are admitted or which are
not denied in the answer, provided 2. Their political history, Forms of
they have been sufficiently alleged. government and symbols of nationality,
d. Allegations contained in the complaint
or answer immaterial to the issues. 3. The law of nations
e. Those which are subject of an agreed
statement of facts between the parties The law of nations, as opposed to foreign law, is
as well as those admitted by the party subject to mandatory judicial notice as the
in the course of the proceedings in the Philippines adopts the generally accepted principles
same case of international law as part of the law of the land.

343
 nevertheless be a proper subject of judicial
4. The admiralty and maritime courts of cognizance. (Republic v. Court of Appeals, G.R. No.
the world and their seals L-54886, 1981)

5. The political constitution and history of Judicial notice is limited to facts evidenced by public
the Philippines, records and facts of general notoriety. A judicially
noticed fact must be one NOT subject to a
6. The official acts of legislative, executive reasonable dispute. Thus, a court cannot take
and judicial departments of the judicial notice of a factual matter in controversy.
Philippines,
When Judicial Notice is Discretionary
7. The laws of nature, (Rule 129, Sec. 2)

Example: The recurrence of seasons 1. The matter is one of public or common

knowledge
8. The measure of time
“Commonly Known”
Example: There are 24 hours in a day Things of ―common knowledge,‖ of which courts
take judicial notice, may be matters coming to the
9. The geographical divisions knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters
Example: Certain cities are divided into lots, blocks which are generally accepted by mankind as true
and streets. and are capable of ready and unquestioned
demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias,
b. WHEN DISCRETIONARY dictionaries or other publications, are judicially
noticed, provided they are of such universal
DISCRETIONARY - may be at the court‘s own notoriety and so generally understood that they may
initiative or on request of a party. A hearing is be regarded as forming part of the common
necessary. knowledge of every person. (Spouses Omar And
Moshiera Latip v. Chua, G.R. No. 177809, 2009)
Purpose of hearing - not for the presentation of
evidence but to afford the parties reasonable 2. The matter must be capable of
opportunity to present information relevant to the unquestionable demonstration
propriety of taking such judicial notice or to the
tenor of the matter to be noticed. Matters which are capable of unquestionable
demonstration pertain to fields of professional and
Test of Notoriety scientific knowledge. Thus, facts which are
The doctrine of judicial notice rests on the wisdom universally known, and which may be found in
and discretion of the courts. The power to take encyclopedias, dictionaries or other publications,
judicial notice is to be exercised by the courts with are judicially noticed, provided, they are of such
caution; care must be taken that the requisite universal notoriety and so generally understood that
notoriety exists; and every reasonable doubts upon they may be regarded as forming part of the
the subject should be promptly resolved in the common knowledge of every person. (Expertravel &
negative. Tours, Inc. v. Court of Appeals, G.R. No. 152392,
2005.)
For a matter to be taken judicial notice of by the
courts of law, it must be a subject of common and 3. The matter is one that is ought to be
general knowledge. In other words, judicial notice of known to judges because of their
facts is measured by general knowledge of the judicial functions.
same facts. A fact is said to be generally recognized
or known when its existence or operation is An example would be facts which are ascertainable
accepted by the public without qualification or from the record of court proceedings, e.g. as to
contention. The test is whether the act involved is when court notices were received by a party.
so notoriously known as to make it proper to
assume its existence without proof. The fact that a This only applies to the records and events in the
belief is not universal, however, is not controlling for same case pending before the court. Courts are not
it is very seldom that any belief is accepted by authorized to take judicial notice of the contents of
everyone. It is enough that the matters are familiarly the records of other cases, even when such cases
known to the majority of mankind or those persons have been tried or are pending in the same court
with the particular matter in question (20 Am Jur 49- and pending before the same judge. (People of the
50; Martin, Rules of Court 37, Second Edition). Philippines, G.R. No. 108028, 1996)

Furthermore, a matter may be personally known to The taking of judicial notice is a matter of
the judge and yet to be a matter of judicial expediency and convenience for it fulfills the
knowledge and vice versa, a matter may not be purpose that the evidence is intended to achieve,
actually known to an individual judge, and and in this sense, it is equivalent to proof.

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Generally, courts are not authorized to ―take judicial 3. No particular form is required, thus a judicial
notice of the contents of the records of other cases admission may be verbal or written.
even when said cases have been tried or are
pending in the same court or before the same Forms of Judicial Admission
judge.‖ They may, however, take judicial notice of a 1. May be oral
decision or the facts prevailing in another case
sitting in the same court if: (1) the parties present Examples:
them in evidence, absent any opposition from the a) Verbal waiver of proof made in open court
other party; or (2) the court, in its discretion, b) A withdrawal of a contention or a disclosure
resolves to do so. In either case, the courts must made before the court
observe the clear boundary provided by Section 3, c) Admission made by a witness in the course of
Rule 129 of the Rules of Court. (Land Bank of the his testimony or deposition
Philippines v. Yatco Agricultural Enterprises, G.R.
No. 172551, 2014.) 2. May be written

When Hearing is NECESSARY Examples:

a) Pleading
Purpose - not for the presentation of evidence but b) Bill of Particulars
to afford the parties reasonable opportunity to c) Stipulation of Facts
present information relevant to the propriety of d) Request for Admission
taking such judicial notice or to the tenor of the e) Affidavit used in the case
matter to be noticed. f) Depositions
g) Written Interrogatories
Stages Where the Court May Take Judicial
Notice of a Fact Judicial admissions may be made by either a party
1. During trial; or his counsel.
2. After trial and before judgment;
3. Appeal When a defendant is declared in default for having
failed to answer the complaint, such a failure does
Distinction Between Judicial Notice Taken not amount to an admission of the facts alleged in
During Trial and That Taken After Trial but the complaint.
Before Judgment or on Appeal:
To be considered a judicial admission, the
1. During the trial - the Court, motu proprio or admission must be made in the same case;
upon request, may announce its intention to take otherwise, it is an extrajudicial admission.
judicial notice of any matter and may hear the
parties thereon. Extra-Judicial Admissions – are those made out
of court, or in a judicial proceeding other than the
2. After trial but before judgment or on appeal - one under consideration.
the Court, motu proprio or upon request, may take
judicial notice of any matter and allow the parties to Distinction between Judicial Admission and
be heard thereon if such matter is decisive of a Extra-Judicial Admission
material issue in the case.
JUDICIAL EXTRA-JUDICIAL
Distinction between Mandatory Judicial Notice ADMISSIONS (Rule ADMISSION (Rule
and Discretionary Judicial Notice 129, Sec. 4) 130, Sec. 26)
Admission must be
MANDATORY DISCRETIONARY made in the course of Out-of-court-
JUDICIAL NOTICE JUDICIAL NOTICE the proceeding in the declarations
Court is compelled to same case
Court not compelled
take judicial notice Conclusive upon the
Rebuttable
At the court‘s own admitter
By own initiative of the
initiative or on request of Requires proof that the
court Does not require proof
any of the parties admission was made
No hearing Hearing required
a. EFFECT OF JUDICIAL ADMISSIONS
3. JUDICIAL ADMISSIONS
An admission, verbal or written, made by the party
Admissions, verbal or written, made by a party in in the course of the proceedings in the same case,
the course of the proceedings in the same case. does not require proof. (Rule 128, Sec. 4)
(Rule 129, Sec. 4)
Considering that an admission does not require
Elements of Judicial Admissions (PPP) proof, the admission of the petitioners would
1. Must be made by a party to a case; and actually be sufficient to prove the partition even
2. Must be made in the course of the proceedings without the documents presented by the respondent
in the same case. spouses. If anything, the additional evidence they
presented only served to corroborate the

345
petitioners' admission. (Theresita, et al., all 2. When defendant files a motion to dismiss
surnamed Dimaguila v. Jose and Sonia Monteiro, based on lack of jurisdiction.
G.R. No. 201011, 2014)
Admissions in the Pre-Trial of Criminal Cases
b. HOW JUDICIAL ADMISSIONS MAY BE An admission made by the accused in the pre-trial
CONTRADICTED of a criminal case is not yet admissible against him.
To be admissible, it must be reduced in writing and
General Rule: A judicial admission is conclusive signed by both the accused and the counsel.
upon the party making it and does not require proof
Exceptions: Judicial admissions may be Admissions in Amended Pleadings
contradicted ONLY by showing that: When a pleading is amended, the amended
1. The admission was made through pleading supersedes the pleading that it amends
PALPABLE MISTAKE and the admissions in the superseded pleading may
2. NO ADMISSION was made. be received in evidence against the pleader as
extrajudicial admissions which must be proven.
When Pleading Superseded or Amended
Having been amended, the original complaint loses
Pleadings that are superseded or amended its character as a judicial admission which would
―disappear‖ from the record and any admissions require no proof. It is now an extrajudicial
made in such pleadings cease to be judicial admission which requires proof (Torres v. Court of
admissions. In order that any statement contained Appeals, G.R. No. L-37420, July 31, 1984)
therein may be considered as evidence, a party
should formally offer the superseded or amended Admissions in Dismissed Pleadings
pleading in evidence. Admissions made in pleadings that have been
dismissed are merely extrajudicial admissions.
Remedies of a Party Who Gave a Judicial
Admission Admissions by Counsel
Admissions by a counsel are generally conclusive.
a) Motion to Withdraw: for written judicial However, in cases where reckless or gross
admissions, by filing a motion to withdraw the negligence of counsel deprives the client of due
pleadings, motion or other written instrument process of law, or when its application will result in
containing such admission; or by moving that outright deprivation of the client‘s liberty or property
such admission be deemed withdrawn or or when the interests of justice so require, relief is
disregarded due to palpable mistake. accorded the client who suffered by reason of the
b) Motion for Exclusion: for oral judicial lawyer‘s gross or palpable mistake or negligence.
admissions, counsel in open court may move
for the exclusion of such admission. 4. JUDICIAL NOTICE OF FOREIGN
LAWS, LAW ON NATIONS AND
Other Judicial Admissions
MUNICIPAL ORDINANCE
Admissions in Drafted Documents
An admission made in a document drafted for Rule on Foreign Laws
purposes of filing as a pleading but never filed, is
not a judicial admission. If signed by a party, it is General Rule: Courts cannot take judicial notice of
deemed an extrajudicial admission. If signed by the foreign laws. Foreign laws have to be proved like
attorney, it is not deemed as an admission by the any other fact.
party. An attorney only has the authority to make
statements on behalf of his clients in open court or Exceptions:
in a pleading actually filed. 1. When the said laws are already within the actual
knowledge of the court, such as when they are well
Admissions in the Pre-Trial of Civil Cases and generally known or they have been actually
In civil cases, pre-trial is mandatory. Therefore, ruled upon in other cases before it and none of the
admissions in pre-trial, as well as those made parties concerned do not claim otherwise. (PCIB v.
during the depositions, interrogatories or requests Escolin, G.R. Nos. L-27860 and L-27896, 1974)
for admission are all deemed judicial admissions
because they are made in the course of the 2. Common Law (Herrera, Remedial Law Vol V, 84)
proceedings of the case.
3. A published treatise, periodical or pamphlet on a
Hypothetical Admissions subject of history, law, science, or art is admissible
Not all allegations or admissions in civil cases may as tending to prove the truth of a matter stated
be considered as judicial admissions because the therein if the court takes judicial notice, or a
Rules on Civil Procedure allow a litigant to make witness expert in the subject testifies, that the
hypothetical admissions in his pleading. writer of the statement in the treatise, periodical
or pamphlet is recognized in his profession or
Examples: calling as expert in the subject. (Rule 130, Sec.
1. When a defendant sets up affirmative defenses 46)
in his answer (Section 6, Rule 6)

346
Stipulation by the parties - the parties in a given 3. The original or part of the records of the
case do not have any controversy or are more or case are actually withdrawn from the
less in agreement, the Court may take it for granted archives and are admitted as part of the
for the purposes of the particular case before it that record of the case pending. (Tabuena v.
the said laws are as such virtual agreement CA, G.R. No. 85423, 1991)
indicates, without the need of requiring the
presentation of what otherwise would be the Judicial Notice of Other Matters
competent evidence on the point. (PCIB v. Escolin,
G.R. Nos. L-27860 and L-27896, 1974) 1. A court can take judicial notice of banking
practices.
How foreign laws are proved 2. A court cannot take judicial notice of an
A written foreign law maybe proved by an official administrative regulation or of a statute
publication or by a duly attested and authenticated that is not yet effective.
copy thereof. 3. A court cannot take judicial notice of the
age of the victim without hearing and
When the foreign law is part of a published treatise, presentation of proof.
periodical or pamphlet and the writer is recognized 4. A court has taken judicial notice of the
in his profession or calling as an expert in the Filipina‘s inbred modesty and shyness and
subject, the court may take judicial notice of the her antipathy in publicly airing acts which
treatise containing the foreign law. (Rule 130, Sec. blemish her honor and virtue.
6)
END OF TOPIC
Doctrine Of Processual Presumption – If the
foreign law is not properly proved, the foreign law is
presumed to be the same as the law in the
Philippines.
C. OBJECT (REAL) EVIDENCE
Rule On Municipal Ordinances
1. DEMONSTRATIVE EVIDENCE
1. Municipal Trial Courts are required to take 2. VIEW OF AN OBJECT SCENE
judicial notice of the ordinances of the
municipality or city where they sit. 3. CHAIN OF CUSTODY, IN RELATION
TO SECTION 21 OF THE
2. Regional Trial Courts must take judicial notice COMPREHENSIVE DANGEROUS
only DRUGS ACT OF 2002
a. When required to do so by statute; and
b. In a case on appeal before them and
4. RULE ON DNA EVIDENCE (A.M. NO.
where the inferior court took judicial notice 06-11-5-SC)
of an ordinance involved in said case. a. Meaning of DNA
b. Application for DNA testing order
3. The Court of Appeals may take judicial notice c. Post-conviction DNA testing; Remedy
of municipal ordinances because nothing in the d. Assessment of probative value of DNA
Rules prohibits them from doing so if it is evidence; Admissibility
capable of unquestionable demonstration. e. Rules on evaluation of reliability of the
DNA testing methodology
Trial courts are required to take judicial notice of the
decisions of the appellate courts but not of the
decisions of coordinate trial courts. 1. NATURE OF OBJECT EVIDENCE
Rule on Court Records Objects as evidence are those addressed to the
senses of the court. When an object is relevant to
1. Court’s Own Acts and Records the fact in issue, it may be exhibited to, examined or
A court may take judicial notice of its OWN acts and viewed by the court. (Rule 130, Sec. 1)
records in the SAME case.
It refers to the real thing itself and it consists of
2. Records of Other Cases tangible things, not merely perceptions of the
General Rule - Courts are not authorized to take witness and a recollection of those perceptions.
judicial notice of the contents of the records of other
cases, even when such have been tried or are Limitations on the Use of Object Evidence
pending in the same court and with the same judge. The court MAY refuse the introduction of object
Exceptions: evidence and rely on testimonial evidence alone if:
1. A party clearly makes reference to the 1. The exhibition of such object is contrary to
records of another case and there is no morals or decency;
objection by the other party; 2. To require its being viewed in court or in an
2. Judicial notice is at the request or with the ocular inspection would result in delays,
consent of the parties; or inconvenience, unnecessary expenses out of

347
 proportion to the evidentiary value of such ravine with handcuffs on her wrist is a physical
object; evidence that bolsters the testimony of the witness.
3. Such object evidence would be confusing or (People v. Larrahaga, G.R. Nos. 138874-75, 2005)
misleading, as when the purpose is to prove
the former condition of the object and there is 3. CATEGORIES OF OBJECT
no preliminary showing that there has been no EVIDENCE
substantial change in said condition; or
4. The testimonial or documentary evidence 1. UNIQUE – objects that have readily identifiable
already presented clearly portrays the object in
marks
question as to render a view thereof 2. OBJECTS MADE UNIQUE – objects that are
unnecessary.
made readily identifiable
3. NON-UNIQUE OBJECTS – these are objects
Even if the object is repulsive or indecent, if a view
with no identifying marks and cannot be
of the same is necessary in the interest of justice,
marked (e.g., blood, oil, drugs in powder form,
such evidence may still be exhibited but the court
fiber)
may exclude the public from such view.
A proponent offering evidence which falls under the
Reason for Admissibility
third category must establish a chain of custody.
The evidence of one‘s own senses furnishes the
strongest probability of the existence of any CHAIN OF CUSTODY
sensible fact.
Persons who actually handled or had custody of the
object must show through testimony that there is no
2. REQUISITES FOR ADMISSIBILITY possibility that the evidence was tampered with and
that the integrity of the evidence was preserved
1. The object must be relevant to the fact in issue; throughout the course of gathering, collecting and
2. The object must be authenticated before it is storing the evidence. This is done to ensure that
admitted; the evidence presented in court is the same
3. The authentication must be made by a evidence seized from the defendant or recovered
competent witness; from the crime scene or elsewhere.
4. The object must be formally offered in
evidence. (Riano, pp.186-187) Each custodian of the evidence is not required to
testify as long as sufficient testimony is given by
AUTHENTICATION some of the persons who have come into contact
To be admissible in evidence, the object sought to with the evidence to negate the possibility of
be offered must be shown to have been the very tampering.
thing that is the subject matter of the lawsuit or the
very one involved to prove an issue in the case. 4. DEMONSTRATIVE EVIDENCE
Authentication by a competent witness is essential
Demonstrative evidence is not the actual thing but it
to the admissibility of the object evidence. After
is referred to as ―demonstrative‖ because it
authentication, the object needs to be formally
represents or demonstrates the real thing. It is not
offered in evidence.
strictly ―real‖ evidence because it is not the very
thing involved in the case. (Riano, pp.189-190)
The right against self-incrimination cannot be
invoked against object evidence. Thus, an accused
Some courts insist on requiring the photographer to
may be compelled to submit himself to bodily
testify but this view has been eroded by the
inspection and whatever object is retrieved on his
tendency of modern courts to admit as a witness
person would be admissible even though it would
one who has familiarity with the scene portrayed.
incriminate such accused. Also, on cross- (Sison v. People, G.R. No. 108280-83, 1995)
examination, an accused may be compelled to write
so as to be able to use his handwriting as object
Trial court ruled that the photographs are
evidence to compare with the one in question.
inadmissible. The Court held that the photographs
are inadmissible because the map or photograph, to
Authentication of Photographs
be admissible, must first be made a part of some
The correctness of a photograph as a faithful
qualified person's testimony. Someone must stand
representation of the object portrayed can be
forth as its testimonial sponsor; in other words, it
proved prima facie, either by the testimony of the must be verified. (Adamczuk v. Halloway, 13 A.2d
person who made it or by other competent 2, 1940)
witnesses, after which the court can admit it subject
to impeachment as to its accuracy. (Sison v.
On appeal, Tatum questioned the film‘s admission
People, G.R. Nos. 108280-83, 1995)
into evidence. The Court held that for a photograph
to be admissible in evidence, the authentication
An object evidence, when offered in accordance
required by courts is that some witness (not
with the requisites for its admissibility, becomes
necessarily the photographer) be able to give some
evidence of the highest order and speaks more
indication as to when, where, and under what
eloquently than witnesses put together. The
circumstances the photograph was taken, and that
presence of the victim‘s ravished body in a deep

348
the photograph accurately portray the subject or and/or laboratory equipment so confiscated, seized
subjects illustrated. (State v. Tatum, 360 P.2d 754, and/or surrendered, for proper disposition in the
1961) following manner:

5. VIEW OF AN OBJECT OR SCENE 1. The apprehending team having initial custody

and control of the drugs shall, immediately after
When an object is relevant to the fact in issue, it seizure and confiscation, physically inventory and
may be exhibited to, examined or viewed by the photograph the same in the presence of the
court. (Rule 130, Sec. 1) accused or the person/s from whom such items
were confiscated and/or seized, or his/her
A place or scene can fall under the classification of representative or counsel, a representative from the
object evidence. The court has to go to the object if media and the Department of Justice (DOJ), and
the object cannot be produced in court due to its any elected public official who shall be required to
immovability or the difficulty or inconvenience in sign the copies of the inventory and be given a copy
removing it and producing it in court. thereof;

Granted Only If Of Substantial Aid 2. Within twenty-four (24) hours upon

As a general rule, a view or inspection should be confiscation/seizure of dangerous drugs, plant
granted only where it is reasonably certain that it sources of dangerous drugs, controlled precursors
will be of substantial aid to the court in reaching a and essential chemicals, as well as
correct verdict. instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the
When Changes to the Object or Scene Have PDEA Forensic Laboratory for a qualitative and
Taken Place quantitative examination;
A court may refuse to make the inspection where
changes have taken place since the time to which 3. A certification of the forensic laboratory
the action relates or where it is not shown that the examination results, which shall be done under oath
conditions are the same. by the forensic laboratory examiner, shall be issued
within twenty-four (24) hours after the receipt of the
However, View May Be Granted If: subject item/s: Provided: That when the volume of
1. The change is not material. the dangerous drugs, plant sources of dangerous
2. The character and extent of the change are drugs, and controlled precursors and essential
properly brought out in evidence. chemicals does not allow the completion of testing
within the time frame, a partial laboratory
Notice to parties examination report shall be provisionally issued
The inspection or view is part of the trial and thus stating therein the quantities of dangerous drugs
should be made in the presence of the parties or at still to be examined by the forensic laboratory:
least with previous notice to them of the time and Provided, however, That a final certification shall be
place set for the view. issued on the completed forensic laboratory
examination on the same within the next twenty-four
6. CHAIN OF CUSTODY, IN RELATION (24) hours;
TO SECTION 21 OF THE 4. After the filing of the criminal case, the Court
COMPREHENSIVE DANGEROUS shall, within seventy-two (72) hours, conduct an
DRUGS ACT OF 2002 ocular inspection of the confiscated, seized and/or
surrendered dangerous drugs, plant sources of
CHAIN OF CUSTODY means the duly recorded dangerous drugs, and controlled precursors and
authorized movements and custody of seized drugs essential chemicals, including the
or controlled chemicals or plant sources of instruments/paraphernalia and/or laboratory
dangerous drugs or laboratory equipment of each equipment, and through the PDEA shall within
stage, from the time of seizure/confiscation to twenty-four (24) hours thereafter proceed with the
receipt in the forensic laboratory to safekeeping to destruction or burning of the same, in the presence
presentation in court for destruction. Such record of of the accused or the person/s from whom such
movements and custody of seized item shall include items were confiscated and/or seized, or his/her
the identity and signature of the person who held representative or counsel, a representative from the
temporary custody of the seized item, the date and media and the DOJ, civil society groups and any
time when such transfer of custody were made in elected public official. The Board shall draw up the
the course of safekeeping and used in court as guidelines on the manner of proper disposition and
evidence, and the final disposition. (DDB Regulation destruction of such item/s which shall be borne by
No. 1, series of 2002, Sec. 1(b)) the offender: Provided, That those item/s of lawful
commerce, as determined by the Board, shall be
Safeguards for the Protection of the Identity and donated, used or recycled for legitimate purposes:
Integrity of Dangerous Drugs Seized: Provided, further, That a representative sample,
The PDEA shall take charge and have custody of all duly weighed and recorded is retained;
dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential 5. The Board shall then issue a sworn certification
chemicals, as well as instruments/paraphernalia as to the fact of destruction or burning of the subject

349
item/s which, together with the representative 7. RULE ON DNA EVIDENCE (AM NO.
sample/s in the custody of the PDEA, shall be 06-11-5-SC)
submitted to the court having jurisdiction over the
case. In all instances, the representative sample/s a. MEANING OF DNA
shall be kept to a minimum quantity as determined
by the Board;
Deoxyribonucleic Acid (DNA), which is the chain of
molecules found in every nucleated cell of the body.
6. The alleged offender or his/her representative or
The totality of an individual‘s DNA is unique for the
counsel shall be allowed to personally observe all of individual, except identical twins. (Rule on DNA
the above proceedings and his/her presence shall
Evidence, Sec. 3 (b))
not constitute an admission of guilt. In case the said
offender or accused refuses or fails to appoint a
DNA, or deoxyribonucleic acid, is a molecule that
representative after due notice in writing to the
encodes the genetic information in all living
accused or his/her counsel within seventy-two (72)
organisms. Most importantly, because of
hours before the actual burning or destruction of the
polymorphisms in human genetic structure, no two
evidence in question, the Secretary of Justice shall
individuals have the same DNA, with the notable
appoint a member of the public attorney‘s office to exception of identical twins. (Agustin v. Court of
represent the former; and Appeals, G.R. No. 162571, 2005)
7. After the promulgation and judgment in the
DNA is an organic substance found in a person‘s
criminal case wherein the representative sample/s
cells which contains his or her genetic code.
was presented as evidence in court, the trial
Except for identical twins, each person‘s DNA
prosecutor shall inform the Board of the final
profile is distinct and unique. When a crime is
termination of the case and, in turn, shall request
committed, material is collected from the scene of
the court for leave to turn over the said
the crime or from the victim‘s body for the suspect‘s
representative sample/s to the PDEA for proper
DNA. This is the evidence sample. The evidence
disposition and destruction within twenty-four (24)
sample is then matched with the reference sample
hours from receipt of the same. (Dangerous Drug
taken from the suspect and the victim. The purpose
Act of 2002, Sec. 21)
of DNA testing is to ascertain whether an
association exists between the evidence sample
The existence of the drug is the very corpus delicti
and the reference sample. The samples collected
of the crime of illegal possession of dangerous
are subjected to various chemical processes to
drugs and, thus, a condition sine qua non for establish their profile. (People v. Vallejo, G.R. No.
conviction. In order to establish the existence of the 144656, 2002)
drug, its chain of custody must be sufficiently
established. The chain of custody requirement is
The death of Rogelio does not ipso facto negate the
essential to ensure that doubts regarding the
application of DNA testing for as long as there exist
identity of the evidence are removed through the
appropriate biological samples of his DNA. New
monitoring and tracking of the movements of the
Rules on DNA Evidence allows the conduct of DNA
seized drugs from the accused, to the police, to the
testing by using biological samples--organic
forensic chemist, and finally to the court. (People v.
material originating from the person's body, ie.,
Martinez, G.R. No. 191366, 1996)
blood, saliva, other body fluids, tissues, hair, bones,
even inorganic materials- that is susceptible to DNA
It would include testimony about every link in the
testing. (Estate of Ong v. Diaz, G.R. 171713, 2007)
chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way b. APPLICATION FOR DNA TESTING ORDER
that every person who touched the exhibit would
describe how and from whom it was received,
The appropriate court may, at any time, either motu
where it was and what happened to it while in the proprio or on application of any person who has a
witness' possession, the condition in which it was
legal interest in the matter in litigation, order a DNA
received and the condition in which it was delivered
testing. Such order shall issue after due hearing
to the next link in the chain. (Zafra v. People, G.R.
and notice to the parties upon a showing of the
No. 190749, 2012)
following:
1. A biological sample exists that is relevant to the
Non-compliance with the procedural requirements
case;
under RA 9165 and its IRR relative to the custody,
2. The biological sample was:
photographing, and drug-testing of the
a. Not previously subjected to the type of
apprehended persons, is not a serious flaw that can
DNA testing now requested; or
render void the seizures and custody of drugs in a
b. Previously subjected to DNA testing, but
buy-bust operation. What is essential is ―the
the results may require confirmation for
preservation of the integrity and the evidentiary
good reasons;
value of the seized items, as the same would be
3. The DNA testing uses a scientifically valid
utilized in the determination of the guilt or innocence
technique;
of the accused. (People vs. Cardenas, G.R. No.
4. The DNA testing has the scientific potential to
190342, 2012)
produce new information that is relevant to the
proper resolution of the case; and

350
5. The existence of other factors, if any, which the procedure, and compliance with the
court may consider as potentially affecting the scientifically valid standards in conducting the
accuracy or integrity of the DNA testing. tests;
3. The forensic DNA laboratory, including
This Rule shall not preclude a DNA testing, without accreditation by any reputable standards-
need of a prior court order, at the behest of any setting institution and the qualification of the
party, including law enforcement agencies, before a analyst who conducted the tests. If the
suit or proceeding, is commenced. (Rule on DNA laboratory is not accredited, the relevant
Evidence, Sec. 4) experience of the laboratory in forensic of the
laboratory in forensic casework and credibility
In some states, to warrant the issuance of the DNA shall be properly established; and
testing order, there must be a show cause hearing 4. The reliability of the testing result, as
wherein the applicant must first present sufficient hereinafter provided.
evidence to establish a prima facie case or a
reasonable possibility of paternity or “good The provisions of the Rules of Court concerning the
cause” for the holding of the test. In these states, a appreciation of evidence shall apply suppletorily
court order for blood testing is considered a (Rule on DNA Evidence, Sec. 7).
―search,‖ which, under their Constitutions (as in
ours), must be preceded by a finding of probable In assessing the probative value of DNA evidence,
cause in order to be valid. Hence, the requirement therefore, courts should consider, among others
of a prima facie case, or reasonable possibility, was things, the following data: how the samples were
imposed in civil actions as a counterpart of a finding collected, how they were handled, the possibility of
of probable cause. The same condition precedent contamination of the samples, the procedure
should be applied in our jurisdiction to protect followed in analyzing the samples, whether the
the putative father from mere harassment suits. proper standards and procedures were followed in
Thus, during the hearing on the motion for DNA conducting the tests, and the qualification of the
testing, the petitioner must present prima facie analyst who conducted the tests. (People v. Vallejo,
evidence or establish a reasonable possibility of G.R. No. 144656, 2002)
paternity. (Lucas v. Lucas, G.R. No. 190710, 2011)
The purpose of DNA testing is to ascertain whether
Notwithstanding these, it should be stressed that an association exists between the evidence sample
the issuance of a DNA testing order remains and the reference sample.
discretionary upon the court. The court may, for
example, consider whether there is absolute The test may yield three possible results:
necessity for the DNA testing. If there is already 1. The samples are different and therefore must
preponderance of evidence to establish paternity have originated from different sources
and the DNA test result would only be (exclusion). This conclusion is absolute and
corroborative, the court may, in its discretion, requires no further analysis or discussion;
disallow a DNA testing. (Lucas v. Lucas, G.R. No. 2. It is not possible to be sure, based on the
190710, 2011) results of the test, whether the samples have
similar DNA types (inconclusive). This might
c. POST-CONVICTION DNA TESTING; occur for a variety of reasons including
REMEDY degradation, contamination, or failure of some
aspect of the protocol. Various parts of the
Post-conviction DNA testing may be available, analysis might then be repeated with the same
without need of prior court order, to the prosecution or a different sample, to obtain a more
or any person convicted by final and executory conclusive result; or
judgment provided that: 3. The samples are similar, and could have
1. A biological sample exists, originated from the same source (inclusion). In
2. Such sample is relevant to the case, and such a case, the samples are found to be
3.The testing would probably result in the reversal similar, the analyst proceeds to determine the
or modification of the judgment of conviction (Rule statistical significance of the Similarity. (People
on DNA Evidence, Sec. 6). v. Vallejo, G.R. No. 144656, 2002)

d. ASSESSMENT OF PROBATIVE VALUE OF e. RULES ON EVALUATION OF RELIABILITY

DNA EVIDENCE; ADMISSIBILITY OF THE DNA TESTING METHODOLOGY

In assessing the probative value of the DNA In evaluating whether the DNA testing methodology
evidence presented, the court shall consider the is available, the court shall consider the following:
following: 1. The falsifiability of the principles or methods
1. The chain of custody, including how the used, that is, whether the theory or technique
biological samples were collected, how they can be and has been tested;
were handled, and the possibility of 2. The subjection to peer review and publication
contamination of the samples; of the principles or methods;
2. The DNA testing methodology, including the 3. The general acceptance of the principles or
procedure followed in analyzing the samples, methods by the relevant scientific community;
the advantages and disadvantages of the

351
4. The existence and maintenance of standards l. How to explain alterations in a
and controls to ensure the correctness of data document
generated; m. Documentary evidence in an unofficial
5. The existence of an appropriate reference language
population database; and
6. The general degree of confidence attributed to
mathematical calculations used in comparing 1. MEANING OF DOCUMENTARY
DNA profiles and the significance and limitation EVIDENCE
of statistical calculations used in comparing
DNA profiles. (Rule on DNA Evidence, Sec. 8)
DOCUMENTARY EVIDENCE – documents as
evidence consists of writings or any material
END OF TOPIC
containing letters, words, numbers, figures, symbols
or other modes of written expression offered as
proof of their contents.

D. DOCUMENTARY EVIDENCE Documentary evidence is evidence supplied by

written instruments, or derived from conventional
symbols, such as letters, by which ideas are
1. MEANING OF DOCUMENTARY represented on material substances; documents
EVIDENCE produced for the inspection of the court or judge.
2. REQUISITES OF ADMISSIBILITY
For written material to qualify as documentary
3. BEST EVIDENCE RULE evidence, the purpose of offering the written
a. Meaning of the rule material should be to prove its contents.
b. When applicable
c. Meaning of the original If offered for some other purpose (e.g., existence or
d. Requisites for introduction of condition), the writings would not be deemed as
secondary evidence documentary evidence but as object evidence. (The
4. RULES ON ELECTRONIC Best Evidence Rule and the Parole Evidence Rule
EVIDENCE (A.M. NO. 01-7-01-SC) do not apply to object evidence, only to
a. Scope; Coverage; Meaning of electronic documentary evidence).
evidence; Electronic data message
b. Probative value of electronic 2. REQUISITES FOR ADMISSIBILITY
documents or evidentiary weight;
Method of proof To be admissible, documentary evidence, like any
c. Authentication of electronic documents other evidence, must be relevant and competent. It
and electronic signatures is also subject to general exclusionary rules such as
d. Electronic documents vis-à-vis hearsay the rule on hearsay, best evidence rule, and parol
rule evidence rule. (Riano, p. 229)
e. Audio, photographic, video, and
ephemeral evidence 3. BEST EVIDENCE RULE
5. PAROL EVIDENCE RULE
a. Application a. MEANING OF THE RULE
b. When parol evidence can be introduced
c. Distinctions between the best evidence The best evidence rule applies only when the
rule subject of the inquiry is the contents of a document.
6. AUTHENTICATION; PROOF OF The rule requires that the original of the writing must
be produced. It is also known as the ―original
DOCUMENTS document rule‖ or the ―primary evidence‖ rule.
a. Meaning of authentication
b. Public documents; Private documents The best evidence rule operates as a rule of
c. When a private writing requires exclusion, that is, secondary evidence cannot be
authentication; Proof of private writing introduced as the original writing itself must be
d. When evidence of authenticity of a produced in court, subject to exceptions.
private writing is not required; Ancient
documents Purpose: The prevention of fraud because it is
e. How to prove genuineness of a easy for a person to fabricate the alleged contents
handwriting of a document. Also, the rule ensures accuracy. A
f. Public documents as evidence; Proof of person, even if acting in good faith, may most likely
official record not be able to recall all the details of a document,
g. Attestation of a copy especially a lengthy one.
h. Public record of a public document
i. Proof of lack of record General Rule: The original document must be
j. How a judicial record is impeached produced.
k. Proof of notarial documents Exceptions:

352
1. When the original has been lost or destroyed, The general rules regarding the admissibility of
or cannot be produced in court, without bad evidence are applicable to cases of libel or slander.
faith on the part of the offeror; When such libel or slander was committed through
2. When the original is in the custody or under the a published article, copies of such article constitute
control of the party against whom the evidence the best evidence. (Fiscal of Pampanga vs. Reyes,
is offered, and the latter fails to produce it after 55 Phil. 522, 1910)
reasonable notice;
3. When the original consists of numerous Company is suing for damages and presented as
accounts or other documents which cannot be evidence are computations made by private
examined in court without great loss of time accountants. The Court held that the amount
and the fact sought to be established from claimed does not comply with the best evidence
them is only the general result of the whole; rule. Section 2(e) Rule130 is inapplicable because
and (1) the voluminous character of the records, on
4. When the original is a public record in the which the accountant's reports were based, was not
custody of a public officer or is recorded in a established, and (2) a requisite for the application of
public office. the rule is that the records and accounts should be
made accessible to the adverse party so that the
NOTE: latter may test it on cross-examination. (Compania
The non-production of the original document by an Maritima vs. Allied Free Workers, G.R. No. L-
accused unless justified under the exceptions gives 289999, 1977)
rise to the presumption of suppression of evidence
adverse to him. c. MEANING OF ORIGINAL

b. WHEN APPLICABLE Original of Documents

1. The original of a document is one the contents
The best evidence rule cannot be invoked unless of which are the subject of inquiry.
the contents of the writing are the subject of the 2. When a document is in two or more copies,
judicial inquiry. executed at or about the same time, with
identical contents, all such copies are equally
If the subject of the inquiry is not the contents of a regarded as originals.
document, then the Best Evidence Rule does not 3. When an entry is repeated in the regular
apply. For example, Accused is charged with course of business, one being copied from
perjury for lying under oath in a Senate hearing. another at or near the time of the transaction,
The prosecution need not present the transcript of all entries are likewise equally regarded as
the testimony given at the hearing. The prosecution originals
can present a witness who heard what Accused
testified to in the Senate because, here, the subject NOTE:
of the inquiry is not the contents of the transcript but A carbon copy of a letter is a duplicate original and
whether Accused uttered a falsehood while under admissible. Photographic copies of writings or
oath at the hearing. In this instance, while the photocopies are not duplicate originals as they are
transcript is the ―better‖ or ―best‖ evidence in the produced at a later time. Such are considered
sense that it is presumably more reliable, the secondary evidence.
testimony of the witness who heard utterance of the
Accused at the Senate is nonetheless admissible When carbon sheets are inserted between two or
even without accounting for the loss of the more sheets of writing paper so that the writing of a
transcript. contract upon the outside sheet, including the
signature of the party to be charged thereby,
The best evidence rule applies only when the produces facsimile upon the sheets beneath, such
contents of the documents are the subject of signature being thus reproduced by the same stroke
inquiry. Since in this case the prosecution of the pen which made the surface or exposed
presented the marked money solely for the purpose impression, all of the sheets so written on are
of establishing its existence and not its contents, regarded as duplicate originals and either of them
other substitutionary evidence like a Xerox copy is may be introduced in evidence as such without
admissible without the need of accounting for the accounting for the nonproduction of the others.
original. (People vs. Tandoy, G.R. No. 80505, 1990) (People vs. Tan, G.R. No. L-14257, 1959)

Only a photocopy of the Employee Clearance was The best evidence rule applied in copyright
presented in evidence. The Court held that the infringement case, where plaintiff possessed no
photocopy is admissible as evidence since an originals of any work he contended was copied,
exception to the best evidence rule is when the accordingly before subsequent reconstructions
document sought to be presented is in the were admissible plaintiff had to establish that the
possession of the person against whom it is to be originals were lost or destroyed through no fault of
offered and such party fails to present it even after his own. Thus, copyrighted drawings offered as
reasonable notice. (Pacasum vs. People, G.R. No. evidence are considered as documentary evidence
180314, 2009) and when subject of inquiry is the content of the
creation the original must be presented. (Seiler v.
Lucas Film, Ltd., 797 F.2d 1504, 1986)

353
 Rules on Loss
The evidence offered by NAPOCOR were It is not necessary to prove the loss beyond all
photocopies. The Court held that the photocopies possibility of mistake. A reasonable probability of
were not equivalent to the original documents its loss is sufficient, and this may be shown by a
based on the Rules on Electronic Evidence. The bona fide and diligent search for it in a place where
information contained in the photocopies submitted it is likely to be found.
by NAPOCOR will reveal that not all of the contents
therein, such as the signatures of the persons who Where both parties admit that an instrument has
purportedly signed the documents, may be been lost, it is sufficient to warrant the reception of
recorded or produced electronically. (National secondary evidence.
Power Corporation vs. Codilla, G.R. No. 170491,
2007) The fact of loss or destruction must, like any other
fact, be proved by a fair preponderance of
The Court held that the print-out and/or photocopies evidence, and this is sufficient.
of facsimile transmissions are not electronic
evidence. Thus, it is consequential that the same As long as the originals of a public document in the
may not be considered as the functional equivalent possession of the parties have been proven lost, a
of their original as decreed in the law. (MCC copy of the document made before it was lost is
Industrial Sales Corporation vs. Ssangyong admissible as secondary evidence of its contents,
Corporation, G.R. No. 170633, 2007) and the burden of proof is upon the party
questioning its authenticity to show that it is not a
Considering that the annotation of the disputed true copy of the original.
Deed of Sale in a tax declaration is not sufficient
proof of the transfer of property and inasmuch as The document conveying the land was lost so the
the subject of inquiry is the Deed of Sale, it was petitioner tried to present oral, secondary evidence.
incumbent on the petitioners to adduce in evidence The Court held that the secondary evidence is
the original. In the absence of the said document, admissible. The loss or destruction of the
the exhortations of petitioners regarding the instrument, meanwhile, may be proved by any
existence of said deed of sale must fail. (Ebreo v. person aware of the fact, or by anyone who has
Ebreo, G.R. No. 160065, 2006) made, in the judgment of the court, a sufficient
examination in the place or places where the
d. REQUISITES FOR INTRODUCTION OF document or papers of similar character are usually
SECONDARY EVIDENCE kept by the person in whose custody the document
was kept, and has been unable to find it; or who has
SEC. 5. When original document is unavailable made any other investigation sufficient to satisfy the
Court that the document was indeed lost. (Michael
When Secondary Evidence May be Admitted: & Co. vs. Enriquez, G.R. No. L-10824, 1915)
1. Proof of the existence and the due execution of
the original; SEC. 6. When original document is in adverse
2. Loss, destruction or unavailability of all such party’s custody or control
originals;
3. Reasonable diligence and good faith in the Facts Which Must be Shown by the Party
search for or attempt to produce the original. Offering Secondary Evidence:
1. The adverse party‘s custody or control of the
Before secondary evidence can be presented, it is original document;
imperative that all the originals, duplicates or 2. That reasonable notice was given to the
counterparts must be accounted for. The loss, adverse party who has the custody or control of
destruction, or inaccessibility of all the originals the document;
must be shown in order to admit secondary 3. Satisfactory proof of its existence;
evidence. (De Vera v. Aguilar, G.R. No. 83377, 4. Failure or refusal by the adverse party to
1993) produce it in court.

When the original is outside the jurisdiction of the If the refusal or failure of the adverse party to
court, as when it is in a foreign country, secondary produce the document is justified, it does not give
evidence is admissible. rise to the presumption of suppression of evidence
or create an unfavorable inference against him. It,
Due Execution May be Proven Through the however, authorizes the introduction of secondary
Testimony of Either: evidence.
1. The person who executed it;
2. The person before whom its execution was It is not necessary for a party seeking to introduce
acknowledged; or secondary evidence to show that the original is in
3. Any person who was present and saw it the actual possession of his adversary. It is enough
executed and delivered or who thereafter saw it that the circumstances are such as to indicate that
and recognized the signatures, or one to whom the writing is in his possession or under his control.
the parties thereto had previously confessed Neither is it required that the party entitled to the
the execution thereof. custody of the instrument should, on being notified
to produce it, admit having it in his possession.

354
(Villa Rey Transit v. Ferrer, G.R. No. L-23893,
1968) It is not expected of a witness to state the contents
of a document with verbal accuracy; it is enough
Only a photocopy of the Employee Clearance was that the substance of the documents be stated.
presented in evidence. The Court held that the
photocopy is admissible as evidence since an Authentic Document
exception to the best evidence rule is when the Authentic means that the document should be
document sought to be presented is in the genuine. It need not be a public document.
possession of the person against whom it is to be
offered and such party fails to present it even after In proving the contents of the original in some
reasonable notice. (Pacasum vs. People, G.R. No. authentic document, it is sufficient if it appears in a
180314, 2009) private document which is proved to be authentic.

Rules on Reasonable Notice When the Original consists of numerous

No particular form of notice is required, as long as it accounts or other documents which cannot be
fairly apprises the other party as to what papers are examined without great loss of time and the fact
desired. Even an oral demand in open court for sought to be established from them is only the
production within a reasonable period will suffice. general result of the whole
There is no need to present the original where the
Notice must be given to the adverse party, or his documents are too voluminous. Secondary
attorney, even if the document is in the actual evidence may consist of a summary of the
possession of a third party. voluminous documents or records. The voluminous
records must, however, be made accessible to the
Where receipt of the original of a letter is adverse party so that the correctness of the
acknowledged on a carbon copy thereof, there is no summary may be tested on cross-examination.
need for a notice to the other party to produce the (Rule 130, Sec 3(d))
original of the letter.
SEC. 7. Evidence admissible when original
Notice is a condition for the subsequent introduction document is a public record
of secondary evidence by the proponent.
Secondary evidence may consist of a Certified True
Where the nature of the action is in itself a notice, Copy issued by the public officer in custody thereof.
as where it is for the recovery or annulment of
documents wrongfully obtained or withheld by the When the original is outside of the jurisdiction of the
other party, no notice to produce said document is court, as when it is in a foreign country, secondary
required. evidence still admissible.

Presentation of Secondary Evidence for Lost or SEC. 8. Party who calls for document not bound
Unavailable Originals, or Originals in adverse to offer it
party’s custody MUST be in the following
ORDER: Production of papers or documents upon the trial,
1. A copy of the document; pursuant to a notice duly served, does not make
2. Recital of its contents in an authentic such papers or documents evidence. It is not until
document; the party who demanded the production of the
3. The recollection or testimony of the witnesses. papers examines them and offers them in evidence
that they assume the status of evidentiary matter.
The hierarchy of preferred secondary evidence
must be strictly followed. If there is no timely objection to a document on the
ground that it violates the Best Evidence Rule, the
Rule on Testimony Regarding Original secondary evidence will be admitted.
Document
The fact that a writing is really a true copy of the It is true that the Court relied not upon the original
original may be shown by the testimony of a person but only copy of the Angara Diary as published in
who has had the opportunity to compare the copy the Philippine Daily Inquirer. In doing so, the Court,
with the original and found it to be correct. did not, however, violate the best evidence rule.
Production of the original may be dispensed with, in
For the Testimony to be Admissible the trial court‘s discretion, whenever in the case in
1. The original was read by him or read to him by hand the opponent does not bona fide dispute the
another person; contents of the document and no other useful
2. He reads the copy; and purpose will be served by requiring production.
3. Finds that the latter corresponds with what was (Estrada vs. Desierto, G.R. Nos. 146710-15, 2001)
read to him.
4. RULES ON ELECTRONIC
It will also be sufficient where the person who made EVIDENCE (A.M. NO. 01-7-01-SC)
the original thereafter makes a copy a short time
thereafter by writing down the dictation of another
reading from the original.

355
a. SCOPE; COVERAGE; MEANING OF An electronic document shall be regarded as the
ELECTRONIC EVIDENCE; ELECTRONIC equivalent of an original document under the Best
DATA MESSAGE Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
Scope and Coverage accurately. (REE, Rule 4, Sec. 1)
The Rules on Electronic Evidence (REE) shall apply
whenever an electronic document or electronic data When copies or duplicates of a document shall be
message as defined in these rules is offered or regarded as original:
used in evidence. (REE, Rule 1 Sec. 1) 1. It is in two or more copies executed at or about
the same time with identical contents; or
These Rules shall apply to all civil actions and 2. It is a counterpart produced by the same
proceedings, as well as quasi-judicial and impression as the original, or from the same
administrative cases. (REE, Rule 1 Sec. 2) matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by
Applicability to Criminal Actions other equivalent techniques which accurately
As to the admissibility of the text messages, the reproduces the original
RTC admitted them in conformity with the Court‘s Such copies or duplicates shall be regarded as the
earlier Resolution applying the Rules on Electronic equivalent of the original. (REE, Rule 4, Sec. 2)
Evidence to criminal actions. (People v. Enojas,
G.R. No. 204894, 2014) Note: Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
Electronic Document - information or the extent as the original if: (REE, Rule 4, Sec. 2)
representation of information, data, figures, symbols 1. A genuine question is raised as to the
or other modes of written expression, described or authenticity of the original; or
however represented, by which a right is 2. In the circumstances it would be unjust or
established or an obligation extinguished, or by inequitable to admit the copy in lieu of the
which a fact may be proved and affirmed, which is original.
received, recorded, transmitted, stored, processed,
retrieved or produced electronically. Factors in Determining Evidentiary Weight of
Electronic Evidence (REE, Rule 7, Sec. 1 and 2)
It includes digitally signed documents and any print-
out or output, readable by sight or other means, In assessing the evidentiary weight of an electronic
which accurately reflects the electronic data document, the following factors may be considered:
message or electronic document. (REE, Rule 2, (REE, Rule 7, Sec. 1)
Sec. 1(h)) 1. The reliability of the manner or method in which
it was generated, stored or communicated,
Electronic Data Message - information generated, including but not limited to input and output
sent, received or stored by electronic, optical or procedures, controls, tests and checks for
similar means. (REE, Rule 2, Sec. 1(g)) accuracy and reliability of the electronic data
message or document, in the light of all the
Note: For purposes of these Rules, the term circumstances as well as any relevant
―electronic document‖ may be used interchangeably agreement;
with electronic data message‖. (REE, Rule 2, Sec 2. The reliability of the manner in which its
1(h) originator was identified;
3. The integrity of the information and
Electronic evidence as functional equivalent of communication system in which it is recorded
paper based documents - Whenever a rule of or stored, including but not limited to the
evidence refers to the term writing, document, hardware and computer programs or software
record, instrument, memorandum or any other form used as well as programming errors;
of writing, such term shall be deemed to include an
electronic document as defined in these Rules. In any dispute involving the integrity of the
(REE, Rule 3, Sec. 1) information and communication system in which an
electronic document or electronic data message is
b. PROBATIVE VALUE OF ELECTRONIC recorded or stored, the court may consider, among
DOCUMENTS OR EVIDENTIARY WEIGHT; others, the following factors: (REE, Rule 7, Sec. 2)
METHOD OF PROOF 1. Whether the information and communication
system or other similar device was operated in
Admissibility a manner that did not affect the integrity of the
An electronic document is admissible in evidence if: electronic document, and there are no other
1. It complies with the rules on admissibility reasonable grounds to doubt the integrity of the
prescribed by the Rules of Court and related information and communication system;
laws; and 2. Whether the electronic document was recorded
2. It is authenticated in the manner prescribed by or stored by a party to the proceedings with
these Rules. (REE, Rule 3, Sec. 2) interest adverse to that of the party using it; or
3. Whether the electronic document was recorded
Best Evidence Rule Under the REE or stored in the usual and ordinary course of
business by a person who is not a party to the

356
 proceedings and who did not act under the proving its authenticity in the manner provided in
control of the party using it. this Rule. (REE, Rule 5, Sec. 1)
4. The familiarity of the witness or the person who
made the entry with the communication and Manner of authentication
information system; Before any private electronic document offered as
5. The nature and quality of the information which authentic is received in evidence, its authenticity
went into the communication and information must be proved by any of the following means:
system upon which the electronic data (REE, Rule 5, Sec. 2)
message or electronic document was based; or 1. By evidence that it had been digitally signed by
6. Other factors which the court may consider as the person purported to have signed the same;
affecting the accuracy or integrity of the 2. By evidence that other appropriate security
electronic document or electronic data procedures or devices as may be authorized by
message. the Supreme Court or by law for authentication
of electronic documents were applied to the
Method of Proof document; or
3. By other evidence showing its integrity and
Affidavit Evidence - All matters relating to the reliability to the satisfaction of the Judge.
admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating Proof of electronically notarized document
facts of: A document electronically notarized in accordance
(i) direct personal knowledge of the affiant; or with the rules promulgated by the Supreme Court
(ii) based on authentic records shall be considered as a public document and
The affidavit must affirmatively show the proved as a notarial document under the Rules of
competence of the affiant to testify on the matters Court. (REE, Rule 5, Sec. 3)
contained therein. (REE, Rule 9, Sec. 1)
Authentication of Electronic Signature
Cross-Examination of Deponent – The affiant An electronic signature or a digital signature
shall be made to affirm the contents of the affidavit authenticated in the manner prescribed hereunder
in open court and may be cross-examined as a is admissible in evidence as the functional
matter of right by the adverse party. (REE, Rule 9, equivalent of the signature of a person on a written
Sec. 2) document. (REE, Rule 6, Sec. 1)

Examination of Witness An electronic signature may be authenticated in any

of the following manner: (REE, Rule 6, Sec. 2)
Electronic Testimony - After summarily hearing 1. By evidence that a method or process was
the parties pursuant to Rule 9 of these Rules, the utilized to establish a digital signature and
court may authorize the presentation of testimonial verify the same;
evidence by electronic means. Before so 2. By any other means provided by law; or;
authorizing, the court shall determine the necessity 3. By any other means satisfactory to the judge as
for such presentation and prescribe terms and establishing the genuineness of the electronic
conditions as may be necessary under the signature.
circumstances, including the protection of the rights
of the parties and witnesses concerned. (REE, Rule d. ELECTRONIC DOCUMENTS VIS-À-VIS
10, Sec. 1) HEARSAY RULE; BUSINESS RECORDS AS
EXCEPTION TO THE HEARSAY RULE (REE,
Transcript of electronic testimony - When RULE 8, SECTION 1 AND 2)
examination of a witness is done electronically, the
entire proceedings, including the questions and A memorandum, report, record or data compilation
answers, shall be transcribed by a stenographer, of acts, events, conditions, opinions, or diagnoses,
stenotypist or other recorder authorized for the made by electronic, optical or other similar means is
purpose, who shall certify as correct the transcript an exception to the hearsay rule provided that the
done by him. The transcript should reflect the fact following are shown by the testimony of the
that the proceedings, either in whole or in part, had custodian or other qualified witness:
been electronically recorded. (REE, Rule 10, Sec. 1. That it was made at or near the time of or from
2) transmission or supply of information;
2. That it was made by a person with knowledge
c. AUTHENTICATION OF ELECTRONIC thereof;
DOCUMENTS AND ELECTRONIC 3. That it was kept in the regular course or
SIGNATURES conduct of a business activity; and
4. That such was the regular practice to make the
Authentication of Electronic Documents (REE, memorandum, report, record, or data
Rule 5, Section 1 to 3) compilation by electronic, optical or similar
means (REE, Rule 8, Sec. 1)
Burden of proving authenticity
The person seeking to introduce an electronic This exception may be overcome by evidence of the
document in any legal proceeding has the burden of untrustworthiness of the source of information or the
method or circumstances of the preparation,

357
transmission or storage thereof. (REE, Rule 8, Sec.
2) Exception: A party may present evidence to
modify, explain or add to the terms of the written
e. AUDIO, PHOTOGRAPHIC, VIDEO AND agreement if he puts in issue in his pleading any of
EPHEMERAL EVIDENCE the following:
1. An intrinsic ambiguity, mistake or
Ephemeral Electronic Communication - refers to imperfection in the written agreement;
telephone conversations, text messages, chatroom 2. The failure of the written agreement to
sessions, streaming audio, streaming video, and express the true intent and agreement of
other electronic forms of communication the the parties thereto;
evidence of which is not recorded or retained. 3. The validity of the written agreement; or
(REE, Rule 2, Sec. 1(k)) 4. The existence of other terms agreed to by
the parties or their successors in interest
Text messages have been classified as ―ephemeral after the execution of the written
electronic communication‖ under Section 1(k), Rule agreement.
2 of the Rules on Electronic Evidence, and ―shall be
proven by the testimony of a person who was a Basis for the Rule
party to the same or has personal knowledge The parol evidence rule is based upon the
thereof.‖ (Vidallon-Magtolis v. Salud, A.M. No. CA- consideration that when the parties have reduced
05- 20-P, 2005) their agreement on a particular matter into writing,
all their previous and contemporaneous agreements
Admissibility (REE, Rule 11, Section 1 and 2) on the matter are merged therein, hence evidence
of a prior or contemporaneous verbal agreement is
Audio, photographic and video evidence generally not admissible to vary, contradict, or
Audio, photographic and video evidence of events, defeat the operation of a valid document.
acts or transactions shall be admissible provided:
(REE, Rule 11, Sec. 1) The reason for the parol evidence rule is the
1. It shall be shown, presented or displayed to the presumption that when the parties have reduced
court; and their agreement to writing, they have made such
2. It shall be identified, explained or authenticated writing the only repository and memorial of the truth,
by the person who made the recording or by and whatever is not found in the writing must be
some other person competent to testify on the understood to have been waived or abandoned.
accuracy thereof (Cruz v. CA, G.R. No. 79962, 1990)

Ephemeral electronic communications a. APPLICATION OF THE PAROL EVIDENCE

Ephemeral evidence shall be proven by the RULE
testimony of a person who was a party to the same
or has personal knowledge thereof. When Parol Evidence Rule Applies
 In the absence or unavailability of such 1. Existence of a valid contract;
witnesses, other competent evidence may 2. The terms of the agreement must be in writing.
be admitted. This may refer to either public or private writing;
A recording of the telephone conversation or 3. The dispute is between parties and their
ephemeral electronic communication shall be successors in interest; and/or
covered by the immediately preceding section. 4. There is dispute as to the terms of the
Note: If the foregoing communications are recorded agreement with the party basing his claim or
or embodied in an electronic document, then the asserting a right originating in the instrument or
provisions of Rule 5 on authentication of electronic the relation established thereby.
documents shall apply. (REE, Rule 11, Sec. 2)
No express trust concerning an immovable or any
5. PAROL EVIDENCE RULE interest therein may be proved by parol evidence.

PAROL EVIDENCE: any evidence aliunde The parol evidence rule is predicated on the
(extraneous evidence), whether oral or written, existence of a document embodying the terms of an
which is intended or tends to vary or contradict a agreement. A receipt is not such a document as it
complete and enforceable agreement embodied in merely attests to the receipt of money and it is not
a document. and could have not been intended by the parties to
be the sole memorial of their agreement. (Cruz vs.
EVIDENCE ALIUNDE: extrinsic evidence that may CA, 192 SCRA 209, 1990)
refer to testimonial, real or documentary evidence
The parol evidence rule does not apply, and may
General Rule: When the terms of an agreement not properly be invoked by either party to the
have been reduced to writing, it is to be considered litigation against the other, where at least one of the
as containing all the terms agreed upon and there parties to the suit is not party or a privy of a party to
can be, between the parties and their successors in the written instrument in question and does not
interest, no evidence of such terms other than the base a claim on the instrument or assert a right
contents of the written agreement. originating in the instrument or the relation
The term ―agreement‖ includes wills.

358
established thereby. (Lechugas vs. CA, G.R. Nos.
L-39972 & L-40300, 1986) Purpose: The purpose of this exception is to enable
the court to ascertain the true intention of the
For the parol evidence rule to apply, a written parties or the true nature of the transaction between
contract need not be in any particular form, or be the parties.
signed by both parties. What is required is that the
agreement be in writing since written evidence is so INTRINSIC AMBIGUITY: An intrinsic (latent)
much more certain and accurate than that which ambiguity in the written agreement is required to be
rests in fleeting memory only. (Inciong, Jr. vs. CA, put in issue in the pleading in order that parol
G.R. No. 96405, 1996) evidence therein may be admitted. There is latent
ambiguity when the writing on its face appears clear
b. WHEN PAROL EVIDENCE CAN BE and unambiguous but there are collateral matters or
INTRODUCED circumstances which make the meaning uncertain,
or where a writing admits of two constructions both
In order that the parol evidence may be admissible, of which are in harmony with the language used.
the mistake or imperfection of the document, or its
failure to express the true intent and agreement of Example of intrinsic ambiguity is when the
the parties, or the validity of the agreement must be documents refer to a particular person but such
put in issue in the pleadings. Where the plaintiff name pertains to many persons with same name.
failed to allege any such fact in his complaint, he
cannot introduce parol evidence thereon. PATENT OR EXTRINSIC AMBIGUITY: is such
ambiguity which is apparent on the face of the
If the defendant invoked such fact in his answer, writing itself and requires something to be added in
parol evidence may be introduced as such fact is order to ascertain the meaning of the words used.
now put in issue. In this case, parol evidence is not admissible,
otherwise the court would be creating a contract
While parol evidence is admissible in a variety of between the parties.
ways to explain the meaning of written contracts, it
cannot serve the purpose of incorporating into the INTERMEDIATE AMBIGUITY: A situation where an
contract additional contemporaneous conditions ambiguity partakes of the nature of both patent and
which are not mentioned at all in the writing, unless latent ambiguity. In this case, while the words are
there has been fraud or mistake. In the case at bar, seemingly clear and with a settled meaning, they
it is sought to show that the sugar was to be are actually equivocal and admit of two
obtained exclusively from the crop raised by the interpretations. Here, parol evidence is admissible
defendant; however, there is no clause in the to clarify the ambiguity provided that the matter is
written contract which even remotely suggests such put in issue by the pleader. Example: Dollars, tons
a condition. (Yu Tek vs. Gonzales, G.R. No. L-9935, and ounces.
1915)
Thus, intrinsic and intermediate ambiguities are
Serrano introduced parol evidence to prove that he curable by extraneous evidence.
was merely acting as an agent without any
consideration. The Court held that Serrano can NOTE:
introduce such parole evidence because the case at False description does not vitiate a document if the
bar is not one where the evidence offered varies, subject is sufficiently identified. The incorrect
alters, modifies, or contradicts the terms of description shall be rejected as surplusage while
indorsement admittedly existing. (Maulini vs. the correct and complete description standing alone
Serrano, G.R. No. L-8844, 1914) shall sustain the validity of the writing.

The act or statement of Woodhouse was not sought MISTAKE: A mistake of fact which is mutual to the
to be introduced to change or alter the terms of the parties or where the innocent party was imposed
agreement, but to prove how he induced the Halili upon by unfair dealing of the other.
to enter into it — to prove the representations or
inducements, or fraud, with which or by which he To justify the reformation of a written
secured the other party's consent thereto. These instrument upon the ground of mistake, the
are expressly excluded from the parol evidence concurrence of three things is necessary:
rule. (Woodhouse vs. Halili, G.R. No. L-4811, 1953) 1. Mistake should be of fact;
2. Mistake should be MUTUAL or common to both
Although parol evidence is admissible to explain the parties to the instrument – Reformation is then
meaning of a contract, it cannot serve the purpose given because mistake is mutual. The parties
of incorporating into the contract additional must have come to an actual oral agreement
contemporaneous conditions which are not before they have attempted to reduce it in
mentioned at all in the writing unless there has been writing;
fraud or mistake. (Ortanez vs. CA, G.R. No. 3. The mistake should be ALLEGED and
107372, 1997) PROVED by clear and convincing evidence.

a) An intrinsic ambiguity, mistake or IMPERFECTION: includes an inaccurate statement

imperfection in the written agreement in the agreement, or incompleteness in the writing,

359
or the presence of inconsistent provisions therein. ADDITIONAL RULES:
As a matter of substantive law, when one party was
mistaken and the other knew that the instrument did Rule on Conditional Agreements
not state their real agreement but concealed the When the operation of the contract is made to
fact from the former, the instrument may be depend upon the occurrence of an event, which for
reformed. that reason is a condition precedent, such may be
established by parol evidence. This is not varying
b) Failure of the written agreement to express the terms of the written contract by extrinsic
the true intent and agreement of the parties agreement for the simple reason that there is no
thereto contract in existence; there is nothing to which to
apply the excluding rule.
The failure of the writing to express the true
agreement of the parties must put in issue in the The second paragraph contained in the letter is a
pleading by the party who wants to prove the defect condition precedent, which states: ―This matter has
in the writing. been the subject of agreement between your
husband and this office.‖ When the operation of the
Although parol evidence is admissible to explain the contract is made to depend upon the occurrence of
meaning of the contract, it cannot serve the purpose an event, which, for that reason is a condition
of incorporating into the contract additional precedent, such may be established by parole
contemporaneous conditions which are not evidence. (Land Settlement and Development
mentioned at all in the writing unless there has been Corporation vs. Garcia Plantation, G.R. No. L-
fraud or mistake. 17820, 1963)

Due execution of a writing may be proved by parol Rule on Collateral Oral Agreements
evidence because what the rule prohibits is varying A contract made prior to or contemporaneous with
the terms of the writing by parol evidence. another agreement and if oral and not inconsistent
with the written contract is admissible within the
Ramos set up as affirmative defense that the exception to parol evidence rule. The parol
contract does not express the true agreement of the evidence rule will not apply when the collateral oral
parties because certain important conditions agreed agreement refers to separate and distinct subjects.
upon were not included therein by the counsel who
prepared the contract. The Court held that the The verbal assurance given by Seeto is a collateral
parole evidence is admissible when there is agreement, separate and distinct from the
allegation that the agreement does not express the indorsement, by virtue of which PNB was induced to
intent of the parties. (Enriquez vs. Ramos, G.R. No. cash the check, and therefore, admissible as an
L-18077, 1962) exception to the parol evidence rule. An extrinsic
agreement between indorser and indorsee which
Even if the document appears to be a sale, parol cannot be embodied in the instrument without
evidence may be resorted to if the same does not impairing its credit is provable by parol. (PNB vs.
express the true intent of the parties. The true Seeto, G.R. No. L-4388, 1952)
understanding in this case is that the portion of the
property will not be disposed of. (Madrigal vs. Court The only proof of the payment was Robles'
of Appeals, G.R. No. 142944, 2005) testimony regarding it. The Court held that The rule
against the admission of parol evidence does not
c) Validity of the written agreement extend so far as to preclude the admission of
extrinsic evidence to show prior or
Parol evidence is admissible to show that the contemporaneous collateral parole agreements
contract never existed on the ground of fraud, between the parties, but such evidence may be
illegality or incapacity of one of the parties. received, regardless of whether or not the written
agreement contains any reference to such collateral
d) The existence of other terms agreed to by the agreement, and whether the action is at law or in
parties or their successors in interest after equity. (Robles vs. Lizarraga, G.R. No. L-26173,
the execution of the written agreement 1927)

Canuto claimed that two days before the expiration Waiver of the Parol Evidence Rule
of the original redemption period, she asked
Mariano for an extension of time for the repurchase Even if such defenses were not raised in the
of the land and Mariano agreed. The Court held that pleadings, but the parol evidence is not objected to,
the rule forbidding the admission of parol or such objection is deemed waived.
extrinsic evidence to alter, vary, or contradict a
written instrument does not apply so as to prohibit c. DISTINCTIONS BETWEEN THE BEST
the establishment by parole of an agreement EVIDENCE RULE AND THE BEST
between the parties to a writing, entered into EVIDENCE RULE
subsequent to the time when the written instrument
was executed. (Canuto vs. Mariano, G.R. No. L- PAROL EVIDENCE BEST EVIDENCE
11346, 1918) RULE RULE
It presupposes that the Contemplates the

360
original document is situation wherein the PUBLIC DOCUMENTS PRIVATE
available in court original writing is not DOCUMENTS
available and/or there Is admissible without Before admitted in
is a dispute as to further proof as to its evidence as authentic,
whether the writing is due execution and its due execution and
the original genuineness authenticity must be
Prohibits the varying of Prohibits the prove
the terms of a written introduction of A public instrument is Binds only the parties
agreement substitutionary evidence even against and privies to the private
evidence in lieu of the third parties of the fact writing as to the due
original document which gave rise to its execution and date of
regardless of whether due execution and to the document
or not it varies the the date of the latter
contents of the original
With the exception of Applies to all kinds of c. WHEN PRIVATE WRITING REQUIRES
wills, the parol evidence writings AUTHENTICATION; PROOF OF PRIVATE
rule applies only to WRITING
documents which are
contractual in nature Before any private document offered as authentic is
Can be invoked only It can be invoked by received in evidence, its due execution and
when the controversy is any party to an action authenticity must be proved either:
between the parties to the regardless of whether 1. By anyone who saw the document executed or
written agreement, their or not such party has written; or
privies, or any party participated in the 2. By evidence of the genuineness of the
directly affected thereby writing involved. signature or handwriting of the maker.
(this is to prevent
fraudulent operation of Any other private document need only be identified
the instrument upon the as that which it is claimed to be. (Rule 132, Sec. 20)
rights of strangers)
Additional Modes of Authenticating a Private
6. AUTHENTICATION AND PROOF OF Writing:
1. Doctrine of Self-Authentication
DOCUMENTS
Where the facts in the writing could only have
been known by the writer.
a. MEANING OF AUTHENTICATION
2. Authentication by Adverse Party
Where reply of the adverse party refers to and
Authentication is the process of proving the due
affirms the sending and his receipt of the letter
execution and genuineness of the document.
in question, a copy of which the proponent is
offering as evidence.
In order to be admissible in evidence, the object
sought to be offered must authenticated, that is, it
d. WHEN EVIDENCE OF AUTHENTICITY OF A
must be shown to have been the very thing that is
PRIVATE WRITING IS NOT REQUIRED
the subject matter of the lawsuit or the very one
(ANCIENT DOCUMENTS)
involved to prove an issue in the case.
Where a private document is more than thirty years
b. PUBLIC AND PRIVATE DOCUMENTS
old, is produced from the custody in which it would
naturally be found if genuine, and is unblemished by
DOCUMENTS– a deed, instrument or other duly
any alterations or circumstances of suspicion, no
authorized paper by which something is proved,
other evidence of its authenticity need be given.
evidenced or set forth.
(Rule 132, Sec. 21)
Documents may either be public or private.
e. HOW TO PROVE THE GENUINENESS OF A
HANDWRITING
PUBLIC DOCUMENTS
1. The written official acts, or records of the
The handwriting of a person may be proved by:
official acts of the sovereign authority, official
1. Any witness who believes it to be the
bodies and tribunals, and public officers,
handwriting of such person because he
whether of the Philippines, or of a foreign
has seen the person write, or he has
country;
seen writing purporting to be his upon
2. Documents acknowledged before a notary
which the witness has acted or been
public except last wills and testaments; and
charged, and has thus acquired
3. Public records, kept in the Philippines, of
knowledge of the handwriting of such
private documents required by law to the
person.
entered therein.
2. By a comparison, made by the witness or
the court, with writings admitted or
All other writings are PRIVATE. (Rule 132, Sec. 19)
treated as genuine by the party against
whom the evidence is offered, or proved

361
 to be genuine to the satisfaction of the copy of the original, or a specific part thereof, as the
judge. (Rule 132, Sec. 22) case may be.

Evidence of Genuineness of Handwriting The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk
1. Testimony of the writer; of a court having a seal, under the seal of such
2. Testimony of a witness who actually saw court. (Rule 132, Sec. 25)
the person writing the instrument whether
the witness attested to the instrument or h. PUBLIC RECORD OF A PRIVATE
not; DOCUMENT
3. Testimony of a witness who is sufficiently
familiar with handwriting such witness can An authorized public record of a private document
give an opinion or can make a comparison may be proved by the original record, or by a copy
of questioned handwriting and admitted thereof, attested by the legal custodian of the
genuine specimens. record, with an appropriate certificate that such
officer has the custody. (Rule 132, Sec. 27)
NOTE:
 Expert testimony on handwriting is not Note: Any public record, an official copy of which is
mandatory. admissible in evidence, must not be removed from
the office in which it is kept, except upon order of a
f. PUBLIC DOCUMENTS AS EVIDENCE; court where the inspection of the record is essential
PROOF OF OFFICIAL RECORD to the just determination of a pending case. (Rule
132, Sec. 26)
Public documents are admissible without further
proof of their genuineness and due execution. i. PROOF OF LACK OF RECORD

Documents consisting of entries in public records A written statement signed by an officer having the
made in the performance of a duty by a public custody of an official record or by his deputy that
officer are prima facie evidence of the facts therein after diligent search no record or entry of a specified
stated. tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is
All other public documents are evidence, even admissible as evidence that the records of his office
against a third person, of the fact which gave rise to contain no such record or entry. (Rule 132, Sec. 28)
their execution and of the date of the latter. (Rule
132, Sec. 23) j. HOW A JUDICIAL RECORD IS IMPEACHED

Proof of Official Record Any judicial record may be impeached by evidence

of:
The record of public documents referred to in 1. Want of jurisdiction in the court or judicial
paragraph (a) of Section 19 (written official acts, or officer;
records of the official acts), when admissible for any 2. Collusion between the parties; or
purpose, may be evidenced by: 3. Fraud of the party offering the record, in
1. An official publication thereof; or respect to the proceedings. (Rule 132, Sec. 29)
2. By a copy attested by the officer having the
legal custody of the record, or by his deputy; k. PROOF OF NOTARIAL DOCUMENTS
and
3. If the record is not kept in the Philippines, Every instrument duly acknowledged or proved and
should be accompanied with a certificate that certified as provided by law, may be presented in
such officer has the custody. evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the
If the office in which the record is kept is in a foreign execution of the instrument or document involved.
country, (Rule 132, Sec. 30)
1. The certificate may be made by a secretary of
the embassy or legation, consul general, l. HOW TO EXPLAIN ALTERATIONS IN A
consul, vice consul, or consular agent or by any DOCUMENT
officer in the foreign service of the Philippines
stationed in the foreign country in which the The party producing a document as genuine which
record is kept; and has been altered and appears to have been altered
2. Authenticated by the seal of his office. after its execution, in a part material to the question
in dispute, must account for the alteration.
g. ATTESTATION OF A COPY
How a party may account for such alteration
What Attestation Must Contain
Whenever a copy of a document or record is He may show that:
attested for the purpose of evidence, the attestation 1. The alteration was made by another, without
must state, in substance, that the copy is a correct his concurrence, or

362
2. It was made with the consent of the parties a. Res inter alios acta rule
affected by it, or b. Admission by a party
3. It was otherwise properly or innocently made, c. Admission by a third party
or d. Admission by a co-partner or agent
4. The alteration did not change the meaning or e. Admission by a conspirator
language of the instrument. f. Admission by privies
g. Admission by silence
If he fails to do that, the document shall not be h. Confessions
admissible in evidence. (Rule 132, Sec. 31) i. Similar acts as evidence
6. HEARSAY RULE
m. DOCUMENTARY EVIDENCE IN AN a. Meaning of hearsay
UNOFFICIAL LANGUAGE b. Reason for exclusion of hearsay
c. Exceptions to the hearsay rule
Documents written in an unofficial language shall i. Dying declaration
not be admitted as evidence, unless accompanied ii. Declaration against interest
with a translation into English or Filipino. To avoid iii. Act or declaration about pedigree
interruption of proceedings, parties or their iv. Family reputation or tradition
attorneys are directed to have such translation regarding pedigree
prepared before trial. (Rule 132, Sec. 32) v. Common reputation
vi. Part of the res gestae
END OF TOPIC vii. Entries in the course of business
viii. Entries in official records
ix. Commercial lists and the like
x. Learned treaties
E. TESTIMONIAL EVIDENCE xi. Testimony or deposition at a former
trial
7. OPINION RULE
1. QUALIFICATIONS OF A WITNESS a. Opinion of expert witness
2. COMPETENCY VERSUS b. Opinion of ordinary witness
CREDIBILITY OF A WITNESS 8. CHARACTER EVIDENCE
3. DISQUALIFICATIONS OF A a. Criminal cases
b. Civil cases
WITNESSES
a. By reason of mental capacity or 9. RULE ON EXAMINATION OF A
immaturity CHILD WITNESS (A.M. NO. 04-07-
b. By reason of marriage SC)
c. By reason of death or insanity of a. Applicability
adverse part b. Meaning of child witness
d. By reason of privileged communication c. Competency of a child witness
4. EXAMINATION OF A WITNESS d. Examination of a child witness
a. Rights and obligations of a witness e. Live-link TV testimony of a child
b. Order in the examination of an witness
individual witness f. Videotaped deposition of a child
i. Direct examination witness
ii. Cross examination g. Hearsay exception in child abuse cases
iii. Re-direct examination h. Sexual abuse shield rule
iv. Re-cross examination i. Protective orders
v. Recalling the witness
h. Leading questions; Misleading
questions 1. QUALIFICATIONS OF A WITNESS
i. Methods of impeachment of adverse
party’s witness General Rule
j. How the witness is impeached by All persons who can perceive, and perceiving, can
evidence of inconsistent statements; make their known perception to others, may be
Laying the predicate witnesses. (Rule 130, Sec. 20)
k. Evidence of the good character of a Exceptions: Except as provided by law or the
witness Rules, such as:
l. Judicial Affidavit Rule (A.M. No. 12-8-8- 1. Disqualification by reason of mental
SC) capacity or immaturity (Rule 130, Sec. 21)
5. ADMISSIONS AND CONFESSIONS 2. Disqualification by reason of marriage (Rule
130, Sec. 22)
3. Disqualification by reason of death or
insanity of adverse party (Rule 130, Sec.
23)
4. Disqualification on ground of privileged
communication (Rule 130, Sec. 24)

363
 competency of a witness to establish the grounds of
Loss of the perceptive senses after the occurrence incompetency.
of the fact does not affect the admissibility of the
testimony. When Objection to Competency Must be Made:
The objection to the competency of a witness must
General Rule: Religious or political belief, interest be made:
in the outcome of the case, or conviction of a crime 1. Before the witness testifies – if the party
shall not be a ground for disqualification. knows before the trial that the witness is
Exception: Unless otherwise provided by law. incompetent
2. As soon as it becomes apparent – if the
General Rule: Conviction of a crime is not a ground incompetency appears on the trial
for disqualification of a witness.
Exceptions: Effect of Failure to Object to Competency of
1. Those convicted of falsification of a Witness
document, perjury or false testimony cannot Failure to object to the competency of a witness
be witnesses to a will. (New Civil Code, Art. amounts to a waiver and once the evidence is
821) admitted, it shall stay in the records and can be
2. An accused convicted of a crime involving weighed according to its merits.
moral turpitude, whenever made a co-
accused in any criminal case, cannot be 3. DISQUALIFICATIONS OF
discharged to become a witness for the WITNESSES
Government. (Rule 119, Sec. 17)
Two (2) Kinds of Disqualifications of Witnesses:
A prospective witness must show that he has the 1. ABSOLUTE DISQUALIFICATION – the
following abilities: (ORRR)
person is forbidden to testify on any matter
1. To Observe – testimonial quality of perception;
(i.e., Section 21 and 22, Rule 130 of the Rules
2. To Remember – testimonial quality of memory;
of Court).
3. To Relate – testimonial quality of narration; and
2. RELATIVE DISQUALIFICATION – the person
4. To Recognize a duty to tell the truth –
is forbidden to testify only on certain matters
testimonial quality of sincerity (Herrera, p. 278)
(i.e., Section 23 and 24, Rule 130 of the Rules
of Court).
2. COMPETENCY VERSUS
CREDIBILITY OF A WITNESS a. BY REASON OF MENTAL CAPACITY OR
IMMATURITY
Competency pertains to the legal fitness or ability of
a witness to be heard on a trial of a cause. The Following Persons Cannot be Witnesses:
1. Those whose mental condition, at the time of
Credibility of a witness refers to the believability of a their production for examination, is such that they
witness and has nothing to do with the law or the are incapable of intelligently making known their
rules. It refers to the weight and trustworthiness or perception to others; (By reason of mental
reliability of the testimony. (Riano, p.297) incapacity); and
2. Children whose mental maturity is such as to
By credibility of a witness is meant his integrity, render them incapable of perceiving the facts
disposition, and intention to tell the truth in the respecting which they are examined and of relating
testimony he has given. them truthfully. (By reason of immaturity) (Rule 130,
Sec. 21)
To hold that a particular person is competent to
testify upon a given matter does not mean that his If at the time the witness is testifying, he/she has
testimony thereon must be believed by the court or the mental capacity to distinguish between right and
must be deemed by it to be of sufficient probative wrong so far as the facts in issue and his/her
value to establish the point which it was intended to testimony are involved, understands the nature and
prove. Competency of a witness is one thing, and it obligation of an oath, and can give fairly intelligent
is another to be a credible witness. (Regalado 2008 and reasonable narrative of the matters which
ed.) he/she testifies; then the witness is competent to
testify.
The Test of Competency
Whether the individual has sufficient understanding The victim‘s feeble-mindedness was an undisputed
to appreciate the nature and obligation of an oath fact. However, there is no showing that she could
and sufficient capacity to observe and describe not convey her ideas by words or signs. It appears
correctly the facts in regard to which he is called to in the records that Clara gave sufficiently intelligent
testify. answers to the questions propounded by the court
and the counsels. The court is satisfied that the
Presumption of Competency complainant can perceive and transmit in her own
As a general rule, when a witness takes the stand way her own perceptions to others. (People vs. De
to testify, the law presumes that he is competent. Jesus, G.R. No. L-39087, 1984)
The burden is upon the party objecting to the

364
Paul, a five-year-old boy, testified that Rolando the other. (People v. Castaneda, G.R. No. L-46306,
boxed his wife then burned her. The testimony of 1979)
Paul shows that he is of above average intelligence,
that he is capable of giving responsive answers, of The basis for the disqualification is the relationship
recalling events, and of relating his recollections. of the spouses and not their pecuniary interest. In
For a child witness to be competent, it must be the cases wherein a spouse is allowed to be
shown that he has the capacity of (1) observation, examined by the adverse party as a hostile witness
(2) of recollection, and (3) of communication. when the spouses are parties to the action, the
(People vs. Mendoza, G.R. No. 113791, 1996) interests of the spouses are separate. The spouse
offered as a witness is merely a nominal party and
A mental retardate is not per se disqualified from is allowed to do so only as a concession from the
being a witness. As long as his senses can perceive marital disqualification rule for the sake of
facts and he can convey his perceptions in court, he discovery. (Lezama vs. Rodriguez, G.R. No. L-
can be a witness. (People of the Philippines v. 25643, 1968)
Españole, G.R. No. 119308, 1997)
Duration of the Privilege
Presumption of Sanity The privilege lasts only during marriage.
General rule: The law presumes that every person
is of sound mind, in the absence of proof to the c. BY REASON OF DEATH OR INSANITY OF
contrary. ADVERSE PARTY (the “Dead Man’s
Exception: Witness is a lawful inmate of an asylum Statute”)
for the insane. (Torres v. Lopez, G.R. No. L-24569,
1926) Purpose:
The object and purpose of the rule is to guard
b. BY REASON OF MARRIAGE (MARITAL against the temptation on the part of the surviving
DISQUALIFICATION RULE) party to give false testimony against the deceased
(or his/her estate) or person of unsound mind as to
Reasons: any matter of fact occurring before the other party
1. There is identity of interests between husband died or became of unsound mind. The Dead Man‘s
and wife; Statute puts the two parties on equal footing:
2. If one were to testify for or against the other, Where death has sealed the lips of the dead, the
there is the consequent danger of perjury; law seals the lips of the living.
3. The policy of the law is to guard the security
and confidence of private life and to prevent Requisites:
domestic disunion and unhappiness; 1. The witness is a party or assignor of a party to
4. Where there is want of domestic tranquility, a case or is a person in whose behalf a case is
there is danger of punishing one‘s spouse prosecuted;
through the hostile testimony of the other. 2. The action is against an executor or
administrator or other representative of a
Requisites: deceased person or against a person of
1. Spouses are legally married; and unsound mind;
2. Either spouse must be a party to a case 3. The subject matter of the action is a claim or
demand against the estate of a deceased
Exceptions: person or a person of unsound mind; and
1. The case in which the husband or wife is 4. The testimony of witnesses and the testimony
called to testify is a civil case instituted by of the party or assignor of a party to the case
one against the other refer to any matter of fact which occurred
2. That it is a criminal case for a crime before the death of the deceased or before the
committed by one against the other, or the person became insane.
latter's direct descendants or ascendants.
Waiver of the Privilege:
Reason for the Exceptions: The disqualification under this rule is waived if the
Where the martial and domestic relations are so defendant does not timely object to the admission of
strained that there is no more harmony to be such evidence or if the defendant testifies or cross-
preserved or peace and tranquility which may be examines the other party on the prohibited matters.
disturbed, the reason based upon such harmony
and tranquility fails. In such a case, identity of It is also waived when the defendant files a
interests disappears and the consequent danger of counterclaim against the plaintiff. (Goni v. Court of
perjury based on that identity is nonexistent. Appeals, G.R. No. L-27434, 1986)
(Alvarez v. Ramirez, G.R. No. 143349, 2005)
The Dead Man’s Statute Does Not Apply:
When an offense directly attacks or directly and 1. To a witness who is not party or assignor of a
vitally impairs the conjugal relation, it comes within party or person in whose behalf a case is being
the exception to the statute that one shall not be a prosecuted.
witness against the other except in a criminal
prosecution for a crime committed by one against 2. Where the case is not a claim or demand
against the estate of a deceased person.

365
No claim or demand is being made against the a) Husband and Wife (Marital Communications
estate of Manuel Guerrero. The Dead Man‘s Statute Privilege)
only applies in cases where there is a claim or
demand against the estate of the deceased or Reason:
against the person of an unsound mind. (Guerrero Society‘s interest in the preservation of peace of
vs. St. Claire Realty, 124 SCRA 553, 1983) families and its strongest safeguard is to preserve
any violations of those confidences inherent in the
The statute does NOT apply when the actions were marital status.
not brought "against" the estate or not brought upon
claims "against" the estate. In this case, the action Ability to communicate without inhibitions is
is one by the administratrix to enforce demand "BY" essential in a marital relationship.
the estate. Hence, the statute is inapplicable and
the widow can testify. (Tongco vs. Vianzon, G.R. Requisites:
No. 27498, 1927) 1. The spouses must be legally married; and
2. The communication must be confidential and
3. When there is waiver. made during the marriage.

4. To a witness who is an officer and/or The privilege applies to any form of confident
stockholder of a corporation testifying for or disclosure both in words and in conduct.
against the corporation which is a party to an
action upon a claim or demand against the To whom the privilege belongs
estate of a deceased person. (Lichauco v. The privilege belongs to the communicating spouse.
Altantic Gulf, G.R. No. L-2016, 1949)
The privilege does NOT apply:
5. When the testimony of plaintiff denies the 1. When the husband or wife is called to be a
occurrence of a transaction with the deceased. witness in a civil case instituted by one against
the other.
6. When the testimony refers to fraudulent 2. When the husband or wife is called to be a
transactions as the rule was never intended to witness in a criminal case for a crime
serve as shield for fraud. committed by one against the other or the
latter‘s direct ascendants or descendants.
7. If the case is prosecuted by an executor or 3. Communications between husband and wife
administrator or other representative of a overheard by a third person.
deceased person or by a person of unsound 4. Where the privileged communication came into
mind. the hands of a third party.

8. The dead man's statute is applied to cases filed Where a privileged communication from one spouse
AGAINST the administrator for claims to another comes into the hands of a third party,
AGAINST the estate of the deceased. In this whether legally or not, without collusion and
case, it the administrator who filed the case for voluntary disclosure on the part of either of the
delivery of the stocks and it was not a claim spouses, the privilege is thereby extinguished and
against the estate so the dead man's statute the communication, if otherwise competent,
does not apply. (Razon vs. IAC, G.R. No. becomes admissible. (People vs. Carlos G.R. No.
74306, 1992) L-22948, 1925)

9. When the testimony is favorable to the 5. When there is waiver.

representative of the deceased person or
person of unsound mind. Distinction between the Marital Disqualification
Rule and the Marital Communications Privilege
d. BY REASON OF PRIVILEGED
COMMUNICATION MARITAL MARITAL
DISQUALIFICATION COMMUNICATIONS
Privilege – a rule of law that to protect a particular RULE PRIVILEGE
relationship or interest, either permits a witness to (Sec 22) (Sec 24(a))
refrain from giving testimony he otherwise could be Prohibits adverse Prohibits only as to
compelled to give, or permits someone, usually one testimony regardless of knowledge obtained
of the parties, to prevent the witness from revealing source through confidence in
certain information. (Herrera, p.315) the marital relation
Exists only when a party Exists whether the
Privileged Communications (Rule 130, Section to the action is the husband or the wife is a
24): husband or wife party to the action or not
1. Husband and Wife Ceases upon death Continues even after the
2. Attorney and Client termination of the
3. Physician and Patient marriage
4. Priest and Penitent
5. Public Officers b) Attorney and Client

366
 4. When the communication was made in the
Reason: It is based upon grounds of public policy presence of third persons.
to enable full disclosure.
5. When the communication is overheard by third
McPartlin was entitled to the protection of the persons.
attorney-client privilege, because his statements
were made in confidence to an attorney for a co- Note: communication divulged to "strangers" or
defendant for a common purpose related to both outsiders can scarcely be considered a
defenses. (U.S. vs. McPartlin, 595 F.2d 1321 (7th confidential communication between attorney
Cir. 1979)) and client. (U.S. vs. Gordon-Nikkar, 518 F.2d
972 (5th Cir. 1975))
The period to be considered is the date when the
privileged communication was made by the client to 6. When the communication comes to the hands
the attorney in relation to either a crime committed of a third party.
in the past or with respect to a crime intended to be
committed in the future. In other words, If the client Note: The privilege which protects
seeks his lawyer‘s advice with respect to a crime communications between attorney and client
that the former has theretofore committed, he is does not extend to a copy of a letter written by
given the protection of a virtual confessional seal the client to his attorney which comes to the
which the attorney-client privilege declares cannot hands of the adverse party. Where the
be broken by the attorney without the client‘s authenticity of such documents is admitted, the
consent. (People vs. Sandiganbayan, G.R. No. court will take no notice of the manner in which
115439-41, 1997) it was obtained. (Barton vs. Leyte Asphalt &
Mineral Oil Co., G.R. No. L-21237, 1924)
Requisites:
1. There must be a relation of attorney and client; 7. When the action is one brought by the client
2. Communication by client to attorney; and against the attorney and the disclosure of the
3. Communication must have been made to the confidential information becomes necessary for
attorney in the course of or with a view to the attorney‘s own protection. (But limited only
professional employment. for what is necessary for attorney's own
protection)
Preliminary communications are within the privilege
provided they are made for the purpose of creating Note: Contracts between attorneys and clients
the attorney-client relationship. are inherently personal and private matters, but
they are a constant subject of litigation, and
The communications by Upjohn's employees to contracts relating to fees are essentially not of
counsel are covered by the attorney-client privilege a privileged nature. In other words, the terms of
insofar as the responses to the questionnaires and employment between attorney and client are
any notes reflecting responses to interview not of a privileged nature. (Orient Insurance vs.
questions are concerned. The communications Revilla, G.R. No. 34098, 1930)
concerned matters within the scope of the
employees' corporate duties, and the employees Note: When either the attorney or the client
themselves were sufficiently aware that they were breaches his duty, the fiduciary relations
being questioned in order that the corporation could between the two disappears justifying the
obtain legal advice. (Upjohn Co. vs. U.S., 449 U.S. removal of the case from the ambit of the
383, 1981) privilege. The relationship between the attorney
and client is uberrimei fidei. Thus when the
The Privilege Does NOT Apply: trust and confidence governing the relationship
ceases to exist and the parties become
1. When there is no attorney-client relationship. adversarial, the communication is no longer
protected. (Regala vs. Sandiganbayan G.R.
2. When the communication was not intended to No. 105938, 1996)
be confidential.
8. When there is waiver.
Note: A communication made by a client to his
attorney for the express purpose of its being (The attorney cannot make a waiver without the
communicated to a third person is essentially client's consent - express or implied)
inconsistent with the confidential relation. Such
communication is between the third person and The fact that a defense investigator on
the client, the attorney being merely an agent. respondent‘s behalf elicited statements of third
(Uy Chico vs. Union Life, G.R. No. L-9231, parties does not convert them into respondent‘s
1915) personal communications. Also, the work-
product privilege may be waived when the
3. When the communication is for an unlawful defense presents its investigator as a witness
purpose having for its object the commission of thus opening the investigator, along with the
a crime. product of his work, to cross-examination. (U.S.
vs. Nobles, 422 U.S., 1975)

367
 If they reveal communications, they are protected
9. The receipt of fees from a client is not usually by the attorney-client privilege. To the extent they
within the privilege because the payment of a do not reveal communications they reveal attorneys'
fee is not normally a matter of confidence or a mental processes in evaluating the
communication. The ministerial or clerical communications. These are protected as they
services of an attorney in transferring funds to constitute work product showing the lawyer‘s mental
or from a client is not a matter of confidence processes. It has already been held in Hickman that
that is protected by the privilege. (In re Grand such work product cannot be disclosed simply on a
Jury Investigation, 732 F.2d 447, 1983) showing of substantial need or inability to obtain the
equivalent without undue hardship. (Upjohn v. U.S.,
Crime or Fraud as Exception to the Privilege 449 U.S. 383, 1981)
There is no privilege if the services of the lawyer
were sought or obtained to enable or aid anyone to c) Physician and Patient
commit or plan to commit a crime or a fraud.
Reason:
Waiver of the Privilege: The privilege is intended to facilitate and make safe,
1. Client‘s failure to object to the attorney‘s full and confidential disclosure.
testimony.
2. Giving evidence on the privileged Requisites:
communication. 1. The privilege is claimed in a civil case;
3. When the privileged communication falls into 2. The person against whom the privilege is
the hands of the adverse party. claimed is one duly authorized to practice
4. In calling or cross-examining his attorney medicine, surgery or obstetrics;
regarding the privileged communication. 3. Such person acquired the information while he
was attending to the patient;
Where the government‘s lawyers have no case 4. The information was necessary to enable him
against an attorney‘s client unless, by revealing the to act in that capacity; and
client‘s name, the said name would furnish the only 5. The information was confidential and if
link that would form the chain of testimony disclosed would blacken the reputation of the
necessary to convict an individual of a crime, the patient.
client‘s name is privileged. (Regala v.
Sandiganbayan, G.R. No. 105398, 1996) In order that the disqualification by reason of
physician-patient privilege be successfully claimed,
General Rule: Client‘s identity is not privileged. the following requisites should concur:
Exceptions: 1. the privilege is claimed in a civil case;
1. Where a strong probability exists that 2. the person against whom the privilege is
revealing the client‘s name would implicate claimed is one duly authorized to practice
the client in the very activity for which he medicine, surgery or obstetrics;
sought the lawyer‘s advice. 3. such person acquired the information while he
2. Where disclosure would open the client to was attending to the patient in his professional
civil liability. capacity;
3. When the client‘s name would furnish the 4. the information was necessary to enable him to
link in the chain of testimony necessary to act in that capacity; and
convict an individual of a crime. 5. the information was confidential and if
4. When the nature of the attorney-client disclosed, would blacken the reputation of the
relationship has been previously disclosed patient. (Lim vs. Court of Appeals, 214 SCRA
and it is the identity which is intended to be 273, 1992)
confidential. (LAST LINK DOCTRINE –
non-privileged information such as identity Scope of the Privilege:
of the client is protected if the revelation of The prohibition applies not only to communications
such information would necessarily reveal made by the patient to the physician but also to
privileged information. (Riano, p. 283) opinions or prescriptions.

Work-product privilege The privilege does not cover all obtained

Here is simply an attempt, without purported confidentially or necessary for treatment. The
necessity or justification, to secure written information must be one, if disclosed, would
statements, private memoranda and personal blacken the reputation of the patient.
recollections prepared or formed by an adverse
party's counsel in the course of his legal duties. As The Privilege Does not Apply:
such, it falls outside the arena of discovery and 1. When the case is a criminal case.
contravenes the public policy underlying the orderly 2. When the testimony refers to information
prosecution and defense of legal claims. Not even regarding a patient which the physician
the most liberal of discovery theories can justify acquired either before the relation of physician
unwarranted inquiries into the files and the mental and patient began or after its termination.
impressions of an attorney. (Hickman v. Taylor, 329 3. When there is waiver.
U.S. 495, 1947) 4. If the physician acted for purposes other than
to prescribe for the patient.

368
5. When the information was not necessary for
the proper treatment of the patient. Exceptions:
6. When the information does not blacken the 1. If what is asked is useful evidence to
reputation of the patient. vindicate the innocence of an accused
7. Where an action for damages is brought by the person.
patient against his physician. 2. If the information will lessen the risk of
8. When the physician is presented as an expert false testimony.
witness and the facts testified to are merely 3. If the information is essential to the proper
hypothetical. (Lim v. Court of Appeals, G.R. No. disposition of the case.
91114, 1992) 4. If the benefit to be gained by a correct
9. When the information was intended to be disposition of the litigation is greater than
public, such as results of physical and mental any injury which could inure to the relation
examinations ordered by the court and results by a disclosure of the information.
of autopsies.
What is usually referred to as informer‘s privilege is
Where the person against whom the privilege is in reality the government‘s privilege to withhold from
claimed is the patient‘s husband who testifies on a disclosure the identity of persons who furnish
document executed by medical practitioners, his information of violations of laws to officers charged
testimony does not have the force and effect of the with enforcement of that law. (People v. Ong, G.R.
testimony of the physician who examined the No. 137348, 2004)
patient and executed the report. Plainly, this does
not fall within the prohibition. (Krohn vs. Court of The privilege under Section 21, Rule 130 is
Appeals, G.R. No. 108854, 1994) intended not for the protection of public officers but
for the protection of public interest. Where there is
d) Priest and Penitent no public interest that would be prejudiced, this rule
will not be applicable. The rule that a public officer
Reason: cannot be examined as to communications made to
To compel a minister or priest to testify to a him in official confidence does not apply when there
confession made to him is equivalent to an is nothing to show that the public interest would
annulment of the confession institution. suffer by the disclosure question. (Banco Filipino v.
Monetary Board, G.R. No. 70054, 1986)
Requisites:
1. The confession must be made to the minister When the ground for asserting the privilege as to
or priest in his professional character, and in subpoenaed materials sought for use in a criminal
the course of discipline enjoined by the rules of trial is based only on the generalized interest in
practice of the denomination to which the priest confidentiality, unsupported by a claim of the need
or minister belongs; and to protect military, diplomatic or sensitive national
2. The confession must be of a penitential security secrets, it cannot prevail against a
character. demonstrated, specific need for the
documents/recordings needed and over the
The Privilege Does Not Apply: fundamental demands of due process of law in the
1. Where a minister is consulted not as such (e.g., administration of criminal justice. The generalized
he is consulted as a friend or interpreter). assertion of the privilege must yield to the
2. Where the confession is not made in the demonstrated need for evidence in a pending
course of religious discipline. criminal trial. (U.S. vs. Nixon, 418 U.S. 683, 1974)
3. When there is waiver.
There is a Recognized Presumptive Presidential
e) Public Officers Communications Privilege - it was the President
herself, through Executive Secretary Ermita, who
Reason: invoked executive privilege on a specific matter
The right of the people to information on matters of involving an executive agreement between the
public concern shall be recognized. Access to Philippines and China, which was the subject of the
official records, and to documents and papers three. (Neri v. Senate Committee, G.R. No. 180643,
pertaining to official acts and transactions, or 2008)
decisions as well as to government research data
used as a basis for policy development, shall be Newsman’s Privilege (R.A. 1477, Sec. 1)
afforded the citizen subject to such limitations as Without prejudice to his liability under the civil and
maybe provided by law. (1987 Constitution, Article criminal laws, the publisher, editor, columnist or
III, Section 7) duly accredited reporter of any newspaper,
magazine or periodical of general circulation cannot
Requisites: be compelled to reveal the source of any news-
1. The communication must have been made report or information appearing in said publication
to a public officer; which was related in confidence to such publisher,
2. The communication was made in official editor or reporter unless the court or a House or
confidence; and committee of Congress finds that such revelation is
3. Public interest would suffer by the demanded by the security of the State.
disclosure of the information

369
Privileged Communication in Labor Conciliation
Proceedings (Labor Code, Art. 233) 5. Records of cases that are still pending for
Information and statements made at conciliation decision are privileged materials that cannot be
proceedings shall be treated as privileged disclosed, except only for pleadings, orders
communication and shall not be used as evidence and resolutions that have been made available
in the Commission. Conciliators and similar officials by the court to the general public.
shall not testify in any court or body regarding any
matters taken up at conciliation proceedings 6. The principle of comity or inter-departmental
conducted by them. courtesy demands that the highest officials of
each department be exempt from the
Secrecy of Bank Deposits (R.A. 1405, Sec. 2) compulsory processes of the other
All deposits of whatever nature with banks or departments.
banking institutions in the Philippines including
investments in bonds issued by the Government of 7. These privileges belong to the Supreme Court
the Philippines, its political subdivisions and its as an institution, not to any justice or judge in
instrumentalities, are hereby considered as of an his or her individual capacity. Since the Court is
absolutely confidential nature and may not be higher than the individual justices or judges, no
examined, inquired or looked into by any person, sitting or retired justice or judge, not even the
government official, bureau or office, except upon Chief Justice, may claim exception without the
written permission of the depositor, or in cases of consent of the Court. (In re: Production of Court
impeachment, or upon order of a competent court in Records, 2012)
cases of bribery or dereliction of duty of public
officials, or in cases where the money deposited or Witness Protection Security and Benefit Act
invested is the subject matter of the litigation. (R.A. 6981, Sec. 7)

Judicial Privilege All proceedings involving application for admission

At the most basic level and subject to the principle into the Program and the action taken thereon shall
of comity, Members of the Court, and Court officials be confidential in nature. No information or
and employees may not be compelled to testify on documents given or submitted in support thereof
matters that are part of the internal deliberations shall be released except upon written order of the
and actions of the Court in the exercise of their Department or the proper court.
adjudicatory functions and duties, while testimony
on matters external to their adjudicatory functions 4. EXAMINATION OF A WITNESS
and duties may be compelled by compulsory
processes. The examination of a witness shall be done:
1. In open court; and
To summarize these rules, the following are 2. Under oath or affirmation. (Rule 132, Sec. 1)
privileged documents or communications, and are
not subject to disclosure: The answers shall be given orally except if:
1. The witness is incapacitated to speak;
1. Court actions such as the result of the raffle of 2. The question calls for a different mode of
cases and the actions taken by the Court on answer. (Rule 132, Sec. 1)
each case included in the agenda of the
Court's session on acts done material to Note: However, check the Judicial Affidavit Rule
pending cases, except where a party litigant which now allows the testimonies of witnesses to be
requests information on the result of the raffle in affidavits.
of the case, pursuant to Rule 7, Section 3 of
the IRSC; Open Court
It is a court formally opened and engaged in the
2. Court deliberations or the deliberations of the transaction of judicial affairs.
Members in court sessions on cases and
matters pending before the Court; Reason why Examination Should be Done in
Open Court
3. Court records which are "predecisional" and This method allows the court the opportunity to
"deliberative" in nature, in particular, observe the demeanor of the witness and also
documents and other communications which allows the adverse party to cross-examine the
are part of or related to the deliberative witness. (Riano, Evidence, 359)
process, i.e., notes, drafts, research papers,
internal discussions, internal memoranda, OATH – A solemn declaration, accompanied by a
records of internal deliberations, and similar swearing to God or a revered person or thing, that
papers. one‘s statement is true or that one will be bound to
th
a promise. (Black’s Law Dictionary, 7 Ed., 1176)
4. Confidential Information secured by justices,
judges, court officials and employees in the AFFIRMATION – is a solemn pledge equivalent to
course of their official functions, mentioned in an oath but without reference to a supreme being or
(2) and (3) above, are privileged even after th
to swearing. (Black’s Law Dictionary, 7 Ed. 68)
their term of office.

370
Purpose of Rule Requiring Oath 2. Not to be detained longer than the interests of
To affect the conscience of the witness and compel justice require;
him/her to speak the truth and to lay him/her open 3. Not to be examined except only as to matters
to punishment for perjury in case he/she willfully pertinent to the issue;
falsified. 4. Not to give an answer which will tend to subject
him/her to a penalty for an offense unless
No special wording is necessary for an affirmation, otherwise provided by law (Right against self-
provided that the language used is designed to incrimination);
impress upon the individual the duty to tell the truth. 5. Not to give an answer which will tend to
(U.S v Kalaydjian, 784 F.2d 53 (2d Cir.1986)); degrade his/her reputation, unless it be the
(Riano, Evidence, 361) very fact at issue or to a fact from which the
fact in issue would be presumed. But a witness
The witness must take either an oath or affirmation, must answer to the fact of his previous final
but the option to do so is given to the witness and conviction for an offense. (RIGHT AGAINST
not to the court. (Riano, Evidence, 360) SELF-DEGRADATION)

Exceptions to Open Court Examinations: Scope of Right Against Self-Incrimination

1. Under the rule on Summary Procedure 1. The right against self-incrimination is granted
when the affidavits of the parties shall only in favor of individuals. Therefore, a
constitute the direct testimonies of the corporation cannot invoke that privilege as the
witnesses who executed the same. (Rule questioned testimony can come only from a
on Summary Procedure, Sec. 15) corporate officer or employee who has a
2. In civil cases, the parties are merely personality distinct from that of the corporation.
required to submit the affidavits of their 2. The right covers only testimonial compulsion
witnesses and other pieces of evidence on and production by him/her of incriminating
the factual issues (Rule on Summary documents. It does not exclude the body when
Procedure, Sec. 9) it can furnish relevant and competent evidence.
3. Depositions which may be taken before a
notary public (Rule 23, Sec. 10) or before Right Against Self-incrimination of an Accused
any person authorized to administer oaths and an Ordinary Witness Distinguished
(Rule 23, Sec. 14)
4. In a criminal case when a party may utilize ACCUSED ORDINARY WITNESS
the testimony of a witness who is He cannot be He may be compelled to
deceased (Rule 115, Sec. 1(f)) compelled to testify or testify by subpoena
5. Under the Judicial Affidavit Rule, the produce evidence even having only the right to
judicial affidavit shall take the place of by subpoena or other refuse to answer an
direct testimonies of the witnesses (Judical process or order of the incriminating question at
Affidavit Rule, Sec. 2) (Riano,Evidence, court. the time it is asked to
360) him.
He can refuse outright He does not have a right
Proceedings to be recorded to take the stand as a to disregard a subpoena,
witness decline to appear before
The Entire Proceedings of a Trial or Hearing the court at the time
Shall be RECORDED, including: appointed, or refuse to
1. The questions propounded to a witness and testify altogether. The
his answers thereto. witness receiving a
2. The statement made by the judge or any of subpoena must obey. It
parties, counsel or witnesses with reference is only when the
to the case. (Rule 132, Sec. 2) incrimination question is
addressed that he may
A transcript of record of the proceedings made by refuse to answer.
the official stenographer, stenotypist or recorder (Rosete v Lim, GR No.
and certified as correct by him shall be deemed 136051, June 8, 2006)
prima facie correct statement of such proceedings.
(Rule 132, Sec. 2) Immunity Statutes

a. RIGHTS AND OBLIGATIONS OF A WITNESS “USE” IMMUNITY “TRANSACTIONAL”

IMMUNITY
Obligation of a witness Prohibits the use of Grants immunity to the
A witness must answer questions, although his/her the witness‘s witness from prosecution for
answer may tend to establish a claim against compelled an offense to which his
him/her. testimony and its compelled testimony relates.
fruits in any manner
Rights of a Witness: in connection with
1. To be protected from irrelevant, improper, or the criminal
insulting questions, and from harsh or insulting prosecution of the
demeanor; witness.

371
 supra citing Kelly v Bailey 1961 189 CA2d 728,
Where the statute grants only ―use immunity,‖ 11 CR 448)
merely testifying and/or producing the evidence
does not render the witness immune from Rules on Cross-Examination
prosecution despite his/her invocation of the right 1. AMERICAN RULE
against self-incrimination. He/she is merely saved Cross-examination must be confined to matters
from the use against him/her of such statements or inquired about in the direct examination.
evidence which he/she has been compelled to
produce notwithstanding his/her having seasonably 2. ENGLISH RULE
invoked said right. (Galman v. Pamaran, 138 SCRA A witness may be cross-examined not only
294, G.R. Nos. L-71208-09 and L-71212-13, 1985) upon matters testified by him on his direct
examination but also on all matters relevant to
Note: the issue. We follow the English Rule.
Under R.A. 6981 (Witness Protection, Security and
Benefit Act), A witness admitted into the witness NOTE:
protection program cannot refuse to testify or give  But, where the witness is an unwilling or
evidence, produce books, documents, records, or hostile witness so declared by the court or
writings necessary for the prosecution of the is an adverse party, the cross-examination
offense or offenses for which he has been admitted shall only be on the subject matter of his
on the ground of the right against self-incrimination. examination-in-chief. (Rule 132, Sec.12)
(R.A 6981, Sec. 14) (Riano, Evidence, 363)
Cross Examination is an Absolute Right
b. ORDER IN THE EXAMINATION OF AN Cross-examination is an absolute right. The
INDIVIDUAL WITNESS Constitution provides that the accused shall enjoy
the right to meet the witnesses face to face. (The
The order in which an individual witness may be 1987 Philippine Constitution, Art. III, Sec. 14)
examined is as follows:
1. Direct-examination by the proponent; When Cross Examination Becomes a Privilege
2. Cross-examination by the opponent; When the cross-examination in chief is concluded
3. Re-direct examination by the proponent; and the attendance of the witness is either
4. Re-cross-examination by the opponent. dispensed with from the stand or the re-
examination, if any, has begun.
(i) DIRECT EXAMINATION
The right is a personal one which may be waived
DIRECT EXAMINATION is the examination-in-chief expressly or impliedly by conduct amounting to a
of a witness by the party presenting him on the facts renunciation of the right of cross-examination.
relevant to the issue. Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail
Scope of Direct Examination himself/herself of it, he/she necessarily forfeits the
All facts relevant to the issue right to cross-examine and the testimony given on
direct examination of the witness will be received or
Purpose allowed to remain in the record. (Fulgado v. CA,
To elicit facts about the client‘s cause of action or G.R. No. L-61570, 1990)
defense. It is now subject to the Judicial Affidavit
Rule, which took effect on January 1, 2013. (Riano, Effects of death or absence of a witness
Evidence, 369)
1. Dies before his cross examination is over –
(ii) CROSS-EXAMINATION If the witness dies before his cross-examination
is over, his testimony on the direct may be
CROSS EXAMINATION stricken out only with respect to the testimony
Cross examination is the questioning of a witness at not covered by the cross-examination. The
a trial or hearing by the party opposed to the party absence of the witness is not enough to
who called the witness to testify (Black’s Law warrant striking out his testimony for failure to
th
Dictionary, 7 Ed. 433) appear for further cross-examination where the
witness has already been sufficiently cross-
Scope of Cross Examination examined, and the matter on which the cross-
1. Any matter stated in the direct examination, or examination is sought is not in controversy.
connected therewith (People v Seneris, G.R. No. L-48883, 1980)
2. All important facts bearing upon the issue 2. Witness not cross-examined – If the witness
was not cross-examined because of causes
Purpose of Cross Examination attributable to the cross examining party and
1. To bring out facts favorable to the counsel‘s the witness had always made himself available
client not established by direct testimony for cross examination, the direct testimony of
(Riano, Evidence, supra citing Jackson v witness shall remain in the record and cannot
Feather River Water Co., 1859 14 C 18) be ordered stricken off because the cross
2. To enable counsel to impeach or to impair the examiner is deemed to have waived the right to
credibility of the witness. (Riano, Evidence, cross-examine witness. (De la Paz v

372
 Intermediate Appellate Court, G.R. No. 71537, ignorant, or a child of tender years, or is of
1987) feeble mind, or a deaf-mute;
4. Of an unwilling or hostile witness; or
(iii) RE-DIRECT EXAMINATION 5. Of a witness who is an adverse party or an
officer, director, or managing agent of a public
RE-DIRECT EXAMINATION or private corporation or of a partnership or
It is the further examination by a party of his/her association which is an adverse party.
own witness after cross-examination.
Generally, leading questions are not allowed in
Scope of Re-direct Examination direct examination and should be confined to cross-
On matters dealt with during the cross-examination. examination.
Other matters may be allowed by the court in its
discretion. Rule on Questions in the Alternative
1. A question in the alternative is not leading
Purpose where it is not so framed as to indicate which
1. To allow the witness-in-chief to explain or answer is desired.
supplement his answers given during the 2. If so framed as to suggest the answer, the
cross-examination. question is improper as leading and the mere
2. The counsel may elicit testimony to correct or use of words ―whether or not‖ does not
repeal any wrong impression or inferences that necessarily prevent it from being leading.
may have been created in the cross-
examination. MISLEADING QUESTION
3. It may also be an opportunity to rehabilitate a It is one which assumes as true a fact not yet
witness whose credibility has been damaged. testified to by the witness, or contrary to that which
(Riano, Evidence, 370) he has previously stated. It is not allowed.

(iv) RE-CROSS-EXAMINATION Test Whether Question Leading or Misleading

The test whether a question is leading or not is the
RE-CROSS EXAMINATION suggestiveness of its substance and not the form of
It is the examination of a witness who has finished the question. If the question suggests the answer
his/her examination-in-chief, cross-examination, desired by putting words into the mouth of the
and re-direct examination, by the counsel who witness, it is leading.
cross-examined.
Forms and Nature of Questions that May be
Scope of Re-cross Examination Propounded to Witnesses:
On matters stated in the re-direct examination. 1. Must not be indefinite or uncertain.
However, other matters may be allowed by the 2. Must be relevant.
court in its discretion. 3. Must not be argumentative.
4. Must not call for conclusion of law.
(v) RECALLING WITNESS 5. Must not call for opinion or hearsay evidence.
6. Must not call for opinion.
After the examination of a witness by both sides has 7. Must not call for an illegal answer.
been concluded, the witness cannot be recalled 8. Must not call for self-incriminating testimony.
without leave of the court. 9. Must not be leading.
10. Must not be misleading.
The court will grant or withhold leave in its 11. Must not tend to degrade reputation of witness.
discretion, as the interests of justice may require. 12. Must not be repetitious.

Purpose d. METHODS OF IMPEACHMENT OF

1. For the witness to correct or explain his/her ADVERSE PARTY'S WITNESS
prior testimony.
2. Witnesses may also be recalled after they have To impeach a witness means to call into question
left the stand to lay the proper foundation for the veracity of the witness or by showing that the
impeachment but this is within the discretion of witness is unworthy of belief.
the court.
Destroying credibility is vital because it is linked with
c. LEADING AND MISLEADING QUESTIONS a witness ability and willingness to tell the truth.
(Riano, Evidence, 373)
LEADING QUESTION
It is a question which suggests to the witness the The Adverse Party’s Witness May be Impeached
answer which the examining party desires. By:
It is not allowed, EXCEPT: 1. Contradictory evidence;
1. On cross-examination; 2. Evidence that the witness‘ general reputation
2. On preliminary matters; for truth, honesty, or integrity is bad; or
3. When there is difficulty in getting direct and 3. Evidence that he/she has made at other times
intelligible answers from a witness who is statements inconsistent with his/her present

373
 testimony. (PRIOR INCONSISTENT HOSTILE WITNESS
STATEMENTS)
A hostile witness is one who manifests so much
General Rule: The adverse party‘s witness cannot hostility or prejudice under examination-in-chief that
be impeached by evidence of particular wrongful the party who has called him/her is allowed to
acts. cross-examine him/her, that is to treat him/her as
For example, a lawyer for the other party though he/she had been called by the opposite
cannot ask a witness the following party.
question on cross-examination: ―Isn‘t it a
fact that you shoplifted one week ago?‖ Methods of Impeachment of One’s Own Witness
Exception: It may be shown by the examination of 1. Evidence contrary to his testimony.
the witness or the record of the judgment that the 2. Evidence of prior inconsistent statements.
adverse party‘s witness has been convicted of an
offense. e. HOW WITNESS IMPEACHED BY EVIDENCE
OF INCONSISTENT STATEMENTS
PRIOR
CONTRADICTORY
INCONSISTENT General Rule: A witness cannot be impeached by
EVIDENCE
STATEMENTS proof of inconsistent statements until the proper
Prior inconsistent foundation or predicate has been laid.
Contradictory evidence Exception: Failure to lay a proper foundation may
statements refer to
refers to other testimony be waived by the failure of the adverse party to
statements, oral or
of the same witness, or object in proper form to the instruction of the alleged
documentary, made by
other evidence presented inconsistent statement.
the witness sought to
by him in the same case,
be impeached on
but not the testimony of A Witness is Impeached by Prior Inconsistent
occassions other than
another witness. Statements by “Laying the Predicate”:
the trial in which he is
(Regalado, Evidence, 1. By relating to him such statements with the
testifying. (Regalado,
851) circumstances of the times and places and the
Evidence, 851)
persons present.
Other Modes of Impeachment: 2. By asking him whether he made such
1. Impeachment by showing improbability or statements
unreasonableness of testimony. 3. By giving him a chance to explain the
2. Impeachment by showing bias, prejudice, and inconsistency.
hostility. 4. If the statements be in writing, they must be
3. Impeachment by prior inconsistent acts or shown to the witness before any question is put
conduct. to him concerning them. (Rule 132, Sec. 13)
4. Impeachment by showing social connections, Unless the witness is given the opportunity to
occupation and manner of living. explain the discrepancies, the impeachment is
5. Impeachment by showing interest. incomplete.
6. Impeachment by showing intent or motive.
The “Laying the Predicate” Rule Does NOT
Party may not impeach his own witness. Apply:
1. If the prior inconsistent statement appears in a
General Rule: A party producing a witness is not deposition of the adverse party, and not a mere
allowed to impeach his/her credibility. witness, as such statements are in the nature of
Exceptions: admissions of said adverse party. (Regalado,
1. If he/she is an adverse party. Evidence, 852)
2. If he/she has become an unwilling or 2. Where the previous statements of a witness are
hostile witness. offered as evidence of an admission, and not
merely to impeach him. (Regalado, Evidence, 852
ADVERSE PARTY citing Juan Ysmael & Co., Inc, v. Hashim, et. al.,
G.R. No. L-26247)
In order to be considered an adverse party, the
witness must be adverse to the party calling him/her f. EVIDENCE OF GOOD CHARACTER OF
and be actively seeking a recovery against, or WITNESS
opposing a recovery by, such party, or a person for
whose immediate benefit the action was brought or Evidence of the good character of a witness is not
defended. admissible until such character has been
impeached.
A Witness Will be Considered Hostile or
Unwilling Upon: Reason: The law presumes every person to be
1. Declaration by the court; reputedly truthful till evidence shall have been
2. Adequate showing of his/her adverse interest, produced to the contrary.
unjustified reluctance to testify, or his/her
having misled the party into calling him/her to g. JUDICIAL AFFIDAVIT RULE
the witness stand. (AM No. 12-8-8-SC)

374
See Part XI of this 2015 Remedial Law Summer
Reviewer for a more detailed discussion on the Section 26, Rule 130 of the Rules of Court
Judicial Affidavit Rule.
Rule on Admissions by a party
Judicial Affidavit Rule The act, declaration, or omission of a party as to a
The rule modifies the existing practice in the relevant fact may be given in evidence against him.
conduct of a trial and reception of evidence by
doing away with the usual oral examination of a For example, after a murder, Accused goes to his
witness in a direct examination. (Riano, Evidence, neighbor and tells her, ―Nakapatay ako‖. His
418) The judicial affidavits of witnesses take the neighbor can testify on this fact in a murder case
place of such witnesses' direct testimonies. (Judicial against Accused; the admission may be given in
Affidavit Rule, Sec 2(a)(1)) evidence against Accused.

SEC 35, RULE 132 JUDICIAL AFFIDAVIT The admissions of the president of a company are
RULE binding on the company under the rule that
Allows the offer to be Allows the offer to be admissions of liability by a party may be given
made in writing made orally against it. (Keller & Co. v. COB, G.R. No. L-68097,
(1986)

5. ADMISSIONS AND CONFESSIONS Reason:

Based on presumption that no man could declare
a. RES INTER ALIOS ACTA RULE anything against himself unless such declarations
were true.
This rule refers to the maxim, ―res inter alios acta
alteri nocere non debet,‖ which means, ―A thing ADMISSION: is a voluntary acknowledgement in
done among some persons ought not to do harm to express terms or by implication by a party interest
another.‖ (Regalado 2008 ed.) or by another by whose statement he is legally
bound, against his interest, of the existence or truth
The res inter alios acta rule ordains that the rights of of a fact in dispute material to the issue. (In other
a party cannot be prejudiced by an act, declaration, words, it is an acknowledgement of fact/s opposite
or omission of another. The reason for the rule is to the fact/s raised or positions taken in court.)
that, on a principle of good faith and mutual
convenience, a man‘s own acts are binding upon Two (2) Types of Admissions:
himself, and are evidence against him. It would not 1. JUDICIAL ADMISSION - one made in a judicial
only be rightly inconvenient, but also manifestly proceeding under consideration.
unjust, that a man should be bound by the acts of 2. EXTRAJUDICIAL ADMISSION - one made out
mere unauthorized strangers; and that if a party of court or in a judicial proceeding other than the
ought not to be bound by the acts of strangers, one under consideration.
neither ought their acts or conduct be used as
evidence against him. (People v. Raquel, G.R. No. Two (2) Ways to Introduce an Admission as
119005, 1996) Evidence:
1. As INDEPENDENT EVIDENCE – no
As a general rule, the extrajudicial declaration of an foundation is necessary.
accused, although deliberately made, is not 2. As IMPEACHING EVIDENCE – a proper
admissible and does not have probative value foundation must be laid.
against his co-accused. It is merely hearsay
evidence as far as the other accused are SELF-SERVING DECLARATIONS
concerned. (People v. Alegre, 94 Phil. 109, G.R. Unsworn statements made by the declarant out of
No. L-30423, 1979) court and which are favorable to his interests.

The rights of an accused cannot be prejudiced by For example, Accused tells neighbor that:
the extra-judicial declarations of another person. ―Nakapatay yung barkada namin pero wala akong
(People v. Raquel, 265 SCRA 248, G.R. No. kinalaman.‖ Later on, Accused cannot have his
119006, 1996) neighbor testify in court and say that Accused went
to him and said that he had nothing to do with the
EXCEPTION to the Res Inter Alios Acta killing. Accused‘s statement to the neighbor is self-
Rule: serving because it was given out of court and it
Statements made by an employee against served his interest.
his employer are admissible against the
latter, where the statements while in Accused may, however, take the stand and explain
employ and where they concerned a why he has nothing to do with the killing.
matter within the scope of his employment.
(Mahlandt v. Wild Canid Survival & General Rule: Self-serving declarations are not
Research Center, 588 F.2d 626 (8th Cir. admissible.
1978)
Exceptions:
b. ADMISSION BY A PARTY

375
 1. Diaries, if it is against interest, or if it is in
the nature of books of accounts. Letters For example, after a murder, accused goes to his
prepared not in anticipation of litigation are neighbor and tells her, ―Napatay namin ni Jose si
not considered self-serving declarations. Juan‖. His neighbor can testify on this fact in a
2. Part of the res gestae, including murder case against Accused; the admission may
spontaneous statements and verbal acts. be given in evidence only against Accused. It is not
3. When in the form of complaint and admissible against Jose. (Except if there’s
exclamations of pain and suffering. conspiracy between the accused and Jose)
4. When part of a confession offered by the
prosecution. (such as those favorable to the BUT if accused takes the stand and explains the
accused, e.g. I shot him because he was participation of Jose, the testimony is admissible
going to stab me.) against Jose.
5. When the credibility of a party has been
assailed on the ground that his testimony is NOTE: Section 28, Rule 130 refers to the first
a recent fabrication. branch of the res inter alios acta rule. The second
6. When offered by the opponent. branch can be found in Section 34, Rule 130—
7. When offered without objection or there is similar acts as evidence. (Regalado 2008 ed., 758)
waiver.
d. ADMISSION BY A CO-PARTNER OR AGENT
Reason for exclusion of self-serving
declarations The act or declaration of a partner or agent of
1. The inherent untrustworthiness of the the party may be given in evidence against his
declarations. co-partner or agent provided that the following
2. Allowance would open the door to fraud and requisites are present:
fabrication of testimony. 1. That the partnership or agency be previously
3. If testified by one other than the defendant, proven by evidence other than the admission
such declarations would be hearsay. itself.
2. The acts or declarations refer to a matter within
OFFER OF COMPROMISE NOT ADMISSIBLE the scope of his authority.
3. The acts or declarations were made during the
Rule on Compromises existence of the partnership or agency.
Reason: Identity of interests between the co-
1. In CIVIL CASES: partners or agents.
An offer of compromise is not an admission of any
liability and is not admissible in evidence against The same rule applies to the act or declaration of a
the offeror. joint owner, joint debtor, or other person jointly
interested with the party.
2. In CRIMINAL CASES:
e. ADMISSION BY A CONSPIRATOR
General Rule: an offer of compromise by the
accused may be received in evidence as an implied The act or declaration of a conspirator may be
admission of guilt. given in evidence against the co-conspirator
Exceptions: provided the following requisites are present:
1. Those involving quasi-offenses (criminal 1. That the conspiracy be first proved by evidence
negligence); or other than the admission itself.
2. Those allowed by law to be compromised. 2. That the admission relates to the common
object.
The following are NOT admissible in evidence 3. That it has been made while the declarant was
against the accused who made the plea or offer: engaged in carrying out the conspiracy.
1. A plea of guilty later withdrawn, or
2. An unaccepted offer of a plea of guilty to lesser Reason: Identity of interests for the commission of
offense. a crime.

Rule on Offer of Payment of Expenses Scope: This rule applies only to extrajudicial acts or
occasioned by injury (Good Samaritan Doctrine) declaration but NOT to testimony given on the stand
An offer to pay or the payment of medical, hospital at the trial where the defendant has the opportunity
or other expenses occasioned by an injury is not to cross-examine the declarant. (People v. Serrano,
admissible in evidence as proof of civil or criminal G.R. No. L-7973, 1959)
liability for the injury.
If the declaration is made after the act designed is
c. ADMISSION BY A THIRD PARTY fully accomplished and after the object of the
conspiracy has been either attained or finally
Rule on Admissions by a third party (Res Inter defeated, the declaration will be admissible only
Alios Acta) against the person who made it. (People v. Yatco,
The rights of a party cannot be prejudiced by an act, 97 Phil. 941, G.R. No. L-9181, 1955)
declaration, or omission of another, except as
hereinafter provided.

376
In the absence of any other evidence to prove the of acts inter vivos, as by assignment, subrogation or
existence of an alleged conspiracy, extra-judicial purchase and in fact any act whereby the successor
statements and admissions of an individual cannot is substituted in the place of the predecessor in
be taken as evidence against an alleged co- interest. The purchaser at an execution sale is a
conspirator. An extrajudicial statement made by a privy of the execution debtor. (Alpuerto v. Pastor, 38
co-accused is, by itself, insufficient to convict an Phil. 785, G.R. No. L-12794, 1918)
accused of a crime charged because said
statement is inadmissible since they were made not The act of a predecessor to a land is not binding on
during the existence of the conspiracy but after the the successor if the acts/declarations made by the
said conspiracy had already ceased and when the predecessor acknowledging ownership or offering
co-accused was already in the custody of the to purchase the property from a third party were
police. (People vs. Cabrera, 57 SCRA 715, G.R. made before the predecessor held title to the land.
No. L-37398, 1974) (City of Manila v. Del Rosario, 5 Phil. 227, G.R. No.
1284, 1905)
The admissibility of a confession by one accused
against the other in the same case, must relate to The testimony and the public document are
statements made by one conspirator during the declarations adverse to the interest of the Costelos
pendency of the unlawful enterprise (or during its which is admissible in evidence. The previous
existence) and in furtherance of its objects, and not recognition by a party in physical possession of the
to a confession made, as in this case, long after the property in dispute of the ownership in another
conspiracy had been brought to an end. (People v. constitutes a declaration against the interest of the
Chaw Yaw Shun, 23 SCRA 127, 1968) former and may be received in evidence not only
against such party who made the declaration or his
The testimony of a witness must be considered and successors in interest but also against 3rd persons.
calibrated in its entirety and not by truncated (Viacrusis v. Court of Appeals, 44 SCRA 176, G.R.
portions thereof or isolated passages therein. It is No. L-29831, 1972)
perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve it g. ADMISSION BY SILENCE
with respect to other facts, as there is hardly a
witness who can perfectly remember the details of a An admission by silence or an ADOPTIVE
crime. (People v. Bulan, G.R. No. 143404, 2005) ADMISSION may be given in evidence against the
party who does or says nothing where the
f. ADMISSION BY PRIVIES statement would naturally call for a response or
reaction.
Where one derives title to property from another,
the act, declaration, or omission of the latter, while Reason:
holding the title, in relation to the property, is Based on common experience and natural human
evidence against the former. behavior.

PRIVIES: denotes not only the idea of succession Applicability to Criminal Cases
in right of heirship or testamentary legacy but also The rule allowing silence of a person to be taken as
succession by virtue of acts inter vivos as by an implied admission of the truth of the statements
assignment, subrogation or purchase – in fact any uttered in his presence is applicable in criminal
act whereby the successor is substituted in the cases. (People v. Paragsa, 84 SCRA 105, G.R. No.
place of the predecessor in interest. (Alpuerto v. L-44060, 1978)
Pastor, 38 Phil. 785, G.R. No. L-12794, 1918)
But Before the Silence of a Party can be Taken
General Rule: In order for an admission of a former as an Admission of What is Said, it Must Appear
owner of property to be admissible against his that:
successor in title, it must have been made at the 1. He heard and understood the statement;
time when the title was in declarant. 2. He was at liberty to interpose a denial;
3. The statement was in respect to some matter
Exception: The declaration made subsequent to affecting his rights or in which he was then
the transfer of the property shall be admissible: interested, and calling, naturally, for an answer;
1. Where the declaration was made in the 4. The facts were within his knowledge; and
presence of the transferee and he 5. The fact admitted or the inference to be drawn
acquiesces in the statements or asserts no from his silence would be material to the issue.
rights where he ought to speak. (People v. Paragsa, G.R. No. L-44060, 1978)
2. Where there has been prima facie case of
fraud established. Silence of an Accused Under Custodial
3. Where the evidence establishes a Investigation
continuing conspiracy to defraud which The silence of an accused under custody, or his
conspiracy exists between the vendor and failure to deny statements by another implicating
the vendee. him in a crime, especially when such accused is not
asked to comment or reply to such implications or
The word ―privies‖ does not only denote testate or accusations, cannot be considered as a tacit
intestate succession but also succession by virtue confession of his participation in the commission of

377
the crime. (People v. Alegre, G.R. No. L-30423, Admissibility of Extra-judicial Confessions
1979) To be admissible, it is necessary that:
1. The confession must involve an express and
Comment to the jury by a prosecutor in a state categorical acknowledgement of guilt.
criminal trial upon a defendant's failure to testify as 2. The facts admitted must be constitutive of a
to the matters which he can reasonably be criminal offense.
expected to deny or explain because of facts within 3. The confession must have been given
his knowledge or by the court that the defendant's voluntarily.
silence under those circumstances evidences guilt 4. The confession must have been intelligently
violates the Self-Incrimination Clause of the Fifth made, the accused realizing the importance or
Amendment of the Federal Constitution. (Griffin v. legal significance of his act.
California, 380 U.S. 853, 1965) 5. There must have been no violation of Section
12, Art. III of the 1987 Constitution.
h. CONFESSIONS
The silence of an accused under custody, or his
CONFESSION – a categorical acknowledgment of failure to deny statements by another implicating
guilt made by an accused in a criminal case, him in a crime, especially when such accused is
without any exculpatory statement or explanation. neither asked to comment nor reply to such
(Regalado 2008 ed.) implications or accusations, cannot be considered
as a tacit confession of his participation in the
A confession is an acknowledgement in express commission of the crime. Such an inference of
terms, by a party in a criminal case, of his guilt of acquiescence drawn from his silence or failure to
the crime charged, while an admission is a deny the statement would appear incompatible with
statement by the accused, direct or implied, of facts the right of an accused against self-incrimination.
pertinent to the issue and tending, in connection xxx While an accused is in custody, his silence may
with proof of other facts, to prove his guilt. (People not be taken in evidence against him as he has a
v. Maqueda, 242 SCRA 565, G.R. No. 112983, right to remain silent his silence when in custody
1995) may not be used as evidence against him,
otherwise, his right of silence would be illusory.
ADMISSION CONFESSION (People v. Alegre, 94 SCRA 109, G.R. No. L-30423,
A statement of fact Involves an 1979)
which does not involve acknowledgement of
an acknowledgement of guilt or liability Admissions obtained during custodial interrogations
guilt or liability without the benefit of counsel although later
May be express or tacit Must be express reduced to writing and signed in the presence of
May be made by third Can be made only by counsel are flawed under the Constitution and as
persons and, in certain the party himself and, in such cannot be admitted in Court. (People vs.
cases, are admissible some instances, are Compil, 244 SCRA 135, G.R. No. 95028, 1995)
against a party admissible against his
co-accused Any confession, including a re-enactment without
admonition of the right to silence and to counsel,
In a confession, there is an acknowledgment of and without counsel chosen by the accused is
guilt. On the other hand, the term admission is inadmissible in evidence. (People v. Yip Wai Ming,
usually applied in criminal cases to statements of 264 SCRA 224, G.R. No. 120959, 1996)
fact by the accused which do not directly involve an
acknowledgment of his guilt or of the criminal intent General Rule – The extrajudicial confession of an
to commit the offense charged. The rights of an accused is binding only upon himself and is not
accused are not confined to the period prior to the admissible against his co-accused.
filing of an information but are available at that Exceptions:
stage when a person is under investigation for the 1. If the co-accused impliedly acquiesced in
commission of an offense. These rights are or adopted the confession by not
available to a person at any time before questioning its truthfulness, as where it
arraignment whenever he is investigated for the was made in his presence and he did not
commission of an offense. (People v. Maqueda, 242 remonstrate against his being implicated
SCRA 565, G.R. No. 112983, 1995) by it; (waiver)
2. If the co-accused persons voluntarily and
A Confession May be independently executed identical
1. JUDICIAL CONFESSION – One made before confessions without conclusions;
a court in which the case is pending and in the Confessions corroborated by other
course of legal proceedings therein and, by evidence and without contradiction by the
itself, can sustain a conviction in capital co-accused who was present
offenses. (INTERLOCKING CONFESSIONS)
2. EXTRA-JUDICIAL CONFESSION – One made 3. Where the co-accused admitted the facts
in any other place or occasion and cannot stated by the confessant after being
sustain a conviction unless corroborated by apprised of such confession;
evidence of the corpus delicti.

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 4. If the confession is used only as a 4. System
corroborating evidence against the other 5. Scheme
co-accused charged a as co-conspirators; 6. Habit
5. Where the confession is used as 7. Custom or usage
circumstantial evidence to show the 8. and the like.
probability of participation by the co-
conspirator; The prosecution may, however, introduce the
6. Where the co-conspirator‘s extrajudicial robbery in January to prove the robbery in June to
confession is corroborated by other establish a modus operandi: that in both robberies,
evidence of record. the robbers used explosives to gain entry into the
bank, that the robbers threw tear gas while wearing
The fact that all accused are foreign nationals does gas masks; and that the robbers struck at the close
not preclude application of the ―exclusionary rule‖ of bank hours.
because the constitutional guarantees embodied in
the Bill of Rights are given and extend to all NOTE:
persons, both aliens and citizens. The accused Rule 130, Sec. 34 is the second branch of the res
cannot be made to affix their signatures on inter alios acta rule and applies to both civil and
evidence without complying with the Bill of Rights. criminal cases. (Regalado 2008 ed.)
By affixing their signatures on the evidence, the
accused are in effect made to tacitly admit the crime Unaccepted offer
charged for, in this case, mere possession of An offer in writing to pay a particular sum of money
prohibited drugs is a crime. These signatures or to deliver a written instrument or specific
amount to uncounseled extra-judicial confession personal property is, if rejected without valid cause,
prohibited by the Bill of Rights and therefore equivalent to the actual production and tender of the
inadmissible as evidence. (People v. Wong Chuen money, instrument, or property. (Rule 130, Section
Ming, 256 SCRA 182,G.R. Nos. 112801-11 1996) 35)

The Confrontation Clause does not bar admission 6. HEARSAY RULE

into evidence of every relevant extrajudicial
statement by a non-testifying declarant simply a. MEANING OF HEARSAY
because it in some way incriminates the defendant.
And an instruction directing the jury to consider a A witness can testify only to those facts which he
codefendant's extrajudicial statement only against knows of his personal knowledge; that is, which are
its source is generally sufficient to avoid offending derived from his own perception, except as
the implicated defendant's confrontation right. The otherwise provided in these rules. (Rule 130,
court may admit into evidence interlocking Section 36)
confessions of co-defendants/accused even without
giving the accused an opportunity to cross-examine Any evidence, whether oral or documentary, is
his co-defendant. The rule however is different hearsay if its probative value is not based on the
when a co-defendant does not confess. In such personal knowledge of the witness, but on the
cases, the co-defendant must be given an knowledge of some other person not on the witness
opportunity to cross- examine the confessant if and stand. (Regalado 2008 ed.)
when such person takes the witness stand. (Parker
v. Randolph, 442 U.S. 62, 1979) Form of Hearsay Evidence
It may be verbal or in writing.
9. SIMILAR ACTS AS EVIDENCE
Rule on Hearsay Evidence
Previous conduct as evidence A witness can testify only to those facts which he
knows of his personal knowledge; that is, which are
General Rule – Evidence that one did or did not do derived from his own perception. Otherwise, such
a certain thing at one time is not admissible to testimony is inadmissible.
prove that he did or did not do the same or similar
thing at another time. (Rule 130, Section 34) Doctrine of Independently Relevant Statements
Where, regardless of the truth or falsity of a
For example, Accused is charged with robbing a statement, the fact that it has been made is
bank in June. The prosecution cannot present relevant, the hearsay rule does not apply.
evidence to show that the Accused was seen A witness may testify to the statements made by a
robbing a bank in January to prove that he robbed person if, for instance, the fact that such statements
the bank in June. The prosecution cannot use the were made by the latter would indicate the latter‘s
bank robbery in January to prove that Accused has mental state or physical condition. The ban on
a propensity to rob banks. hearsay evidence does not cover independently
relevant statements, which consist of statements
Exceptions: - Similar acts may be received as that are independently relevant of the truth asserted
evidence to prove. SIPPS-HCU therein. They belong to two classes: 1. Those
1. A specific intent or knowledge statements which are the very facts in issue, 2.
2. Identity Those statements which are circumstantial
3. Plan evidence of the facts in issue. The second class

379
includes the following: Statement of a person General Reasons for the Exceptions
showing his state of mind; Statement of a person 1. Necessity
showing his physical condition; Statement of a 2. Trustworthiness
person to infer a state of mind of another person;
Statements which may identify the date, place and (i) DYING DECLARATION
person in question; Statements to show a lack of
credibility of a witness. (Estrada v. Desierto, 356 DYING DECLARATION – is a statement made by a
SCRA 108, G.R. Nos. 146710-15, 2001) dying person referring to the material facts which
concern the cause and circumstances of his death
Two Classes of Independently Relevant and which is uttered under a fixed belief that death
Statements is impending and is certain to follow immediately, or
1. Those statements which are the very facts in in a very short time, without an opportunity of
issue. retraction and in the absence of all hopes of
2. Those statements which are circumstantial recovery.
evidence of the facts in issue.
Requisites:
The Second Class of Independently Relevant 1. That death be imminent and that the declarant
Statements Includes the Following: be conscious of that fact;
1. Statement of a person showing his state of 2. That the preliminary facts which bring the
mind—that is, his mental condition, knowledge, declaration within its scope be made to appear;
belief, intention, ill will, and other emotions; 3. That the declaration relates to facts or
2. Statements of a person which show his circumstances pertaining to the fatal injury or
physical condition; death; and
3. Statements of a person from which inference 4. That the declarant would have been competent
may be made as to the state of mind of to testify had he survived.
another—that is, knowledge, belief, motive,
good or bad faith, etc. of the latter; Scope: Dying declarations are admissible in both
4. Statements which may identify the date, place, civil and criminal cases.
and person in question; and
5. Statements showing the lack of credibility of a Purposes for Admitting Dying Declaration:
witness. 1. To identify the accused
2. To show the cause of death
b. REASON FOR EXCLUSION OF HEARSAY 3. To show the circumstances under which the
EVIDENCE assault was made upon him.

Hearsay evidence is excluded because the party The declaration of the deceased is not admissible
against whom it is presented is deprived of his right as an ante mortem declaration since the deceased
and opportunity to cross-examine the persons to was in doubt as to whether he would die or not. The
whom the statements or writings are attributed. declaration fails to show that the deceased believed
Consequently, if a party does not object to the himself in extremis, "at the point of death when
hearsay evidence, the same is admissible, as a every hope of recovery is extinct, which is the sole
party can waive his right to cross-examine. basis for admitting this kind of declarations as an
(Regalado 2008 ed.) exception to the hearsay rule." It may be admitted,
however, as part of the res gestae since the
c. EXCEPTIONS TO THE HEARSAY RULE statement was made immediately after the incident
and the deceased had no sufficient time to concoct
General Rule – A witness can testify only to those a charge against the accused. (People v. Laquinon,
facts which he knows of his personal knowledge; 135 SCRA 91, G.R. No. L-45470, 1985)
that is, which are derived from his own perception.
Exceptions under Rule 130(C)(6), Sections 37-47) The admission of dying declarations has always
1. Dying declaration been strictly limited to criminal prosecutions for
2. Declaration against interest homicide or murder as evidence of the cause and
3. Act or declaration about pedigree surrounding circumstances of death. That death did
4. Family reputation or tradition regarding not ensue till three days after the declaration was
pedigree made will not alter its probative force since it is not
5. Common reputation indispensable that a declarant expires immediately
6. Part of the res gestae thereafter. It is the belief in impending death and not
7. Entries in the course of business the rapid succession of death, in point of fact, that
8. Entries in official records renders the dying declaration admissible. (People v.
9. Commercial lists and the like Sabio, 102 SCRA 218, G.R. No. L-26193, 1981)
10. Learned treatises
11. Testimony or deposition at a former trial (ii) DECLARATION AGAINST INTEREST

Note: The list is not exclusive. There The declaration made by a person deceased, or
are other exceptions laid down by unable to testify, against the interest of the
special laws and jurisprudence. declarant, if the fact asserted in the declaration was
at the time it was made so far contrary to

380
declarant‘s own interest, that a reasonable man in
his position would not have made the declaration (iii) ACT OR DECLARATION ABOUT
unless he believed it to be true, may be received in PEDIGREE
evidence against himself or his successors in
interest and against third persons. PEDIGREE – history of family descent which is
transmitted from one generation to another by both
Requisites: oral and written declarations and traditions.
1. Declarant must not be available to testify.
2. The declaration must concern a fact cognizable The word ―pedigree‖ includes relationship, family
by the declarant. genealogy, birth, marriage, death, the dates when
3. The circumstances must render it improbable and the places where these facts occurred, and the
that a motive to falsify existed. names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
Scope: The declaration against interest includes all
kinds of interests such as pecuniary, proprietary, or Reasons for Admissibility
penal interests. Declarations in regard to pedigree, although
hearsay, are admitted on the principle that they are
Kinds of Declarations Against Interests: natural expressions of persons who must know the
1. DECLARATION AGAINST PECUNIARY truth. Pedigree testimony is admitted because it is
INTERESTS – those which may bar in whole or the best that the nature of the case admits and
in part the declarant‘s money claim, or which because greater evil might arise from the rejection
may give rise to a monetary claim against him. of such proof than from its admission. (People v.
2. DECLARATION AGAINST PROPRIETARY Alegado, 201 SCRA 37, G.R. No. 93030-31, 1991)
INTERESTS – those which are at variance with
the declarant‘s property rights. Requisites:
3. DECLARATION AGAINST PENAL 1. Declarant is dead or unable to testify;
INTERESTS – those which put the declarant at 2. Necessity that pedigree be in issue;
the risk of prosecution. 3. The Declarant must be a relative of the person
whose pedigree is in question;
Admission and Declaration Against Interest 4. The declaration must be made before the
Distinguished controversy occurred; and
5. The relationship between the declarant and the
ADMISSION DECLARATION person whose pedigree is in question must be
AGAINST INTEREST shown by evidence other than such act or
Need not necessarily be, Must have been made declaration.
though will greatly against the proprietary
enhance probative or pecuniary interest of NOTE:
weight if made, against the parties. Where the subject of the declaration is the
the interest of the declarant‘s own relationship to another person,
declarant. there is no need to prove the relationship.
Made by the party Must have been made
himself and is a primary by a person who is (iv) FAMILY REPUTATION OR TRADITION
evidence and competent either deceased or REGARDING PEDIGREE
though he be present in unable to testify.
court and ready to By family reputation or tradition regarding
testify. pedigree is meant such declarations and
Can be made at any Must have been made statements as have come down from generation to
time. ante litem motam generation from deceased relatives in such a way
(before the suit is that even though it cannot be said or determined
brought). which of the deceased relatives originally made
them, yet it appears that such declarations and
Declaration Against Interest and Self-serving statements were made as family history, ante litem
Declaration Distinguished motam, by a deceased person connected by blood
or marriage with the person whose pedigree is to be
DECLARATION SELF-SERVING established.
AGAINST INTEREST DECLARATION
Admissible in Not admissible in Requisites:
evidence evidence as proof of the 1. There is controversy in respect to the pedigree
notwithstanding its facts asserted since its of any member of a family;
hearsay character introduction in evidence 2. The reputation or tradition of the pedigree of
would open the door to the person, concerned existed previous to the
fraud and perjury controversy; and
The person making Admissible only if 3. The witness testifying to the reputation or
the declaration need declarant has died, tradition regarding the pedigree of the person
not be dead, insane or becomes insane, or for concerned must be a member of the family of
unable to testify some other reason is not said person either by consanguinity or affinity.
available as a witness

381
 (v) COMMON REPUTATION place or immediately prior or subsequent thereto
with respect to the circumstances thereof. The
Common reputation existing previous to the spontaneous or excited utterance is part of the
controversy, respecting facts of public or general ―things done‖, the startling occurrence.
interest more than 30 years old, or respecting
marriage or moral character, may be given in Example: A heard a gunshot and saw B holding a
evidence. Monuments and inscriptions in public gun pointed at C who was slumped on the ground.
places may be received as evidence of common C shouted, ―Please don't kill me.‖ A‘s testimony
reputation. regarding the statement made by C may be
deemed part of the res gestae.
Testimony does not constitute common reputation
unless such is equivalent to universal reputation. 2. Verbal Acts – utterances which accompany
(City of Manila v. Del Rosario, 5 Phil. 227, G.R. No. some equivocal act or conduct to which it is desired
1284, 1905) to give a legal effect.

What may be Established by Common Example: A saw B give C a stack of 1000 peso
Reputation: bills. C then says to B that he promises to pay B
1. Facts of public or general interest more than 30 within the week. A‘s testimony regarding C‘s
years old. statement may be deemed part of the res gestae.
2. Marriage and related facts.
3. Individual moral character. Rationale:
Statements made instinctively at the time of some
Requisites for Admissibility of Common startling event or incident without the opportunity for
Reputation Respecting Facts of Public or formulation of statements favorable to one‘s own
General Interest: cause cast important light upon the matter in issue
1. The facts must be of public or general interest; and is presumed truthful. This is the first type of res
2. The common reputation must have been gestae statement. The event is ―speaking through‖
ancient, i.e., more than thirty (30) years old; the witness and not the witness talking about the
3. The reputation must have been formed among event.
a class of persons who were in a position to
have some sources of information and to Requisites for Admissibility of Spontaneous
contribute intelligently to the formation of the Statements:
opinion; and 1. There must be a startling occurrence;
4. The reputation must have been existing 2. The statement must relate to the circumstances
previous to the controversy. of the startling occurrence; and
3. The statement must be spontaneous.
Requisites for Admissibility of Common
Reputation Respecting Marriage: It is important to stress that the statement must not
1. The common reputation must have been only be spontaneous. It must also be made at a
formed previous to the controversy; and time when there was no opportunity for the person
2. The reputation must have been formed among to concoct or develop his own story. (People v.
a class of persons who were in a position to Lungayan, 162 SCRA 100, G.R. No. L-64556,
have some sources of information and to 1988)
contribute intelligently to the formation of the
opinion. Requisites for Admissibility of Verbal Acts
1. Act or occurrence characterized must be
Requisites for Admissibility of Common equivocal;
Reputation Respecting Moral Character: 2. Verbal acts must characterize or explain the
1. That it is the reputation in the place where the equivocal act;
person in question is best known; and 3. Equivocal act must be relevant to the issue;
2. That it was formed previous to the controversy. and
4. Verbal acts must be contemporaneous with
Reputation and Character Distinguished equivocal act.
1. Character – refers to the inherent qualities of a
person. It means that which a person really is. Res Gestae and Dying Declaration
2. Reputation – applies to the opinion which others Distinguished
may have formed and expressed of his character. It
means that which a person is reputed to be. RES GESTAE DYING DECLARATION
It is the event itself A sense of impending
(vi) PART OF THE RES GESTAE which is speaking death takes the place of
through the witness an oath and the law
RES GESTAE is from the Latin meaning ―things regards the declarant as
done‖. There are two types of res gestae testifying
utterances: It may precede, Confined to matters
accompany or follow surrounding or occurring
1. Spontaneous Statements - statements made the events occurring as after the homicidal act
by a person while a startling occurrence is taking a part of the principal

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act
Examples:
(vii) ENTRIES IN THE COURSE OF 1. Trade journals
BUSINESS 2. Table of mortality compiled by life insurance
companies
Requisites: 3. Abstracts of title compiled by reputable title
1. Entries must have been made at or near the examining institutions or individuals
time of the transaction to which they refer; 4. Business directories
2. Entrant must have been in a position to know
the facts stated in the entries; NOTE:
3. Entries must have been made by entrant in his A preliminary foundation must first be laid for such
professional capacity or in the performance of evidence showing that such publications have been
his duty; regularly prepared by a person in touch with the
4. Entries were made in the ordinary or regular market and that they are generally regarded as
course of business or duties; and trustworthy and relied upon.
5. Entrant must be deceased or unable to testify.
(x) LEARNED TREATIES
Business Records Exception to Hearsay Rule
under the Rules on Evidence and the Business A published treatise, periodical or pamphlet on a
Records Exception under the Rules on subject of history, law, science, or art is admissible
Electronic Evidence Distinguished as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness
UNDER THE RULES OF UNDER RULES ON expert in the subject testifies, that the writer of the
EVIDENCE ELECTRONIC statement in the treatise, periodical or pamphlet is
EVIDENCE recognized in his profession or calling as expert in
The person who made the The person who made the subject.
entry must be dead or the entry need not be
unable to testify dead or unable to Learned Treatises are Admissible Only if:
testify 1. The court takes judicial notice that the writer is
The entrant/custodian Personal knowledge is recognized in his profession as expert in the
must have personal not required subject; or
knowledge of the facts 2. A witness who is an expert on the subject
stated in the entries testifies that the writer of the statement is
recognized in his profession as expert in the
(viii) ENTRIES IN OFFICIAL RECORDS subject.

Requisites: (xi) TESTIMONY OR DEPOSITION AT A

1. That the entry was made by a public officer, or FORMER TRIAL
by another person, specially enjoined by law to
do so; Requisites:
2. That it was made by the public officer in the 1. The witness whose testimony is offered in
performance of his duties, or by such other evidence is dead or unable to testify;
person in the performance of a duty specially 2. Identity of parties;
enjoined by law; and 3. Identity of issues; and
3. That the public officer or other person had 4. Opportunity of cross-examination of witness.
sufficient knowledge of the facts stated by him,
which must have been acquired by him Actual cross-examination of the witness in the
personally or through official information. former trial is not a prerequisite. It is enough if
(Africa v. Caltex, 16 SCRA 448, G.R. No. L- there was an opportunity to cross-examine.
12986, 1966)
7. OPINION RULE
Proof of Unavailability of Entrant Unnecessary
It is not necessary to show that the person making
the entry is unavailable for he is excused from OPINION EVIDENCE
appearing in court in order that public business be It is the statement by the witness of an inference as
not interrupted. to the existence or nonexistence of a fact in issue
based upon other facts presented directly to the
(ix) COMMERCIAL LISTS AND THE LIKE senses of the witness.

Evidence of statements of matters of interest to General rule: The opinion of a witness is not
persons engaged in an occupation contained in a admissible.
list, register, periodical, or other published Exceptions:
compilation is admissible as tending to prove the 1. Opinion of expert witness (Rule 130,
truth of any relevant matter so stated if that Section 49)
compilation is published for use by persons 2. Opinion of ordinary witness (Rule 130,
engaged in that occupation and is generally used Section 50)
and relied upon by them therein.

383
a. OPINION OF EXPERT WITNESS Proper Basis or Predicate Must First be
Established
The opinion of a witness on a matter requiring 1. Adequate knowledge– if ordinary witness is to
special knowledge, skill, experience or training testify as to identity.
which he shown to possess, may be received in 2. Sufficient familiarity – if ordinary witness is to
evidence. testify as to handwriting.
3. Sufficient acquaintance – if ordinary witness
EXPERT is to testify as to mental sanity.
A person who is so qualified either by actual
experience or by careful study as to enable him to An ordinary witness cannot given an opinion as to
form a definite opinion of his own respecting any the mental sanity of a person based in whole or in
division of science, art, or trade about which part upon an abstract hypothetical question, but
persons having no particular training are incapable must base his opinion solely upon his own personal
of forming accurate opinions or of deducing correct knowledge, observation, or acquaintance.
conclusions.
8. CHARACTER EVIDENCE
EXPERT EVIDENCE
Character
It is the testimony of persons who are particularly
The possession by a person of certain qualities of
killed, or experienced in a particular art, science,
mind or morals, distinguishing him from others.
trade, business, profession, or vocation, a thorough
knowledge of which is not possessed b man in Character and Reputation Distinguished
general, in regard to matters connected therewith.
CHARACTER REPUTATION
Rules on Examination of Expert Witness
Aggregate of the moral Depends on attributes
1. If opinion based on facts known personally
qualities which belong to which others believe
– the expert witness must first state the facts
and distinguish an one to possess. (Riano,
before giving an opinion on the facts.
individual person. Evidence, 491-492)
2. If opinion based on facts of which expert
has no personal knowledge – the facts
should be given to the expert hypothetically, General Rule: Character is not admissible in
that is, they must assume facts upon which his evidence. (Rule 30, Section 51)
opinion is desired.
Reason:
Scientific study and training are not always The rule is that the character or reputation of a party
essential to the competency of a witness as an is regarded as legally irrelevant in determining a
expert. A witness may be competent to testify as controversy, so that evidence relating thereto is not
an expert although his knowledge was acquired admissible. Ordinarily, if the issues in the case were
through the medium of practical experience rather allowed to be influenced by evidence of the
than scientific study and research. (Dilag v. Merced, character or reputation of the parties, the trial would
45 O.G. 5536, 1949) be apt to have the aspects of a popularity contest
rather than a factual inquiry into the merits of the
Probative Value of Expert Testimony case. After all, the business of the court is to try the
The court is not bound by the opinion of an expert case, and not the man; and a very bad man may
such as a handwriting expert. Expert opinion have a righteous cause. (People v Lee, G.R. No.
evidence is to be considered or weighed by the 139070, 2002)
court, like any other testimony, in light of its own
general knowledge and experience upon the a. CRIMINAL CASES
subject of inquiry. (Dizon v Tuazon, G.R. No.
172167, 2008) Criminal Cases (Rule 130, Section 51(a))

2. OPINION OF ORDINARY WITNESSES 1. As to the character of the accused –

The Opinion of a Witness for Which Proper a) The accused may prove his good moral
Basis is Given, May be received in Evidence character, which is pertinent to the moral trait
Regarding: involved in the offense charged.
1. The identity of a person about whom he has
adequate knowledge For example, the accused in a murder case may
2. A handwriting with which he has sufficient present evidence that he has a reputation for being
familiarity; and a peaceful person.
3. The mental sanity of a person with whom he is
sufficiently acquainted. b) The prosecution may prove his bad moral
character pertinent to the moral trait involved in the
The witness may also testify on his impressions of offense charged in rebuttal.
the emotion, behavior, condition or appearance of a
person.

384
In rebuttal, the prosecution may present evidence cruelty, exploitation, or discrimination because
that the Accused has a reputation for being a of a physical or mental disability or condition.
quarrelsome person,
Note: Observe that whether or not a person is a
2. As to the Character of the Offended Party child witness is determined as of the time of the
giving of the testimony. (Riano, Evidence, 497)
The good or bad moral character of the offended
party may be proved if it tends to establish in any c. COMPETENCY OF A CHILD WITNESS (Sec.
reasonable degree the probability or improbability of 6)
the offense charged.
Presumption of Competency
For example, in a murder case, the Accused, Every child is presumed qualified to be a witness.
invoking self-defense, can present evidence that the
offended party (the victim) was of a quarrelsome Competency Examination
disposition. Notwithstanding the presumption, the court shall
conduct a competency examination of a child, motu
b. CIVIL CASES proprio or on motion of a party, when it finds that
substantial doubt exists regarding the ability of the
Civil Cases (Rule 130, Section 51(b)) child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the
Evidence of the moral character of a party in a civil duty to tell the truth in court.
case is admissible only when pertinent to the issue
of character involved in the case. Who Conducts Competency Examination
Examination of a child as to his/her competence
General Rule: the moral character of a party to a shall be conducted only by the judge. Counsel for
civil case is not a proper subject of inquiry. the parties, however, can submit questions to the
judge that he/she may, in his/her discretion, ask the
Exception: in cases where, because of the child.
nature of the action, the character of a party
becomes a matter in issue. The court has the duty of continuously assessing
the competence of the child throughout his
9. RULE ON EXAMINATION OF A testimony.
CHILD WITNESS (A.M. No. 04-07-
Who must Prove Necessity of Competency
SC) Examination
A party seeking a competency examination must
a. APPLICABILITY OF THE RULE (Sec. 1) present proof of necessity of competency of
examination. The age of the child by itself is not a
Unless otherwise provided, this Rule shall govern sufficient basis for a competency examination.
the examination of child witnesses who are:
1. Victims of a crime To rebut the presumption of competence enjoyed
2. Accused of a crime, and by a child, the burden of proof lies on the party
3. Witnesses to a crime. challenging his/her competence.

It shall apply in all criminal proceedings and non- Who May Attend Competency Examination
criminal proceedings involving child witnesses. Only the following are allowed to attend a
competency examination:
The Rule on Examination of a Child Witness 1. The judge and necessary court personnel;
governs the examination of child witnesses who are 2. The counsel for the parties;
victims of, accused of, or witnesses to a crime. In 3. The guardian ad litem;
the absence or incapacity of the parents to be the 4. One or more support persons for the child;
guardian, Section 5 (a) of said rule provides that the and
court may appoint a guardian ad litem to promote 5. The defendant, unless the court determines
the best interests of the child. (Obedencio v J. that competence can be fully evaluated in
Murillo, 422 SCRA 21, A.M. No. RTJ-03-1753, his/her absence.
2004)
Nature of Questions Asked in the Competency
b. MEANING OF “CHILD WITNESS” (Section Examination
2(A)) The questions asked at the competency
examination shall be:
A child witness is: 1. Appropriate to the age and developmental level
1. Any person who at the time of giving testimony of the child;
is below the age of 18 years. 2. Shall not be related to the issues at trial; and
2. In child abuse cases, a child includes one who 3. Shall focus on the ability of the child to
is over 18 years but is found by the court as a. Remember;
unable to fully take care of himself/herself, or b. Communicate;
protect himself/herself from abuse, neglect,

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 c. Distinguish between truth and falsehood; decision of the prosecutor or counsel not to apply
and will cause the child serious emotional trauma, the
d. Appreciate the duty to testify truthfully. guardian ad litem may apply for the order.

d. EXAMINATION OF A CHILD WITNESS Period to Apply

(Section 8) The person seeking such an order shall apply at
least five (5) days before the trial date, unless the
Examination Done in Open Court court finds on the record that the need for such an
The examination of a child witness presented in a order was not reasonably foreseeable.
hearing of any proceeding shall be done in open
court. Unless the witness is incapacitated to speak The court may motu proprio hear and determine,
or the question calls for a different mode of answer, with notice to the parties, the need for taking the
the answers of the witness shall be given orally. testimony of the child through live-link television.

The party who presents a child witness or the Where Live-Link TV Testimony Taken
guardian ad litem of such child witness may, The judge may question the child in chambers, or in
however, move the court to allow the child to testify some comfortable place other than the courtroom,
in the manner provided in this Rule. (Section 8) in the presence of the support person, guardian ad
litem, prosecutor, and counsel for the parties.
Child witnesses may testify in a narrative form and
leading questions may be allowed by the trial court The questions of the judge shall not be related to
in all stages of the examination if the same will the issues at trial but to the feelings of the child
further the interest of justice. Objections to about testifying in the courtroom.
questions should be couched in a manner so as not
to mislead, confuse, frighten and intimidate the The judge may exclude any person, including the
child. (People v Canete, G.R. No. 491920, 2003) accused, whose presence or conduct causes fear to
the child.
Mode of questioning. – The court shall exercise
control over the questioning of children so as to (1) When it may be approved
facilitate the ascertainment of the truth, (2) ensure The court may order that the testimony of the child
that questions are stated in a form appropriate to be taken by live-link television if there is a
the developmental level of the child, (3) protect substantial likelihood that the child would suffer
children from harassment or undue embarrassment, trauma from testifying in the presence of the
and (4) avoid waste of time. The court may allow accused, his/her counsel or the prosecutor as the
the child witness to testify in a narrative form. case may be. The trauma must be of a kind, which
(People v Canete, G.R. No. 491920, 2003, citing would impair the completeness or truthfulness of
Section 19) the testimony of the child.

Corroboration shall not be required of a testimony of Factors to Consider in Granting or Denying a

a child. His testimony, if credible by itself, shall be Request For Live-Link TV Testimony
sufficient to support a finding of fact, conclusion, or
judgment subject to the standard proof required in The court shall issue an order granting or denying
criminal and non-criminal cases. (People v Baring, the use of live-link television and stating the
374 SCRA 696, G.R. No. 137933, 2002, citing reasons therefor. It shall consider the following
Section 22) factors:
1. The age and level of development of the child;
e. LIVE-LINK TV TESTIMONY OF A CHILD 2. His physical and mental health, including any
WITNESS (Section 25) mental or physical disability;
3. Any physical, emotional, or psychological injury
LIVE-LINK TV TESTIMONY experienced by him;
It is when the testimony of the child is taken in a 4. The nature of the alleged abuse;
room outside the courtroom and be televised to the 5. Any threats against the child;
courtroom by live-link television. 6. His relationship with the accused or adverse
party;
Who May Apply 7. His reaction to any prior encounters with the
1. Prosecutor; accused in court or elsewhere;
2. Counsel; or 8. His reaction prior to the trial when the topic of
3. Guardian ad litem. testimony was discussed with him/her by
parents or professionals;
Need to Consult Prosecutor or Counsel 9. Specific symptoms of stress exhibited by the
Before the guardian ad litem applies for an order child in the days prior to testifying;
under this section, he/she shall consult the 10. Testimony of expert or lay witnesses;
prosecutor or counsel and shall defer to the 11. The custodial situation of the child and the
judgment of the prosecutor or counsel regarding the attitude of the members of his/her family
necessity of applying for an order. regarding the events about which he/she will
testify; and
In case the guardian ad litem is convinced that the

386
12. Other relevant factors, such as court Objections to deposition testimony or evidence, or
atmosphere and formalities of court procedure. parts thereof, and the grounds for the objection
shall be stated and shall be ruled upon at the time
Rules in Taking Testimony by Live-Link of the taking of the deposition.
Television
If the court orders the taking of testimony by live-link Persons Who May Be Permitted in Videotaped
television: Deposition
The other persons who may be permitted to be
1. The child shall testify in a room separate from present at the proceedings are:
the courtroom in the presence of the guardian 1. Prosecutor;
ad litem; one or both of his/her support 2. Defense counsel;
persons; the facilitator and interpreter, if any; a 3. Guardian ad litem;
court officer appointed by the court; persons 4. Accused;
necessary to operate the closed-circuit 5. Other persons whose presence is determined
television equipment; and other persons whose by the court to be necessary to the welfare and
presence are determined by the court to be well-being of the child;
necessary to the welfare and well-being of the 6. One or both of his/her support persons, the
child. facilitator and interpreter, if any;
2. The judge, prosecutor, accused, and counsel 7. Court stenographer; and
for the parties shall be in the courtroom. The 8. Persons necessary to operate the videotape
testimony of the child shall be transmitted by equipment.
live-link television into the courtroom for
viewing and hearing by the judge, prosecutor, Rights of the Accused Not to be Violated
counsel for the parties, accused, victim, and The rights of the accused during trial, especially the
the public unless executed. right to counsel and to confront and cross-examine
3. If it is necessary for the child to identify the the child, shall not be violated during the deposition.
accused at trial, the court may allow the child to
enter the courtroom for the limited purpose of Exclusion of Accused in Videotaped Deposition
identifying the accused, or the court may allow If the order of the court is based on evidence that
the child to identify the accused by observing the child is unable to testify in the physical presence
the image of the latter on a television monitor. of the accused, the court may direct the latter to be
4. The court may set other conditions and excluded from the room in which the deposition is
limitations on the taking of the testimony that it conducted. In case of exclusion of the accused, the
finds just and appropriate, taking into court shall order that the testimony of the child be
consideration the best interests of the child. taken by live-link television in accordance with
section 25 of this Rule. If the accused is excluded
Preservation of Child’s Testimony: from the deposition, it is not necessary that the child
be able to view an image of the accused.
The testimony of the child shall be preserved on
videotape, digital disc, or other similar devices Best Interests of the Child Taken Into
which shall be made part of the court record and Consideration
shall be subject to a protective order. The court may set other conditions on the taking of
the deposition that it finds just and appropriate,
f. VIDEOTAPED DEPOSITION OF A CHILD taking into consideration the best interests of the
WITNESS (Section 27) child, the constitutional rights of the accused, and
other relevant factors.
Who May Apply for Videotaped Deposition
The prosecutor, counsel or guardian ad litem may Admissibility of Videotaped Deposition When
apply for an order that a deposition be taken of the Child Unable to Testify
testimony of the child and that it be recorded and If, at the time of trial, the court finds that the child is
preserved on videotape. unable to testify, the court may admit into evidence
the videotaped deposition of the child in lieu of his
Before the guardian ad litem applies for an order, testimony at the trial. The court shall issue an order
he/she shall consult with the prosecutor or counsel. stating the reasons therefor.

When order for Videotaped Deposition Issued Motion for Additional Videotaped Depositions
If the court finds that the child will not be able to After the original videotaping but before or during
testify in open court at trial, it shall issue an order trial, any party may file any motion for additional
that the deposition of the child be taken and videotaping on the ground of newly discovered
preserved by videotape. evidence. The court may order an additional
videotaped deposition to receive the newly
Who Shall Preside Over Videotaped Deposition discovered evidence.
The judge shall preside at the videotaped
deposition of a child. Preservation of videotaped deposition
The videotaped deposition shall be preserved and
Rule on Objections to Videotaped Deposition stenographically recorded and be subjected to
protective order.

387
 The Following Evidence is NOT ADMISSIBLE in
g. HEARSAY EXCEPTION IN CHILD ABUSE Any Criminal Proceeding Involving Alleged
CASES (Section 28) Child Sexual Abuse
1. Evidence offered to prove that the alleged
A statement made by a child describing any act or victim engaged in other sexual behavior; and
attempted act of child abuse, not otherwise 2. Evidence offered to prove the sexual
admissible under the hearsay rule, may be admitted predisposition of the alleged victim.
in evidence in any criminal or non-criminal
proceeding subject to the following rules: Exception:
Evidence of specific instance of sexual behavior
1. Before such hearsay statement may be by the alleged victim to prove that a person other
admitted, its proponent shall make known to than the accused was the source of semen,
the adverse party the intention to offer such injury, or other physical evidence shall be
statement and its particulars to provide him a admissible.
fair opportunity to object. If the child is
available, the court shall, upon motion of the A party intending to Offer Such Evidence Must:
adverse party, require the child to be present at 1. File a written motion at least 15 days before
the presentation of the hearsay statement for trial, specifically describing the evidence and
cross-examination by the adverse party. When stating the purpose for which it is offered,
the child is unavailable, the fact of such unless the court, for good cause, requires a
circumstances must be proved by the different for filing or permits filing during trial;
proponent. and
2. Serve the motion on all parties and the
2. In the ruling on the admissibility of such guardian ad litem at least three days before the
hearsay statement, the court shall consider the hearing of the motion.
time, content and circumstances thereof which
provide sufficient indicia of reliability. It shall Before admitting such evidence, the court must
consider the following factors: conduct a hearing in chambers and afford the child,
his/her guardian ad litem, the parties, and their
a. Whether there is a motive to lie; counsel a right to attend and be heard. The motion
b. The general character of the declarant and the record of the hearing must be sealed and
child; remain under seal and protected by a protective
c. Whether more than one person heard the order set forth in section 31(b). The child shall not
statement; be required to testify at the hearing in chambers
d. Whether the statement was spontaneous; except with his/her consent.
e. The timing of the statement and the
relationship between the declarant child i. PROTECTIVE ORDERS (Section 31)
and witness;
f. Cross-examination could not show the lack Any videotape or audiotape of a child that is part of
of knowledge of the declarant child; the court record shall be under a protective order
g. The possibility of faulty recollection of the that provides as follows:
declarant child is remote; and
h. The circumstances surrounding the 1. Tapes may be viewed only by parties, their
statement are such that there is no reason counsel, their expert witness, and the guardian
to suppose the declarant child ad litem.
misrepresented the involvement of the 2. No tape, or any portion thereof, shall be
accused. divulged to any other person, except as
necessary for the trial.
3. The child witness shall be considered 3. No person shall be granted access to the tape,
unavailable under the following situations: its transcription or any part thereof unless
he/she signs a written affirmation that he/she
a. The child is deceased, suffers from has received and read a copy of the protective
physical infirmity, lack of memory, mental order; that he/she submits to the jurisdiction of
illness, or will be exposed to sever the court with respect to the protective order;
psychological injury; or and that in case of violation thereof, he/she will
b. The child is absent from the hearing and be subject to the contempt power of the court.
the proponent of his/her statement has 4. Each of the tape cassettes and transcripts
been unable to procure his/her attendance thereof made available to the parties, their
by process or other reasonable means. counsel, and respective agents shall bear the
following cautionary notice:
4. When the child witness is unavailable, his/her
hearsay testimony shall be admitted only if This object or document and the contents thereof
corroborated by other admissible evidence. are subject to a protective order issued by the court
in (case title), (case number). They shall not be
h. SEXUAL ABUSE SHIELD RULE (Section 30) examined, inspected, read, viewed, or copied by
any person, or disclosed to any person, except as
provided in the protective order. No additional

388
copies of the tape or any of its portion shall be one purpose and not for another; otherwise the
made, given, sold, or shown to any person without adverse party cannot interpose the proper
prior court order. Any person violating such objection. Evidence submitted for one purpose may
protective order is subject to the contempt power of not be considered for any other purpose.
the court and other penalties prescribed by law.
Note: A party who has introduced evidence is NOT
5. No tape shall be given, loaned, sold, or shown entitled as a matter of right to withdraw it on finding
to any person except as ordered by the court. that it does not answer his purpose.

6. Within 30 days from receipt, all copies of the The Identification and Formal Offer
tape and any transcripts thereof shall be Distinguished:
returned to the clerk of court for safekeeping 1. IDENTIFICATION – Identification of the
unless the period is extended by the court on evidence is made in the course of the trial and
motion of a party. marked as exhibits. Any objection made at this
stage is premature.
7. This protective order shall remain in full force 2. FORMAL OFFER – it is only when the
and effect until further order of the court. proponent rests his case and formally offers the
evidence that an objection thereto may be
The court may, motu proprio or on motion of any made.
party, the child, his/her parents, legal guardian, or
the guardian ad litem, issue additional orders to Note: A party has the option of not offering into
protect the privacy of the child. evidence the evidence identified at the trial and
marked as an exhibit.
END OF TOPIC Note: The mere fact that a particular document is
identified and marked as an exhibit does not mean
it will be or has been offered as part of the evidence
of the party. The party may decide to formally offer
F. OFFER AND OBJECTION it if it believes this will advance its cause, and then
again it may decide not to do so at all. (Interspecific
Transit v. Aviles, G.R. No. 86062, 1990)
1. OFFER OF EVIDENCE
There are instances when the Court relaxed the
2. WHEN TO MAKE AN OFFER foregoing rule and allowed evidence not formally
3. OBJECTION offered to be admitted. Citing People v. Napat-a and
4. REPETITION OF AN OBJECTION People. v. Mate the Court in Heirs of Romana
Saves, et al., v. Heirs of Escolastico Saves, et al.
5. RULING (632 SCRA 236 2010), enumerated the
6. STRIKING OUT AN ANSWER requirements for the evidence to be considered
7. TENDER OF EXCLUDED EVIDENCE despite failure to formally offer it, namely: ―first, the
same must have been duly identified by
testimony duly recorded and, second, the same
must have been incorporated in the records of
1. OFFER OF EVIDENCE the case.‖ In People v. Vivencio De Roxas et al.
(G.R. No. L-16947, 1962), the Court also
The court shall consider no evidence which has not
considered exhibits which were not formally
been formally offered. The purpose for which the
offered by the prosecution but were repeatedly
evidence is offered must be specified. referred to in the course of the trial by the
counsel of the accused.
Exceptions:
1. Evidence not formally offered can be
In the instant case, the Court finds that the above
considered by the court as long as they
requisites are attendant to warrant the relaxation of
have been properly identified by testimony
the rule and admit the evidence of the petitioners
duly recorded and
not formally offered. As can be seen in the records
2. They have themselves been incorporated
of the case, the petitioners were able to present
in the records of the case. (People v
evidence that have been duly identified by
Libnao, G.R. No. 13860, 2003)
testimony duly recorded. To identify is to prove the
identity of a person or a thing. Identification means
Purpose of Offer
proof of identity; the proving that a person, subject
Formal offer is necessary because it is the duty of
or article before the court is the very same that he
the judge to rest his findings of facts and his
or it is alleged, charged or reputed to be. (Rodolfo
judgment only and strictly upon the evidence
Laborte, et al. v. Pagsanjan Tourism Consumers’
offered by the parties at the trial.
Cooperative, et al., G.R. No. 183860, 2014)
The purpose for which the evidence is offered must
be specified because such evidence may be 2. WHEN TO MAKE AN OFFER
admissible for several purposes under the doctrine
of multiple admissibility, or may be admissible for TESTIMONIAL DOCUMENTARY AND
EVIDENCE OBJECT EVIDENCE

389
 own motion, to disregard the evidence. (People v.
It shall be offered after Yatco, G.R. No. L-9181, 1955)
the presentation of a
party‘s testimonial WHEN WHEN IT MAY
The offer must be made OFFERED BE OBJECTED
evidence.
at the time the witness
Such offer shall be done When the
is called to testify.
orally unless allowed by same is
the court to be done in presented for
writing. its view or
evaluation, as
Should be made
in ocular
either at the time
3. OBJECTION inspection or
it is presented in
demonstra-
Object an ocular
Purposes of Objections: tions, or when
evidence inspection or
the party
demonstrations
1. To keep out inadmissible evidence that would rests his case
or when it is
cause harm to a client‘s cause. The rules of and the real
formally offered
evidence are not self-operating and hence, evidence
must be invoked by way of an objection. consists of
2. To protect the record, i.e. to present the issue objects
of inadmissibility of the offered evidence in a exhibited in
way that if the trial court rules erroneously, the court.
error can be relied upon as a ground for a As to the
future appeal; qualification of
3. To protect a witness from being embarrassed the witness –
on the stand or from being harassed by the should be made
adverse counsel at the time he is
4. To expose the adversary‘s unfair tactics like his called to the
consistently asking obviously leading questions stand and
5. To give the trial court an opportunity to correct immediately after
its own errors and, at the same time, warn the the opposing
court that a ruling adverse to the objector may party offers
supply a reason to invoke a higher court‘s When witness his/her
appellate jurisdiction; and is called to testimony.
6. To avoid a waiver of the inadmissibility of an Testimonial the witness If otherwise
otherwise inadmissible evidence. (Riano, evidence stand, before qualified -
Evidence, 517-518) he/she objection should
testifies be raised when
Purpose: To stop an answer to a question put to a the objectionable
witness or to prevent the receipt of a document in question is
evidence until the court has had opportunity to asked or after
make a ruling upon its admissibility the answer is
given if the
Rules on Objections (Rule 132, Section 36) objectionable
1. As to evidence offered orally – objection must features became
be made immediately after the offer is made. apparent by
2. As to evidence offered in writing – objection reason of such
shall be made within three (3) days after notice answer.
of the offer unless a different period is allowed Formally
by the court. offered by the
3. As to questions propounded in the course proponent
of the oral examination– objection shall be after the
made as soon as the grounds therefor shall presentation At the time it is
Documentary
become reasonably apparent. of his/her last formally offered.
evidence
witness and
In any case, the grounds for the objections must be before he
specified. rests his
case.
An objection to evidence cannot be made in
advance of the offer of the evidence sought to be 4. RULE ON REPETITION OF
introduced. OBJECTION
The right to object is a mere privilege which the When it becomes reasonably apparent in the
parties may waive. And if the ground for objection course of the examination of a witness that the
is known and not seasonably made, the objection is questions being propounded are of the same class
deemed waived and the court has no power, on its as those to which objection has been made,

390
whether such objection was sustained or overruled, Where the court refuses to permit the counsel to
it shall not be necessary to repeat the objection, it present testimony which he thinks is competent,
being sufficient for the adverse party to record material and necessary to prove his case, the
his/her continuing objection to such class of method to properly preserve the record to the end
question. (Rule 132, Section 37) that the question may be saved for the purposes of
review, is through the making of an offer of proof.
5. RULING
Purpose:
When Ruling of Court Must be Given 1. To inform the court what is expected to be
The ruling of the court must be given immediately proved.
after the objection is made, unless the court desires 2. So that a higher court may determine from the
to take a reasonable time to inform itself on the record whether the proposed evidence is
question presented; but the ruling shall always be competent.
made during the trial and at such time as will give
the party against whom it is made an opportunity to Rule on Tender of Excluded Evidence
meet the situation presented by the ruling. 1. If the excluded evidence is documentary or
object - the offeror may have the same
When Reason For Ruling Must be Stated attached to or made part of the record. (Rule
1. The reason for sustaining or overruling an 132, Sec. 40)
objection need not be stated. 2. If the evidence excluded is oral – the offeror
2. If the objection is based on two or more may state for the record the name and other
grounds, a ruling sustaining the objection on personal circumstances of the witness and the
one or some of them must specify the ground substance of the proposed testimony. (Rule
or grounds relied upon. 132, Sec. 40)

Note: The rulings of the trial court on procedural END OF TOPIC

questions and on admissibility of evidence during
the course of a trial are interlocutory in nature and
may not be the subject of separate appeals or
review on certiorari. These are to be assigned as
errors and reviewed in the appeal taken from the
trial court on the merits of the case.

6. STRIKING OUT AN ANSWER

General Rule: An objection to questions
propounded in the course of oral examination must
be interposed as soon as the ground(s) become
evident. Failure to interpose a timely objection may
be taken as a waiver of the right to object and the
answer will be admitted.

Exceptions: A motion to strike out the answer is

available as a remedy where:
1. A witness answers a question after an
objection has been sustained;
2. The irrelevance of the evidence
becomes apparent only after an
objection has been overruled;
3. Where a witness answers a question
before an attorney can object.

An Answer May be Stricken Off the Record By:

1. Upon the court’s own motion – Should a
witness answer the question before the
adverse party had the opportunity to voice fully
its objection to the same, and such objection is
found to be meritorious, the court shall sustain
the objection and order the answer given to be
stricken off the record.
2. On motion of party – The court may also
order the striking out of answers, which are
incompetent, irrelevant, or otherwise improper.

7. TENDER OF EXCLUDED EVIDENCE

391