CIVIL PROCEDURE PART I General principles Concept of Remedial Law 1.

Remedial law is that branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasions (Bustos vs. Lucero, 81 Phil. 640). Remedial law refers to legislation, providing means or methods whereby causes of action may be effectuated, wrongs redressed, and reliefs obtained (Schmidt vs. Jenkins Truck Lines, Inc., 260 Iowa 556, 149 N.W. 2d 789). These statutes pertain to or affect a remedy as distinguished from those which affect or modify a substantive right or duty (Blacks Law Dictionary, 5th Ed., p. 1162-1163). Remedial law provides for the mechanics of due process which are: (a) a court or tribunal clothed with judicial power to hear and determine the matter before it; (b) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (c) the defendant must be given an opportunity to be heard; and (d) judgment must be rendered upon lawful hearing (Consolidated Bank and Trust Corp. vs. CA, 193 SCRA 158).

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Substantive law as distinguished from remedial law 1. Substantive law is that part of the law which creates, defines or regulates rights concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs. Remedial law refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed and relief obtained. Substantive law makes vested rights possible. Remedial law has no vested rights. Substantive law is prospective in application. Remedial law governs acts and transactions which took place (retroactive). Substantive law cannot be enacted by the Supreme Court. In remedial law, the Supreme Court is expressly empowered to promulgate procedural rules. Rule-making power of the Supreme Court Limitations on the rule-making power of the Supreme Court 1. The following limitations are imposed by the Constitution on the rule-making power of the Supreme Court: (a) (b) (c) the rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases; the rules shall be uniform for courts of the same grade; and the rules shall not diminish, increase or modify substantive rights (Sec. 5[5], Art. VIII, Constitution of the Philippines).

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Power of the Supreme Court to amend and suspend procedural rules 1. The Supreme Court has the power to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases (Neypes vs. CA, 469 SCRA 633). The constitutional power of the Supreme Court to promulgate rules of practice and procedure and to amend or repeal the same necessarily carries with it the power to overturn

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judicial precedents on points of remedial law through the amendment of the Rules of Court (Pinga vs. Heirs of Santiago, G.R. No. 170354, June 30, 2006). 3. The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts (CIR vs. Migrant Pangbilao Corp., G.R. No. 159593, October 12, 2006). There are indeed, reason, which would warrant the suspension of the rules: (a) the existence of special or compelling reasons; (b) the merits of the case; (c) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (d) a lack of any showing that the review sought is merely frivolous and dilatory; and (e) the other party will not be unjustly prejudiced thereby (Sarmiento vs. Zaratan, G.R. No. 167471, February 5, 2007). Nature of Philippine courts Meaning of a court 1. Courts are judicial tribunals in the administration or dispensation of justice. They exist in every civilized country to resolve and end disputes in accordance with the law peacefully, orderly, authoritatively, definitely, and finally (The Courts and the Criminal Justice System by Chief Justice Narvasa). A court is a body in the government to which the public administration of justice is delegated.

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Court as distinguished from a judge 1. Courts may exist without a judge. There may be a judge without a court. Jurisdiction is vested in the court and not in the judge (Bacalso vs. Ramolete, 21 SCRA 519).

Classification of Philippine courts 1. Constitutional courts are hose created by the Constitution itself, e.g., the Supreme Court (Art. VIII, 1987 Constitution). The Sandiganbayan is a constitutionally-mandated court. Its creation was mandated by Art. XIII, Section 5 of the 1973 Constitution. Statutory courts are those created by the legislature. The Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, and the Municipal Courts were created by B.P. Blg. 129, as amended. Other courts such as the Court of Tax Appeals (R.A. 1125 as amended by R.A. 9282) and the Family Courts (R.A. 8397) were created by special laws. Superior courts (courts of general jurisdiction) are courts which take cognizance of all kinds of cases whether civil or criminal and possess supervisory authority over lower courts. Inferior courts (courts of special or limited jurisdiction) are courts which take cognizance of certain specified cases only. The reference to inferior courts in the Rules of Court shall be deemed changed to the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts and, as used in the Rules included in the term Municipal Trial Courts. Courts of original jurisdiction are those courts where a case is originally commenced. Appellate courts are those courts where a case is reviewed. Courts of law are tribunals duly administering the laws of the land.

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Courts of general jurisdiction are courts which take cognizance of all cases, civil or criminal, except those assigned to special courts and courts of limited jurisdiction. Courts of record are those whose proceedings are enrolled and which are bound to keep a written record of all trial and proceedings handled by them. Land registration courts are those which have jurisdiction over registration of real properties under the Torrens system (P.D. 1529). Tribal courts are those existing under the customs and traditions of an indigenous cultural community are not part of the Philippine judicial system (Sec. 1, Art. VIII of the 1987 Constitution). They do not possess judicial power. Like the pangkat or conciliation panels created by P.D. 1508 in the barangay, they are advisory and conciliatory bodies. Decisions of a tribunal based on a compromise may be enforced or set aside, in and through the regular courts only (Sps. Badua vs. Cordillera Bodong Administration, G. R. No. 92649, Feb. 14, 1991). Family courts are courts created by R.A. 8639 vested with exclusive original jurisdiction over child and family cases. Military court or military commission or court martial is not a court of law and does not form part of the judicial system and process. They are agencies of executive character. Their decisions are not appealable to the courts but would pass the reviewing and conferring authority, but the Supreme Court may exercise its supervision or correcting power over court-martial proceedings when jurisdictional errors are involved or when there is grave abuse of discretion. A military commission or tribunal cannot try and exercise jurisdiction over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning (Olaguer vs. Military Commission, 150 SCRA 144). Any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned.

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Courts of original and appellate jurisdiction 1. Original jurisdiction is the power of the court to take judicial cognizance of a case institution for judicial action for the first time under conditions provided by law. Appellate jurisdiction is the authority of a court higher in rank to re-examine the final order of judgment of a lower court which tried the case now elevated for judicial review.

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Since the two jurisdictions are exclusive of each other, each must be expressly conferred by law. One does not flow from, nor is inferred from, the other (Garcia vs. de Jesus, 205 SCRA 779). Courts of general and special jurisdiction 1. Courts of general jurisdiction are those which take cognizance of all cases, civil or criminal, except those assigned to special courts. Courts of special or limited jurisdiction are those which are confined to particular cases or which can be exercised only under limitations and circumstances by statute. A court of general jurisdiction is presumed to be acting within its jurisdiction unless the contrary is shown. A court of limited jurisdiction has only the jurisdiction expressly delegated and must appear from the record that its acts are within its jurisdiction (Francisco, Civil Procedure, p. 21, Municipal Trial Courts).

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Constitutional and statutory courts

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Constitutional courts are created by the Constitution while statutory courts are created by law. Constitutional courts cannot be abolished by Congress without amending the Constitution while statutory courts may be abolished by Congress by just simply repealing the law which created those courts.

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Courts of law and equity 1. A court of law decides a case according to what the promulgated law is while a court of equity adjudicates a controversy according the common precepts of what is right and just without inquiring into the terms of the statutes. In the Philippines, every court, both original and appellate exercises both the legal and equitable jurisdictions (U.S. vs. Tamparong, 31 Phil. 321).

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Principle of judicial hierarchy 1. This principle means that a higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts. While it is true that the SC, CA, and the RTC have concurrent original jurisdiction to issue writs of certiorari, prohibition and mandamus, such concurrence does not accord litigants unrestrained freedom of choice of the court to which the application for the writ may be directed. The application should filed with the court of lower level unless the importance of the issue involved deserves the action of the court of higher level.

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Doctrine of non-interference or doctrine of judicial stability 1. No court has authority to interfere by injunction with the judgment of another court of coordinate jurisdiction (Ngo Bun Tiong vs. Judge Sayo, 163 SCRA 237). The various branches of the RTC of a province or city, having as they do the same or equal authority and exercising as they do concurrent and coordinate jurisdiction, should not, cannot, and are not permitted to interfere with their respective cases, much less with their orders or judgments by means of injunction (PNB vs. Pineda, 197 SCRA 1). The doctrine of non-interference is an elementary principle of higher importance in the administration of justice that the judgment of a court of competent jurisdiction may not be opened, modified, or vacated by any court of concurrent jurisdiction. No Regional Trial Court can pass upon and scrutinize, and much less declare as unjust a judgment of another Regional Trial Court and sentence the judge thereof liable for damages without running afoul with the principle that only the higher appellate courts, namely, the Court of Appeals and the Supreme Court, are vested with authority to review and correct errors of the trial courts (Villamor vs. Salas, 203 SCRA 540). JURISDICTION Jurisdiction is the authority or power to hear, try, decide a case (Cuenca vs. PCGG, 535 SCRA 102) and to execute the judgment thereon (Echegaray vs. Secretary of justice, 301 SCRA 96). It is not the power of a judge but of the court. 1. For a judgment to be valid, the judgment must have been rendered by a court having jurisdiction over the following: (1) subject matter, (2) parties, (3) issues, and (4) res. Jurisdiction over the subject matter This kind of jurisdiction is not procedural but a matter of substantive law. This jurisdiction is conferred by law. Nothing else can confer jurisdiction except the law (De la Cruz vs. Court of Appeals, 510 SCRA 103; Guy vs. Court of Appeals, December 10, 2007). If it is conferred by law, it cannot be conferred by waiver, agreement by

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the parties or by acquiescence of the courts. It cannot be conferred by the rightness of the decision made or by the regularity of its exercise. Why? Because it is conferred only by law. Hence, whether or not the court has jurisdiction over the subject matter of an action instituted before it is dependent upon the laws on jurisdiction. 3. Payment of filing/docket fees The rule as it stands now, requires the payment of the requisite fees when a complaint is filed. It is not simply the filing of the complaint that vests the court with jurisdiction over the action filed (even if by law, it has jurisdiction) but also by the payment of the prescribed docket fee. The Supreme Court in several cases, has held that a court acquires jurisdiction over the case ONLY upon the payment of the said fees (Manchester Development Corporation vs. Court of Appeals, G.R. No. 75919, May 7, 1987; Nestle Philippines, Inc. vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006). This strict rule, as enunciated in Manchester was prompted by the peculiar circumstances of the case. Here, the Court noted a fraudulent scheme to avoid payment of the docket fee by the plaintiffs deliberate omission of the amount of damages sought in the prayer although alleged in the body of the complaint. This ruling was relaxed in Sun Insurance vs. Court of Appeals ( 149 SCRA 562), when the Court made a liberal interpretation of the rule by allowing a late payment of the docket fee as long as it should not be made beyond the actions prescriptive period. It also declared in the same case that any unpaid fees should be considered a lien on the judgment. In this case, there is no evidence that the plaintiff tried to evade the payment of the docket fees. It should be noted that the pronouncements of the Court on the matter of docket fees have always been influenced by the peculiar legal and equitable circumstances surrounding each case. The rule is not as simple, as rigid or as uncomplicated as the Manchester case makes it appear. There are other circumstances equally important. While the timely payment of docket fees is jurisdictional, considerations of equity also come into the picture (Yuchengco vs. Republic, 333 SCRA 368). 4. Objections to jurisdiction over the person of the defendant may be made initially either in a motion to dismiss or in the answer as an affirmative defense. However, objections to jurisdiction over the subject matter may, as a rule, be made at any stage of the proceedings, even for the first time on appeal as long as estoppel by laches does not set in (Calimlim vs. Ramirez, 118 SCRA 399; Francel Realty vs. Sycip, 469 SCRA 430). Being estopped to question jurisdiction is the exception rather than the rule. While jurisdiction over the subject matter is CONFERRED by law, it is DETERMINED by the allegations of the complaint (Deltaventures Resources, Inc. vs. Cabato, 327 SCRA 521). This means that in order to find out if the court has jurisdiction over a complaint filed before it, the court must look into the allegations of the complaint and no other. The defenses in the motions or in the answer of the defendant should not be considered. For this purpose, the court shall hypothetically assume the truth of the averments in the complaint. If the complaint alleges a claim of P500,000, the RTC has jurisdiction even if the defendant claims that his debt is only P100,000. The truth and the falsity of the claim are not considered as factors in determining the jurisdiction of the court because such matters are to be addressed in the trial of the case. 6. The MTC has exclusive original jurisdiction over claims not exceeding P300,000 in places outside Metro Manila and not exceeding P400,000 within Metro Manila. In determining the jurisdictional amount, do not include the following: (a) damages of whatever kind, (b) interests, (c) attorneys fees, (d) litigation expenses, and (e) costs. Note that damages will be considered in determining the jurisdictional amount when the main action is for damages. If damages is not the main action, damages should be excluded.

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Example: Mr. P filed an action for collection of a sum of money, thus: P350,000, the amount of the note; litigation costs of P6,000; attorneys fees of P50,000; damages of P5,000. In what court shall the action be filed assuming the parties are residents of Manila? The case should be filed in the MeTC of Manila even if the total claim is P411,000. The amount to be considered for jurisdictional purposes is only P350,000. Follow the jurisdictional amounts above even if the case is an admiralty or a maritime case. In matters of probate, the same jurisdictional amounts apply but the basis is the gross value of the estate whether in personal or real property. Because of the amendments introduced to B.P. 129 by R.A. 7691, the MTC may now handle probate cases even if a probate case is a special proceeding (Sec. 19(4), B.P. 129 as amended by R.A. 7691). It is not correct to state that an MTC has no jurisdiction over a special proceeding. 7. Unlawful detainer and forcible entry cases are to be filed with the MTC which has exclusive original jurisdiction over said cases regardless of the amount of rentals or damages prayed for (even if the rentals or damages run into millions) (Sec. 34(2), BP 129 as amended by R.A. 7691). This is an instance where the MTC can take cognizance of a special civil action. Forcible entry and unlawful detainer are treated in Rule 70 as special civil actions (Sec. 33(2), B.P. 129 as amended by R.A. 7691). Under the same provision of the law, when the defendant raises the issue of ownership in his pleadings in an unlawful detainer or forcible entry case, the MTC still has jurisdiction over the case. The MTC may still resolve the issue of ownership but only for the purpose of resolving the issue of possession. The court shall do so if the question of ownership cannot be resolved without deciding the issue of ownership (Sec. 33(2), BP 129 as amended by R.A. 7691). 8. May an MTC now take cognizance over real actions or actions involving title to, or possession of real property or of any interest therein? YES. Under R.A. 7691, the answer is in the affirmative depending upon the assessed value of the land involved in the litigation. If the assessed value of the land or interest therein does not exceed P20,000 outside Metro Manila or does not exceed P50,000 within Metro Manila, the MTC has original jurisdiction over the case (Sec. 33(3), B.P. 129 as amended by R.A. 7691). Thus, an MTC can now have jurisdiction over cases involving ownership of land. Under the former law, these cases were under the jurisdiction of the RTC. Hence, an action for reconveyance of real property, removal of a cloud in a title of real property, cancellation of title to real property and similar actions shall fall within the jurisdiction of the MTC or the RTC depending upon the assessed value of the land involved. Before the amendments introduced by R.A. 7691, they were within the jurisdiction of the RTC because of express provision of the old law and also because they were considered also as actions incapable of pecuniary estimation (Heirs of Valeriano Concha vs. Spouses Gregorio Lumocso, G.R. No. 158121, December 12, 2008; San Pedro vs. Asdala, July 22, 2009). Under the old law, there was no substantial effect on jurisdiction whether a case is one, the subject matter of which was incapable of pecuniary estimation, under Sec. 9 (1) of B.P. 129 or one involving title to property under Sec. 19(2) of B.P. 129. The distinction between the two classes became crucial with the amendment introduced by R.A. No. 7691 in 1994 which expanded the exclusive original jurisdiction of the first level courts to include all 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 P20,000.00, or in Metro Manila, does not exceed P50,000.00 exclusive of interest, attorneys fees, damages of whatever kind, attorneys fees, litigation expenses and costs. (Heirs of Valeriano Concha vs. Spouses Gregorio Lumocso, G.R. No. 158121, December 12, 2008; San Pedro vs. Asdala, July 22, 2009; Heirs of Sebe vs. Heirs of Sevilla, G.R. No. 174497, October 12, 2009).

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Jurisdiction over a case of accion publiciana, also now depends upon the assessed value of the property involved (Quinagoran vs. Court of Appeals, August 24, 2007; Atuel vs Valdez, 403 SCRA 517). However, even if the case of accion publiciana is cognizable by the MTC because of its assessed value, the case will not be covered by a summary proceeding because it is no longer a case of unlawful detainer or forcible entry. Jurisdiction over an accion reinvindicatoria also depends upon the assessed value of the land or property (Hilario vs. Salvador, 457 SCRA 815). This action, like accion publiciana, is no longer the exclusive domain of the RTC.

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An MTC may also hear and decide a petition for a writ of habeas corpus in the absence of all judges of the RTC in the city or province. This is the special jurisdiction of the MTC (Sec. 35, BP 129 as amended by R.A. 7691). This case is another example of a special proceeding which may fall under the jurisdiction of the MTC. The other special proceeding is a probate proceeding jurisdiction over which depends upon the gross value of the estate. Jurisdiction over a probate proceeding would depend now upon the gross value of the estate. The MTC also has a delegated jurisdiction (Sec. 34, BP 129 as amended by R.A. 7691). The Supreme Court may assign the MTC to hear and determine cadastral and land registration cases covering lots where there is no controversy or opposition, or in case of contested lots where the value of which does not exceed P100,000. The value of the land shall be determined first, by the affidavit of the claimant, or second, if there are several claimants, by their agreement, or third, from the corresponding tax declaration of the property. Note: The decision of the MTC under this delegated jurisdiction shall be appealable in the same manner as decisions of the RTC. Hence, the decision is appealable to the CA.

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All other cases not within the jurisdiction of the MTC or of any other court, tribunal, person or body exercising judicial or quasi-judicial functions shall be filed with the RTC (Sec. 19(6), BP 129 as amended by R.A. 7691). This is because the RTC is a court of general jurisdiction. The RTC now also has exclusive original jurisdiction over cases which used to be with the jurisdiction of the Securities and Exchange Commission (R.A. 8799). It also has jurisdiction over cases not capable of pecuniary estimation like rescission of a contract, reformation of an instrument or annulment of a contract, or injunction as a main action. It also has jurisdiction over an action for specific performance which is also an action incapable of pecuniary estimation (Sec. 19(1), BP 129 as amended by R.A. 7691). How about an action for specific performance OR damages? This action is one in the alternative and to determine jurisdiction one must refer to the amount of damages sought for. If the amount of damages claimed falls within the jurisdiction of the MTC, then said court has jurisdiction. Otherwise, the RTC has jurisdiction. This is an instance where the damages shall be considered (Cruz vs. Tan, 87 Phil. 627). But an action for specific performance alone or an action for specific performance AND damages is an action incapable of pecuniary estimation and the action shall be filed with the RTC.

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Jurisdiction over the plaintiff and defendant Jurisdiction over the plaintiff is acquired when said plaintiff files the complaint. By seeking affirmative relief through the complaint, there is an implied submission of the plaintiffs person to the jurisdiction of the court. Jurisdiction over the plaintiff may be acquired even if he is not a citizen or a resident of the Philippines or is not in the Philippines at the time of the filing of the complaint as long as a complaint was filed in his name.

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Note: Jurisdiction over the person of the defendant is relevant only in an action in personam. In an action in rem or quasi in rem, what is needed is jurisdiction over the res (the thing or the status). Jurisdiction over the defendant is acquired by (a) a valid service of summons or (b) by his voluntary appearance or submission to the jurisdiction of the court. The defendants voluntary appearance in the action shall be equivalent to service of summons (Sec. 20, Rule 14, Rules of Court). Lack of jurisdiction over ones person may be invoked in a motion to dismiss alleging such ground. If no motion to dismiss is filed, it may be raised as an affirmative defense in the answer. Under the previous rule, the objection to jurisdiction must be done by making a special appearance in a motion to dismiss invoking the lack of jurisdiction over the person of the defendant as the only ground. Adding any other ground in addition to lack of jurisdiction over the defendant was construed as a voluntary appearance by the defendant or his voluntary submission to the jurisdiction of the court. The rule as it is now, is different. Now, the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance (Sec. 20, Rule 14, Rules of Court). Illustration under the old rule: Defendant files a motion to dismiss. Ground: Lack of jurisdiction over his person because of invalid service of summons. He adds another ground: prescription. Under the old rule, the defendant was considered to have voluntarily submitted himself to the jurisdiction of the court by adding prescription as a ground. Under the new rule however, the inclusion of prescription is not equivalent to voluntary appearance or submission to the jurisdiction of the court. 16. Jurisdiction over the issues This is the power of the court to try and decide issues raised by the pleadings. In order to determine whether or not the court has jurisdiction over the issues of the case, one must look into the pleadings. This jurisdiction means that the court must only pass upon issues raised by the pleadings of the parties. Hence, if the issue raised by the parties is possession, the court has no jurisdiction to pass upon the issue of ownership because it is not an issue in the case. Conversely, if the issue in the case is ownership and no issue of possession is found in the pleadings of the parties, the court has no authority to adjudicate on the possession of the property. Thus, it is not correct for the court to order the lessee to vacate the premises where the lessor did not include in his pleadings a claim for restoration of possession (Buce vs. Court of Appeals, 332 SCRA 151). Sometimes however, issues may arise in the case even if the same are not raised in the pleadings. This happens when the issues are tried with the express or implied consent of the parties. When this happens, the issues shall be treated in all respects as if they had been raised in the pleadings (Sec. 5, Rule 10, Rules of Court). The failure to object to the offer of an evidence on a matter not in issue in the pleadings results in said matter becoming an issue in the case by the consent of the parties even if it is not actually raised in the pleadings of the parties. When this occurs, the pleadings are deemed to have been impliedly amended to include the litigated matter. If, for instance, in an action for a sum of money, the complaint does not allege that a demand to pay has been made upon the defendant before the action is filed, the defendant may file a motion to dismiss the complaint for failure to state a cause of action. He may also invoke the said objection as an affirmative defense in his answer if he chooses not to file a motion to dismiss. If however, he interposes no objection to the defect in the complaint and during the trial he likewise does not object to evidence that a demand was indeed made

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before the action is filed, the matter of demand shall be considered as if it had been alleged in the pleadings. If a party presents evidence on a matter not at issue in the pleadings, the other may object to such evidence. The court may sustain the objection and exclude the evidence. However, the same rule likewise allows the court, in the interest of substantial justice, to direct an amendment to the pleadings so the pleadings may conform to the evidence. This is true despite the objection to the evidence. The evidence will then be admitted after the amendments are made (Mercader vs. DBP (Cebu Branch), 332 SCRA 82, 97). 17. Summary procedure Not all pleadings are allowed under the Rules of Summary Procedure. For example: A party cannot assert a permissive counterclaim although he may assert a compulsory counterclaim. A reply, a third-party complaint or a complaint -in intervention cannot also be filed. The only pleadings allowed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. (Sec. 3(A) II). The answer to the complaint shall be filed and served within ten (10) days from service of summons. May the defendant file a motion for bill of particulars or a motion to dismiss? No. These are not allowed. Exception: A motion to dismiss may be filed if premised on (a) lack of jurisdiction or (b) the failure to comply with the barangay conciliation proceedings. If the defendant does not file his answer, may the plaintiff file a motion to declare the defendant in default? The answer is likewise, no! The remedy of the plaintiff is to move for the rendition of judgment. Even without the requisite motion, the court may motu proprio render judgment (Sec. 6, II, Rules on Summary Procedure). NOTE: As of November 25, 2002, the jurisdictional amount subject to summary procedure is as follows: P100,000 or less (outside Metro Manila); P200,000 or less (within Metro Manila). An action for forcible entry and an action for unlawful detainer are subject to summary procedure. 18. An error of jurisdiction is correctible by certiorari while an error of judgment is correctible by appeal. When the error of the court consists in the appreciation of the facts or the evidences adduced, this is an error of judgment. When the court acts without jurisdiction because it actually has no jurisdiction, or even if initially it has jurisdiction but gravely abuses said discretion or acts in excess of jurisdiction tantamount to lack of jurisdiction, the special civil action of certiorari is the appropriate remedy. Errors of procedure that do not affect the courts jurisdiction are not reviewable by certiorari. It is not also available for the re-examination of conflicting evidences or the reevaluation of the credibility of the witnesses. Caveat: It is settled that certiorari is not proper when another remedy is available. So if appeal is available, we have to forget using certiorari. This is the general rule. However, if appeal would not be a speedy or an adequate remedy, then certiorari may be availed of. As a general rule also, a motion for reconsideration should precede a recourse to certiorari in order to give the trial court a chance to correct its errors. This requirement is not absolute and may be dispensed with in any or a combination of the following situations: (a) when the error of the court is patently void; (b) where the relief is extremely urgent; (c) where the issue is one purely of law; (d) where the question of jurisdiction has been squarely raised, argued before, submitted to, and met and decided by respondent court; (e) where the questioned order is a patent nullity; (f) where there is a deprivation of the petitioners right to due process.

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Reminder: Certiorari under Rule 45 should not be confused with certiorari under Rule 65. Among others, the most important distinction is the issue raised. In Rule 45, the issue is a pure question of law; in Rule 65, the issue is whether or not the tribunal, board or officer acted with grave abuse of discretion amounting to lack of jurisdiction. Rule 45 is certiorari as a mode of appeal. Certiorari under Rule 65 is not a mode of appeal but a special civil action. BASIC CONCEPTS TO REMEMBER 1. Remedial law (also known as procedural law or adjective law) is not substantive law. Substantive law creates, defines and regulates rights and duties but remedial law which includes civil procedure, merely prescribes the methods of enforcing rights and obligations created by substantive law. It is not possible to speak of remedial law without reference to substantive law, since the latter is the basis of the former. The rules embodied in the Rules of Court are not laws in the strict sense of the word since they did not emanate from the legislature, but since they were promulgated under authority of law, such rules have the force and effect of laws (Alvero vs. De la Rosa, 76 Phil. 428). The Philippines uses the system of code pleadings as distinguished from the common law system. In the system of code pleading, the procedural rules are set forth in a codified form like the Rules of Court. In the common law system, the procedural rules are not written in codified form but are products of court decisions (Marquez vs. Varela, 92 Phil. 373 (1972). 2. The Supreme Court has the inherent power to suspend the Rules of Court (Redea vs. Court of Appeals, G.R. No. 146611, February 6, 2007) but while the rules may be relaxed or even suspended by the Supreme Court, it will only do so for persuasive and weighty reasons in order to relieve a litigant of an injustice. The mere invocation of substantial justice is not a magical incantation that will automatically compel the Court to suspend procedural rules (Cu-Unjieng vs. Court of Appeals, 479 SCRA 594, January 24, 2006). What impels the Court to set aside its rules is not a partys empty invocations of liberality but the merits of his position so that the same may not be obstructed by mere deficiencies in form. If a petition has not an iota of merit in it, there is nothing for the Court to bring to light at all (Muoz vs. People, 548 SCRA 473, March 14, 2008). 3. The Rules are to be liberally construed (Sec. 6, Rule 1, Rules of Court). In many instances in the past, the Court allowed appeals filed out of time where the delay was not due to the fault or negligence of the appellant as long as the appeals were impressed with merit (Siguenza vs. Court of Appeals, 137 SCRA 570). Also, while it is true that the pre-trial has already been terminated, the court may allow a party to make additional markings of documentary exhibits since this is consistent with the discretion of the court to dispense justice in accordance with the circumstances of the proceedings before it (Frisco San Juan vs. Sandiganbayan, G.R. No. 173956, August 6, 2008). 4. While the Supreme Court had held that payment of the docket fee within the prescribed period is mandatory for the perfection of an appeal (Regalado vs. Go, G.R. No. 167988, February 6, 2007), the non-payment of the docket fees merely gives rise to a discretion on the court to either dismiss or take cognizance of the appeal and dismissal is not mandatory (Public Estates Authority vs. Yuico, 351 SCRA 350, Villamor vs. Court of Appeals, G.,R. No. 136858, July 21, 2004). Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive only in that sense and to that extent. As a P Page 10 of 166

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general rule, the retroactive application of procedural laws cannot be considered violative of any personal rights because no vested right may attach to nor arise therefrom (In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong, G.R. No. 150274, August 4, 2006). 6. The Rules of Court shall not apply to (a) election cases, (b) land registration, (c) cadastral, (d) naturalization, and (e) insolvency proceedings except by analogy or in a suppletory character and whenever practicable and convenient (Sec. 4, Rule 1, Rules of Court). Administrative bodies are not bound by the technical niceties of the rules obtaining in a court of law. Hence, administrative due process cannot be fully equated with judicial due process (Samalio vs. Court of Appeals, 454 SCRA 462). Administrative bodies are not bound by the technical niceties of law and procedure and the rules obtaining in the courts of law (Department of Agrarian Reform vs. Uy, G.R. No. 169277, February 9, 2007). In a naturalization proceeding for instance, the Court of Appeals can deny an application for naturalization on the basis of documents not formally offered in evidence during the trial. This procedure is contrary to Sec. 34 of Rule 132 providing that the court shall consider no evidence which has not been formally offered but this rule however, does not apply to naturalization proceedings (Ong Chia vs. Republic, 328 SCRA 749 [2000]). While as a rule, affidavits whose affiants have not been cross-examined are hearsay, the argument that the affidavits attached to the case are hearsay because the affiants were not presented in court for cross-examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only (Bantolino vs. Coca-Cola Bottlers, Phil., Inc., 403 SCRA 699). 7. Philippine courts are both courts of law and equity (U.S. vs. Tamparong, 31 Phil. 321). Equity cannot be invoked when there is a law applicable to a given case (Smith Bell Co. vs. Court of Appeals, 267 SCRA 530). For all its conceded merits, equity is available only in the absence of law and not as replacement (Tankiko vs. Cezar, 302 SCRA 559). It is availed of only in the absence of a law and is never availed of against statutory law or judicial pronouncements (Velez vs. Demetrio, G.R. No. 128576, August 13, 2002; Bell vs. Court of Appeals, 267 SCRA 530; David-Chan vs. Court of Appeals, 268 SCRA 677). FUNDAMENTALS OF ORDINARY CIVIL ACTIONS 1. Civil procedure starts with the filing of the complaint. Before filing the complaint, the plaintiff must initially determine if he has a cause of action against the defendant. Without this cause of action, he has no right to file a suit against the defendant because every ordinary civil action must be based on a cause of action (Sec. 1, Rule 2, Rules of Court). If a cause of action exists, the plaintiff may now start considering the preparation of the complaint. But before doing so, he must determine the court that should take cognizance of the action. This involves an inquiry into the laws on jurisdiction. He must also determine the place where the action is to be filed. This means that he must know the venue of the action. He must also know the persons to be impleaded. Hence, he needs to know the rules on parties. As a starting point therefore, the plaintiff must know the concepts of action, right of action, cause of action, jurisdiction, venue and parties before he files the action. In preparing his complaint, the plaintiff should remember that he should allege only ultimate facts, i.e. the facts essential to a partys cause of action (Sec. 1, Rule 6, Rules of Court). This means that he should not allege conclusions of law and aver mere evidentiary facts. Conclusions are for the court to make while evidentiary matters are reserved for the trial. Conclusions and evidentiary matters in a pleading may be the subject of a motion to strike.

2.

3.

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4.

The complaint must be signed by the plaintiff or counsel representing him (Sec. 3, Rule 7, Rules of Court). The counsel who signs the complaint should be aware of the significance of his signature. His signature constitutes a certificate by him that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief there is good ground to support it, and (c) that it is not interposed for delay (Sec. 3, Rule 7, Rules of Court). Remember that an unsigned pleading has no legal effect (Sec. 3, Rule 7, Rules of Court). It is a mere scrap of paper. The address of the party or of the counsel must not be a post office address (Sec. 3, Rule 7, Rules of Court). The pleading need not be under oath. This means that a pleading need not be verified, except when a verification is required by law or by a particular rule. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true of his personal knowledge or based on authentic records (Sec. 4, Rule 7, Rules of Court). While the codal provisions seem to indicate that the absence of a verification is a fatal defect, it has however, been held that the absence of a verification or the noncompliance with the verification requirement does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corporation vs. Cordillera Caraballo Mission, Inc. 469 SCRA 381; Micro Sales Operation Network vs. NLRC, 472 SCRA 328) and noncompliance therewith does not necessarily render it fatally defective (Sarmiento vs. Zaratan, G.R. No. 167471, February 5, 2007). All pleadings in a summary procedure are to be verified such as the pleadings in an action for unlawful detainer and forcible entry (Sec. III (B) 1991 Rules on Summary Procedure). Other examples of those which require a verification are the special civil actions of certiorari, prohibition and mandamus (Rule 65).

5.

6.

7.

Since a complaint is an initiatory pleading, it must be accompanied by a certification against forum shopping. Note: A thorough preparation for the bar requires remembering the contents of the certification against forum shopping in Sec. 5, Rule 7 of the Rules of Court. Remember this provision by heart. The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional (Robert Development Corporation vs. Quitain, 315 SCRA 150) and must be signed by the party himself. It cannot be signed by his counsel (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA 286). This is the general rule and the prevailing rule, subject of course to the power of the Supreme Court to suspend procedural rules in a particular case. In San Miguel Corporation vs. Aballa, 461 SCRA 392, only three out of the ninety-seven petitioners signed the certification of non-forum shopping. The Court ruled that the execution of the certification by only three of the petitioners constitute substantial compliance with the Rules because there is a common cause of action against San Miguel Corporation (See also Espina vs. Court of Appeals, 519 SCRA 327; Pacquing vs. Coca-Cola Bottlers, Inc., 543 SCRA 344, January 31, 2008). The failure to comply with the required certification is not curable by a mere amendment and shall be a cause for the dismissal of the action without prejudice unless ordered by the court to be with prejudice. The general rule therefore, is to the effect that the dismissal is without prejudice where the order is silent on the matter (Sec. 5, Rule 7, Rules of Court). The dismissal for failure to comply with the requirements relative to the certification against forum shopping cannot be done motu proprio. The rule requires that the dismissal be upon motion and after hearing (Sec. 5, Rule 7, Rules of Court). However, if the acts of the

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party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be a ground for summary dismissal. Here, no hearing and motion is required. The dismissal in this case is also with prejudice (Sec. 5, Rule 7, Rules of Court). Where the dismissal is without prejudice, this means the action can be refiled even if it is dismissed. When the complaint is dismissed without prejudice, the remedy of the plaintiff is not to appeal. This is because an order dismissing an action without prejudice is not appealable. If he disagrees with the dismissal, the remedy provided for under Sec. 1 of Rule 41 is to avail of the appropriate special civil action under Rule 65. This provision allows a petition for certiorari (Sec. 1(g), Rule 41, Rules of Court). Also, if the dismissal is without prejudice, another move is to simply refile the case. 8. After all those mentioned above have been considered and duly complied with, the complaint may now be filed. The filing of the complaint is the act of presenting the same before the clerk of court (Sec. 2, Rule 13, Rules of Court). It may be filed personally or by registered mail. (Sec. 3, Rule 13, Rules of Court). The mailing through a private forwarding agency like Federal Express, LBC, Johnny Air or UPS, is not allowed (Benguet Electric Cooperative vs. NLRC, 209 SCRA 55). 9. The rule in this jurisdiction is that when an action is filed, the filing must be accompanied by the payment of the requisite docket and filing fees (Ballatan vs. Court of Appeals, 304 SCRA 34). The fees must be paid because the court acquires jurisdiction over the case only upon payment of the prescribed fees. Without payment, the complaint is not considered filed (Manchester Development Corp. vs. Court of Appeals, 149 SCRA 562). Payment of the full amount of the docket fee is mandatory and jurisdictional (Ayala Land, Inc. vs. Carpo, 345 SCRA 379). This rule has, however, been relaxed by allowing the payment of the fee within a reasonable time but not beyond the prescriptive period (Sun Insurance Office Ltd. vs. Asuncion, 170 SCRA 274). If the fees are not paid at the time of the filing, the court acquires jurisdiction only upon full payment of the fees within a reasonable time as the court may grant, barring prescription (Ballatan vs. Court of Appeals, 304 SCRA 34). When the complaint is filed and the prescribed fees are paid, the action is deemed commenced (Sec. 5, Rule 1, Rules of Court). The filing of the action is significant. First, the filing of the complaint enables the court to acquire jurisdiction over the person of the plaintiff even if the plaintiff is not a resident of the Philippines. Second, it interrupts the running of the prescriptive period (Art. 1155, Civil Code of the Philippines). Normally, it is the defendant who seeks the dismissal of a complaint. May the plaintiff also have his own complaint dismissed? The rule allows a dismissal at the instance of the plaintiff. Sometimes after filing the action, the plaintiff, for reasons personal to him, may have regretted having filed the complaint. When this happens, he may dismiss his own complaint. If the dismissal is sought before the adverse party had served an answer or a motion for summary judgment, he may have his own complaint dismissed by the mere filing of a notice of dismissal. Upon such notice, the court shall issue an order confirming the dismissal (Sec. 1, Rule 17, Rules of Court). The court has no discretion on the matter. The court does not order the dismissal. It merely confirms the dismissal because it is not really the court which dismisses the action but the plaintiff himself. May the plaintiff refile the case later on? He can. He can do so because such a dismissal is, as a rule, a dismissal without prejudice. He cannot refile the case however, in the following instances: (1) If the plaintiffs notice of dismissal states that it is with prejudice, or (2) If the dismissed action based on or including the same claim has once been previously dismissed by the plaintiff. The latter is often referred to as the two dismissal rule.

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Example: Plaintiff filed an action against defendant in the RTC. Before defendant responded to the complaint, plaintiff filed a notice dismissing the complaint. A couple of months after, he filed another complaint based on or including the same claim as the previous complaint dismissed earlier. He once again filed a notice dismissing the second complaint before Defendant served his answer to the complaint. May he refile the complaint which was already dismissed twice? He may not refile the same. The rule is clear. He is now barred from doing so under the two dismissal rule. Under the Rules, the second notice of dismissal operates as an adjudication upon the merits (Sec. 1, Rule 17, Rules of Court). After service of the answer or a motion for summary judgment, the plaintiff can no longer have his action dismissed by mere notice. The plaintiff must now file a motion for the dismissal of his complaint (Secs. 1-2, Rule 1, Rules of Court). The dismissal is now subject to the approval of the court. What is the effect of the dismissal of the complaint on the counterclaim already pleaded before the complaint was dismissed? Is the counterclaim also dismissed? Consider the following example: Plaintiff filed a motion for the dismissal of his own complaint. The defendant however, prior to the service upon him of the plaintiffs motion had pleaded a compulsory counterclaim in his answer. The court dismissed not only the complaint but the compulsory counterclaim as well. The court reasoned that where the complaint is dismissed, the compulsory counterclaim becomes moot and has no more legal basis. Did the court act correctly? The court acted erroneously. Under the Rules, the dismissal is limited to the complaint and is without prejudice to the defendants prerogative to prosecute his counterclaim in a separate action or in the same action (Sec. 2, Rule 17, Rules of Court). Since Sec. 2 of Rule 17 makes no distinction as to the counterclaim involved, even a compulsory counterclaim is not deemed dismissed by the dismissal of the complaint. The defendant may then prosecute his counterclaim despite the dismissal of the complaint in a separate action or in the same action (Pinga vs. Heirs of Santiago, 494 SCRA 393). 12. After the filing of his complaint, may the same be amended? Instead of dismissing his complaint as explained in the immediately preceding paragraph, the plaintiff may decide to amend his complaint. Amendment of his pleading is a matter of right as long as the said amendment is made before the other party has served a responsive pleading (Sec. 2, Rule 10). So if the plaintiff desires to amend his complaint before the defendant serves his answer, the amendment may be done as a matter of right and the court has no discretion on the matter. The amendment has to be accepted. If the court refuses to accept an amendment made as a matter of right, the court may be compelled to do so through the special civil action of mandamus. Before the service of a responsive pleading, a party has the absolute right to amend his pleading, regardless of whether a new cause of action or change in theory is introduced (Bautista vs. Maya-Maya Cottages, Inc., 476 SCRA 416). Note that an amendment made as a matter of right may, by the terms of Sec. 2 of Rule 10, be made only once. May the plaintiff amend his complaint as a matter of right even after a motion to dismiss has been served? The plaintiff may amend his complaint. This is because a motion to dismiss is not a responsive pleading (Paeste vs. Jaurigue, 94 Phil. 179; Republic vs. Ilao, 4 SCRA 106; Remington Industrial Sales vs. Court of Appeals, 382 SCRA 499). Hence, his right to amend his complaint

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is not affected by the filing of the motion to dismiss. However, after a responsive pleading has been served, amendment must be made with leave of court (Sec. 3, Rule 10, Rules of Court). This means for example, that after an answer has been served, an amendment may be done only with leave of court. Note that the rules on amendment apply also to the amendment of pleadings other than a complaint. In the case of a reply to which no responsive pleading is available, the reply may be amended as a matter of right within ten (10) days after it is served (Sec. 2, Rule 10, Rules of Court). Example: A complaint was filed. The defendant served an answer to the complaint. The amendment is no longer a matter of right because an answer has already been served by the defendant. The amendment would now require leave of court and the amendment has become a matter of judicial discretion. Be it remembered that although existing jurisprudence adopts a liberal policy on amendments, the amendment will be denied if it is intended for delay. It may also be denied if it would result in a change in the cause of action or defense or theory of the case, where an amendment is no longer a matter of right. Also, when the court has no jurisdiction over the subject matter of the action and the amendment is for the purpose of conferring jurisdiction upon the court, the amendment shall not be allowed. Since the court is without jurisdiction over the action, it has no jurisdiction to act on the motion for leave to amend. Caveat: The cases (Gaspar vs. Dorado, 15 SCRA 335; Campos Rueda vs. Bautista, 6 SCRA 240), which prohibited amendments to a complaint for the purpose of vesting the court with jurisdiction, involved cases where an answer to the complaint has already been served. Because of the answer served, the amendment must now be made subject to judicial discretion. Of course, common reason suggests that the court would have no jurisdiction to allow the amendment of a complaint over which it has no jurisdiction. Thus, in one case, the Supreme Court declared that the court not having jurisdiction over the original complaint, the court has no power to act on the admission of the amendment complaint (Rosario vs. Carandang, 96 Phil. 845). Take note however, that there are decisions (Gumabay vs. Baralin, 77 SCRA 258; Soledad vs. Mamangun, 8 SCRA 110) which allowed such amendments when the amendment is made as a matter of right, i.e., before a responsive pleading has been served. It appears that the doctrine that amendments cannot be made to cure lack of jurisdiction should be made to apply only to a situation where a responsive pleading has already been served and not to a case where an amendment is made as a matter of right (Bar 2005). 13. What is the effect of the amendment of a pleading? An amended pleading supersedes the pleading that it amends (Sec 8, Rule 10, Rules of Court). If the old pleading is superseded, is a new summons required to be served upon the defendant? Answer: Although it is well-settled that an amended pleading supersedes the original one, and is no longer considered part of the record, it does not follow that new summons should be served. Where the defendant has already appeared before the court by virtue of the summons in the original complaint (as when defendant had filed a motion to dismiss or an answer), the amended complaint may be served upon him without need for another summons even if new causes of action are alleged in the amendment. Conversely, a defendant who has not yet appeared must be served with summons. It is not therefore, the change of the cause of action that gives rise to the need to serve new summons (Viason Enterprises Corporation vs. Court of Appeals, 310 SCRA 26). 14. There are times when there are issues raised in the trial which have not been raised in the pleadings of the parties. If said issues are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in pleadings (Sec. 5, Rule Page 15 of 166

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10, Rules of Court). This gives rise to a situation where the issues raised in the trial and the evidences thereto do not conform to the issues in the pleadings of the parties. As a remedy, existing rules allow a party to move for an amendment of the pleadings so they may conform to the evidence. Now, what if the pleadings are not amended to conform to the evidence? This is not a problem at all. Since the issues have already been tried with the consent of the parties, the failure to amend the pleadings does not affect the result of the trial of such issues (Sec. 5, Rule 10, Rules of Court).The pleadings are hence, deemed amended by implication. What if evidence to a matter not in issue in the pleadings is offered in the course of the proceedings and the other party objects on the ground that the evidence is irrelevant because it pertains to a matter not in issue? May the court sustain the objection? It is submitted that the court may sustain the objection but it may also however, allow the amendment of the pleadings if the presentation of the merits of the action and the ends of substantial justice will be observed thereby. It may likewise grant a continuance to enable the amendment to be made (Sec. 5, Rule 10, Rules of Court). Where the complaint was filed at a time where no cause of action has yet accrued in favor of the plaintiff, may an amendment cure the defect? The amendment cannot cure the defect. The reason for this is plain: There is no cause of action to cure where there is none in the first place. The curing effect of an amendment under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. This means that the curing effect will apply in a situation where there was in fact a cause of action and the only problem was the insufficiency of the allegations in the complaint. It thus follows that a complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Such an action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by the court upon proper motion seasonably filed by the defendant. The underlying reason for this rule is that a person should not be summoned before the public tribunals to answer for complaints which are premature (Swagman Hotels and Travel, Inc. vs. Court of Appeals, 455 SCRA 175). 15. Are amended pleadings the same as supplemental pleadings? They are not. Supplemental pleadings allege facts which occur after the original pleadings have been filed. Note that supplemental pleadings must allege facts pertaining to the original cause of action in the complaint. Example: P files foreclosure proceedings on a loan of D based on a promissory note secured by a real estate mortgage. D counters by claiming damages against P. While the action was pending, P files another foreclosure proceedings on a loan also of D based on another promissory note secured by a real estate mortgage. The second loan was based on a different transaction. D now seeks the admission of a supplemental pleading which he filed in the first suit alleging additional damages as a result of the second foreclosure suit. Should the supplemental pleading be admitted? Answer: It should not be admitted. The so-called supplemental pleading does not relate to the cause of action of the first foreclosure suit. Here there are different causes of action based on totally unrelated transactions. 16. When the complaint is filed and the requisite legal fees have been paid, the clerk of court shall issue the summons to the defendant (Sec. 1, Rule 14, Rules of Court). The service of

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summons is required so the court may acquire jurisdiction over the person of the defendant (in an action in personam) and to comply with the requirements of due process. Another way of acquiring jurisdiction over the person of the defendant is his voluntary appearance in the action. Voluntary appearance shall be equivalent to service of summons (Sec. 20, Rule 14, Rules of Court). 17. Although under the Rules, the defendant is required to answer the complaint within fifteen (15) days from service of summons (Sec. 1, Rule 11), the defendant need not answer. If there are matters in the complaint, which are vague or ambiguous or not averred with sufficient definiteness, he may file a motion for bill of particulars under Rule 12. It is not procedurally correct to file a motion to dismiss on the mere ground that the complaint or any other pleading does not contain particulars or is ambiguous. If the motion for bill of particulars is granted, the court shall order the submission of a bill of particulars. If the order is not obeyed, the court may order the striking out of the pleading or portions thereof to which the order was directed (Secs. 4 & 5, Rule 12, Rules of Court). 18. Even when the allegations are now clear enough to enable the defendant to file his responsive pleading because the adverse party has already submitted a bill of particulars, the defendant need not file his answer immediately. He must first explore the possibility of filing a motion to dismiss under Rule 16. If there is no ground for a motion to dismiss, he has to file his answer. When a motion to dismiss is filed, all grounds available at the time the motion is filed must be invoked in the motion. This is required under the omnibus motion rule. Grounds not so invoked are deemed waived. The grounds not waived however, are lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription (Sec. 8, Rule 15; Sec. 1, Rule 9). When a motion to dismiss is not filed, the grounds for a motion to dismiss may be availed of as affirmative defenses in the answer (Sec. 6, Rule 16). No defense is waived because no motion to dismiss was filed. Note: There is a difference as to effects between filing and not filing a motion to dismiss in relation to waiver of defenses. 19. If the defendant does not file his answer within the time required by the Rules, he may be declared in default under the provisions of Sec. 3 of Rule 9. If the defendant answers but admits all the material allegations of the complaint, the answer is said not to tender an issue. There is therefore, no issue of fact that could be the subject of a trial. In this case, the plaintiff or claiming party should file a motion for judgment on the pleadings (Rule 34, Rules of Court). If the answer tenders an issue but the issue is not genuine as when the issue is one involving mere accounting or the exact amount of damages, the remedy is a motion for summary judgment (Rule 35). If the defendant does not file an answer, he may upon proper motion, be declared in default. Take note that it is the failure to answer within the reglementary period that supplies the basis for declaring the defending party in default. Hence, it is error to declare an answering defendant in default. Remember: The court cannot motu proprio declare the defendant in default. A motion has to be filed by the plaintiff (Sec. 3, Rule 9, Rules of Court). What is the remedy of the party declared in default? The party declared in default may file a motion to set aside the order of default upon proper showing that his failure to do so was due to FAME (fraud, accident, mistake or excusable negligence). This motion must be under oath and must be accompanied by an affidavit of merit, i.e., an affidavit that declares that the defaulting defendant has a meritorious defense. Although not specifically mentioned in the Rules, it would be good practice to attach the answer of the defendant to the motion to set aside the order of default.

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While normally, the affidavit of merit must accompany the motion, it has been held that this affidavit may be dispensed with if the defendant who fails to file an answer was never served with summons. In such a case, the order declaring him in default is VOID because the court did not acquire jurisdiction over the person of the defendant. This situation is a proper subject of certiorari proceedings because of the jurisdictional issue involved (Ponio vs. IAC, 133 SCRA 577). The principles in default do not apply where the order of default is invalid because of lack of or invalid service of summons (Laus vs. Court of Appeals, 219 SCRA 688). Also, if there is a pending motion for extension of time to file an answer, this means that the period to file an answer has not yet lapsed. It is therefore, improper to file a motion to declare the defendant in default at this stage. In De Guia vs. De Guia, 356 SCRA 287, the requirement of an affidavit of merit was liberally interpreted. Here, the requirement for the affidavit was deemed substantially complied with when the answer filed contained the defenses of the defendant and the answer was verified (under oath). What is the effect of the declaration of default on the rights of the party declared in default? A party in default cannot participate in the trial but he is entitled to notice of subsequent proceedings (Sec. 3(a), Rule 9). He must be also notified of the motion declaring him in default as well as the order of default. Under Sec. 3 of Rule 9, he is entitled to notices because a default order does not mean a waiver of all the rights of the defendant. By his default, he is not deemed to have been completely thrown out of court. After the defendant is declared in default, must the plaintiff be required to present his evidences to support his material allegations? The matter is addressed to the discretion of the court. The court may either (1) render judgment on the basis of the complaint, or (2) require the plaintiff to present evidence ex parte (Sec. 3, Rule 9).The reception of evidence may be delegated to the clerk of court. What is the extent of the relief to be awarded in a default judgment? May the court award P1 million where the prayer of the complaint seeks for only P500,000? In default judgments, the court may not. A judgment rendered against a party declared in default shall NOT exceed the amount or be different in kind from that prayed for. This is true even if during the reception of evidence the plaintiff proves a higher amount of damages than what has been alleged in the complaint. Also, unliquidated damages shall not be awarded (Sec. 3(d), Rule 9). What are those cases where no default is allowed? These are: (1) actions for annulment of marriage, (2) actions for legal separation, and (3) action for declaration of nullity of marriage. Instead of declaring the non-answering defendant in default, the court shall order the prosecuting attorney to determine whether or not a collusion exists between parties, and if there is none, to intervene for the State to see to it that the evidence submitted is not fabricated. In a summary procedure, where the defendant does not file his answer to the complaint, the remedy is not to file a motion to declare the defendant in default. This motion is prohibited (Sec. 19(h), Rules on Summary Procedure). The remedy is to file a motion to render judgment. This rendition of judgment may also be done by the court motu proprio (Sec. 6, Rules on Summary Procedure).

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21.

The answer contains the defenses of the defendant. These defenses are of two kinds: negative and affirmative defenses. The negative defenses are stated in the form of specific denials. The specific denials are described in Sec. 10 of Rule 8. There is a need to study this provision well. If the denial is not one of those described, the denial is deemed to be general. A general denial is an admission. If all the material allegations of the complaint are denied by way of a general denial, the effect is an admission of those allegations. Under Sec. 11 of Rule 8, material allegations (except unliquidated damages) not specifically denied are deemed admitted. Since the allegations are deemed admitted, there is no more triable issue between the parties. The plaintiff may now file a motion for judgment on the pleadings. A negative pregnant does not qualify as a specific denial because it is deemed an admission. Example: A complaint alleges: Plaintiff extended a loan to defendant in the amount of P500,000 on July 27, 2009 in Manila. The defendant in his answer alleges: Defendant specifically denies that plaintiff extended a loan to defendant in the amount of P500,000 on July 27, 2009 in Manila. The answer is a mere repetition of the allegations made in the complaint. The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place? The effect of this kind of denial is an admission. One type of a specific denial is where the defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. This type of specific denial must be made sincerely and in good faith. Example: Mr. D actually signs a promissory note in favor of Mr. P. Because Mr. D failed to pay despite demand, suit was brought against him. The complaint duly pleaded the promissory note as an actionable document. Mr. D denies the alleged promissory note by averring lack of knowledge of the note. This averment is clearly one in bad faith and shall be considered as an admission because it is absurd for Mr. D not to know of the promissory note he himself actually signed.

22.

What is an actionable document? An actionable document is one which is the basis of either a claim or a defense. If a complaint was filed based on a promissory note, the promissory note is the basis of the action and is the actionable document. An actionable document must be properly pleaded. How then would the promissory note be alleged in the complaint? It must be done in the following manner: The substance of this promissory note shall be set forth or stated in the pleading AND the original or copy thereof shall be attached to the pleading as an exhibit. When attached as an exhibit, the promissory note shall be deemed a part of the pleading. The copy of the document may also, with like effect, be set forth in the pleading (Sec. 7, Rule 8, Rules of Court). Now, what shall the adverse party do if he desires to contest the document? The adverse party has to do two things: (a) specifically deny the document, set forth what he claims to be the facts, and (b) deny the document under oath. Without an oath, he is deemed to have admitted the genuineness and due execution of the promissory note. Because of this admission, he can no longer deny that the note was forged or that he had no authority to execute the instrument. These defenses are barred by the admission.

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May he however, still defend by showing that the note was executed by fraud, or that the note has prescribed or was already paid? Yes, he can. These defenses are not barred by the admission. A denial under oath is not required in certain cases as (a) when the adverse party does not appear to be a party to the instrument, or (b) when the order to allow the inspection of the original document is refused (Sec. 8, Rule 8). In any of these instances, a mere specific denial is sufficient. 23. What is a judgment on the pleadings? A judgment on the pleadings is proper where the answer of the defendant fails to tender an issue, or otherwise admits the material allegations of the other partys pleadings. Actually no issue is tendered when the defendant admits the material allegations of the complaint. This admission arises when (1) there is an actual admission of the allegations, or (2) the defendant makes a general denial instead of a specific denial. Note: Judgment on the pleadings is not proper in the following actions: (1) declaration of nullity; (2) annulment of marriage; or (3) legal separation. In these cases, the material facts alleged in the complaint shall always be proved (Rule 34, Rules of Court). 24. If the defendant has a claim against the plaintiff, he incorporates in his answer a pleading called a counterclaim. This is a pleading, which a defending party files against the opposing party (Sec. 6, Rule 6, Rules of Court). It is therefore, a claim by the defendant against the plaintiff. In a counterclaim, the original defendant becomes the plaintiff, and the original plaintiff, the defendant. A counterclaim may either be compulsory or permissive. Remember that a compulsory counterclaim will be barred if not invoked or set up in the same action (Sec. 2, Rule 9, Rules of Court). It does not require a certification on non-forum shopping and does not have to be answered by the plaintiff because it is not an initiatory pleading unlike a permissive counterclaim which requires a certification against forum shopping, payment of the docket fees and must be answered by the plaintiff. If no answer is served on the permissive counterclaim, the plaintiff may be declared in default upon motion, for failure to serve an answer to the permissive counterclaim. If there are two or more defendants, one defendant may file a claim against a codefendant. This is done through a pleading called a cross-claim (Sec. 8, Rule 9). A cross-claim not set up in the same action shall be barred (Sec. 2, Rule 9, Rules of Court). If the defendant wants to bring in a person who is not yet a party to the suit, he may do so with leave of court and file a third-party complaint (Sec. 13, Rule 6). No leave of court is required to file a counterclaim or a cross-claim. The plaintiff may wish to answer the defendants answer. This answer is a pleading called reply (Sec. 10, Rule 6). A reply is not mandatory. Even if no reply is filed, the allegations of the answer are anyway deemed controverted or denied. The rules actually make the denial for the plaintiff. A reply is advised if the answer uses an actionable document as a defense and the plaintiff wants to deny the genuineness and due execution of the document. In this case the reply must be under oath. Sometimes, someone who is not a party to the action feels and believes that he has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both. In this case, he may, with leave of court, join the action and he may do so by filing a pleading in intervention. It is important to remember that one must however,

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intervene before the trial court renders judgment and not after the judgment (Rule 19, Rules of Court). Mr. P sues Mr. D for a sum of money. Mr. D also claims that he incurred expenses to defend himself as a result of the unjustified complaint of Mr. P. The claim of Mr. D is a counterclaim. Since this counterclaim arises from the complaint, it is called a compulsory counterclaim. This counterclaim must be set up in the same action. If not set up, it will be forever barred. Plaintiff filed an action to recover ownership and possession of a land occupied by defendant. Judgment was rendered against defendant. Later, defendant filed an action to recover the cost of the improvements he introduced in the land. This claim shall be barred. This claim should have been set up as a counterclaim in the action filed by plaintiff. It is now barred because the counterclaim is compulsory (Baclayon vs. Court of Appeals, 182 SCRA 761). Plaintiff filed an action for a sum of money against defendant. The latter claims that plaintiff is liable to him for damages arising from a quasi-delict, which occurred prior to the filing of the action. The claim of defendant is a permissive counterclaim. It has no connection to the subject matter of the complaint. It is not barred even if not set up in the action because it could be the subject of an independent action. Plaintiff - lessee filed an action for specific performance against lessor in the RTC so the latter would comply with certain obligations in the lease contract. Lessor filed a counterclaim for unlawful detainer on the ground of expiration of the lease. Is this a compulsory counterclaim? It is not. A compulsory counterclaim must be within the jurisdiction of the court both as to amount and nature. The counterclaim is within the jurisdiction of the MTC, which has jurisdiction over cases of unlawful detainer. An unlawful detainer case must be independently filed in the MTC and not by way of counterclaim in a case. Also, if the counterclaim is a labor claim, it cannot be cognizable by a regular court. In this case, the counterclaim, even if with a subject matter related to that of the complaint, is still permissive. Note: A permissive counterclaim must be answered, otherwise the plaintiff may be declared in default as to the permissive counterclaim. A docket fee must also be paid. And a certification against forum shopping must be attached to the counterclaim. A depositor sued the bank and its cashier for money deposited with the bank. The bank alleges it never received the money from the cashier. What should the bank do? The bank should file a cross-claim against the cashier. Plaintiff sues the judgment creditor and the sheriff for selling plaintiffs property. What may the sheriff do? The sheriff may file a cross-claim against the judgment creditor. P sues D, and S, the surety of D. Against whom may S, the surety have recourse? Against D. S may then file a cross-claim against D. P sues D on a promissory note. D lent the money he borrowed to T. What may D do? D may file a third-party complaint against T for contribution. S sells a car to B. Later O sues B to recover the car because he is the true owner of the same. B may file a third-party complaint against S to enforce the warranty against eviction.

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P, whose store was burned, filed a claim against the insurance company. The insurance company refused to pay and defended by claiming that the loss was due to the willful act of P. The insurance company then filed a third-party complaint against the reinsurance company for indemnity. May the re-insurer assert as a defense that the plaintiff, P, caused the loss? It can. A third-party defendant under Sec. 13 of Rule 6 may allege in his answer defenses, which the third-party plaintiff may have against the original plaintiff. Note: The third-party defendant may not however, ordinarily file a counterclaim against the original plaintiff, P for lack of privity UNLESS the counterclaim is shown to be in respect to the original plaintiffs claim against the third-party plaintiff. Debtor and surety signed a promissory note jointly and severally. If a complaint is filed by the creditor against the surety alone, how may the latter claim against the debtor? By filing a third-party complaint against the debtor. Note: If both were sued as defendants, the proper pleading would be a cross-claim. P sues D for damages arising out of a vehicular accident. D claims that it was T who was the proximate cause of the mishap. D may file a third-party complaint against T for subrogation. Creditor files an action against Debtor No. 1 alone who together with Debtor No. 2, signed a note as solidary debtors. Debtor No. 1 may file a third-party complaint against Debtor No. 2 for contribution. Note: In a solidary obligation, the plaintiff need not implead the other debtor because anyone among the debtors may be required to pay the entire debt. The other debtor is neither an indispensable party nor a necessary party as far as the creditor is concerned. P sues D for recovery of a parcel of land. D acquired the land from E who in turn acquired it from F. May D file a third-party complaint against F? No. There is no privity between D and F. D should file a third-party complaint against E and E should file a fourthparty complaint against F. Note: The filing of a third-party complaint requires leave of court. Also, a third-party complaint seeks affirmative relief. No such relief is sought for in a petition for declaratory relief, which merely seeks a declaration of ones legal rights and duties under a statute, executive ordinance, or governmental regulation. However, in one case, it was held that a counterclaim may be filed in a petition for declaratory relief (Visayas Packing vs. Reparations Commission 155 SCRA 542). P sells five trucks to XYX Partnership. Before he was paid the purchase price, the partnership was dissolved. In a suit involving the judicial winding up of the partnership assets, what may P, a non-party do to protect his interest? P may file a pleading in intervention. Creditor sues S, the surety of D in a monetary obligation. May D, the principal debtor intervene? He may. A judgment against S will prejudice D because S will have to sue D for reimbursement. A and B are locked in a civil dispute over a parcel of land. C claims the land as his but he is not a party to the action. What may C do? He should file a pleading in intervention. Note: Intervention must be with leave of court, hence, a motion for leave to intervene must be filed. It is not an independent action, but is attached only to the existing litigation.

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The intervention must be done before the rendition of judgment (Sec. 2, Rule 19, Rules of Court). 25. A reply is the last possible pleading that could be filed in the action. It is the responsive pleading to an answer. You do not file a reply to a counterclaim or cross-claim. What you do is to file an answer, not a reply. A reply is not mandatory if your purpose is to deny the new matters alleged in the answer. Even if not filed, the allegations of new matters by the defendant in his answer are deemed controverted or denied anyway (Sec. 10, Rule 6, Rules of Court). The failure to file a reply will not result into an admission of the material allegations of the answer (because said allegations are deemed denied) but the failure to file an answer to the complaint will involve an implied admission of the material allegations of the complaint. A reply must however, be filed if the defendants defense is based on a document duly pleaded. The reply should be filed because if such document, which forms the basis of the defendants defense, is not specifically denied under oath, its genuineness and due execution shall be deemed admitted. To avoid this admission, the reply must contain a specific denial. Further, the reply must be under oath (Toribio vs. Bidin, 134 SCRA 162). An old case held that if the defendants answer alleges the defense of usury, a reply under oath must be made. If not, the allegation of usury will be deemed admitted (Sun Bros. vs. Caluntad, 16 SCRA 895). It is submitted that the phraseology of the present rule on the matter has made the applicability of the Sun Bros. case suspect. Under Sec. 11 of Rule 8 what needs to be specifically denied under oath is an allegation of usury in a complaint to recover usurious interest and not a defense of usury in the answer. 26. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move that the case be set for pre-trial. The motion is an ex parte motion. Because it is an ex parte motion, notice need not be served on the defendant. Remember that the filing of the motion to set the case for pre-trial is the duty of the plaintiff. It is not the duty of the defendant. Remember too, that to move for a pre-trial before the last pleading has been filed is premature. Thus, when there is an unresolved motion to dismiss or a motion for bill of particulars, or when no answer has yet been filed, a pre-trial conference is premature (Rule 18, Rules of Court). The plaintiff must appear in the pre-trial (Sec. 4, Rule 18, Rules of Court). What is the consequence of the non-appearance of the plaintiff? Unless excused, or when a representative appears in his behalf duly authorized in accordance with the Rules, the failure to appear by the plaintiff shall be a cause for dismissal of the action. Under the previous Rules, the plaintiff who fails to appear is declared nonsuited. This term no longer appears in the Rules. Mr. Plaintiff did not appear in the pre-trial without a valid excuse and the action is dismissed. He wants to know from you if he can refile the case. What would your advice be? I would advise him that he cannot refile the case. This is the general rule. The dismissal as a rule is a dismissal with prejudice. The only way the plaintiff can refile the case is when the order of dismissal itself declares that the dismissal is without prejudice. If the dismissal is with prejudice and the plaintiff can no longer refile the case, what remedy is left to the plaintiff? He can appeal from the order of dismissal. Why? The remedy is appeal from the order of dismissal because the dismissal for failure to appear in a pre-trial hearing being with prejudice, is an adjudication on the merits. It is final in character and not a mere interlocutory order (Sec. 5, Rule 18, Rules of Court).

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The plaintiff appeared in the pre-trial. The defendant did not. What may the court do? The court may order that the plaintiff be allowed to present his evidence ex parte and render judgment on the basis thereof. In the previous Rules, the defendant in this case was declared as in default. The words, as in default, no longer appear in the present Rules. Note that the rules require the parties to file their pre-trial briefs and serve the same on each other at least three (3) days before the pre-trial. Suppose the plaintiff failed to file the required brief and the court dismissed the action, did the court act correctly? It did. The failure to file the pre-trial brief has the same effect as the failure to appear at the pre-trial. The remedy of the plaintiff is to file a motion for reconsideration showing that his failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable neglect (Saguid vs. Court of Appeals, 403 SCRA 678). During the pre-trial conference, the defendant manifested that he has no interest in any form of amicable settlement. The case was set for a second pre-trial conference. Notice was duly sent. Defendant did not appear. The court issued an order allowing the plaintiff to present his evidence ex parte because of the defendants failure to appear. Did the court act correctly? It did not. Once a party manifests his opposition to an amicable settlement, said party may no longer be compelled to attend another pre-trial conference (Pioneer Service vs. Hontanosas, 78 SCRA 448; Insurance Company of North America vs. Republic, 21 SCRA 887). 27. Before the trial, any party may avail of any of the modes of discovery from Rules 23-29. Note that the modes of discovery also apply to a criminal case. The rules of discovery are cumulative, not alternative. The fact that a party has resorted to a particular method of discovery will not bar him from using other methods (Fortune Corp. vs. Court of Appeals, 299 SCRA 376). Note that while the rule requires that only ultimate facts must be alleged in a pleading, the modes of discovery may inquire into evidentiary facts. Let us suppose that a motion for bill of particulars filed by the defendant was denied. May he avail of the modes of discovery even if the matters desired in the denied motion are the same matters sought to be discovered? He may. A bill of particulars is for the purpose of clarifying the allegations of the adverse partys pleading. Yet, the bill of particulars would refer only to ultimate facts since evidentiary facts are not proper in a pleading. On the other hand, the modes of discovery could elicit evidentiary facts on the matters subject of the prior motion for bill of particulars. What may be the uses of a deposition? A deposition may be used to impeach or contradict the testimony of the deponent. If the deponent is an adverse party, his disposition may be used not only to impeach him but also to show admissions on his part. Plaintiff takes the depositions of X. There was no proof that he would not be available during the trial. a) May his deposition be taken?

It may be taken. His inability to attend the trial does not preclude the taking of his deposition. Such matter is not a requirement for the taking of a persons deposition. b) By taking the deposition of X, does X now become the witness of the plaintiff?

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He does not. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition (Sec. 7, Rule 23, Rules of Court). The plaintiff served upon the defendant a written request for admission of the genuineness of several documents as well as relevant and material facts. The defendant ignored the request. What is the effect? Each of the matters of which an admission is requested shall be deemed admitted (Sec. 2, Rule 26, Rules of Court). The admission however, shall apply only to the pending action and shall not constitute an admission in any other proceeding or for any other purpose (Sec. 3, Rule 26, Rules of Court). A party is also required to serve upon the adverse party written interrogatories. What is the consequence for failure to do so? A 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 appeal (Sec. 6, Rule 25, Rules of Court). If a party served with written interrogatories does not serve an answer to the interrogatories, the court, upon motion and notice, may strike out the pleading of that party or a part of it, dismiss the proceeding or enter a judgment by default against that party, even if he is the plaintiff because the rule does not distinguish as to the kind of party (Sec. 5, Rule 29, Rules of Court). 28. What is the effect of failure to file and serve request for admission? Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts (Sec. 5, Rule 26, Rules of Court). 29. After trial (Rule 30), the court shall now render a judgment. A losing party may avail of certain remedies for the protection of his rights. These remedies are: (a) Before the finality of the judgment, a party may avail of (1) a motion for reconsideration (Rule 37); (2) a motion for new trial (Rule 37); or (3) an appeal (Rules 40-45). The appeal may be (i) an ordinary appeal under Rules 40-41; (ii) a petition for review under Rule 42; (iii) a petition for review under Rule 43; or (iv) a petition for review on certiorari under Rule 45. (b) After the finality of the judgment, a party may avail of (1) a petition for relief (Rule 38); (2) an annulment of judgment (Rule 47); or (3) a petition for certiorari (Rule 65). Note: The availability of these remedies means that a party still has remedies even if the judgment is already final and executory. CAUSE OF ACTION 1. A cause of action is the act or omission by which a party violates the rights of another (Sec. 2, Rule 2, Rules of Court; Monzon vs. Spouses Relova vs. Addio Properties, Inc., G.R. No. 171827, September 17, 2008). A cause of action requires the following elements: (a) a right of the plaintiff; (b) an obligation on the part of the defendant to respect or not to violate such right; (c) an act on the part of the defendant violating the right of the plaintiff (Philippine National Construction Corporation vs. Court of Appeals, 514 SCRA 569).

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2.

In determining the existence of a cause of action, only the statements in the complaint may be properly considered. It is error for the court to take cognizance of external facts or hold preliminary hearings to determine its existence (Diaz vs. Diaz, 331 SCRA 302, 316 [2000]). The failure to state a cause of action must appear on the face of the complaint and its existence may be determined only by the allegations of the complaint, consideration of other facts being proscribed and any attempt to prove extraneous circumstances not being allowed (Viewmaster Construction Corporation vs. Roxas, 335 SCRA 540). Note however, that the annexes to the complaint may be considered in determining whether or not a complaint states a cause of action because such annexes are considered parts of the complaint (SeaLand Service, Inc. vs. Court of Appeals, 327 SCRA 135). P sues D on a culpa aquiliana theory. D moves to dismiss on the ground that the complaint fails to state a cause of action. In the hearing of the motion, the court required the plaintiff to present evidence on his claims to determine whether or not the complaint states a cause of action. Is the court correct? The court is not correct. The allegations of the complaint will tell whether or not the complaint states a cause of action. Failure to state a cause of action does not mean that the plaintiff has no cause of action. It only means that the plaintiffs allegations are insufficient for the court to know that there was a violation of his rights by the defendant. Thus, even if indeed the plaintiffs right was violated, if the same is not set forth in the complaint, the pleading fails to state a cause of action even if there really is a cause of action.

3.

Under Rule 16, the ground for dismissal in relation to a cause of action is NOT lack of a cause of action or no cause of action. The ground is that the pleading asserting the claim STATES NO CAUSE OF ACTION (Sec. 1(g), Rule 16; San Lorenzo Village Association, Inc. vs. Court of Appeals, 288 SCRA 115). In Enojas vs. COMELEC, 283 SCRA 229, the Court held that the ground for dismissal based on the fact that the pleading asserting the claims states no cause of action is different from the ground that the case of the claimant should be dismissed for lack of a cause of action. The first is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be determined only from the allegations of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim (See also Dabuco vs. Court of Appeals, 322 SCRA 853 ).

4.

The examinee needs to master the kinds of actions specially the distinction between a real and a personal action and the distinction among an action in personam, quasi in rem or in rem. An action in personam is directed to a particular defendant to make him liable, to require him to perform a particular act or to require him to refrain from a particular act. An action for injunction, specific performance, unlawful detainer, forcible entry, an action for a sum of money or for damages are examples of in personam. A probate proceeding, cadastral or land registration proceeding, an action for annulment of marriage, or an action for a declaration of nullity of marriage are in rem actions. An action for foreclosure of real estate mortgage, partition, or attachment proceedings are in the nature of quasi in rem proceedings. Note: The nature of the action is not dependent upon the name given by the pleader. It is dependent upon the allegations of the complaint. Thus, where the allegations of the complaint state that the actual transaction between the parties was not a sale but an equitable mortgage, the trial court correctly resolved the matter in issue even if the action was erroneously labeled as an action for reformation (Lorbes vs. Court of Appeals, 351 SCRA 716). PERSONAL/REAL ACTIONS AND VENUE

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1.

The distinction between a real action and a personal action is important for the purpose of determining the VENUE of the action. A personal action is transitory, i.e., venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. A real action is local, i.e., venue depends upon the location of the property involved in the litigation. An action is real when it is founded upon the privity of real estate. That means that realty is the subject matter of the action. It must be remembered that not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that it must deal with real property. It is important that the matter in litigation must also involve any of the following issues: (a) title (b) ownership, (c) possession, (d) or any interest in real property. An action for damages to real property, while involving realty is a personal action because although it involves real property, it does not involve any of the issues mentioned. An action to recover possession of real property (ejectment) plus damages is a real action because possession of the real property is involved. An action to recover possession of a personal property is a personal action. An action for a declaration of the nullity of marriage is a personal action (Tamano vs. Ortiz, 291 SCRA 584). An action for specific performance is a personal action (Siosoco vs. Court of Appeals, 303 SCRA 186). Although a complaint is entitled to be one for specific performance, the action is actually a real action for the recovery of land where the plaintiff asks that a transfer certificate of title covering said land be issued to him. The action must therefore, be filed where the property is situated. Also, if the action is denominated as one for specific performance, but the plaintiff seeks for the issuance of a deed of assignment in his favor of certain shares of stocks to regain ownership and possession of said shares, the action is not one for specific performance but a personal action for the recovery of property. The docket fee therefore, should be computed based on the value of the property and not based on the docket fee for specific performance (National Steel Corporation vs. Court of Appeals, 302 SCRA 522, 530).

2.

3.

4.

5.

If the question involves the venue of an action, the examinee must follow the following steps: (a) Ask first whether the action is real or personal. (b) After determining the nature of the action, then apply the rules on venue under Rule 4. For instance, an action to annul a sale of a land and to recover the land located in Baguio City must be filed in Baguio City. For the purpose of venue determination, the action is a real action and must be filed in the place where the property is situated regardless of the residence of the parties (Emergency Loan Pawnshop, Inc. vs. Court of Appeals, G.R. No. 129184, February 28, 2001). An action to rescind a sale of a land must be filed in the place where the property is located.

6.

An action for ejectment must be filed where the property subject of the action is situated. Do not consider the residence of the parties. Improper venue: Although the venue is technically improper, the venue will be deemed proper if the defendant does not object. Since venue is not a matter of substantive law but is primarily for the convenience of the parties it would be up for the defendant to question the venue. If he does not raise the issue of venue, the Court has no authority to motu proprio dismiss a case for improper venue. P Page 27 of 166

7.

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Remember that unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules and venue have been devised. The trial court cannot preempt the defendants prerogative to object to the improper laying of the venue by motu proprio dismissing the case (Dacuycoy vs. Intermediate Appellate Court, 195 SCRA 644). The trial court cannot motu proprio dismiss a case on the ground of improper venue. The court may dismiss an action motu proprio in case of lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription, but not for improper venue (Rudolf Lietz Holdings, Inc. vs. Registry of Deeds of Paraaque City, 344 SCRA 680). Exception: In cases covered by summary procedure or those covered by the rules on small claims, the court may dismiss a case outright on any of the grounds apparent in the complaint. This of course includes improper venue. The dismissal here need not be preceded by a motion to dismiss because it may be done by the court motu proprio (Sec. 4, 1991 Rules of Summary Procedure). In a case in the RTC, the defendant filed a motion to dismiss based on lack of jurisdiction over the subject matter. The court however, dismissed the action based on improper venue. Is the court correct? No! The court cannot motu proprio dismiss an action based on improper venue unless the case is covered by the Rules on Summary Procedure. There is no summary procedure in the RTC. 8. Venue can be stipulated upon and may have the effect of changing the rules on venue provided for in the Rules. The parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before the filing of the action, and (3) exclusive as to the venue. Thus, a stipulation that any suit arising from this contract shall be filed exclusively in Quezon City precludes the filing of the case in any other place. A stipulation that the parties agree to sue and be used in the courts of Manila has been held not to be exclusive (Polytrade Corporation vs. Blanco, 30 SCRA 187). Where the stipulation is not exclusive, then the effect is to add Manila as a possible venue aside from the residence of the plaintiff and the residence of the defendant. Example: P resides in Manila. Defendant resides in Quezon City. The written contract stipulates that any suit arising from a violation of a contract shall be filed only in Pasay City. P sues D for damages arising from an alleged breach of contract. Action was filed in Quezon City. Is venue improper? Venue is improper. The stipulation to file the action only in Pasay City has the effect of ruling out the residences of the parties as possible venues of the action because of the exclusive character of the stipulation. The suit cannot therefore, be filed anywhere other than in Pasay City. 9. What is the effect if the stipulation merely provides: shall be filed in Pasay City? The effect is merely to add Pasay City as a venue aside from Manila and Quezon City. Hence, aside from Manila and Quezon City, another venue of choice is Pasay City. When the venue stipulated is not restrictive or exclusive, the stipulated venue becomes an additional venue aside from the possible venues provided for in the rules. 10. If a motion to dismiss based on improper venue is denied, may the defendant appeal?

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He cannot. An order denying a motion to dismiss is merely interlocutory. It is not final. Only final orders or judgments may be appealed from. The normal remedy is to file an answer and interpose the ground as an affirmative defense, go to trial and appeal from the adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop vs. Court of Appeals, 353 SCRA 89). 11. The property of the judgment debtor located in Makati City was foreclosed. Where should the action be filed if the plaintiff resides in Manila and the defendant in Quezon City? The action shall be filed in Makati City, the place where the property is situated. Foreclosure of real property is a real action. 12. Venue is procedural and not substantive. In civil cases, venue is not a matter of jurisdiction (Heirs of Pedro Lopez vs. de Castro, 324 SCRA 591). Venue becomes jurisdictional only in a criminal case. In the latter, where the information is filed in a place where the offense was not committed, the information may be quashed for lack of jurisdiction. This is not so in a civil case where improper venue is not equivalent to lack of jurisdiction. Because venue in a civil case is merely procedural, the parties can waive it. It has been earlier mentioned that to determine the venue, determine first if the action is personal or real. If it is personal, venue is transitory, hence, the venue is the residence of the plaintiff or the residence of the defendant at the election of the plaintiff (Sec. 3, Rule 4, Rules of Court). If the action is real, the venue is local, hence, the venue is the place where the real property is situated (Sec. 1, Rule 4, Rules of Court). However, when the defendant is a nonresident and is not found in the Philippines and the action affects the personal status of the plaintiff or any property of the defendant located in the Philippines, the venue is the residence of the plaintiff or where the property involved is situated (Sec. 3, Rule 4, rules of Court). Reminder: If the question shows that venue is improper, do not file a motion to dismiss anchored on lack of jurisdiction. Venue has nothing to do with jurisdiction in civil cases. Hence, if a case for unlawful detainer is filed in MTC Laguna when it should have been filed in MTC Cavite where the property is located, the action filed in Laguna may be dismissed by the court on the ground of improper venue but not on the ground of lack of jurisdiction because every MTC has jurisdiction over cases of unlawful detainer. Do not inject into your answer the concept of territorial jurisdiction. It is irrelevant in civil cases. Territorial jurisdiction applies only in criminal cases where venue is also jurisdictional. This is not so in a civil case where the concept of venue is distinct from the concept of jurisdiction. ACTION IN PERSONAM, IN REM AND QUASI IN REM 1. An action in personam is not necessarily a personal action nor is a real action necessarily an action in rem. An in personam or an in rem action is a classification of actions according to the object or the binding effect of the action. It is in rem when directed against or binds the whole world, not just a particular person. It is in personam when directed against a particular defendant so he may be bound to be liable to the plaintiff. Example: An action for injunction is in personam. An action for unlawful detainer, forcible entry, damages or for a sum of money, are also actions in personam. A personal and real action is a classification according to foundation of the action. If it is founded upon interest in personal property or damages, the action is personal. If it is founded upon an interest in real property, the action is real.

13.

14.

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An action for ejectment is a real action because it involves possession of real property and hence, founded upon an interest in real property but is in personam because it is directed against a particular defendant. In this action, it is only the defendant who is sought to be excluded from the premises, not the whole world. An action for annulment of marriage is a personal action because it is not founded upon an interest in real estate, but it is an in rem action because the issue of the status of a person is one addressed to the whole world and not primarily to make the defendant liable to the plaintiff. An accion reinvindicatoria, which is an action to recover real property based on the right of ownership, is a real action because it involves title to or possession of real property. It is also in personam because it is directed against a particular defendant and binds only the parties to the action or their successors in interest. 2. Why is there a need to make a distinction between an action in personam and an action in rem/quasi in rem? This distinction is vital for a party to know whether or not jurisdiction over the person of the defendant is required and consequently, in order to determine the applicable service of summons. Jurisdiction over the person of the defendant is vital when the action is in personam. In this kind of action, jurisdiction over the person of the defendant is mandatory. In an in rem or quasi in rem action, what is required is jurisdiction over the res and not jurisdiction over the person of the defendant. Where the defendant is a resident of the Philippines and the action against him is in personam, jurisdiction over him is acquired by faithfully complying with the summons under Sec. 6 of Rule 14 (service in person) or in case this type of summons is not feasible, by availing of Sec. 7 of Rule 14 (substituted service). Be reminded that substituted service is not the general rule. It applies only if service in person cannot be done within a reasonable time despite the honest and earnest efforts of the sheriff. Jurisprudence requires that efforts be exhausted to serve the defendant in person and such efforts need be stated in the sheriffs return. Compliance with this requirement is mandatory to justify a subsequent substituted service (Manotoc vs. CA, 499 SCRA 21). If service in person is made upon the defendant in his residence and he is not found therein at the time of service, it is not proper to leave the summons outright with a person residing therein even if that person is of sufficient age and discretion. Reason: No efforts had been made to find and serve the defendant in person. The sheriff immediately resorted to substituted service and this is not proper. 3. Summons by publication, as far as existing jurisprudence is concerned, will not enable the court to acquire jurisdiction over the person of the defendant (Pantaleon vs. Asuncion, 105 Phil. 761; Citizens Surety & Insurance Co., Inc. vs. Nieto, 125 SCRA 758, Consolidated Plywood vs. Breva, 166 SCRA 589). There are however, exceptions to this rule where the defendant is a resident of the Philippines. (a) Where the resident defendants identity is unknown or his whereabouts are unknown (Sec. 14, Rule 14; Santos vs. PNOC, September 23, 2008); (b) Where the resident defendant is temporarily out of the Philippines (Sec. 16, Rule 14). These exceptions apply in ANY ACTION, hence, even if the action is in personam. Note: Summons may be dispensed with if the defendant voluntarily appears because under Sec. 20 of Rule 14, voluntary appearance is equivalent to service of summons.

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4.

If the defendant in an action in personam is a non-resident, jurisdiction over his person is acquired only by service of summons upon him in person within the Philippines (Asiavest Limited vs. Court of Appeals, 296 SCRA 529) or by his voluntary appearance in the action. Summons by publication will not acquire jurisdiction over him whether he is in the Philippines or outside the country. Now, if the action is in rem like an action for the declaration of the nullity of a marriage or quasi in rem like partition or foreclosure of real estate mortgage, jurisdiction over the person of the defendant whether he be a resident or a non-resident defendant, is not required because what is necessary is jurisdiction over the res. The proceedings may continue even if jurisdiction over the defendant is not acquired as long as there is jurisdiction over the res but in the case of foreclosure, the recourse of the plaintiff would only be against the property. Hence, if the debt is P1 million and the property foreclosed was sold for only P800,000, the creditor/mortgagee cannot recover the deficiency because recovery of the deficiency is a recovery of a sum of money which by nature is one in personam. However, if the defendant in the foreclosure suit is in the Philippines, the better move is to have the defendant summoned in the manner provided for a defendant in an action in personam even if the action is technically in rem or quasi in rem so that the jurisdiction of the court will be acquired not only over the res but also over his person. Thus, the non-resident defendant who is in the Philippines shall be served with summons in person in the Philippines and the resident defendant shall be served in accordance with Secs. 6 and 7 of Rule 14 as in in personam actions. By so doing, the plaintiffs right to any claim would not be confined to the property but would extend to claims against the person of the defendant like claims for the deficiency or damages, if any. Also, if the defendant in the foreclosure suit voluntarily appears in the action like by filing an answer interposing affirmative defenses with a counterclaim, his appearance puts his person within the jurisdiction of the court. Hence, the creditor may be entitled to any deficiency judgment.

5.

In an action in rem or quasi in rem against a non-resident defendant who is at the same time not in the Philippines, the summons by service in person (Sec. 6, Rule 14) and specially substituted service (Sec. 7, Rule 14), cannot be availed of. The summons that would apply would be extraterritorial service of summons under Sec. 15 of Rule 14. Under this provision, summons by publication is available. The summons by publication is coupled with a registered mail of the summons and the order of the court directed to the defendant at his last known address. Other modes of summons are also available pursuant to Sec. 15, Rule 14. Personal service as in Sec. 6 shall also be available as well as any mode of service which the court may deem sufficient. The last mode is so comprehensive to include any other means provided the court considers it sufficient under the circumstances like possibly summons by mail, etc. Reason: The purpose of the summons is not to acquire jurisdiction over the defendant (which is unnecessary in actions in rem or quasi in rem) but for compliance with procedural due process of notice. If a non-resident is sued for collection of a sum of money, jurisdiction over his person is mandatory, the action being one in personam. Jurisdiction over his person can be obtained only by service of summons upon him in person within the country if he does not make a voluntary appearance (Asiavest Limited vs. Court of Appeals, 296 SCRA 529). Substituted service would not work because he has neither a residence in the Philippines nor a place of business. A residence or a regular place of business is required to effect substituted service. Note for emphasis that jurisdiction over the person of the defendant is mandatory in this case because an action for a sum of money is an action in personam. Mere summons by publication will not enable the court to have jurisdiction over him.

6.

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If for example, the suit against such a non-defendant is a suit for annulment of his marriage to a Philippine resident, a suit for annulment may prosper despite the absence of the non-resident defendant in the Philippines. This is because the action for annulment is an action in rem. Summons by publication together with registered mail in the defendants last known address will suffice because what the court merely needs is jurisdiction over the res. Other forms of summons (extra-territorial service) provided for in Sec. 15 of Rule 14 may also be available (Romualdez-Licaros vs. Licaros, 401 SCRA 762). In an action for specific performance against a non-resident who does not reside in the Philippines, summons by publication will not enable the court to acquire jurisdiction over him. An action for specific performance is an action in personam (Gomez vs. CA, 425 SCRA 98). 7. When the defendant is a non-resident and he is not found in the country, and the action is in rem or quasi in rem, summons may be served upon him extra-territorially in accordance with Rule 14, Section 15. Under this provision (Sec. 15, Rule 14, Rules of Court), there are four (4) instances when extraterritorial service of summons is proper, namely: (a) when the action affects the personal status of the plaintiff; (b) when the action relates to, or the subject of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (c) when the relief demanded in such actions consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (d) when the defendant non-residents property has been attached within the Philippines. Note that the above actions are either in rem or quasi in rem. Under Sec. 15 of Rule 14, extraterritorial service therefore, can only be effected when the action is either in rem or quasi in rem and the defendant is a non-resident who, at the same time, is not found in the Philippines. Jurisdiction over the person of the defendant here is not required. This explains why summons by publication may be effected in these kinds of actions. Instead of jurisdiction over the person of the defendant, the rule merely requires jurisdiction over the res. Publication (coupled with the required registered mail at the defendants last known address) is allowed to enable the court to acquire this type of jurisdiction. If the action however, against the non-resident defendant is in personam, extraterritorial service cannot be availed of. Recall that when the defendant in an action in personam is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdiction over the person. This cannot be done if the defendant is not physically present in the country. The court thus, cannot acquire jurisdiction over his person. So when the action is for the recovery of damages against the non-resident defendant, the summons by publication is ineffective and will not enable the trial court to acquire jurisdiction over the person of the defendant. Any judgment rendered against him is therefore, null and void for lack of jurisdiction over the defendant (Banco do Brazil, 333 SCRA 545). Assume that a German tourist while in the Philippines, incurred hotel bills of P2 million. Without paying his bills, he surreptitiously left the country. The hotel filed an action for a sum of money and with leave of court, effected summons by publication. The defendant made no appearance in any form. Judgment was rendered against him. Comment on the judgment. Judgment was rendered without jurisdiction over his person. The summons by publication did not enable the court to acquire jurisdiction over him because the action is an action in personam. Mr. D is a balikbayan, a former Filipino and now a naturalized Canadian citizen. He visited the country to attend the funeral of his father from whom he inherited a parcel of

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land. He obtained a loan while in the Philippines and executed a real estate mortgage on his inherited land. He left without paying the debt. An action to foreclosure the mortgage was filed. How may the court obtain jurisdiction over the person of Mr. X? There is no way unless he makes a voluntary appearance. He is already out of the country. Besides, jurisdiction over the person of the defendant is not necessary under the facts of the case because the action for foreclosure is not an action in personam. Foreclosure suits are in rem or quasi in rem actions. In these kinds of actions, jurisdiction over the person of the defendant is not necessary. Summons by publication or any other mode of extra-territorial service of summons would be sufficient for the court to acquire jurisdiction over the res. May the court therefore, validly render a judgment in the foreclosure proceedings? The court can. It has jurisdiction over the res as long as any of the modes of summons provided for under Sec. 15 of Rule 14 on extra-territorial service is complied with. If however, a deficiency exists after the foreclosure sale, the deficiency cannot be recovered under the summons used because such recovery is in the nature of a proceeding in personam and jurisdiction over the person of the defendant was not acquired. 8. There are instances where a non-resident defendant has properties in the Philippines. In an action in personam, as when the suit is for a sum of money or for damages, there is no problem in acquiring jurisdiction over his person if he is in the Philippines because he may be served summons by using the service under Sec. 6 of Rule 14 (service in person). If however, he is already out of the country when the summons is to be served, service in person would not be possible if the purpose is to acquire jurisdiction over his person. Summons by publication would likewise be ineffective to acquire jurisdiction over his person. The remedy is to file the suit and at the same time avail of the provisional remedy of attachment. Following established principles, jurisdiction over the person of the defendant would no longer be required when there is a writ of attachment over the defendants properties because the suit has assumed the status of an action quasi in rem which merely requires jurisdiction over the res. Summons by publication or other modes of extraterritorial service would now be available and thereafter, the suit can proceed despite the absence of the defendant because it would now be the property and not the person of the defendant which would be the object of the judicial power. SPLITTING/JOINDER OF CAUSES OF ACTIONS 1. Splitting a single cause of action is disallowed by the Rules because it breeds multiplicity of suits. To illustrate: The act of a defendant in taking possession of the plaintiffs land by means of force and intimidation gives rise to two remedies: (a) recovery of possession, and (b) damages arising from the loss of possession. These remedies cannot however, be the subject of two separate actions and must be alleged and claimed in only one complaint. Only one action should be brought. To file a separate action for each remedy is to split a single cause of action. Since the rule is that all remedies should be alleged in a single complaint, it goes without saying that those not therein included in the action filed cannot be the subjects of subsequent complaints because they are barred. Hence, an action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry. The claim for damages cannot be filed separately (Progressive Development Corporation, Inc. vs. Court of Appeals, 301 SCRA 637). 2. Splitting a single cause of action is a ground for dismissal based on litis pendentia. If a final judgment had been rendered when the second action is filed, the latter may be dismissed based on res judicata. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. To interpose a cause of action in a complaint and also invoke it in a complaint against the same person or party would be splitting a single cause of action (Mariscal vs. Court of Appeals, 311 SCRA 51). P Page 33 of 166

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Examples: (a) A complaint for the quieting of title (claim of ownership) of the land must include any claim for the income and fruits of the land. The claim for income is merely incidental to the claim of ownership and cannot be the subject of a separate action. An action for partition and a claim for improvements on the land cannot be split in two separate complaints. When you file an action for partition, you have to claim the value of the improvements in the same action. Where a note is secured by a mortgage, the creditor has a single cause of action. Although the loan and the mortgage are two separate agreements, the mortgage is subsidiary to the debt or loan and both refer to the same obligation. The creditor therefore, cannot file both an action for foreclosure of the mortgage and another action to collect a sum of money. To file both is to split a single cause of action. Where an obligation is to be performed at different times and therefore, divisible, each breach is a distinct cause of action. This situation occurs in obligations to be performed in installments where each default of an installment gives rise to a distinct cause of action. Each default may therefore, be the subject of a separate suit. If however, suit is filed only after several breaches, all such breaches should be embodied under a single complaint only. Also, where the breach is total as when the defendant gives notice of his refusal to comply with the contract at the outset, there is an anticipatory breach and there can only be one action filed.

(b)

(c)

(d)

3.

One significant rule under causes of action is joinder of causes of action. According to the Rules of Court, A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party< (Section 5, Rule 2, Rules of Court). To illustrate: D is the debtor of C for P150,000 due on September 5, 2008. D likewise owes C P350,000 due on September 13, 2008. D has not paid the debts despite demand. Each debt is a separate cause of action because each is the subject of different transactions. However, under the rule on joinder of causes of action, C may file a single suit against D for the collection of both debts, despite the claims being separate causes of actions and having arisen out of different transactions. Remember that when there is only one plaintiff and one defendant, you do not have to ask whether or not the causes of actions arose out of the same transaction or series of transactions. This question is only relevant when there are multiple plaintiffs or multiple defendants. In the hypothetical just discussed, is C obliged to join the causes of action against D? No. C is not obliged to do so. He may file a single suit for each of the claims or simply a single suit for both because joinder of causes of action is not compulsory. It is merely permissive. In case C decides on the joinder, the suit shall be filed in the Regional Trial Court because the jurisdictional amount is within that courts jurisdiction. When the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction (Sec. 5(d), Rule 2, Rules of Court). Assume that aside from the above claims, C, as lessor also wants to eject D from the apartment occupied by D, as lessee. May the action for unlawful detainer be joined with the claims for money? The answer is NO. This is because the action for unlawful detainer is a special civil action. This kind of action cannot be joined with ordinary actions. The joinder does not include special civil actions or those actions governed by special rules. Example: The causes of actions against D in favor of P are: P1 million based on a note; P1 million based on torts; and foreclosure of a real estate mortgage. May the causes of

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action be joined? Yes, but excluding foreclosure of real estate mortgage which is a special civil action and is governed by special rules. 4. When there are two or more defendants, or one or more plaintiffs, the causes of action against the defendants can be joined if there is a compliance with the rules on joinder of parties under Sec. 6 of Rule 3. This provision requires that the right to relief should arise out of the same transaction and that there exists a common question of law or fact. This requirement does not apply when there is only one plaintiff and one defendant. Suppose C is the creditor of D for P300,000 and also of E for P200,000. Both debts are due and these debts have been contracted separately. May C join D and E as defendants in the same complaint? The answer is NO. Where a party sues two or more defendants, it is necessary for the causes of action against both to arise out of the same transaction and that there should be a common question of law or fact. The debt of D is a transaction different from the debt of E. Suppose P is a passenger in a passenger bus owned by O and driven by D. Because of the negligence of D, P sustained injuries when the vehicle fell into a ditch by the roadside. May P join O and D as defendants in the same complaint based on torts? Yes. The liability of O and D arose out of the same transaction (same accident) which gives rise to a common question of law or fact. In a promissory note signed jointly (not solidary) by the makers (debtors), in favor of the same creditor, there are as many debts as there debtors. Hence, if B and C jointly promise to pay P, their creditor P1 million, there are two debts of P500,000 each. There are therefore, two distinct causes of actions. P may file an action against one of them only to recover the share of each. However, since, their debts arose out of a single transaction (same promissory note signed), P may join his causes of action against both under one complaint. PARTIES 1. A suit must be defended and prosecuted in the name of the real party in interest (Sec. 2, Rule 3, Rules of Court). For instance, under Art. 1768 of the Civil Code of the Philippines, a partnership has a juridical personality separate and distinct from that of each of the partners. Hence, if the contract was entered into by the partnership in its name, it is the partnership, not its officers or agents which should be impleaded in any litigation involving property registered in its name. A violation of this rule will result in the dismissal of the complaint for failure to state a cause of action (Aguila vs. Court of Appeals, 319 SCRA 345). The mere failure to include the name of a party in the title of the complaint is not fatal because the Rules of Court requires the courts to pierce the form and go into the substance and not be misled by a false or a wrong name in the pleadings. The averments are controlling and not the title. Hence, if the body indicates the defendant as a party to the action, his omission in the title is not fatal (Viason Enterprises vs. Court of Appeals, 310 SCRA 26). 2. In an action for forcible entry, the possessor/lessee is the real party in interest as plaintiff and not the owner/lessor. The issue in an action for forcible entry is mere possession. The defendant therefore, cannot contend that it should be the owner who should file the suit. However, in an action for damages to the property leased, the owner/lessor is the real party in interest as plaintiff. Can a foreign corporation sue in the Philippines? It can, depending on the facts. If it is a foreign corporation engaged in business in the Philippines, it needs a license to engage in P Page 35 of 166

3.

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said business. If it has a license to engage in business in the Philippines, it can sue and it can be sued. If it is engaged in business in the Philippines, and does not have a license to engage in business, it can be sued but it cannot sue (Sec. 133, Corporation Code of the Philippines). If it is not engaged in business in the Philippines, it does not need a license for that purpose simply because it is not engaged in business. But it can sue in the Philippines on an isolated transaction or for the purpose of protecting its goodwill or trade name. 4. Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered injuries but does not know with certainty which vehicle caused the mishap. What should Mr. X do if he wants to sue? He should sue the vehicle drivers/owners in the alternative (Sec. 13, Rule 3, Rules of Court. P delivered some goods to D pursuant to a contract. The goods were delivered to E, the designated agent of D. D did not pay P. D contends that he has not received the goods. E claims otherwise and insists that D had received the goods. Should P sue D or should he sue E? P should sue both but in the alternative. B bought a car from S on installment. A chattel mortgage was executed on the car in favor of S to secure the obligation. Before the payment was completed, B sold the car to D. It was agreed that D would be responsible for the monthly installments. May S sue D alone in the foreclosure suit or replevin suit? He cannot. B must be made defendant. B is an indispensable party. The foreclosure or replevin is premised in the default of B, the debtor. S would have no right to foreclose the mortgage or repossess the car without establishing the default of B. In the immediately preceding problem, if only D is impleaded as a defendant, what may D do? D may move for the issuance of an order requiring S to amend his complaint and implead B. If the court issues an order to implead B and S fails or refuses to comply with the order of the court, then D should move for the dismissal of the case under Rule 17, Sec. 3. The ground would be failure to comply with the order of the court. Note that failure to comply with the order may be a ground for a motu proprio dismissal but the mere failure to implead a party or non-joinder (as well as misjoinder) is not a ground for dismissal (Sec. 11, Rule 3, Rules of Court). 7. Requisites of a class suit: (a) The subject matter is one of common or general interest to many persons, and (b) the persons are so numerous that it is impracticable to join all of them as parties. When these requisites are present, the suit may be brought by the class as plaintiffs or against the class as defendants. A class suit will not lie when the numerous occupants of a parcel of land are sued for ejectment from the land because their interest is not common to all. The interest of each defendant is only with respect to the portion he claims and occupies (Berses vs. Villanueva, 25 Phil. 473; Sulo ng Bayan, Inc. vs. Araneta, 72 SCRA 347). 8. Death of a party: When a party dies, the attorney has no further authority to act for the deceased in the absence of a retainer from the heirs or legal representative of the deceased (Lawas vs. Court of Appeals, 146 SCRA 173). Under Sec. 16 of Rule 3, the only remaining duty of the attorney is to notify the court of the death of his client. Failure to make the notification may subject the attorney to disciplinary action if the action is one that survives (like money claims arising from contract or torts). He is obliged to give to the court the names and addresses of the legal representatives of the deceased. This order of substitution is necessary for the court to acquire jurisdiction over the substitute (Ferreria vs. Vda. De Gonzales, 104 Phil. 143). If the action does not survive (like the purely personal action of support, annulment of marriage and legal separation), the court shall simply dismiss the case.

5.

6.

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9.

When the action is for the recovery of money arising from contract and the defendant dies before entry of final judgment, the court shall not dismiss the suit. It shall continue and his legal representative or legal heir shall substitute the deceased. If the plaintiff obtains a favorable judgment, said judgment shall be enforced as a money claim against the estate of the deceased (Sec. 20, Rule 3). It would not then be proper to file a motion for the issuance of an order or writ of execution. PLEADINGS

1.

A compulsory counterclaim if not set up is barred while a permissive counterclaim even if not set up is not barred. Because a permissive counterclaim does not arise out of the same transaction as that of the complaint, if can be brought as a separate action in itself. A docket fee must be paid for the permissive counterclaim. It must be also answered by the adverse party to prevent default. It also needs a certificate against forum shopping. A compulsory counterclaim need not be answered and does not need a certificate against forum shopping. Every pleading must be signed by the party or counsel representing him stating the address which should not be a post office box (Sec. 3, Rule 7, Rules of Court). The signature of counsel is extremely significant. The signature of counsel signifies that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief, there are good grounds to support it, and (c) that is not interposed for delay. It is a rule of pleading that the prayer for relief though part of the complaint, is not part of the cause of action and the plaintiff is entitled to as much relief as the facts may warrant. It is the material allegations of fact of the complaint, not the legal conclusions in the prayer that determine the relief to which the plaintiff is entitled. The court shall grant relief on the basis of the allegations in the pleading and the proof even if no such relief is prayed for (UBS Marketing Corporation vs. Court of Appeals, 332 SCRA 534); Bangko Filipino Savings and Mortgage Bank vs. Court of Appeals, 332 SCRA 241). Example: The prayer is for P3 million and for such other relief as may be deemed just and equitable. The amount proved during the trial is P5 million without objection from the adverse party. May the court award P5 million? The court may award P5 million where no objection is interposed to the evidence of P5 million. It is as if the issue of P5 million was raised in the pleadings. Exception: A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages (Rule 9, Section 3(d)).

2.

3.

4.

5.

A party is not required to specify the provisions of law relied upon. If he does so specify it but is mistaken, this will not preclude him from obtaining relief in the case provided that the facts stated and proved justify such relief. A counsel cannot certify to the certificate against forum shopping. As a rule, it should be the plaintiff or the principal party. If the plaintiff is a corporation, it should be signed by any of its authorized directors or officers (Digital Microwave Corporation vs. Court of Appeals, 328 SCRA 286). This rule is subject to a liberal interpretation and has not been strictly required in the interest of substantial justice. Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively for the purpose of obtaining a favorable judgment. But there is no forum shopping where the cause of action before the Ombudsman is for violation of the Anti-Graft and Corrupt Practices Act while the cause of action before the trial court is for collection of money plus damages (Leyson vs. Office of the Ombudsman, 331 SCRA 227).

6.

7.

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8.

Failure to comply with the required certification against forum shopping is a cause for dismissal of the action but only upon motion and hearing. The defect is NOT curable by amendment (Barroso vs. Ampig, Jr., 328 SCRA 530, 536). A reply is not mandatory because even if there is no reply, the allegations of new matters in the answer of the defendant are deemed controverted, meaning, DENIED (Sec. 10, Rule 6, Rules of Court). A reply however, is advisable when the defense is founded upon an instrument (actionable document) as described under Sec. 7and Sec. 8 of Rule 8. In such a case the reply must specifically deny the instrument under oath otherwise the genuineness and due execution of the instrument will be deemed admitted. Note that a denial of an actionable document must always be under oath to avoid an implied admission of its genuineness and due execution (Sec. 8, Rule 8, Rules of Court). Note: Allegations of usury in a complaint to recover usurious interest must also be denied under oath. (Sec. 11, Rule 8, Rules of Court). SUMMONS

9.

1.

Service of summons is the means of acquiring jurisdiction over the person of the defendant in an action in personam and a means by which the due process requirement of notice of the constitution is complied with. The rules require not just a mere service of summons. The modes of service must be strictly followed in order that the court may acquire jurisdiction over the person of the defendant. (Umandap vs. Sabio, Jr., 339 SCRA 243; Gan Hock vs. Court of Appeals, 197 SCRA 223). With respect to foreign corporations, when a foreign corporation has designated a person to receive summons in its behalf pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious (H.B. Zachry Company International vs. Court of Appeals, 232 SCRA 329). As to domestic corporations, the rule is: Summons must be served ONLY upon persons enumerated in Sec. 11 of Rule 14 (president, general manager, managing partner, corporate secretary, treasurer, and in-house counsel). The enumeration is exclusive. Service upon any other person will not enable the court to acquire jurisdiction over person of the defendant (E.B. Villarosa vs. Benito, 312 SCRA 7; Mason vs. C.A., G.R. No. 144662, October 13, 2003; Paramount Insurance Corporation vs. A.C. Ordoez Corporation, G.R. No. 175109, August 6, 2008). Previous rulings which allowed service through a clerk (Golden Country Farms vs. Sunvar Development Corporation, 214 SCRA 295; G & G Trading vs. Court of Appeals, 158 SCRA 466), a bookkeeper (Pabon vs. NLRC, 296 SCRA 7), the secretary of the President (Viason Enterprises vs. Court of Appeals, 310 SCRA 26), or the cashier (Talsan vs. Baliwag Transit, Inc., 310 SCRA 156), NO LONGER APPLY because they were decided based on the old rule which allowed service upon an agent of a domestic private juridical entity. The persons referred to in old cases were considered agents, the term being very broad in its meaning. The present rule in Section 11 of Rule 14 no longer includes an agent as one upon whom service of summons may be made.

2.

3.

4.

Service in person on the defendant is the preferred mode of service (Sec. 6, Rule 14, Rules of Court). If the defendant refuses the service, the server should not resort to substituted service. He must TENDER it to him. Tendering is a part of service in person (formerly called personal service). If the defendant cannot be served in person within a reasonable time, only then may substituted service under Sec. 7 of Rule 14 be availed of (See rule on substituted service). The sheriff or server must first exert all efforts to serve the defendant in person. If this effort fails, then substituted service can be made. This effort must be stated in the proof

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of service. This is required because substituted service is in derogation of the usual mode of service (Laus vs. Court of Appeals, 219 SCRA 688; Umandap vs. Sabio, Jr., 339 SCRA 243; Samartino vs. Raon, 383 SCRA 664, 670, [2002]). It is only when the defendant cannot be served personally that substituted service may be made. It is however, necessary that the pertinent facts attendant to the service of summons must be stated in the proof of service, otherwise substituted service in lieu of personal service cannot be upheld (Hamilton vs. Levy, 334 SCRA 821). Failure to faithfully comply with the requirements of substituted service renders the service ineffective (Miranda vs. Court of Appeals, 326 SCRA 278). 5. Extra-territorial service of summons in Sec. 15 of Rule 14 applies when the defendant is a nonresident who is not found in the Philippines AND that the action against him is either in rem or quasi in rem. If the action is in personam, this mode of service will not apply. There is no extraterritorial service of summons in an action in personam (Kawasaki Port Service Corporation vs. Amores, 199 SCRA 230; Banco Do Brasil vs. Court of Appeals, 333 SCRA 545). When the action is in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case. However, when the defendant is a nonresident, personal service of summons within the Philippines is essential to the acquisition of jurisdiction over him (Banco do Brasil vs. Court of Appeals, 333 SCRA 545). Example: Mexicano, a tourist in the Philippines, by the employment of force and intimidation, contracted a marriage with Filipina, a hotel receptionist. When Mexicano left for Mexico, Filipina filed an action for annulment of marriage with damages of P3 million. With leave of court, extra-territorial service of summons by publication was effected. Mexicano did not appear. The court decreed the annulment of the marriage and awarded damages. Was the judgment correct assuming all the requisites for the proceedings were complied with? The judgment may be correct insofar as the decree of annulment is concerned. The action is an action in rem. In this kind of action, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not essential in this case, so whether or not there was jurisdiction over Mexicano does not affect the authority of the court to decide on the issue of annulment as long as the proper extra-territorial service of summons was made. However, the judgment of the court awarding damages in favor of Filipina is not binding on Mexicano. By its nature, a claim for damages is in personam. The court is without jurisdiction to award damages unless it has first acquired jurisdiction over the person of Mexicano. The only way by which this type of jurisdiction may be acquired in the case at bar is either through service in person upon Mexicano in the Philippines OR by his voluntary appearance in the action. Neither of these prevailed in the case under consideration in the action (Very important: See modes of service in particular situations like minors, prisoners, etc.). DEFAULT 1. Default may occur when the defending party fails to file his answer within the reglementary period. It does not occur from the mere failure of the defendant to attend the trial. Take note that the defending party cannot be declared in default without the requisite motion. The court cannot motu proprio declare the defendant in default (Sec. 3, Rule 9, Rules of Court). A declaration of default is not an admission of the truth or the validity of the plaintiffs claims (Monarch Insurance vs. Court of Appeals, 333 SCRA 7; Vlason Enterprises Corporation vs. Court of Appeals, 310 SCRA 26). Under the rules, when a party is declared in default, the court may either proceed to render judgment or require the plaintiff to present his evidence ex parte. A party in default is entitled to notice of subsequent proceedings but he is not entitled to take part in the trial.

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3.

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4.

Remember too that the judgment to be rendered against the party in default shall not exceed the amount or be different in kind than that prayed for. Unliquidated damages cannot be awarded. Note also that there is no default in an action for annulment or declaration of nullity of marriage or for legal separation even if the defendant fails to file an answer. A party declared in default may file a motion under oath to set aside the order of default upon proper showing of FAME (fraud, accident, mistake or excusable negligence). He must also show that he has meritorious defense and which must be stated in an affidavit of merit (Sec. 3(b), Rule 9). The current judicial trend is to avoid defaults and thus, courts are enjoined to be liberal in setting aside orders of default (Ampeloquio vs. Court of Appeals, 333 SCRA 465.). If a judgment by default has already been rendered, the defendant may file a motion for reconsideration of the judgment, motion for new trial or an appeal. These remedies apply only before the judgment by default becomes final and executory. If the judgment by default has already become final and executory, the above remedies no longer apply. Instead, the defendant may avail of a petition for relief, action to annul the judgment or a petition for certiorari under Rule 65. PRE-TRIAL

5.

6.

1.

A pre-trial is mandatory in civil cases (Sec. 2, Rule 18, Rules of Court) in summary procedure (Secs. 7 and 14, 1991 Rule on summary Procedure) and in the trial courts in criminal cases (Sec. 1, Rule 118, Rules of Court). The motion is to be filed within five (5) days from the service of the last pleading (Administrative Circular No-3-99, January 15, 1999). If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial (A.M. No. 03-1-09 issued on July 13, 2004 and effective August 16, 2004). In a civil case, the plaintiff has the duty to file a motion to set the case for pre-trial after the last pleading has been served and filed. This motion is an ex parte motion. If the period for the filing of the last pleading has not yet lapsed, it is premature to file the motion to set the case for pre-trial. The notice of pre-trial shall be served on the counsel. If the party has no counsel, the notice shall be served upon him. The counsel served with the notice is charged with the duty of notifying the party represented by him (Sec. 3, Rule 18, Rules of Court). At the start of the preliminary conference, the judge shall immediately refer the parties and/or their counsel to the PMC mediation unit for purposes of mediation if available. If the mediation fails, the judge will schedule the continuance of the pre-trial conference (A.M. No. 03-1-09 issued on July 13, 2004 and effective August 16, 2004). Note: See purposes of a pre-trial in Sec. 2 of Rule 18 like the possibility of amicable settlement or submission to alternative modes of dispute resolution, simplification of the issues, limitation of the number of witnesses and others.

2.

3.

4.

5.

Under the rules issued on July 13, 2004, the parties, during the pre-trial may already agree on the specific dates for a continuous trial. The One-Day Examination of Witness Rule during the trial shall be strictly adhered to subject to the courts discretion to grant extension. The pre-trial shall likewise determine the most important witnesses (The Most Important Witness Rule) to be heard and to limit the number of witnesses. The facts to be proven by each witness and the approximate number of hours per witness shall be fixed. In the pre-trial, the court may order the delegation of the reception of the evidence to the branch clerk of court or the referral of the case to trial by commissioner.

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6.

In the pre-trial, the court shall determine the propriety of rendering a judgment on the pleadings or a summary judgment based on the disclosures made at the pre-trial, evidence identified and admissions made during the trial. It shall be the duty of the parties and their counsel to appear at the pre-trial. The nonappearance of a party shall be excused if a valid cause is shown. The party absent shall designate his representative who shall appear in his behalf and is fully authorized in writing to enter into an amicable settlement, alternative modes of dispute resolution, and stipulations or admissions of facts (Sec. 4, Rule 18, Rules of Court). The failure of the plaintiff to appear shall be cause for the dismissal of the action. This dismissal shall be with prejudice, unless otherwise ordered. Hence, if dismissed, the action may not be refiled as a rule. If it is the defendant who fails to appear, the non-appearance shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis thereof (Sec. 5, Rule 18, Rules of Court). The parties shall file with the court and serve upon the adverse party, a pre-trial brief which shall be done in such a manner as to ensure its receipt at least three (3) days before the date of the pre-trial (Sec. 6, Rule 18, Rules of Court). The failure to file the pre-trial brief shall have the effect of non-appearance (Sec. 6, Rule 18, Rules of Court). TRIAL

7.

8.

9.

1.

A trial is not indispensable to a judgment which can be rendered even without a trial as when the court renders a judgment on the pleadings or summary judgment or judgment upon a compromise. In fact, under Sec. 6 of Rule 30, the parties may agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of the evidence. This agreement may lead to a judgment without a trial. The order of trial indicates that it is the plaintiff who shall present his evidence ahead of the defendant (Sec. 5, Rule 30, Rules of Court). There is no rule however, which precludes the court to allow the defendant to present evidence on his affirmative defense as when in a suit for collection of a sum of money, the defendant may be allowed to prove first the fact of payment. A motion to postpone the trial because of absence of evidence shall be done upon an affidavit showing the materiality of the evidence or its relevancy and that due diligence has been used to procure it (Sec. 3, Rule 30, Rules of Court). Hence, in writing. The trial shall not be postponed if the adverse party admits the facts to be given in evidence even if he reserves the right to their admissibility or objects to it. A motion to postpone a trial on the ground of illness of a party or counsel if it appears upon affidavit or sworn statement that the presence of such party or counsel at the trial is indispensable and that the character or illness is such as to render his non-attendance excusable (Sec. 4, Rule 30, Rules of Court). DEMURRER TO EVIDENCE

2.

3.

4.

1.

This is a form of a motion to dismiss filed after the defendant has completed the presentation of his evidence, where the defendant may move to dismiss the complaint on the ground that the plaintiff has shown no right to relief upon the facts and the law (insufficiency of evidence). If the motion is denied, the defendant shall then present his evidence. This right to present evidence is not waived. If it is granted, the case shall be dismissed. However, if on appeal the order granting the motion is reversed, the defendant loses his right to present evidence

2.

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(Rule 33, Rules of Court). It has been held that it is not correct for the appellate court reversing the order granting the motion (demurrer) to remand the case to the trial court for further proceedings. The appellate court should, instead of remanding the case, render judgment on the basis of the evidence submitted by the plaintiff (Radiowealth Finance Corporation vs. Del Rosario, 335 SCRA 288). An order denying a demurrer to the evidence is interlocutory and is therefore, not appealable. It can however, be the subject of a petition for certiorari in case there is, on the part of the court, a grave abuse of discretion or an oppressive exercise of judicial authority (Katigbak vs. Sandiganbayan, 405 SCRA 558). 3. A party who files a demurrer to evidence in an election case cannot insist on the right to present evidence when the demurrer is denied. The provision of the Rules of Court governing demurrer to evidence does not apply to an election case (Gementiza vs. COMELEC, G.R. No. 140884, March 6, 2001). A demurrer to evidence in a civil case may be filed without leave of court but a demurrer in a criminal case may be filed either with or without leave of court. If the demurrer in a criminal case is denied, the accused may present evidence in his defense only if he filed the demurrer with previous leave of court. If the demurrer was filed without leave of court, the accused is deemed to have waived his right and he submits the case for judgment on the basis of the evidence for the prosecution (Sec. 23, Rule 119, Rules of Court). JUDGMENTS 1. When a judgment becomes final and executory, it becomes immutable and unalterable. The court loses jurisdiction over the judgment to amend (except for clerical errors) or alter the same but it retains jurisdiction to EXECUTE it during its lifetime (Equatorial Realty Development, Inc. vs. Mayfair Theater, 332 SCRA 139 [2000]; NHA vs. Heirs of Isidro Guivelondo, 404 SCRA 389). When the trial court orders payment of attorneys fees not decreed in the judgment, such variance with the terms of the judgment, renders the order void (Lizardo, Sr. vs. Montana, 332 SCRA 163). A judgment upon a compromise has all the force and effect of any other judgment, hence, conclusive upon the parties and their privies (Golden Donuts vs. NLRC, 322 SCRA 294). A judicial compromise, once stamped with judicial approval, becomes more than a mere contract binding upon them and having the sanction of the court and entered as its determination of the controversy. It has the force and effect of any judgment (Yulienco vs. CA, 386 SCRA 30). It has the effects of res judicata, is immediately executory, and not appealable. The remedy is to file a motion to set aside the compromise on any ground vitiating the consent like fraud, duress or mistake (Salvador vs. Ortoll, October 18, 2000). While a judicial compromise has the effect of res judicata, it cannot be executed except in compliance with a judicial compromise (Art. 2037, Civil Code of the Philippines). 4. The law of the case doctrine means that whatever has been irrevocably established as the controlling rule of decision between the same parties in the same case continues to be the law of the case, whether correct or not, so long as the facts of which such decision was predicated continues to be the facts of the case before the court (Ducat vs. Court of Appeals, 322 SCRA 69, Rules of Court). The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has

4.

2.

3.

5.

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become final and executory. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule 36, Rules of Court), the date of the entry of judgment is the date when the judgment becomes final and executory regardless of the date when the physical act of entry was done. REMEDIES AGAINST A JUDGMENT Remedies before a judgment becomes final and executory 1. Motion for reconsideration (Rule 37) This is filed within the period for appeal based on any of the following grounds: (a) damages are excessive; evidence is insufficient; or that (c) the decision or order is contrary to law (Sec. 1, Rule 37, Rules of Court). The motion shall be in writing and notice thereof must be given to the adverse party. It must also contain a notice of hearing. In other words, it must comply with the rules on motion. If it does not, it will be considered only a pro forma motion and will not have the effect of suspending or interrupting the period to appeal. The motion shall point out specifically the findings or conclusion of the judgment not supported by the evidence or which are contrary to law. Mere general assertions that a ground for reconsideration exists will not suffice, otherwise, the motion shall be deemed a mere pro forma motion. If the motion is granted, the court may amend the judgment or final order accordingly. If the motion is denied, do not appeal from the order denying the motion. An order denying a motion for reconsideration is not appealable (Sec. 9, Rule 37, Rules of Court). The remedy is to appeal from the judgment or the final order pursuant to the provisions of Sec. 9 of Rule 37. A second motion for reconsideration is not allowed under Sec. 5 of Rule 37. This prohibition applies to a motion for reconsideration of a judgment or final order and does not refer to a motion for reconsideration of an interlocutory order where the court may allow even more than one motion for reconsideration. A motion for reconsideration under Rule 37 cannot be used as a vehicle to introduce new evidence. If you want to introduce new evidence, the remedy is to file a motion for new trial (Cansino vs. Court of Appeals, 409 SCRA 403). 2. Motion for new trial (Rule 37) This is filed within the period to appeal based on fraud, accident, mistake or excusable negligence (FAMEN) or newly discovered evidence. Here the movant alleges that he lost because he was prevented from fully participating in the proceedings or he was prevented from taking an appeal because of any of the grounds mentioned. If he alleges fraud, he must only allege extrinsic fraud, not intrinsic fraud. This fraud must be one employed to prevent the movant from ventilating his side in the proceedings. The use of forged document by a party is not the fraud contemplated as extrinsic and cannot therefore, be a ground for a motion for new trial. Another ground is newly discovered evidence which could not have been discovered and produced at the trial. Take note that the evidence is not really a new one but one newly-discovered. When the ground is FAME, the motion must be supported by an affidavit of merit. When the ground relied upon is newly discovered evidence, no affidavit of merit is required. Instead, it shall be supported by affidavits of witnesses or by duly authenticated documents. If the motion for new trial is granted, the original judgment shall be vacated and the action shall stand for trial de novo. The recorded evidence in the former trials shall be used at

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the new trial without need for retaking the same as long as that evidence is material and competent to establish the issues. If the motion is denied, do not appeal the order denying the motion for new trial. This is because the order is not appealable (Sec. 9, Rule 37, Rules of Court). The remedy is to appeal from the judgment or final order (Sec. 9, Rule 37, Rules of Court). The fresh period rule If the motion for reconsideration or motion for new trial is denied, the movant has a new period of fifteen (15) days to file an appeal if he so desires, counted from receipt of the notice or order denying the motion. Hence, if he files a motion for reconsideration on the 10th day from notice of the judgment and the motion is denied, he does not have only the remainder of the fifteen (15)-day period to appeal, but a fresh period of fifteen (15) days to file his appeal. 3. Appeal from judgment of MTC (Rule 40) An appeal from a judgment or final order of an MTC shall be taken to the RTC exercising jurisdiction over the area. The appeal is taken by filing a notice of appeal with the court that rendered the judgment, which is the MTC. Do not file the notice of appeal with the RTC. In cases involving a special proceeding or in case of multiple appeals, a record on appeal shall be required. Copies of the notice of appeal and the record on appeal shall be served on the adverse party. Within the period for appeal, the appellant shall pay to the clerk of the MTC the full amount of the appellate docket fee and other lawful fees. Periods for appeal: Fifteen (15) days in case of by notice of appeal; thirty (30) days in case record on appeal is required. Period is counted from the notice of judgment. A partys notice of appeal is deemed perfected upon the filing of the notice of appeal in due time. In appeals by notice of appeal, the appeal is deemed perfected upon the approval of the record on appeal filed in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeal in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the record on appeal filed in due time and expiration of the time to appeal of the other parties. If the trial loses jurisdiction over the case in accordance with the preceding paragraphs, does this mean that the trial court can no longer issue orders related to the case? The court can, as long as the orders are done PRIOR to the transmittal of the original records or record on appeal. Thus, under the doctrine of residual jurisdiction, the trial court may order an execution of the judgment pending appeal, approve compromises, permit appeals of indigent litigants or allow a withdrawal of an appeal (Sec. 9, Rule 41 as applied to Rule 40 per Sec. 4, Rule 40, Rules of Court). If the MTC dismisses a case pursuant to a motion to dismiss for lack of jurisdiction, the dismissal is made without a trial on the merits. The plaintiff may appeal from the order of dismissal because an order dismissing the action is final in character. If on appeal, the RTC finds that the MTC correctly dismissed the complaint because it is the RTC which has jurisdiction, the RTC shall affirm the dismissal but is mandated to TRY the case on the merits AS IF it was originally filed with it (Sec. 8, Rule 40, Rules of Court). The same rule above applies where the case was tried on the merits in the lower court without jurisdiction over the subject matter. This means that the court shall also assume jurisdiction over the case as if it was originally filed with it. The RTC may however,

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allow amendment of the pleadings and admit additional evidence despite the previous trial in the court below. The RTC will require the appellant to file a memorandum. Failure to file a memorandum is a ground for dismissal of the appeal (Sec. 7, Rule 40, Rules of Court). 4. Appeal from the RTC to the CA (Rule 41) An appeal from the RTC may be by (a) ordinary appeal under Rule 41; (b) petition for review under Rule 42; or (c) appeal by certiorari/petition for review on certiorari under Rule 45. The appeal called ordinary appeal, is one made from a judgment of the RTC in the exercise of its original jurisdiction. This type of appeal is made by filing a notice of appeal with the RTC within fifteen (15) days from notice of the judgment. If record on appeal is required, the appeal period is 30 days. 5. Petition for review from RTC to the CA (Rule 42) This mode of appeal applies when the decision of the RTC appealed from is one decided by it in the exercise of its appellate jurisdiction. This means that the case originated from the MTC and appealed to the RTC (Posadas-Moya vs. Greenfield Development Corp., 403 SCRA 530). In filing a petition for review, a notice of appeal is not required. The appeal is done by filing a verified petition for review directly with the Court of Appeals. 6. Petition by certiorari/petition for review on certiorari from the RTC to the Supreme Court (Rule 45) When the appeal raises pure questions of law, the appeal should be addressed to the Supreme Court. A question of law arises when the doubt or difference arises as to what the law is on a certain set of facts. A case, which does not raise purely questions of law, does not merit attention of the Supreme Court (Cebu Womens Club vs. De le Victoria, 327 SCRA 533). Questions of fact are not proper subjects of this kind of appeal (Larena vs. Mapili, G.R. No. 146341, August 7, 2003). This mode of appeal applies when the decision of the RTC is in the exercise of its original jurisdiction, and not one in the exercise of its appellate jurisdiction. Note: In a Rule 45 appeal from a decision in a petition for writ of amparo or habeas data, questions of fact or mixed questions of fact and law may be raised. A question of law exists when there is no doubt or controversy on what the law is on a certain state of facts. There is a question of fact when the doubt or difference arises from the truth or falsity of the allegations of facts (Republic vs. Sandiganbayan, G.R. No. 102508, January 30, 2002). In this mode of appeal, the petitioner does not have to pass the Court of Appeals. The Supreme Court reviews only errors of law, not errors of fact. This is the general rule unless the Court finds conflicts in the findings of facts of the Court of Appeals and the trial court. In this case, the Supreme Court may review the findings of facts of the courts below. Note that the right to appeal is not a natural right or a part of due process. It is merely a procedural remedy of statutory origin. There is no right to appeal unless there is a law which authorizes it (Neplum vs. Orbeso, 384 SCRA 468). Appellate courts may not generally entertain questions of law or fact not raised in the lower courts for that would constitute a change of theory not permissible on appeal (Capacite vs. Baroro, G.R. No. 154184, July 8, 2003). 7. Appeals from quasi-judicial bodies Appeals from judgments and final orders of quasi judicial bodies/agencies are now required to be brought to the Court of Appeals under the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide

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a uniform rule of appellate procedure from quasi-judicial bodies (Carpol vs. Sulu Resource Development Corp., G.R. No. 148267, August 8, 2002). 8. Review of judgments of the NLRC Judgments of the NLRC are to be brought first to the CA by way of petition for certiorari under Rule 65 not under Rule 43 of the Rules of Court (St. Martin Funeral Homes vs. NLRC, 295 SCRA 494). Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by way of petition for review on certiorari under Rule 45 raising pure questions of law. Certiorari under Rule 65 is not the remedy (People vs. Espinosa, G.R. Nos. 153714-20, August 15, 2003). A decision of a division of the Court of Tax Appeals is reviewable by the Court of Tax Appeals en banc. From the CTA en banc, the aggrieved party may file a petition for review under Rule 45 in the Supreme Court (Sec. 11, R.A. 9282). In administrative disciplinary cases, the ruling of the Office of the Ombudsman shall be appealable to the Court of Appeals (Fabian vs. Desierto, 356 SCRA 787; Enemecio vs. Office of the Ombudsman, 49 SCRA 82; Salvador vs. Mapa,G.R. No. 135080, November 28, 2007). In criminal cases, the remedy from the adverse resolution of the Ombudsman is a petition for certiorari under Rule 65, not a petition for review on certiorari under Rule 45 (Salvador vs. Mapa, G.R. No. 135080, November 28, 2007). 12. The judgments of the COA and the COMELEC are reviewable by a petition for certiorari under Rule 65 filed with the Supreme Court (Rule 64, Rules of Court). Judgments of the Civil Service Commission shall be appealable to the Court of Appeals under Rule 43. NOTE: There are judgments or orders which are not appealable. As of December 27, 2007, the following are not appealable: (Sec. 1, Rule 41, Rules of Court). (a) (b) (c) (d) An order denying a petition for relief or any similar motion seeking relief from judgment; An interlocutory order; An order disallowing or dismissing an appeal; An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; An order of execution; A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and An order dismissing an action without prejudice. Remedy: File the appropriate special civil action under Rule 65. Remedies after the Judgment Becomes Final and Executory 1. Petition for relief (Rule 38) This remedy is availed only when the petitioner can no longer appeal because the period for appeal has already lapsed. This is a verified petition filed within sixty (60) days after the petitioner learns of the judgment AND not more than six (6) months after such judgment or final order was entered. These periods must concur. The petitioner should invoke any of FAMEN. Of course, an affidavit of merit is indispensable here. It serves as the jurisdictional basis for the court to entertain the petition. This is filed in the same court and in the same case, not in a higher court because this is not a mode of appeal.

9.

10.

11.

(e) (f)

(g)

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Remember that the petition for relief is filed after the period for appeal has lapsed, hence, the judgment is, at that point, already final and executory. The mere filing of a petition for relief does not bar the execution of the judgment. It does not stay the execution of the judgment. This is because the judgment is already final and executory and can be subject to execution by mere motion. To stay execution, a writ of preliminary injunction should be availed of or a temporary restraining order under Rule 58 (Section 5, Rule 38, Rules of Court). A petition for relief will not be entertained where the failure of the petitioner to appeal is due to his fault or negligence. 2. Annulment of judgment (Rule 47) This remedy is available only where the ordinary remedies of new trial, appeal, petition for relief or appropriate remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47, Rules of Court). Hence, if such remedies were not availed of due to the petitioners fault, the petition will be dismissed. Grounds: (a) extrinsic fraud; and (b) lack of jurisdiction. If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, it must be brought before the action is barred by laches or estoppel (Sec. 2, Sec. 4, Rule 47, Rules of Court). 3. Certiorari (Rule 65) Called a supervisory or superintending writ, this remedy is availed of to annul or modify the proceedings of a tribunal, board or officer exercising judicial or extra-judicial functions who has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. For this petition to prosper, it is necessary to allege and show that there is no more appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law. As a rule, where appeal is available, certiorari cannot be availed of unless it can be shown that appeal is not speedy, or adequate (Landbank vs. CA, 409 SCRA 455). In other words, a petitioner must first exhaust all other remedies available before resorting to certiorari. For example, if he can file a motion for reconsideration, then he must do so instead of certiorari. (Pilipino Tel. Corp., vs. NTC, G.R. No. 138295, August 28, 2003). Certiorari is not a substitute for a lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive (Conejos vs. CA, 386 SCRA 142). The task of a court in a certiorari proceeding is to determine whether the lower court committed grave abuse of discretion (Marcopper Mining vs. Solidbank Corporation, 434 SCRA 134). It is a remedy narrow in scope. It is not a general utility tool in the legal workshop. Its function is to raise only questions of jurisdiction and not other. It cannot be used for any other purpose (Landbank of the Phils. vs. CA, 409 SCRA 455). Do not file certiorari if your purpose is to raise a factual issue or to ask for a re-evaluation of the facts and the evidence (PILTEL vs. NTC, 410 SCRA 82) because this is not a mode of appeal where you raise errors of judgment of a court. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration was filed, the sixty (60)-day period starts not from the notice of judgment but from notice of the denial of the motion for reconsideration (Docena vs. Lapesura, 355 SCRA 658). Certiorari cannot be availed of where the facts complained of merely constitute errors of judgment. Even if the order of judgment is erroneous as long as the court acted within the bounds of its authority, certiorari is not the remedy (Microsoft Corp. vs. Best Deal Computer Center Corp., 389 SCRA 615). Errors of judgments are correctible by appeal.

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In filing a petition for certiorari, the hierarchy of courts must be observed. Hence, even though the Supreme Court has concurrent jurisdiction with the CA and the RTC to issue a writ of mandamus, prohibition or certiorari, litigants are advised against taking direct recourse to the SC without initially seeking proper relief from the lower courts (Carpio vs. Sulu Resources Dev. Corp., 386 SCRA 128). The filing of a petition for certiorari does not interrupt the proceedings in the lower court if no preliminary injunction or a temporary restraining order is obtained enjoining the said court from further proceeding with the case. In the absence of an injunction or a TRO, the public respondent (court or tribunal) shall proceed with the principal case within ten (10) days from the filing of the petition. Failure to proceed may be a ground for an administrative charge (Sec. 7, Rule 65 as amended by A.M. No. 07-7-12-SC). Do not confuse certiorari under Rule 45 from certiorari under Rule 65: The following are some of the distinctions: (a) Rule 45 raises pure questions of law, Rule 65, questions of jurisdiction; (b) Rule 45 is a mode of appeal, Rule 65, a special civil action; (c) Rule 45 is directed against final judgment or orders, Rule 65 may be directed even against interlocutory orders; (d) Rule 45 is filed within fifteen (15) days from notice of judgment, Rule 65 within sixty (60) days; (e) Rule 45 requires no prior motion for reconsideration, Rule 65 does require it as a rule. A motion for reconsideration is required before filing a petition for certiorari under Rule 65. This is a well-settled rule. Without a motion for reconsideration, the petition may be outrightly denied. There are exceptions to this rule. Under the exceptions, a motion for reconsideration will not be required. Examples: (a) when the order is a patent nullity; (b) where the issue raised has been passed upon the court below; (c) in case of urgency because any delay would prejudice the rights of the petitioner; and (d) where the subject matter is perishable. EXECUTION OF JUDGMENTS 1. Execution shall issue as a matter of right when the judgment becomes final and executory. A motion for execution has to be filed by the prevailing party (Sec. 1, Rule 39, Rules of Court). When a judgment becomes final and executory, it is the ministerial duty of the court to issue a writ of execution (Torres vs. NLRC, 330 SCRA 311 [2000]). May a judgment be executed pending appeal? It may be executed despite the pendency of the appeal as long as there are good reasons to be stated in the special order and after due hearing. This execution pending appeal is called a discretionary execution (Sec. 2, Rule 39; Future Guarantee and Insurance Corporation vs. Court of Appeals, G.R. No. 1110701, March 12, 2002). How can a discretionary execution be stayed? The party against whom the discretionary execution is directed should file a supersedeas bond conditioned upon the performance of the judgment allowed to be executed in case it is finally sustained (Sec. 3, Rule 39, Rules of Court). Assume that the judgment executed pending appeal is reversed totally or partially on appeal, what shall the trial court do? The trial court, upon motion, shall issue an order of restitution or reparation as equity and justice may warrant (Sec. 5, Rule 39, Rules of Court). 3. How is a final and executory judgment executed? If within five (5) years from the date of entry, the judgment maybe executed by mere motion. After five (5) years, the judgment may be enforced only by filing an action to revive the judgment (Sec. 6, Rule 39, Rules of Court). Normally, an appeal stays a judgment. Under the Rules however, a judgment in injunction, receivership, accounting and support shall be immediately executory, and shall be enforceable after their rendition and shall not be stayed by an appeal, unless otherwise

2.

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ordered by the trial court (Sec. 3, Rule 39, Rules of Court). A judgment against the defendant in an action for unlawful detainer or forcible entry is also immediately executory but it may be stayed by perfecting an appeal, filing of the required supersedeas bond and making the periodic deposits in the appellate court (Sec. 19, Rule 70, Rules of Court). 5. An erroneous judgment is a valid judgment if the errors are not brought to the attention of a higher court through appeal. Errors of judgment are correctible by appeal. There is an error of judgment where the error is in the appreciation of the facts and the evidence. Where the error is one of jurisdiction, appeal is not the remedy, but certiorari. An order of execution is not appealable (Sec 1(e), Rule 41). A party who desires to assail an order of execution may instead file the appropriate special civil action under Rule 65 like certiorari (Sec. 1, last par. of Rule 41, Rules of Court). In executing a judgment for money, the sheriff shall demand from the judgment obligor the full amount in cash or certified check payable to the judgment debtor. If the judgment debtor has no cash or check, the officer shall levy upon his properties but the judgment debtor has the option to choose which property shall be levied upon. If the option is not exercised, the officer shall first levy on the personal properties and then other properties if the personal properties are not sufficient (Sec. 9(b), Rule 39, Rules of Court). The officer may also levy upon the bank deposits of the debtor, royalties, commissions, or his credits and others not capable of manual delivery by serving notice upon the person in possession of the same. This is called garnishment (Sec. 9(c), Rule 39, Rules of Court). 8. If the judgment is one for the delivery of real property like in unlawful detainer or forcible entry, the officer shall demand upon the occupant to vacate the property within three (3) working days (Sec. 10 (c), Rule 39, Rules of Court). The officer cannot require the occupant to vacate on the same day the writ is executed even if a judgment in ejectment is immediately executory. Immediacy of execution does not mean instant execution. If the occupant does not vacate despite the three-day notice, it is not correct to file contempt proceedings against the occupant. Contempt is not a means of enforcing a judgment as a rule. The writ is not directed to the occupant but to the sheriff. By not vacating, the occupant did not violate the writ. What he violated was the notice of the sheriff. The remedy of the sheriff is to oust the occupant with the aid, if necessary, of law enforcement officers (Barete vs. Amila, 230 SCRA 219; Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1). If however, after being ejected from the property, the occupant later attempts to enter, actually enters or induces another to enter the property from which he was ejected, he may be liable for indirect contempt (Sec. 3(b), Rule 71, Rules of Court). 9. Note that, when the judgment directs the judgment obligor to perform an act other than the payment of money or the delivery of personal or real property, this judgment is categorized as a special judgment and if not complied with, may be a basis for contempt (Sec. 11, Rule 39, Rules of Court). Thus, if an officer disobeys a writ of mandamus, he may be punished for contempt. You are advised to look into those properties exempt from execution under Sec. 13 of Rule 39. Note however, that although the properties enumerated therein are exempt from execution, they are not exempt if they are subject to execution because of non-payment of their price if acquired through a sale or if they are subject to foreclosure of a mortgage on the property. If the property levied upon by the sheriff is owned or claimed by a third person, the claimant may make an affidavit of his title to the property levied upon stating therein the

6.

7.

10.

11.

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grounds for his claim or assertion of right. The affidavit shall be served upon the officer making the levy with copy of the same given to the judgment obligee. This process is called terceria. Upon receipt of the affidavit, the officer shall discontinue with the levy. However, the officer may proceed if the judgment obligee protects the officer by posting a bond in a sum not less than the value of the property. If this bond is approved by the court, the officer can continue with the levy. The remedy of the debtor then is to file an action against the sheriff such as an action for damages with preliminary injunction or a TRO or an action for injunction as a main action to protect his rights to the property. This action will not be deemed to be an interference with the court that issued the writ of execution because the suit is against the sheriff performing an illegal act and not directed against the power of the court. The rule allows the third party claimant to vindicate his claim to the property levied upon even in a separate action (Sec. 16, Rule 39, Rules of Court). 12. When real property is sold on execution, the judgment obligor has one (1) year from the date of the registration of the sale to redeem the property from the purchaser (Sec. 28, Rule 39, Rules of Court). This purchaser is not entitled to the rents, fruits or income of the property pending the redemption and shall belong to the judgment debtor until the expiration of his period of redemption (Sec. 32, Rule 39, Rules of Court). When the return of the writ of execution shows that the judgment remains unsatisfied, the judgment creditor may ask from the court an order requiring the judgment debtor to appear so he may be examined as to his properties (Sec. 36, Rule 39, Rules of Court). The court may also require the appearance of a person or corporation who holds property for the judgment debtor or is a debtor of the latter (Sec. 37, Rule 39, Rules of Court). There is however, a limitation to this remedy. The judgment obligor cannot be required to appear before a court which is outside the province or city where the debtor resides. Thus, a Quezon City court cannot require the appearance of a debtor residing in Bulacan (Sec. 36, Rule 39, Rules of Court). Also the debtors of the judgment debtor or a corporation or person who holds property of the debtor cannot be required to appear outside the city or province of his/its residence (Sec. 37, Rule 39, Rules of Court). The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption (Sec. 32, Rule 39, Rules of Court). When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the suretys request to join in the defense (Sec. 46, Rule 39, Rules of Court). The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and Page 50 of 166

13.

14.

15.

16.

(b)

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(c)

In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto (Sec. 47, Rule 39, Rules of Court).

17.

The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render judgment or final order is as follows: (a) (b) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Sec. 48, Rule 39, Rules of Court). -o0o-

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CIVIL PROCEDURE PART II NATURE OF PROVISIONAL REMEDIES 1. Provisional remedies are not main actions. They are merely ancillary actions attached to the main or general action. They are in aid of the principal action and cannot exist independently of the principal action. The court which can grant any of the provisional remedies is the court which has jurisdiction over the main or original action. Provisional remedies include (a) preliminary attachment, (b) preliminary injunction, (c) receivership, (d) replevin, and (e) support pendente lite. The enumeration of the provisional remedies from Rules 57-61 of the Rules of Court is not to be construed as exclusive. Other provisional remedies are available although they are not parts of the enumeration like visitation rights and temporary custody of a child under Sec. 6 of Rule 99. The provisional remedy is applied and granted by the court which has jurisdiction over the principal action. Even the MTC may grant the remedy so long as the principal action is within its jurisdiction. The same is true with the RTC. The CA and the SC may grant the remedy in cases appealed to them. Under the latest amendments to the Rules of Court, a litigant filing a petition for review on certiorari under Rule 45 may include in said petition an application for a provisional remedy like a writ of preliminary injunction (A.M. No. 07-7-12 SC, Effective December 27, 2007). This amendment leaves no more doubt as to the availability of provisional remedies under Rule 45. PRELIMINARY ATTACHMENT (RULE 57) 1. There is no separate action called preliminary attachment. It is availed of in relation to a principal action. For instance, if the plaintiff files an action to collect a sum of money, the action may be coupled with a prayer for the issuance of a writ of preliminary attachment directed against the property of the defendant in order to prevent him from disposing of his property during the pendency of the litigation to the prejudice of the plaintiff. Attachment places the property under the custody of the court (custodia legis). The property is held by the court for the satisfaction of whatever may be obtained by the plaintiff in his favor. Attachment is in the nature of a proceeding in rem or a quasi in rem. When availed of in an action purely in personam, it converts the action to one that is quasi in rem. It will be recalled that in an action in personam, jurisdiction over the defendant is mandatory. However, with attachment, the action becomes one in quasi in rem. This transformation of the nature of the action dispenses with the need for acquiring jurisdiction over the person of the defendant. Since attachment is directed against the property of the defendant, the court may validly proceed with the action as long as jurisdiction over the property is acquired. In an action in rem or quasi in rem, jurisdiction over the res is sufficient.

2.

3.

4.

5.

6.

2.

3.

Cases where preliminary attachment is proper 1. One cannot secure preliminary attachment for every case. The Rules enumerate specific situations in which the remedy can be availed of (Sec. 1, Rule 57, Rules of Court). a. Preliminary attachment is available where the action is for the recovery of a specified amount of money or damages where the defendant is a person who is about to

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DEPART from the Philippines with INTENT to defraud his creditors. The source of this action does not really matter. It may arise from any of the sources of obligations under the Civil Code of the Philippines. It is not however, enough that the action is for the recovery of money or damages. There must be a showing of an attempt to abscond or intent to defraud on the part of the defendant. Note also that under Sec. 1 of Rule 57, in the determination of the damages as basis for the writ of preliminary attachment, moral and exemplary damages are not included. b. Preliminary attachment is also available in an action for money or property embezzled, fraudulently misapplied by the defendant or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation of duty. It is also available in an action to recover property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person. Preliminary attachment is also available in an action against a defendant guilty of fraud in either contracting the debt or incurring an obligation upon which the action is brought, or in the performance thereof. It is also a remedy in an action against a person who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

c.

d.

e.

f.

When to apply for preliminary attachment It may be applied for at the COMMENCEMENT of the action or at any time BEFORE entry of judgment (Sec. 1, Rule 57). Hence, it may be availed of even if a judgment has already been rendered by the court provided that the judgment has not yet been entered. This means that the writ may be issued before the judgment has become final and executory. Remember that under Sec. 2 of Rule 36, the date of the entry of a judgment is the date of the finality of the judgment and final order. Ex Parte issuance of writ 1. The writ of preliminary attachment may be granted and issued even before summons is served upon the defendant and may be issued ex parte. However, the writ may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co., Inc. vs. Court of Appeals, 204 SCRA 343; Mangila vs. Court of Appeals, August 12, 2002). Implementation of the writ of attachment without the required jurisdiction over his person is null and void (BAC Mfg. & Sons Corp. vs. Court of Appeals, 200 SCRA 130). The examinee must make a distinction between the mere issuance of the writ and its enforcement. The issuance does not need prior jurisdiction over the person of the defendant. However, jurisdiction over him is required for enforcement of the writ of attachment. The requirement of prior or contemporaneous service of summons mentioned in the preceding paragraph does not apply in the following instances (Sec. 5, Rule 57, Rules of Court): a. Summons could not be served personally or by substituted service despite diligent efforts; Page 53 of 166

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b. c. d.

Defendant is a resident of the Philippines who is temporarily out of the country; Defendant is a non-resident; or Action is one in rem or quasi in rem.

Requisites for the issuance of an order/writ of preliminary attachment (Secs. 2-3, Rule 57, Rules of Court). 1. 2. 3. The case must be any of those where preliminary attachment is proper; The applicant must file a motion (ex parte or with notice and hearing); The applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and A BOND is filed, executed to the adverse party. This is called an attachment bond.

4.

How to prevent the attachment The party whose property is sought to be attached, may prevent the attachment by doing either of two things: a. b. by depositing with the court an amount equal to the value of the property to be attached, or by giving a counter-bond executed to the applicant, in an amount equal to the bond posted by the latter to secure the attachment (Sec. 5, Rule 57, Rules of Court).

How to discharge the attachment 1. If the attachment has already been effected, the party whose property has been attached must file a MOTION to discharge the attachment. This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a CASH DEPOSIT or files a COUNTER-BOND executed to the attaching party with the clerk of court where the application is made (Sec. 12, Rule 57, Rules of Court). Attachment may likewise be discharged without the need for filing of a counter-bond. This is possible when the party whose property has been attached files a motion to discharge the attachment and during the hearing of the motion, he proves that the attachment was improperly or irregularly issued or enforced, or that the bond of the attaching creditor is insufficient (Sec. 13, Rule 57, Rules of Court).

2.

Miscellaneous principles 1. Property already in custodia legis may be attached. When this occurs, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property (Sec. 7, Rule 57, Rules of Court). The sheriff enforcing the writ of preliminary attachment cannot attach every property of the person against whom the writ was issued. He shall attach only so much of the property in the Philippines as may be sufficient to satisfy the demand of the applicant for the writ. Properties exempt from execution under Sec. 13 0f Rule 39, cannot be attached (Sec. 5, Rule 57, Rules of Court). Real property or growing crops thereon, or any interest therein is made by filing with the registry of deeds a copy of the order of attachment (together with a description of the property attached) and a notice that it is attached. The same documents are to be left with the occupant of the property (Sec. 7(a), Rule 57, Rules of Court).

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4.

If the property is personal property capable of manual delivery, the sheriff shall take and safely keep the property in his custody after issuing a receipt therefor (Sec. 7 (b), Rule 57, Rules of Court). If the property is not capable of manual delivery like debts and credits, bank deposits, royalties, commissions and other similar personal property, the sheriff shall leave a copy of the writ and the notice of attachment with the person owing such debts or with the person having possession or control of the same (Sec. 7(d), Rule 57, Rules of Court). This process is called garnishment, a species of attachment. The garnishment does not involve an actual seizure of the property which is merely impounded in the possession of the garnishee until the main action is decided. The same process applies to the attachment of stocks or shares in a corporation and a copy of the writ and the notice of attachment are left with the president or managing agent of such shares or interest (Sec. 7(c), Rule 57, Rules of Court). If the property attached is claimed by a third person, such person shall execute an affidavit of his title to or right of possession to the property attached stating in the affidavit the grounds of such right or title. He shall serve the affidavit upon the sheriff and a copy thereof to the attaching party. When so served, the sheriff shall not keep the property attached. This third-party claim is called a terceria. The attaching party may however, defeat the terceria if he files a bond to protect the sheriff who shall then not be liable for the taking or keeping of the property to the third-party claimant if such bond is posted. The bond does not however, prevent the claimant from vindicating his claim to the property by filing an action against the sheriff. Even the attaching party may claim damages from the claimant if the latters claim is frivolous (Sec. 14, Rule 57, Rules of Court). The party against whom the attachment was issued may claim damages against the attaching party on account of improper attachment, or excessive attachment. The application for damages must be filed before the trial or before appeal is perfected or before the judgment becomes executory. The application is subject to a hearing and the award shall be included in the judgment on the main case (Sec. 20, Rule 57, Rules of Court).

5.

6.

7.

PRELIMINARY INJUNCTION (RULE 58) 1. Preliminary injunction is an order requiring a person, a party or even a court or tribunal either TO REFRAIN (prohibitory) from or TO PERFORM (mandatory) particular acts during the pendency of an action. In this sense, it is a provisional remedy. After judgment, the injunction now becomes involved as part of the relief granted to the applicant. In which case, the injunction is no longer preliminary but a FINAL injunction. An injunction may also be a main action for injunction. In this case, it is not the provisional remedy ancillary to the main action but is a main action in itself and is similar to the special civil action for prohibition. The purpose of the action for injunction is to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act (Manila Banking Corporation vs. Court of Appeals, 187 SCRA 138). As a provisional remedy, the purpose of preliminary injunction is to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (First Global Realty and Development Corp. vs. San Agustin, G.R. No. 144499, February 19, 2002). When the injunction sought is mandatory, a writ of preliminary injunction tends to do more than to maintain the status quo because it commands the performance of specific acts and is issued only in cases of extreme urgency and where the right of the applicant is clear. Preliminary injunction is granted at any stage of the proceedings prior to the judgment or final order (Sec. 1, Rule 58, Rules of Court). It is to be applied for and issued by the court

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where the main action is pending (Sec. 2, Rule 58, Rules of Court). The term court includes a Municipal or a Metropolitan Trial Court. Where the main action is within the jurisdiction of the MTC, then it is this court which shall issue the preliminary injunction. For example, under Rule 70 of the Rules of Court, in a forcible entry case, the plaintiff may, within five (5) days from the filing of the complaint, file a motion to secure from the court a writ of preliminary mandatory injunction to restore him in his possession. Since a forcible entry case is cognizable by the MTC, the injunction sought for in this action shall be issued by the MTC. But where the main action is one for injunction, the writ of preliminary injunction cannot issued by an MTC because it has no jurisdiction over the main action. This action is filed with the RTC being one incapable of pecuniary estimation. 5. Note that if the action is pending in the Court of Appeals, the application must be made with the Court of Appeals. If it is pending in the Supreme Court, then the application must be made in such court. The preliminary injunction applied for in the Court of Appeals may be issued by the said court or ANY member thereof. If applied for in the Supreme Court, it may be issued by the Supreme Court or ANY member thereof (Sec. 2, Rule 58, Rules of Court). This is a situation where a member of the court may issue a writ of preliminary injunction without the participation of other members of the court.

Requisites for issuance of a writ of preliminary injunction or temporary restraining order 1. 2. 3. 4. There must be a verified application. There must be notice and hearing (unlike attachment which may be issued ex parte). The applicant must establish that he has a right to relief. The applicant must establish that there is a need to restrain the commission or continuance of the acts complied of and if not enjoined would work injustice to the applicant (Kho vs. Court of Appeals, G.R. No. 115758, March 3, 2002). A bond must be posted, unless exempted by the court.

5.

NOTES: 1. A writ of preliminary injunction cannot be issued without a prior notice and hearing (Sec. 5, Rule 58, Rules of Court). It is a TRO (not a writ of preliminary injunction) which may be issued ex parte. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made may issue a TRO ex parte for a period not exceeding twenty (20) days from service to the party sought to be enjoined. If the matter is of extreme urgency, the executive judge or the presiding judge of a single-sala court may issue a TRO effective for only seventy-two (72) hours from ISSUANCE. Within this period the executive judge shall conduct a summary hearing to determine whether or not the TRO can be extended to twenty (20) days. The seventy-two (72) hours shall be included in the maximum twenty (20) day period set by the Rules (Sec. 5, Rule 58, Rules of Court). 2. A TRO may be issued by the Court of Appeals or any member thereof. If so issued, it shall be effective for sixty (60) days from notice to the party sought to be enjoined. A TRO may also be issued by the Supreme Court or a member thereof. If so issued, it shall be effective until FURTHER notice (Sec. 5, Rule 58, Rules of Court). Injunction can be an action in itself and in this sense is a main action. The provisional remedy is preliminary injunction. Preliminary mandatory injunction is available in a suit for forcible entry to restore the plaintiff in his possession (See Art. 539 of the Civil Code; also Sec. 15, Rule 70, Rules of Court). It

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is also available in unlawful detainer actions pursuant to Sec. 15, Rule 70 of the Rules of Court. A finding that the applicant for preliminary injunction may suffer damage not capable of pecuniary estimation is not sufficient to support an injunction (Manila International Airport Authority vs. Court of Appeals, G.R. No. 118249, February 2, 2002). How to dissolve a writ of preliminary injunction A writ of preliminary injunction or temporary restraining order may be dissolved. The party enjoined must file a motion to dissolve the injunction or TRO with notice and hearing of the motion upon showing by affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated for such damages as he may suffer. The movant must file a BOND. Some instances when a writ of injunction is available 1. When a petition for certiorari under Rule 65 is filed, the petition does not interrupt the course of the principal case. To interrupt the same, one must obtain a writ of preliminary injunction or a temporary restraining order (Sec. 7, Rule 65, Rules of Court). When a petition for relief is filed pursuant to Rule 38, it is understood that the judgment is already final and executory and may be executed on motion. To prevent its execution during the pendency of the petition, one must obtain a writ of preliminary injunction or a temporary restraining order (Sec. 5, Rule 38, Rules of Court).

2.

Examples of instances when injunction will not be available 1. Injunction will not lie to restrain a criminal prosecution (Andres vs. Cuevas, 460 SCRA 38) except when double jeopardy may arise, to avoid oppression or multiplicity of actions, to protect constitutional rights, or where the charges are manifestly false and clearly motivated by vengeance and there is clearly no case against the accused. A court cannot issue an injunction in cases growing out of labor cases (BP 227). PD 1818 prohibits the issuance of injunctions against the institution and implementation of government infrastructure projects. Injunction will not lie against the Presidential Agrarian Reform Council implementing the land reform program. A court cannot enjoin the acts of another court of equal or higher rank (Ching vs. Court of Appeals, 398 SCRA 88). The RTC cannot issue injunctions against quasi-judicial bodies of equal rank such as the SSS (Philippine Pacific Fishing vs. Luna, 112 SCRA 604), the Intellectual Property Office, the Comelec or Workmens Compensation Commission (Nocnoc vs. Vera, 88 SCRA 529).

2. 3.

4.

5.

6.

RECEIVERSHIP (Rule 59) Nature of a receivership 1. The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action. Receivership is also aimed at preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights. The receivership provided in Rule 59 refers to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or

2.

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laws. This presupposes that there is an action and that the property subject of the action requires its preservation. Procedure for appointment of a receiver 1. 2. 3. 4. 5. A verified application must be filed by the party applying for the appointment of a receiver; The applicant must have an interest in the property or funds subject of the action; The applicant must show that the property or funds is in danger of being lost, wasted or dissipated; The application must be with notice and must be set for hearing; Before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall take his oath but before doing so, he shall file a bond. There are two bonds: the applicants bond and the receivers bond. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully.

6.

REPLEVIN (Rule 60) 1. Replevin is a broad term which may also be a main action where the ultimate goal is to recover personal property wrongfully detained by a person. Used in this sense, it is a suit in itself. The action is primarily possessory in nature and generally determines nothing more than the right of possession. But replevin may also be a provisional remedy to have possession of the personal property while the main issue of possession is pending. Also, the mortgagee is entitled to file a replevin suit preparatory to the foreclosure of the chattel mortgage, when the debtor defaults and the creditor decides to foreclose the mortgage but the debtor refuses to yield possession of the property, the creditor may institute an action to secure possession of the property in an action for replevin. The application for replevin must be by affidavit on his ownership of the property and the actual value thereof. There must be a bond posted by the applicant. The bond is DOUBLE the value of the property. Upon the approval of the bond, the court shall issue an order and the corresponding writ of replevin. The sheriff shall then take the property and keep it in a secure place and wait for five (5) days for the adverse party to get the property back by objecting to the sufficiency of the bond and posting a redelivery bond double the value of the property. If such party makes no move to have the property back, the sheriff shall deliver the property to the applicant.

2.

3.

SUPPORT PENDENTE LITE (Rule 61) 1. Support pendente lite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for SUPPORT. Here, the main action is support and support pendente lite is the provisional remedy. In one case, temporary support was granted in an action for habeas corpus filed by the mother in behalf of a minor child against the father, where the father has recognized the child as his and has not been given support by the father pending the fixing of the amount of support in another action for support (David vs. CA, 250 SCRA 82). Support pendente lite may be granted in rape cases for the offspring of the accused as a consequence of the rape (Sec. 6, Rule 61, Rules of Court). The application for support pendente lite must be verified with notice and hearing.

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5.

There can also be a main action for support. Since a protracted trial may ensue, the plaintiff may ask for support during the pendency of the action. It is the latter which is a provisional remedy. An order granting support pendente lite must be immediately complied with. If not complied with as ordered, the court shall motu proprio or upon motion issue an order of execution against the person so ordered to give support without prejudice to his being held liable for contempt.

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REMINDERS ON IMPORTANT SPECIAL CIVIL ACTIONS EJECTMENT (RULE 70) 1. The issue in unlawful detainer is physical or material possession. This is also the issue in an action for forcible entry. In an action for unlawful detainer, it is not necessary for the plaintiff to allege that he was in prior physical possession of the premises subject of the action. This is not necessary because the plaintiff is not in prior possession. It is the defendant who initially has lawful possession of the property but whose possession became unlawful later. In forcible entry, it is necessary that the plaintiff allege his prior physical possession. This is because he was really in prior physical possession and was deprived thereof of force, intimidation, threat, strategy or stealth (FISTS) (Rivera vs. Rivera, 405 SCRA 466, July 8, 2003; Cansino vs. CA, G.R. No. 125799, August 21, 2003). In an unlawful detainer case, a demand to vacate, is, as a rule, indispensable. This demand must be made at least five (5) days, in case of buildings or fifteen (15) days in case of land, before the filing of the action. EXCEPTIONS: (a) When it is stipulated that a demand is no longer required; or (b) When the ground for the unlawful detainer suit is expiration of the lease. Thus, where the ground for unlawful datainer is payment of rentals or violation of the terms and conditions of the lease, demand is required. The demand must be in the following tenor: Pay and vacate. A demand to pay or vacate is not the demand for unlawful detainer. If the ground for ejectment is non-payment of rentals and there is no demand to vacate, the action is not one for unlawful detainer but one for a collection of a sum of money. The jurisdiction would then depend upon the amount of the money sought to be collected (Barrazona vs. RTC of Baguio, April 7, 2007). In forcible entry cases, no demand to vacate is required. The MTC can determine an issue of ownership raised by way of defense. This defense of ownership cannot deprive the MTC of jurisdiction over the case (Perez vs. Cruz, 404 SCRA 487). This power to determine questions of ownership is only for the purpose of determining character of possession and in a situation where the question of possession cannot be resolved without deciding the issue of ownership. The court, in this case, cannot declare with finality who the true and unlawful owner is. The determination is only provisional or initial. It does not bar an action involving title in another forum (Rivera vs. Rivera, 405 SCRA 466). When the possession of the defendant is by mere tolerance of the owner, possession by the defendant becomes illegal when demand to vacate is made. There is an implied promise that he will vacate upon demand (Rivera vs. Rivera, 405 SCRA 466). A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. This motion shall be decided within thirty (30) days from the filing thereof (Sec. 15, Rule 70, Rules of Court). A judgment for unlawful detainer is immediately executory upon motion. To stay execution, the defendant must perfect an appeal, file a sufficient supersedeas bond executed in favor of the plaintiff to pay the rents, damages and costs accruing down to the time of the judgment appealed from. He must also, during the pendency of the appeal, deposit with the appellate court the amount of rent due from time to time under the contract, if there is no contract, the deposit shall correspond to the reasonable value of the use and occupation of the property (Sec. 19, Rule 70, Rules of Court).

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9.

After the lapse of one year from the accrual of the cause of action, the party dispossessed may file either an accion publiciana, which is a plenary action to recover the right of possession or an accion reinvindicatoria, which is an action to recover the right to possession based on the right of ownership. These are not summary actions anymore (Bongato vs. Malvar, G.R. No. 141614, August 14, 2002). May persons who are not parties to the unlawful detainer case be ejected from the land subject of the case? YES. Although an action for ejectment is an action in personam wherein the judgment is binding only upon the parties properly impleaded and given the opportunity to be heard, the judgment becomes binding on anyone who has not been impleaded if he or she is a (a) trespasser, squatter or agent of the defendant occupying the property; (b) guest or occupant of the premises with the permission of the defendant; (c) transferee pendente lite; (d) sublessee; (e) co-lessee, or (f) member of the family, relative or privy of the defendant (Sunflower Neighborhood Association vs. CA, G.R. No. 136274, September 3, 2003).

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PARTITION (RULE 69) 1. An action for partition is comprised of two phases: first, an order of partition which determines whether a co-ownership exists and whether partition is proper; and second, a decision confirming the sketch or subdivision submitted by the parties or by the commissioners appointed by the court, as the case may be. In other words, an action for partition is at once an action for the declaration of the existence of a co-ownership and then for the segregation and conveyance of a determinate portion of the properties involved. The first may end up with a declaration that a co-ownership does not exist so plaintiff is not entitled to have a partition or that partition is legally prohibited. It may also end up with a declaration that a co-ownership exists and that an accounting of rents and profits received by the defendant is in order (De Daffon vs. CA, G.R. No. 12907, August 20, 2002).

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CONTEMPT (RULE 7I) 1. Contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. It is defined as disobedience to the court by acting in opposition to its authority, justice and dignity. The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts and, consequently, to the due administration of justice. The Rules of Court penalizes two types of contempt, namely direct and indirect contempt. Direct contempt is committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, and includes disrespect toward the court, offensive towards others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit of deposition when lawfully required to do so. On the other hand, indirect contempt constitutes: a. b. misbehavior of an officer of a court in the performance of his official duties or in his official transactions; disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property, for the purpose of executing acts to ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

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c. d. e. f.

any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; assuming to be an attorney or an officer of a court, and acting as such without authority; failure to obey a subpoena duly served; and 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.

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Indirect contempt may either be initiated (a) motu proprio by the court by issuing an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt; (b) if initiated by someone other than the court, by filing of a verified petition, complying with the requirements for filing initiatory pleadings. A hearing is required before punishment in meted out for indirect contempt. The penalty for contempt could be imprisonment, making it a unique special civil action. Where the purpose is to vindicate the authority of the court and to protect its outraged dignity, the contempt can be criminal in nature as long as the substantive rights of the accused are safeguarded (SEE PENALTIES under Rule 71(Sec. 1, Sec. 7 of the Rules of Court). Do not use contempt proceedings to enforce a judgment. For example, a mere refusal of the judgment debtor to relinquish the property is not a ground for contempt. The sheriff should dispossess him of the property and deliver possession to the judgment creditor. If after the dispossession, the judgment debtor commits acts that disturb the possession of the judgment creditor, then contempt may be availed of (Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1).

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FORECLOSURE OF REAL ESTATE MORTGAGE (RULE 68) 1. The foreclosure of mortgage in Rule 68 has reference to a judicial foreclosure. An extrajudicial foreclosure is allowed only when the mortgage is by stipulation allowed to do so extrajudicially through a special power of attorney authorizing extrajudicial foreclosure. Without this authorization, the foreclosure should be done judicially. Judicial foreclosure has three (3) stages: a. the determination of the right to foreclose and the ascertainment of the amount due (Sec. 2, Rule 68, Rules of Court); b. the foreclosure sale (Sec. 3, Rule 68, Rules of Court); and the c. recovery of the deficiency, if any (Sec. 6, Rule 68, Rules of Court). After the court determines the amount due, it will order the debtor to pay the obligation within a period of not less than ninety (90) days nor more than 120 days from the entry of judgment. This is what is commonly termed equity of redemption. In case the debtor fails to so pay, the court will order the foreclosure sale of the property. This sale will be confirmed but prior to confirmation the debtor may still pay. This means that the equity of redemption is virtually extended even after the sale but before its confirmation. Once confirmed, the equity of redemption is cut off. 3. Upon the finality of the order of confirmation, the purchaser shall be entitled to the possession of the property by securing a writ of possession, upon motion (Sec. 3, Rule 68, Rules of Court). In extrajudicial foreclosure, there is always a right of redemption to be exercised within one (1) year from the registration of the same. In judicial foreclosures, there is only an equity of redemption and not a right of redemption. Exception: there is a right of redemption when the mortgagee is a bank (Sec. 46 of the General Banking Law of 2000).

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EXPROPRIATION (RULE 67) 1. The scope of the power of eminent domain as exercised by Congress is plenary and is as broad as the police power. When exercised by the national government, the power is inherent and needs no express conferment by law. Such power may be delegated to local government units, other public entities, and public utilities. When so delegated, the power is not eminent but inferior domain. With respect to local government units, the power to expropriate is found in Sec. 19 of the Local Government Code. Before a local government unit may exercise the power to expropriate, an ordinance must be enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of expropriation over a particular private property. A local government unit cannot therefore, authorize an expropriation through a mere resolution (Beluso vs. Municipality of Panay, Capiz, G.R. No. 153974, August 7, 2006). When the national government expropriates private property, the implementing agency may enter into the possession of the property through a writ of possession upon the filing of the complaint as long as it makes immediate payment to the property owner the amount equivalent to 100% of the value of the property and the value of the improvements, based on the current relevant BIR zonal valuation (Sec. 4, R.A. 8974; Republic vs. Gingoyon,, G.R. No. 166429, December 19, 2005). This provision of R.A. 8974 modifies Sec. 2 of Rule 67 of the Rules of Court. Under the Rules, to be entitled to a writ of possession, it is enough for the implementing agency to make an initial deposit with an authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation. The rule for local government units remains the same and is not covered by R.A. 8974. Under Sec. 19 of the Local Government Code, the amount of deposit shall be at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated. When the owner is willing to part with his property, there is no need to file an action to expropriate the property. An action is necessary only when the owner does not agree to sell his property or if he is willing to sell, he does not agree with the price offered.

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REMINDERS IN SPECIAL PROCEEDINGS Special proceedings is an application to establish the status or right of a party or a particular fact or any remedy other than an ordinary suit in a court of justice. Settlement of estate of deceased persons, venue and process Which court has jurisdiction Pursuant to R.A. 7691, the question as to which court shall exercise jurisdiction over probate proceedings depends upon the gross value of the estate of the decedent. In Metro Manila, the municipal trial court has jurisdiction on the said proceeding if the gross value of the estate does not exceed P400,000.00, otherwise, the regional trial court has jurisdiction over the same. Outside Metro Manila, municipal trial courts have jurisdiction over probate proceedings if the gross value of the estate left by the decedent does not exceed P300,000.00. Venue in judicial settlement of estate If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled in the court in the province in which he resides at the time of his death (Rule 73, Sec. 1, 1997 Rules of Court). If he is an inhabitant of a foreign country, the court of any province in which he had an estate (Rule 73, Sec. 1, Rules of Court). Venue is waivable. Extent of jurisdiction of probate court Powers and duties of probate court The powers and duties of a probate court are: (1) distribute shares; (2) determine the legal heirs; (3) issue warrants and processes to secure attendance of witnesses; (4) determine and rule upon issues relating to settlement of the estate, such as administration, liquidation, and distribution of the estate; and (5) determine the following: (a) heirs of the decedent; (b) recognition of natural child; (c) validity of disinheritance effected by testator; (d) status of a woman who claims to be the lawful wife of the decedent; (e) validity of waiver of hereditary heirs; (f) status of each heir; (g) whatever property in the inventory is conjugal or exclusive property of deceased spouse; and (h) matters incidental or collateral to the settlement and distribution of the estate. Summary settlement of estates Extrajudicial settlement by agreement between heirs, when allowed If the decedent left no will and no debts and the heirs are all of legal age, the parties may, without securing letters of administration, divide the estate among themselves by means of public instrument or by stipulation in a pending action for partition and shall file a bond with the register of deeds in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned. The fact of extrajudicial settlement shall be published in a newspaper of general circulation once a week for three consecutive weeks in the province (Rule 74, Sec. 1, Rules of Court). Affidavit of self-adjudication by sole heir It is an affidavit filed with the Register of Deeds required under Rule 74, Section 1 of the Rules of Court to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent.

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Summary settlement of estates of small value, when allowed The following are the requirements for summary settlement of estates of small value: (1) court intervention by summary proceeding; (2) applicable where the gross value of the estate is P10,000.00. The amount is jurisdictional; (3) allowed in both testate and intestate estates; (4) available even if there are debts; and (5) instituted by any interested party and even by a creditor of the estate, without the consent of all the heirs (Rule 74, Sec. 2, Rules of Court). Remedies of aggrieved parties after extrajudicial settlement of estate The following are the remedies: (1) within two (2) years, file a claim against the bond or the real estate; (2) rescission in case of preterition of compulsory heir tainted with bad faith; (3) reconveyance of real property; (4) action to annul deed of extrajudicial settlement on the ground of fraud; (5) reconveyance based on implied or constructive trust; and (6) ordinary action against distributes, but not against the bond. Production and probate of will Nature of probate proceeding Probate proceedings are in rem. The notice by publication as a prerequisite to the allowance of a will, is a constructive notice to the whole world, and when probate is granted the judgment is binding upon everybody, even against the State (Cuenco vs. CA, 26 SCRA 360). It is also imprescriptible as it is mandatory. Who may petition for probate; persons entitled to notice Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition the court for the allowance of his will (Rule 76, Sec. 1, Rules of Court). An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Sumilang vs. Ramagosa, 21 SCRA 1369). The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not be petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs (Rule 76, Sec. 4, Rules of Court). Allowance or disallowance of will Contents of petition for allowance of will A petition for allowance or disallowance of will shall contain the following: (a) jurisdictional facts; (b) names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) probable value and character of the property of the estate; (d) name of the person for whom

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letters are prayed; and (e) if the will has not been delivered to the court, the name of the person having custody of it (Rule 76, Sec. 2, Rules of Court). But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed (Rule 76, Sec. 2, Rules of Court). Grounds for disallowing a will The following are the grounds for disallowing a will: (1) if the will is not executed and attested as required by law; (2) if the testator is insane or otherwise mentally incapable to make a will; (3) if the will was executed under duress or the influence of fear or threats; (4) if the will was procured by undue and improper influence, on the part of the beneficiary or of some other person for his benefit; and (5) if the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature (Rule 76, Sec. 9, Rules of Court). Reprobate; requisites before will proved outside is allowed in the Philippines A will probated abroad is not automatically allowed in the Philippines. Hence, the need for petition for reprobate of a will (See Rule 77, Sec. 1, Rules of Court). The following are the requisites to prove a will outside the Philippines: (1) due execution of the will in accordance with foreign laws; (2) testator is domiciled in a foreign country; (3) will is admitted to probate in such country; (4) foreign court or tribunal is a probate court; and (5) law of the foreign country on procedure and allowance of the will. In the absence of proof of the foreign law, it is presumed that it is the same as that in the Philippines (doctrine of processual presumption). A probate of will abroad is considered as foreign judgment, hence, the need for petition for reprobate to be considered binding and enforceable upon our courts. Effects of probate The effects are as follows: 1. The will shall be treated as if originally proved and allowed in Philippine courts (Rule 77, Sec. 3, Rules of Court); 2. Letters testamentary or administration with a will annexed shall extend to all estates of the Philippines (Rule 77, Sec. 4, Rules of Court); 3. After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Rule 77, Sec. 4, Rules of Court). Letters testamentary and of administration When and to whom letters of administration granted; order of preference If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: 1. To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

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2. If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; 3. If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select (Rule 78, Sec. 6, Rules of Court). The basis for the preferential right is the underlying assumption that those who will reap the benefits of a wise, speedy and economical administration of the estate or those who will most suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly. Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute vs. CA, 26 SCRA 768). Opposition to issuance of letters testamentary; simultaneous filing of petition for administration Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed (Rule 79, Sec. 1, Rules of Court). The general rule is any person interested in the will may oppose the issuance of letters. The exception is even where a person who had filed a petition for the allowance of the will of the deceased person had no right to do so in view of his lack of interest in the estate, nevertheless, where the interested persons did not object to its application, the defect in the petition would be deemed cured. The filing of the petition may be considered as having been ratified by the interested parties (Eusebio vs. Valmores, 97 Phil. 163). Powers and duties of executors and administrators; restrictions on the powers The executor or administrator of the estate of a deceased partner shall at all times: (1) have access to, examine and take copies of books and papers relating to partnership in case of deceased partner; (2) examine and make invoices of property belonging to the partnership in case of deceased partner; (3) maintain in tenantable repairs, houses, other structures and fences and deliver the same in such repair to heirs or devisees when instructed to do so by the court; (4) make improvement on properties under administration with necessary court approval except for necessary repairs; and (5) possess and manage the estate when necessary for payment of debts, for payment of expenses of administration (See Rule 84, Sections 1 to 3 of the Rules of Court). Appointment of special administrator When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed (Rule 80, Sec. 1, Rules of Court). Administrator Appointment may be the subject of appeal. Special administrator Appointment is an interlocutory order and may not be the subject of an appeal. One of the obligations is to pay the debts of Cannot pay the debts of the estate. the estate. Appointed when decedent died intestate or Appointed when there is delay in granting

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did not appoint an executor in the will or will letters testamentary or administration. was disallowed. Grounds for removal of administrator The following are the grounds for removal of executor/administrator: (1) neglect to render accounts within one (1) year and when required by the court; (2) neglect to settle the estate according to the rules; (3) neglect to perform order or judgment of the court or duty provided by the Rules of Court; (4) absconding; and (5) insanity, incapability, or unsuitability of discharging the trust (Rule 82, Sec. 2, Rules of Court). Other grounds include death and resignation; disbursing funds of the estate without judicial approval (Cotia vs. Jimenez, 104 Phil. 966); false representation by an administrator in securing his appointment (Cabarrubias vs. Dizon, 76 Phil. 209); administrator who holds an interest adverse to that of the estate or by his conduct shows unfitness to discharge the trust (Garcia vs. Vasquez, 32 SCRA 490); and an administrator who has physical inability and consequent unsuitability to manage the estate (De Borja vs. Tan, 93 Phil. 167). Claims against the estate Time within which claims shall be filed; exceptions The general rule is that the claims should be filed within the time fixed in the notice which shall not be more than twelve (12) months nor less than six (6) months after the date of the first publication. Otherwise, they are barred forever. Even if the testator acknowledged the debt in his will and instructed the executor to pay the debt, the statute of non-claims must still be complied with. Otherwise, the claim may also be barred (See Rule 86, Sec. 2, Rules of Court). The exception is belated claims. Belated claims are not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month from the order allowing belated claims. Statute of non-claims supersedes the statute of limitations insofar as the debts of the deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect. A creditor barred by the statute of non-claims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor. It is clear from Section 2 of Rule 86 that the period prescribed in the notice to creditors is not exclusive; that money claims against the estate may be allowed at any time before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable (Quisumbing vs. Guison, 76 Phil. 730). Statute of non-claims A claim by a person against the estate of deceased should be made in not less than six (6) months nor more than twelve (12) months since the first publication of allowance of the will (Rule, 86, Sec. 2, Rules of Court). If the said claims are not filed within the time limited in the notice, they are barred forever from presenting them.

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Project of partition It is a document prepared by the executor or administrator in the manner in which the estate of the deceased is to be distributed among the heirs. Payment of debts The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor. Any deficiency shall be met by contributions in accordance with the provisions of Sec. 6 of the rule (Rule 88, Sec. 3, Rules of Court). The instances when realty is liable for debts and expenses are when the personal estate of the decedent is not sufficient for that purpose and where the sale of such personalty would be to the detriment of the participants of the estate. Actions by and against executors and administrators Actions that may be brought against executors and administrators are the following: (1) recovery of real or personal property or any interest therein from the estate; (2) enforcement of a lien thereon; and (3) action to recover damages for any injury to person or property, real or personal (Rule 87, Sec. 1, Rules of Court). These instances are deemed actions that survive the death of the decedent (Rule 87, Sec. 1, Rules of Court). An action for revival of money judgment may be filed against the administrator to preempt prescription of judgment (Romualdez vs. Tiglao, 105 SCRA 762). For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive (Rule 87, Sec. 2, Rules of Court). Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased When there is a deficiency of assets in the hands of the executor or administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest, debt, or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on application of the creditors of the deceased, nor unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable (Rule 87, Sec. 9, Rules of Court). This provision applies when there is a deficiency of assets in the hands of the executor or administrator for the payment of the debts and expenses for administration. Distribution and partition

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Liquidation Liquidation means the determination of all assets of the estate and payment of all debts and expenses. A petition for liquidation of an insolvent corporation should be classified as a special proceeding and not an ordinary action. Such petition does not seek the enforcement or protection of a right nor redress of a wrong against a party. It does not pray for affirmative relief for injury arising from a partys wrongful act or omission nor state a cause of action that can be enforced against any person (Pacific Banking Corporation Employees Organization vs. Court of Appeals, 242 SCRA 492).

Remedy of an heir entitled to residue but not given his share If an heir has not received his share, his proper remedy is to file a motion with the probate court for delivery to him of his share or if the estate proceedings had been closed, he should file a motion for reopening of the proceeding, within the prescriptive period, and not to file an independent action for annulment of the project of partition (Guilas vs. Judge of CFI of Pampanga, 43 SCRA 111). However, where the order closing the intestate proceeding was already final and executory, the same cannot be reopened on a motion therefore filed after the lapse of the reglementary period (Divinagracia, et al. vs. Rovira, 72 SCRA 307, L-42615, August 10, 1976). As long as the order of distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated, because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided that prescriptive period therefore has not elapsed. The better practice, however, for the heir who has not received his share, is to demand his share through proper motion in the same probate proceedings, or for the reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or judge which may thus reverse a decision or order of the probate or intestate court already final and executed and reshuffle properties long ago distributed and disposed of (Timbol vs. Cano, 1 SCRA 1271). Instances when probate court may issue writ of execution As a general rule, a probate court cannot issue a writ of execution. In the case of Aldamiz vs. Judge of CFI of Mindoro, 85 Phil. 228, a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees residing in the Philippines. And when the sale or mortgage is to be made, the regulations contained in Rule 89, Section 7 should be complied with. The exceptions are: (1) to satisfy the distributive shares of the devises, legatees and heirs in possession of the decedents assets; (2) to enforce payment of the expenses of partition; and (3) to satisfy the costs when a person is cited for examination in probate proceedings. Trustees Distinguished from executor/administrator

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A trustee is a person given confidence by a trustor for the benefit of another called the cestui qui trust with respect to the property held by the former for the benefit of the latter. Conditions of the bond The following conditions shall be deemed to be a part of the bond whether written therein or not: 1. That the trustee will make and return to the court, as such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; 2. That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed; 3. That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order; and 4. That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto. But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly (Rule 98, Sec. 6, Rules of Court). Requisites for the removal and resignation of a trustee The requisites are: (1) petition filed by parties beneficially interested; (2) notice of trustee; and (3) hearing. Grounds for removal and resignation of a trustee The grounds are: (1) essential in the interests of the petitioners; (2) insanity; (3) incapability of discharging trust; and (4) unsuitability. Extent of authority of trustee Rule 98 applies only to express trust, one which is created by a will or a written instrument. Testamentary trust 1. If a testator has omitted in his will to appoint a trustee in the Philippines, and 2. If such appointment is necessary to carry into effect the provisions of the will. 3. After notice to all persons interested, 4. Proper RTC may appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. Contractual trust 1. When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and 2. no adequate provision is made in such instrument for supplying the vacancy 3. after due notice to all persons interested,

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4. Proper RTC may appoint a new trustee to act alone or jointly with the others, as the case may be. The general rule is that an action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. The trustees possession is not adverse and therefore cannot ripen into title by prescription. However, prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present: (1) that the trustee has performed unequivocal acts amounting to an ouster of the cestui qui trust; (2) that such positive acts of repudiation had been made known to the cestui qui trust; and (3) that the evidence thereon should be clear and conclusive (Ceniza vs. CA, 181 SCRA 552). Escheat Escheat is a proceeding, unlike that of succession or assignment, whereby the state, by virtue of sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. In the absence of a lawful owner, a property is claimed by the state to forestall an open invitation to self-service by the first-timers (Republic vs. CA, G. R. No. 143483, January 31, 2002). When to file When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the RTC of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated (Rule 91, Sec. 1, Rules of Court). Requisites for filing of petition The requisites are: (1) publication of the order; (2) a person died intestate; (3) he is seized of real/personal property in the Philippines; (4) he left no heirs or persons by law entitled to such property; and (5) there is no sufficient cause to the contrary (See Rule 91, Sec. 1, Rules of Court). Remedy of respondent against petition; period for filing a claim If a devisee, legatee, heir, widow, widower or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting reasonable charges for the care of the estate; but a claim not made within said time shall be forever barred (Rule 91, Sec. 4, Rules of Court). Guardianship General powers and duties of guardians The general powers and duties of guardians are: 1. To have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be (Rule 96, Sec. 1, Rules of Court); 2. Pay the debts of the ward (Rule 96, Sec. 2, Rules of Court); 3. Settle accounts, collect debts and appear in actions for ward (Rule 96, Sec. 4, Rules of Court);

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4. Manage the estate of the ward frugally and apply the proceeds to maintenance of ward (Rule 96, Sec. 4, Rules of Court); 5. Render verified inventory within three (3) months after his appointment and annually thereafter and upon application of interested person (Rule 96, Sec. 7, Rules of Court); and 6. Must present his account to the court for settlement and allowance (Rule 96, Sec. 8, Rules of Court). Conditions of the bond of the guardian The conditions of the bond are: 1. To make and return to the court, within three (3) months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge of any other person for him; 2. To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward and to provide for the proper care, custody and education of the ward; 3. To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by the rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and 4. To perform all orders of the court by him to be performed (Rule 94, Sec. 1, Rules of Court). Rule on guardianship of minor The following may file for a petition for guardianship of minor: (1) any relative; (2) other person on behalf of a minor; (3) minor himself if fourteen (14) years of age or over; (4) the Secretary of Social Welfare and Development and by the Secretary of Health in case of an insane minor who needs to be hospitalized (Sec. 2 of Rule on Guardianship of Minors [A.M. No. 03-02-05- SC]). The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. The following may be appointed guardian of the person or property, or both, of a minor: (1) SURVIVING GRANDPARENT and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; (2) OLDEST BROTHER OR SISTER of the minor over twenty-one years (21) of age, unless unfit or disqualified; (3) ACTUAL CUSTODIAN of the minor over twenty-one (21) years of age, unless unfit or disqualified; and (4) any OTHER PERSON, who, in the sound discretion of the court, would serve the best interests of the minor. Adoption Adoption is defined as a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court is valid in this jurisdiction. It is not a natural law at all. Abut is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence, such as by the decree of adoption issued by the court (Lazatin vs. Campos, 92 SCRA 250). Domestic adoption distinguished from inter-country adoption Domestic adoption Under the jurisdiction of the Family Court (where adopter resides). Inter-country adoption Under the jurisdiction of the Inter-Country Adoption Board (ICAB) (may also be filed Page 73 of 166

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Trial custody is in the Philippines for six (6) months (but court may reduce the period or exempt parties from trial custody). Petition for adoption may include prayer for change of name, or declaration that child is a foundling, abandoned dependent or neglected child. Adoptee: legitimate or illegitimate child of a spouse or even a person is of legal age may be adopted. Annexes: Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are not required to be annexed in the petition. Petition must be published at least once a week for three (3) consecutive weeks in a newspaper of general circulation in the province or city where court is situated. Application is through a petition in the Family Court. Decree of adoption issued by Family Court which has jurisdiction over the case.

before the Family Court where the adoptee resides). Trial custody for six (6) months is in the country of adopter and is mandatory before a decree of adoption is issued (expenses are borne by the adopter). Petition for adoption only.

Adoptee: only a child who is legally available for domestic adoption may be the subject of inter-country adoption. Annexes: Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are required to be annexed in the petition. No publication requirement.

Application may be through an agency in foreign country and then submit to the ICAB. Decree of adoption issued by a foreign court.

Domestic Adoption Act of 1998 (R.A. 8552) Effects of adoption The following are the effects of adoption: (1) adoptee will use surname of adoptive parents; (2) entitle adoptee to successional rights, equivalent to legitimate child; and (3) grant adoptee rights and privileges of a legitimate child. The instances when adoption may be rescinded are: (1) repeated physical or verbal maltreatment by adopter despite having undergone counseling; (2) attempt on life of adoptee; (3) sexual assault or violence on the adoptee; and (4) abandonment or failure to comply with parental obligations. The following are the effects of rescission of adoption: (1) reinstate former name or surname; (2) reinstate former successional rights; (3) all rights and privileges granted by adoption will be removed; and (4) paternity and filiation relationship created between adopter and adoptee shall likewise be removed. Inter-Country Adoption Act of 1995 (R.A. 8043) When allowed Inter-country adoption is allowed when the adopter is an alien or a Filipino citizen permanently residing abroad. Moreover, his qualifications include:

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1. At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; 2. If married, his/her spouse must jointly file for the petition for adoption; 3. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; 4. Has not been convicted of a crime involving moral turpitude; 5. Is eligible to adopt under his/her national law; 6. Is 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; 7. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; 8. 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 9. Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. Functions of the RTC The application for adoption shall be filed with the Regional Trial Court having jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents. Writ of habeas corpus Contents of the petition Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: (1) that the person in whose behalf the application is made is imprisoned or restrained of his liberty; (2) the officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) the place where he is so imprisoned or restrained, if known; and (4) copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. Contents of the return When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:

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1. Whether he has or has not the party in his custody or power, or under restraint; 2. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; 3. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; 4. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made (Rule 102, Sec. 10, Rules of Court).

Peremptory writ distinguished from preliminary citation It is a writ commanding an officer in custody of a person to produce him at the given time and date specified in the writ; the restraint is illegal. When not proper/applicable A petition for a writ of habeas corpus is not applicable in the following instances: (1) when detained under lawful cause; (2) in case of invasion or rebellion, when public safety requires it, under Art. III, Sec. 15, 1987 Constitution; (3) in case of invasion or rebellion, or when public safety requires it, for a period not exceeding 60 days, under Art. VII, Sec. 18, 1987 Constitution; (4) if jurisdiction of the court to try the person detained appears after the writ is allowed; (5) if the person is in the custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render the judgment, or make the order; (6) if the person is charged or convicted of an offense in the Philippines; (7) if the person is suffering imprisonment under lawful judgment; (8) in case of three-day detention of a suspect for three (3) days without charge, pursuant to Section 18 of the Human Security Act; and (9) when the person is serving final sentence imposed by court. When writ is disallowed/discharged When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be released. Writs of habeas corpus, amparo and habeas data, distinguished Habeas corpus Remedy in all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. P Amparo Remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover Habeas data Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or Page 76 of 166 It is an order issued by the court to show cause why the writ of habeas corpus shall not issue; the arrest is not patently illegal.

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extralegal killings and enforced disappearances or threats thereof. Petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf. Filed by the aggrieved party or by any qualified person or entity in the following order: (a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. Where the detainee is detained (if the petition is filed with the RTC): SC, CA, RTC, MTC in the province or city, in case there is no RTC judge; Sandiganbayan, only in aid of its appellate jurisdiction. Filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

Filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. The writ of habeas data shall be enforceable anywhere in the Philippines.

If issued in the RTC, it is enforceable only within their respective judicial region. If issued by the CA, Sandiganbayan and SC, it is enforceable anywhere

The writ of amparo shall be enforceable anywhere in the Philippines.

Within five (5) working days after service of the writ, the

Respondent shall file a verified written return together with

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N/A

respondent shall file a verified written return.

supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the court for justifiable reasons

Writ of amparo Coverage The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. Differences between amparo and search warrant A search warrant is a court order issued by a judge or magistrate judge that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. A writ of amparo is a form of constitutional relief. Who may file The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: 1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or 3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party (Rule on the Writ of Amparo [A.M. No. 07-9-12-SC]). The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein (Rule on the Writ of Amparo (A.M. No. 07-9-12-SC, Sec. 2). Contents of return Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: 1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; 2. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; 3. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

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4. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: (a) to verify the identity of the aggrieved party; (b) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (c) to identify witnesses and obtain statements from them concerning the death or disappearance; (d) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (e) to identify and apprehend the person or persons involved in the death or disappearance; and (f) to bring the suspected offenders before a competent court (Rule on the Writ of Amparo [A.M. No. 07-9-12-SC, Sec. 9]). The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed (Rule on the Writ of Amparo [A.M. No. 07-9-12-SC, Sec. 9]). Effects of failure to file return In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte (Rule on the Writ of Amparo [A.M. No. 07-9-12-SC, Sec. 12]). Procedure for hearing The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. Institution of separate action This rule shall not preclude the filing of separate criminal, civil or administrative actions (Rule on the Writ of Amparo [A.M. No. 07-9-12-SC, Sec. 21]). Effect of filing of a criminal action When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under the rule on the writ of amparo shall govern the disposition of the reliefs available under the writ of amparo. 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 amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under the rule shall continue to apply to the disposition of the reliefs in the petition (Rule on the Writ of Amparo [A.M. No. 07-9-12-SC, Sec. 23]).

Interim reliefs available to petitioner and respondent For the petitioner Upon filing of the petition or at any time before final judgment, the court, justice or judge may grant any of the following reliefs:

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1. Temporary protection order - The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of the rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge (Rule on the Writ of Amparo, A.M. No. 07-912-SC, Sec. 14[a]). 2. Inspection order - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 14[b]). 3. Production order - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 14[c]). 4. Witness protection order - The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

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The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 14[d]). For the respondent Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of Section 14 on the Rule of the Writ of Amparo. A motion for inspection order shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 15). Quantum of proof in application for issuance of writ of amparo The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty (Rule on the Writ of Amparo, A.M. No. 07-912-SC, Sec. 17). The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 17). The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 17). Writ of habeas data (A.M. 08-1-16-SC) Scope of writ The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 1).

Availability of writ Information or data written, tends to threaten violation of the constitutional right to life, liberty or property, and may be ordered destroyed by the court. Who may file Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (1) any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (2) any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 2). Contents of the petition

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A verified written petition for a writ of habeas data shall contain: (1) personal circumstances of the petitioner and the respondent; (2) the manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (3) actions and recourses taken by the petitioner to secure the data or information; (4) location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (5) reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent; (6) in case of threats, the relief may include a prayer for an order enjoining the act complained of; and (7) such other relevant reliefs as are just and equitable (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 6). Contents of return The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the court for justifiable reasons. The return shall, among other things, contain the following: 1. The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; 2. In case of respondent in charge, possession or control of the data or information subject of the petition: (a) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (b) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (c) the currency and accuracy of the data or information held; and, 3. Other allegations relevant to the resolution of the proceeding (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 10). A general denial of the allegations in the petition shall not be allowed (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 10). Instances when petition be heard in chambers 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 (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 12). 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 petition shall be consolidated with the criminal action. After consolidation, the procedure under the rule shall continue to govern the disposition of the reliefs in the petition (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 21). 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. The procedure under the rule shall govern the disposition of the reliefs available under the writ of habeas data (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 22). Institution of separate actions

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The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 20). Quantum of proof in application of writ of habeas data The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied (Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Sec. 16). Change of name A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceeding in rem and, as such, strict compliance with jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction therefor. For this purpose, the only name that may be changed is the true or official name as recorded in the civil register (Republic vs. CA, 209 SCRA 189). Publication of the order is necessary in order for the court to acquire jurisdiction. A petition for change of name being a proceeding in rem, the court acquires jurisdiction to hear and determine the petition only after publication of the order (Republic vs. Hernandez, 253 SCRA 509). A mere change of name would not cause in ones existing family relations, nor create new family rights and duties where none exists before. Neither would it affect a persons legal capacity, civil status or citizenship. What would be altered is the word or group of words by which he is identified and distinguished from the rest of his fellow men (Ang Chay vs. Republic, 34 SCRA 224). A change of name granted by the court affects only the petitioner. A separate petition for change of name must be filed for his wife and children (Secan Kok vs. Republic, L-27627, August 30, 1973). Rule 103 distinguished from R. A. 9048 Rule 103 Judicial (RTC). Includes change in surname. Petition is to be filed in the RTC where the petitioner resides. Solicitor general must be notified by service of a copy of the petition. R. A. 9048 Extrajudicial (local civil registrar or consulgeneral in case of nonresident citizen) Covers clerical or typographical error and change of first name or nickname Verified petition is to be filed in the RTC where the corresponding civil registry is located Civil registrar concerned is made a party to the proceeding as a respondent. The Solicitor general must also be notified by service of a copy of the petition. Petition is filed by any person interested in any act, event, order or decree concerning the civil status of persons. Order shall also be published once a week for three (3) consecutive weeks and court shall cause reasonable notice to persons named in petition. Only typographical errors may be changed.

Petition is filed by the person desiring to change his name. Order for hearing shall be published once a week for three (3) consecutive weeks

First name or last name (there must be a valid ground) may be changed.

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Grounds for change of name The following are the grounds for change of name: (1) name is ridiculous, tainted with dishonor, extremely difficult to write or pronounce; (2) consequence of change of status, such as in legitimation or adoption (or revocation of adoption to revert back to original name); (3) having continuously used and been known since childhood by a Filipino name, unaware of alien parentage; (4) sincere desire to adopt a Filipino name to erase signs of former parentage, all in good faith and without prejudicing anybody; (5) necessity to avoid confusion; and (6) when surname causes embarrassment, and there is no showing that the desired change of name is for fraudulent purpose or would prejudice public interest. Absentees Purpose of the rule The purpose of petition is to appoint an administrator over the properties of the absentee. Hence, if the absentee left no properties, such petition is unnecessary. When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. Who may file; when to file After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following: (1) spouse present; (2) heirs instituted in a will, who may present an authentic copy of the same; (3) relatives who would succeed by the law of intestacy; and those who have over the property of the absentee some right subordinated to the condition of his death (Rule 107, Sec. 2, Rules of Court). Cancellation or correction of entries in the civil registrar Correction may be effected in two ways. One is without judicial authority or by administrative proceeding, which is governed by R.A. 9048 (Clerical Error Act) on matters relating to correction of mere clerical or typographical errors. The other is through judicial or court proceeding, which is governed by Rule 108. The first is a simplified procedure for the correction of clerical or typographical errors or change of first name or nickname in the civil register. It may be filed with the local civil registrars office of the city or municipality where the record sought to be corrected is kept. Where a citizen is residing abroad, the petition shall be filed with the nearest Philippine consulate. The petition may be denied if the error is not clerical or typographical or it affects the civil status of a person. In the second, what may be corrected are clerical errors and substantial errors. However, in substantial errors, it is required that the proceeding is adversarial and not summary. This means among others, that the petition must be verified, should implead the civil registrar and all persons who have or claim any interest which would be affected thereby (Lee vs. CA, G. R. No. 118387, October 11, 2011). Entries subject to cancellation or correction

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Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (1) births; (2) marriages; (3) deaths; (4) legal separations; (5) judgments of annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization (11) election, loss or recovery of citizenship (12) civil interdiction; (13) judicial determination of filiation; (14) voluntary emancipation of a minor; and (15) changes of name. Appeals in special proceeding Judgments and orders for which appeal may be taken An interested person may appeal in special proceedings from an order or judgment rendered by a RTC or MTC, where such order or judgment: (1) allows or disallows a will; (2) determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; (3) allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented in behalf of the estate to offset to a claim against it; (4) settles the account of an executor, administrator, trustee, or guardian; (5) constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator, and (6) is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for new trial or for reconsideration (Rule 109, Sec. 1, Rules of Court). Rules 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 part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.

-o0oWRIT OF AMPARO (A.M. NO. 07 9 12 SC) 1. What is amparo? Amparo means To protect 2. What is a Writ of Amparo? It is a writ for the protection of the constitutional right of the person to life, liberty or security against any violation or threatened violation by an unlawful act or omission of a public official, or employee or of a private individual or entity. 3. What is the Constitutional basis for a Writ of Amparo? Under the rule making power of the Supreme Court as provided under Section 5, paragraph 5 Article VIII of the Constitution which provides that:

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The Supreme Court shall have the power to promulgate rules and regulations concerning the protection and enforcement of the constitutional right, pleadings and practice in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. x x. 4. What is the role of the writ of amparo? The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearance, and serves as a deterrent for its commission. a) b) Preventive it breaks the expectation of impunity in the commission of these offenses; Curative it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. ( The Secretary of National Defense, the Chief of Staff, Armed Forces of the Philippines vs. Raymond Manalo and Reynaldo Manlao, G.R. No. 180906, October 7, 2008)

5.

What are the kinds of amparo? a) b) c) d) e) Amparo libertad protection for personal freedom; Amparo leyes judicial review of the constitutionality of statutes; Amparo casascion for the judicial review of the constitutionality and legality of judicial decisions; Amparo administrative for the judicial review of administrative actions; Amparo agrario for the protection of the peasants rights derived from the agrarian process;

6.

Who may file the petition? The petition for a writ of amparo may be filed by the following, to wit: a) Any member of the immediate family like the spouse, children, parents of the aggrieved party; b) Any ascendant, descendant or collateral relative of the aggrieved party within the forth (4th) civil degree of sanguinity or affinity in case he has no relative; c) If the aggrieved has no immediate member of the family or a relative, the petition may be filed by any citizen, organization, association or institution (Sec. 2, Rule on Writ of Amparo).

7.

What must be included in the application for a writ of amparo? Every petition for the issuance of a writ of amparo must be supported by justifying allegations of fact, to wit: a) b) The personal circumstances of the petitioner; The name and personal circumstances of the respondent responsible for the threat, act or omission, or if the same is unknown or uncertain, the respondent may be described by an assumed appellation; The right to life, liberty and security of the aggrieved party violated or threatened with violation is committed with the attendant circumstances detailed in supporting affidavits; The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as

c)

d)

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e)

f) -

well as the manner and conduct of the investigation, together with any report; The actions and recources taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for threat , act or omission; and The relief prayed for The petition may include a general prayer for other just and equitable reliefs. (Ariel Masangkay Tapuz et al., vs. Honorable Judge Elmo Del Rosario, et al., 182484, June 17, 2008)

8.

Rule on jurisdiction and venue of the petition? a) b) c) d) e) Supreme Court; Court of Appeals (Manila, Cebu City and Cagayan De Oro City); Sandiganbayan Or any of Justices of Supreme Court, Court of Appeals, Sandiganbayan; Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred;

9.

What is the coverage of the writ? The writ shall be enforceable anywhere in the Philippines; (Sec. 3 of the Rule)

10.

What are the prohibited pleadings under the Rules? a) b) c) d) e) f) g) h) i) j) k) l) Motion to Dismiss; Motion for Extension of Time to file opposition, position paper, and other pleadings; Dilatory motion for postponement; Motion for bill of particulars; Counterclaim or cross claim; Third party complaint; Reply; Motion to declare defendant in default; Intervention; Memorandum; Motion for Reconsideration of interlocutory orders; Petition for certiorari, mandamus, or prohibition against an interlocutory orders. (As amended by A.M. No. 07 9 12 SC)

11.

What is the nature of the hearing for the application for a writ of amparo? a) The hearing shall be summary. However, the judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions of the parties; (Sec. 12 of the Rule) In case of failure of the respondent to file a return, the court of justice or judge shall proceed to hear the petition ex-parte.

b)

12.

What is the quantum of evidence in the application for a writ of amparo? Suffice it to say that we continue to adhere to the substantial evidence rule that the Rule on the Writ of Amparo requires, with some adjustments for flexibility in considering the evidence presented. (Gen. Avelino L. Razon Jr., Chief Philippine National Police (PNP) et al., vs. Mary Jean B. Tagitis, herein represented by Atty. Felife P. Arcilla Jr., G.R. No. 182498, February 16, 2010) (Sec. 17 of the Rule on Writ of Amparo)

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13.

What are the Interim Reliefs (Provisional remedies) available? A. On the part of the petitioner: a) Temporary Protection Order (T.P.O.) It is an Order issued by the Court placingthe aggrieved party, the petitioner, and any member of his immediate family, the officers involved if the petitioner is an organization or association under the protection of any government agency or Supreme Court accredited person and private institution capable of keeping and securing their safety. The relief may be availed of upon motion or motu propio; b) Inspection Order (I.O.) It is an Order issued by the court directing any person in possession or control of a designated land or other property to permit entry for inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon; i. The relief may be availed of by verified motion and with hearing:

c)

Production Order (P.O.) It is an Order issued by the court directing any person in possession, custody or control of any documents, papers, books, accounts, letters, photographs, objects or tangible things or objects in digitized or electronic form, which constitute relevant evidence to petition or return to produce and permit their inspection, copying photographing by or on behalf of the movant; i. The relief may be availed of by verified motion and with hearing:

d)

Witness Protection Order (W.P.O) It is an Order issued by the court directing the referral of the witnesses to the Department of Justice for admission to the Witness Protection Security and Benefit Program pursuant to R.A. 6981, to other government agencies, or to accredited person or private institutions capable of keeping and securing their safety; The relief may be availed of by motion or motu propio or ex parte without hearing due to its urgency;

B.

On the part of the respondent: The respondent shall also have the right to avail of the following interim relief, to wit: a) b) Inspection Order Production Order (Sec. 14 of the Rules on the Writ of Amparo)

14.

When to render judgment? The court shall render the judgment within ten (10) days from the time the petition is submitted for decision (Sec.15 of the Rule).

15.

What is the remedy in case of adverse decision?

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Any party may appeal the decision within five (5) working days from the final judgment or order to the Supreme Court by way of Petition for Review on Certiorari under Rule 45 of the Rules of Court on the ground of pure question of law and of facts or both (Sec. 15 of the Rules on the Writ of Amparo). 16. Writ of Amparo not a substitute for a lost appeal or certiorari: The writ of amparo particularly should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes. (Ariel Masangkay Tapuz et al., vs. Honorable Judge Elmo Del Rosario, et al., G.R. No. 182484, June 17, 2008) 17. What is the rule in case of a pending or to be filed civil, criminal or administrative cases? a) The filing of the petition does not prevent or preclude the filing of a separate criminal or civil or administrative actions (Sec. 21 of the Rules on the Writ of Amparo). When the criminal action has been filed subsequent to the filing of the petition for a writ of amparo, the latter shall be consolidated with the criminal action (Sec. 23 of the Rules on the Writ of Amparo). However, once a criminal action has already been filed, no separate petition for a writ of amparo shall be filed. The interim relief shall be available also in the said criminal case (Sec. 22 of the Rules on the Writ of Amparo).

b)

c)

18.

What are the distinctions between writ of habeas corpus, writ of amparo and habeas data? 1) As to the subject matter: a) b) c) Habeas corpus applicable to all kinds of illegal confinement or deprivation of liberty or withholding or rightful custody including minors; Amparo protection against violation or threatened violation of the constitutional right of the person to life liberty or security Habeas data protection against violation or threatened violation of the constitutional right of the person to privacy to life, liberty or security;

2)

As to who may file? a) b) Habeas corpus the detained person or any person in his behalf, or any of his relatives; Amparo Any member of the immediate family like the spouse, children, parents of the aggrieved party; Any ascendant, descendant or collateral relative of the aggrieved party within the fourth (4th) civil degree of sanguinity or affinity in case he has no relative; If the aggrieved has no immediate member of the family or a relative, the petition may be filed by any citizen, organization, association or institution (Sec.2, Rule on Writ of Amparo) c) Habeas Data Any member of the immediate family like the spouse, children, parents of the aggrieved party;

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Any ascendant, descendant or collateral relative of the aggrieved party within the fourth (4th) civil degree of sanguinity or affinity in case he has no relative. 3) As to where to file: a) b) c) Habeas corpus may be filed in the Supreme Court, Court of Appeals, Sandiganbayan, Regional trial Court or in its absence in the MTC/ MCTC; Amparo may be filed in the Supreme Court, Court of Appeals, Sandiganbayan, Regional Trial Court; Habeas Data may be filed in the Supreme Court, Court of Appeals, Sandiganbayan, Regional Trial Court.

-oOoHABEAS DATA (A.M. NO. 08 1- 16 SC) 1. What is writ of Habeas Data? It is a writ for the protection of the constitutional right of the person's right to privacy to life, liberty or security against any violation or threatened violation by an unlawful act or omission of a public official, or employee or of a private individual or entity engaged in the gathering, collection, or storage of data or information in regards to ones person, family home, and correspondence of the aggrieved party. (Sec. 1 on the Rules on Habeas Data) 2. What is the Constitutional basis for a Writ of Habeas Data? Under the rule making power of the Supreme Court as provided under Section 5, paragraph 5 Article VIII of the Constitution which provides that: The Supreme Court shall have the power to promulgate rules and regulations concerning the protection and enforcement of the constitutional right, pleadings and practice in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. 3. Which Court has jurisdiction over petition for habeas data? a) b) c) d) 4. Regional Trial Court Sandiganbayan Court of Appeals Supreme Court

Where is the venue? If filed in the RTC:

a) b) c) 5.

In the place where the petitioner reside; In the place where the respondents resides; In the place where the data or information is gathered, collected or stored. at the election of the petitioner

Who may file the petition for writ of habeas data?

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The writ of habeas data may be filed by any of the following: a) b) Any member of the immediate family like the spouse, children, parents of the aggrieved party; Any ascendant, descendant or collateral relative of the aggrieved party within the fourth (4th) civil degree of sanguinity or affinity in case he has no relative Rule on concrete allegation of unlawful violation of the right to privacy to life, liberty or security required: Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to life, liberty or security. The petition likewise has not alleged, much less demonstrated any need for the information under the control of the police authorities other than those it has already set forth as integral annexes (Ariel Masangkay Tapuz et al., vs. Honorable Judge Elmo Del Rosario, et al., G.R. No. 182484, June 17, 2008).

c) d)

6.

What are the other features of the writ? The rules on the writ of habeas data like the hearings, prohibited pleading and motions; institution of separate actions and consolidation are the same with the provision of the writ of amparo.

7.

What is the remedy in case of adverse decision? Any party may appeal the decision within five (5) working days from the final judgment or order to the Supreme Court by way of Petition for Review on Certiorari under Rule 45 of the Rules of Court on the ground of pure question of law and of facts or both. (Sec. 19 of the Rules on the Writ of Habeas data) -o0oREMINDERS IN EVIDENCE General principles

Concept of evidence 1. Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact (Section 1, Rule 128, Rules of Court). Note that evidence is only a means of ascertaining the truth. This truth would depend upon the evidence admitted in court in accordance with the rules. Scope of the rules 1. The rules of evidence in the Rules of Court are guided by the principle of uniformity. As a general policy, the rules of evidence shall be the same in all courts and in all trials and hearings (Rule 128, Section 2, Rules of Court). Evidence in civil cases versus evidence in criminal cases Evidence in civil cases Evidence in criminal cases

1. The party having the burden of proof 1. The guilt of the accused has to be proven must prove his claim by a preponderance beyond reasonable doubt. (Rule 133, Sec. 2,

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of evidence (Rule 133,Sec. 1, Rules of Court)

Rules of Court)

2. An offer of compromise is not an 2. Except those involving quasi- offenses admission of any liability, and is not (criminal negligence) or those allowed by admissible in evidence against the offeror law to be compromised, an offer of (Rule 130,Sec. 27, Rules of Court) compromise by the accused may be received in evidence as an admission of guilt (Rule 130, Sec. 27, Rules of Court) 3. The concept of presumption of 3. The accused enjoys the constitutional

innocence does not apply and generally presumption of innocence. (Art. III, Sec. 14, there is no presumption for or against a 1987 Constitution of the Philippines) party except in certain cases provided for by law.

Proof versus evidence Proof 1. Not the evidence itself. There is proof only because of evidence. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence (29 Am Jur 2d, Evidence, 2). 2. The effect of evidence because without 2. The medium or means by which a fact is evidence there is no proof (Blacks Law proved 4). Bare allegations unsubstantiated by 4). evidence, are not equivalent to proof (Domingo v. Robles, 453 SCRA 812). or disproved (Blacks Law Dictionary, 5th Ed., 1094; Jones on Evidence, Dictionary, 5th Ed., 1094; Jones on Evidence, Evidence

Factum probans versus factum probandum 1. Evidence signifies a relationship between two facts; namely: (a) the fact or proposition to be established (factum probandum); and (b) the facts or material evidencing the fact or proposition to be established (factum probans) (John J. Wigmore, Principles of Judicial Proof, 5). Stated in another way, the factum probandum is the fact to be proved; the fact which is in issue and to which the evidence is directed. On the other hand, factum probans is the probative or evidentiary fact tending to prove the fact in issue (Blacks, 5th Ed., 533). Thus, if P claims to have been injured by the negligence of D who denies having been negligent, the negligence is the fact to be established. It is the factum probandum. The evidence offered by P constitutes the material to prove the negligence of P. The evidence is the factum probans.

2.

Admissibility of evidence Requisites for admissibility of evidence

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1.

Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules (Rule 128, Sec. 3, Rules of Court)

2.

For evidence to be admissible, two elements must concur, namely: (a) the evidence is relevant, and (b) the evidence is not excluded by the rules (competent).

Relevancy of evidence and collateral matters 1. Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue (Rule 128, Sec. 4, Rules of Court). 2. Because of the definition of relevant evidence under Sec.4 of Rule 128, it is obvious that relevance is a matter of relationship between the evidence and a fact in issue. The determination of relevance is thus, a matter of inference and not of law. The test would therefore, be one of logic, common sense, and experience. 3. A matter is collateral when it is on a parallel or diverging line, merely additional or auxiliary (Blacks Law Dictionary, 5th Ed., 237). This term connotes an absence of a direct connection between the evidence and the matter in dispute. Multiple admissibility 1. There are times when a proffered evidence is admissible for two or more purposes. Thus, depending upon circumstances, the declaration of a dying person may be admissible for two or more purposes. It may be offered as a dying declaration (Rule 130,Sec. 37, Rules of Court), as part of the res gestae (Rule 130, Sec. 42, Rules of Court) or as declaration against interest (Rule 130, Sec. 38 Rules of Court). The statement by a bus driver immediately after the collision that he dozed off in the wheel while driving may be admissible as an admission under Rule 130, Section 26 or as part of the res gestae pursuant to Section 42 of Rule 130. Conditional admissibility 1. It happens frequently enough that the relevance of a piece of evidence is not apparent at the time it is offered, but the relevance of which will readily be seen when connected to other pieces of evidence not yet offered. The proponent of the evidence may ask that the evidence be conditionally admitted in the meantime subject to the condition that he is going to establish its relevancy and competency at a later time. If the connection is not shown as promised, the court may, upon motion of the adverse party, strike out from the record the evidence that was previously conditionally admitted. Curative admissibility 1. The doctrine of curative admissibility allows a party to introduce otherwise inadmissible evidence to answer the opposing partys previous introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence (Adams v. Burlington N. R.R. Co., 865

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S.W. 2d 748, 751 [Mo. App.1993]). Thus, a party who first introduces either irrelevant or incompetent evidence into the trial cannot complain of the subsequent admission of similar evidence from the adverse party relating to the same subject matter (Commonwealth v. Alexander, Ky., 5 S.W.rd104, 105 [1999] quoting Dunaway v. Commonwealth, 239 Ky. 166, 39 S.W.2d 242, 243 [1931]; Smith v. Commonwealth, Ky., 904 S.W.2d 220, 222 [1995]). Conversely, the doctrine should not be invoked where evidence was properly admitted. Direct and circumstantial evidence Direct evidence Circumstantial evidence

1. Evidence which if believed proves the 1. Evidence that indirectly proves a fact in existence of a fact in issue without issue through an inference which the fact interference or presumption (State vs. finder cited in Blacks Law Dictionary, 5th Ed. P. 413- 617). 414). 2. When the court does not have to make 2. The exact opposite of direct evidence an inference from one fact to arrive at (indirect evidence). conclusion. The court uses a fact from which an assumption is drawn. Positive and negative evidence 1. Evidence is said to be positive when a witness affirms in the stand that a certain state of facts do exist or that a certain event happened. It is negative when the witness states that an event did not occur or that the set of facts alleged to exist do not actually exist. Thus, the testimony of W that he saw P fire a gun at the victim is a positive evidence. The testimony of W that he could not have fired the gun because he was not armed during the incident, is a negative evidence. A denial is a negative evidence. It is considered by jurisprudence to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when it comes from the mouth of a credible witness (People vs. Mendoza, 450 SCRA 328, January 21, 2005). draws from the evidence Mclure, Mo. App. 504 S.W. 2d 664,668 as established (People vs. Matito, 423 SCRA

2.

Competent and credible evidence 1. Competent evidence is one that is not excluded by law in a particular case. If the test of relevance is logic and common sense, the test of competence is the law or the rules. Competence, in relation to evidence in general, refers to eligibility of an evidence to be received as such. Burden of proof and burden of evidence 1. Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law (Rule 131, Sec. 1, Rules of Court). Burden of proof Burden of evidence

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1. Burden of proof or onus probandi traditionally refers to the obligation of a party to the litigation to persuade the court that he is entitled to relief. 2. Is the duty of a party to present evidence 2. Is the duty of a party to go forward with to establish his claim or evidence by the the evidence to overthrow the prima facie amount of evidence required by law, which evidence against him (Bautista vs. Sarmiento, is preponderance of evidence in civil cases 138 SCRA 587). (Supreme Transliner, Inc. vs. Court of Appeals, 370 SCRA 41). 3. Does not shift and remains throughout the 3. The burden of going forward with the entire case exactly where the pleadings evidence may shift from party to party as the originally placed it. exigencies of the trial require (Chamberlayne, Sec. 203, 108, 169). 4. Generally determined by the pleadings 4.. filed by the party. Generally of determined the trial, or by by the the developments

provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged Presumptions Conclusive presumptions 1. The following are instances of conclusive presumptions: (a)Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it (Rule 131, Sec. 2 (a), Rules of Court). (b)The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them (Rule 131, Sec. 2 (b), Rules of Court). Disputable presumptions 1. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) that a person is innocent of crime or wrong; (b) that an unlawful act was done with an unlawful intent; (c) that a person intends the ordinary consequences of his voluntary act; (d) that a person takes ordinary care of his concerns; (e) that evidence willfully suppressed would be adverse if produced, (Rule 131, Sec. 3, Rules of Court for complete enumeration). Liberal construction of the rules of evidence 1. Like all other provisions under the Rules of Court, the rules of evidence must be liberally construed (Rule 1, Sec. 6, Rules of Court). Rules of Procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application must always be eschewed if it would subvert their primary objective of enhancing substantial justice.

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2.

Procedural rules must be liberally interpreted and applied so as not to frustrate substantial justice (Quiambao v. CA, 454 SCRA 17). However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required (Barcenas v. Tomas, 454 SCRA 593).

Quantum of evidence (weight and sufficiency of evidence) Proof beyond reasonable doubt 1. In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind (Rule 133, Sec. 2, Rules of Court). Preponderance of evidence 1. In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number (Rule 133, Sec. 1, Rules of Court). 2. Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other (Habagat Grill v. DMC- Urban Property Developer, Inc., 454 SCRA 653; BPI v. Reyes, G.R. No.157177, February 11, 2008) Substantial evidence 1. In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion (Rule 133, Sec. 5, Rules of Court). 2. This degree of evidence applies to administrative cases, i.e., those filed before administrative and quasi- judicial bodies and which requires that in order to establish a fact, the evidence should constitute the amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion (Rule 133, Sec. 5, Rules of Court; Advincula vs. Dicen, 458 SCRA 696; Benares vs. Pancho, 457 SCRA 652; Spouses Bautista vs. Sula, A.M. No. P-04-1920, August 17, 2007; Junto vs. BravoFabia, A.M. No. P-04-1817, December 19, 2007). Clear and convincing evidence 1. Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. It is

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intermediate; being more than preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases (Blacks Law Dictionary, 5th Ed., 227). 2. The court in Govt of Hongkong Special Administrative Region v. Olalia, Jr. (G. R. No. 153675, April 19, 2007), explained this quantum of evidence, thus: xxx In his separate opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed clear and convincing evidence should be used in granting pail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence xxx.

Judicial notice and judicial admissions What need not be proved 1. Judicial notice is based on the maxim what is known need not be proved, hence, when the rule is invoked, the court may dispense with the presentation of evidence on judicially cognizable facts (Thayer, Preliminary Treatise on Evidence, p. 277 cited in Jones, The Law on Evidence in Civil Cases, Volume I, 3rd Ed.). Matters of judicial notice Mandatory 1. When a matter is subject to judicial notice, no motion or hearing is necessary for the court to take judicial notice of a fact because this is a matter which ought to be taken judicial notice of. 2. The following are matters subject to mandatory judicial notice: (i) the existence and territorial extent of states, (ii) their political history, forms of government and symbols of nationality, (iii) the law of nations, (iv) the admiralty and maritime courts of the world and their seals, (v) the political constitution and history of the Philippines, (vi) the official acts of legislative, executive and judicial departments of the Philippines,(vii) the laws of nature, (viii) the measure of time, and (ix.) the geographical divisions (Rule 129, Sec. 1, Rules of Court). Discretionary 1. A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions (Rule 129, Sec. 2, Rules of Court). 2. The principles of discretionary judicial notice will apply where the following requisites are met: (a) the matter must be one of common knowledge; (b) the matter must be settled beyond reasonable doubt (if there is any uncertainty about the matter, then evidence must be adduced); and (c) the knowledge must exist within the jurisdiction of the court (Berget v. State [Okla Crim] 824 P2d 364; 29 Am. Jur. 2d, Evidence, 25 1994; State Prosecutors v. Muro, 263 SCRA 505). Judicial admissions

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Effect of judicial admissions

1.

An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made (Rule 129, Sec. 4, Rules of Court).

2.

Specifically, under Sec. 4, Rule 129 of the Rules of Court, the following are the effects of judicial admissions: (i) they do not require proof; and (ii) they cannot be contradicted because they are conclusive upon the party making it.

How judicial admissions may be contradicted 1. The above rule however, admits of two exceptions, namely (1) upon showing that the admission was made through palpable mistake, or (2) when it is shown that no such admission was made. Judicial notice of foreign laws, law of nations and municipal ordinance 1. In general, and in the absence of statutory requirement to the contrary, the courts of the forum will not take judicial notice of the law prevailing in another country (29 Am. Jur. Evidence, 116). Foreign laws must be alleged and proved. In the absence of proof, the foreign law will be presumed to be the same as the laws of jurisdiction hearing the case under the doctrine of processual presumption (Northwest Orient Airlines vs. CA, 241 SCRA 192). 2. Where the foreign law is within the actual knowledge of the court such as when the law is generally known, had been rules upon in previous cases before it and none of the parties claim otherwise, the court may take judicial notice of the foreign law (PCIB v. Escolin, 56 SCRA 266). 3. When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his profession or calling as expert in the subject, the court, it is submitted, may take judicial notice of the treatise containing the foreign law (Rule 130, Sec. 46, Rules of Court). 4. When the foreign law refers to the law of nations, said law is subject to a mandatory judicial notice under Sec. 1 of Rule 129. Under the Philippine Constitution, the Philippines adopt the generally accepted principles of international law as part of the land (Sec. 2, Art. II, Constitution of the Philippines). Being part of the law of the land, they are therefore, technically in the nature of local laws and hence, are subject to a mandatory judicial notice under Sec. 1 of Rule 129. 5. Municipal trial courts must take judicial notice of municipal ordinances in force in the municipality in which they sit (U.S. v. Blanco, 37 Phil 126). 6. A Court of First Instance (now Regional Trial Court), should also take judicial notice of municipal ordinances in force in the municipalities within their jurisdiction but only when so required by law.

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7.

The Court of Appeals may take judicial notice of municipal ordinances because nothing in the Rules prohibits it from taking cognizance of an ordinance which is capable of unquestionable demonstration (Gallego v. People, 8 SCRA 813).

Object (real) evidence Nature of object evidence 1. Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court (Rule 130, Sec. 1, Rules of Court). Object as real evidence is exactly what its name suggests. It is the real thing itself (i.e. knife used to slash a victims throat, jewelry stolen, car used in robbery etc). Where the physical evidence runs counter to the testimonial evidence, the physical evidence should prevail (BPI vs. Reyes, G.R. 157177, Feb. 11, 2008).

2.

Requisites for admissibility 1. The admissibility of the object like other evidence requires that the object be both relevant and competent. To be relevant the evidence must have a relationship to the fact in issue. To be Competent it must not be excluded by the rules or by law. Evidence is admissible when it is relevant to the issue and is not excluded by law or these rules. (Rule 128, Sec. 3, Rules of Court). The evidence must be authenticated. To authenticate the object, it must be shown that the object is the very thing that is either the subject matter of the law suit or the very one involved to prove an issue in the case. The authentication must be made by a competent witness who should identify the object to be the actual thing involved. The object must be formally offered in evidence.

2.

Categories of object evidence 1. Unique objects are objects that have readily identifiable marks or those which has unique characteristics like the serial number of a caliber 45 pistol. Objects made unique are objects that are made readily identifiable. If the object has no unique characteristics, like a typical knife that has no serial numbers found in a common place, the witness may identify the same in court as when he made it unique by placing marks on the item. Non-unique objects are objects with no identifying marks and cannot be marked. This third category refers to those which have no unique characteristic and those which cannot be marked like for instance, a drop of blood, oil, drugs and the like. Under this situation, the proponent of the evidence must establish a chain of custody.

2.

3.

Demonstrative evidence 1. Demonstrative evidence is not the actual thing but it is referred to as demonstrative because it represents or demonstrates the real thing. It is not strictly real evidence because it is not the very thing involved in the case. Demonstrative

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evidence is not separately defined evidence under the rules of court and appears to be incorporated under the general term object/ real evidence because it represents or demonstrates the real thing. It is the substantial representative of the true object like for example, a map, a photograph, model, diagram, etc. View on object or scene 1. There are times that a party cannot bring an object to the court for viewing. In such a situation, the court may make an ocular inspection, inspect a crime scene or otherwise go out of the courtroom. Going out of the courtroom to observe places and objects is commonly termed a view. The trial judge has discretion to grant or refuse a request for a view. An inspection outside the court should be made in the presence of the parties or at least with previous notice to them. Such inspection or view is part of the trial since evidence is thereby being received.

Chain of custody in relation to section 21 of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165) 1. The purpose of chain of custody is to guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic. Section 1 (b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002 which implements R.A. No. 9165 defines "chain of custody" as the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plants source of dangerous drugs or laboratory equipment at each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court and destruction. Such record of movements and custody of the seized item shall include the identity and signature of the person who held temporary custody of the seized item, the dates and times when such transfers of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. The procedure to be followed in the handling and custody of seized dangerous drugs is: a. The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized or his/her representative or counsel, a representative from media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. b. The failure of the prosecution to show that the police officers conducted the required physical inventory and photographs pursuant to such guidelines does not automatically render the objects inadmissible. The implementing rules provides for a proviso: provided further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/ team, shall not render void and invalid such seizures of and custody over said items.

2.

3.

Rule on DNA evidence (A.M. No. 06-11-5-SC) Meaning of DNA

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1.

Deoxyribonucleic acid (DNA) is a nucleic acid that contains the genetic instructions used in the development and functioning of all known living organisms. DNA is the chain of molecules found in every nucleated cell of the body (Sec. 3[b], Rules of DNA Evidence).

Applicable for DNA testing order 1. A person who has legal interest in the litigation may file an application before the appropriate court, at any time. The order of DNA testing shall not however, be issued as a matter of course and from the mere fact that the person requesting for the testing has a legal interest in the litigation. For the order to be issued there must be a further showing that: (a) A biological sample exists that is relevant to the case; (b) The biological sample which was not previously subjected to the type of DNA testing now requested; or was previously subjected to DNA testing, but the results may require confirmation for good reasons;(c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. (Sec 4, Rules on DNA Evidence).

. Post-conviction DNA testing; remedy 1. The DNA test availed of by a person already convicted under a final and executor judgment is termed post-conviction DNA testing. The Rules on DNA Evidence allows a post-conviction DNA testing. It may be available to (a) prosecution, or (b) to the person convicted by a final and executory judgment provided that the following requirements are met: (a) a biological sample exists; (b) such sample is relevant to the case; and (c) the testing would probably result in the several of the judgment of conviction (Sec. 6, Rules on DNA Evidence). The remedy available to the convict if the result of the post-conviction DNA testing is favorable to him includes: (a) filing of a petition for a writ of habeas corpus in the court of origin; (b) the court shall conduct a hearing and in case the court finds that the petition is meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless his detention is justified for a lawful cause (Section 10, Rules on DNA Evidence).

2.

Assessment of the probative value of DNA evidence and admissibility 1. The following are the guidelines to be used in assessing the probative value of DNA evidence: (a) how the samples were collected; (b) how they were handled; (c) the possibility of contamination of the samples; (d) the procedure followed in analyzing the samples; (e) whether the proper standards and procedures were followed in conducting the tests; and (f) the qualification of the analyst who conducted the test (People vs. Vallejo, 382 SCRA 192[2002]). The determination of the probative value of the DNA evidence rests upon the sound judicial assessment taking into consideration the following matters: (a) the chain of custody, including how the biological samples were collected, how they were handled and the possibility of contamination of the samples; (b) the DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) the forensic DNA laboratory, including the accreditation and the qualification of the analyst who conducted the

2.

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test; if the laboratory is not accredited, the court shall consider the relevant experience of the laboratory in the forensic casework and its credibility shall be properly established; and (7) the reliability of the testing result (Sec. 7, Rules on DNA Evidence). Rules on evaluation of reliability of the DNA testing methodology 1. The Rule on DNA Evidence is the primary rule to be applied whenever DNA evidence is offered, used or proposed to be offered or used as evidence in: (1) criminal actions; (2) civil actions; (3) special proceedings (Sec. 1, Rules on DNA Evidence). When a matter is not specifically governed by the Rules on DNA Evidence, the Rules of Court and other pertinent provisions of law on evidence shall apply (Sec. 2, Rules on DNA Evidence). Documentary evidence Meaning of documentary evidence 1. Documents as evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered a proof of their contents (Rule 130, Sec. 2, Rules of Court).

2.

Requisites for admissibility 1. The following are the requisites for the admissibility of documentary evidence: (1) the document must be relevant; (2) authenticated; (3) authentication must be done by a competent witness; and (4) the document must be formally offered in evidence.

The best evidence rule Meaning of the rule 1. The rule is not intended to mean that a weaker evidence be substituted by a stronger evidence. It merely comprehends a situation where the evidence offered is substitutionary in nature when what should be offered is the original evidence (State vs. Flaucher [Iowa], 223 NW2d 239).

When applicable 1. The best evidence rule does not apply to an object evidence. It applies only to documentary evidence. When an issue arises whether or not the best evidence rule applies, the examinee must ask himself two questions: (a) Is there a document involved? and (b) Is the subject of inquiry the contents of the document? If both are answered in the affirmative, then the best evidence rule applies. Hence, if there is a document involved in the case but the subject of inquiry is the existence or due execution of the document or paper on which the document is written, the rule does not apply. When the best evidence rule comes into operation, it is presumed that the subject of inquiry is the contents of the document. If this is so, then the party offering the document must present the original thereof and not its copy or other secondary evidence.

2.

Meaning of original

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1.

The original of a document is one the contents of which are the subject of inquiry. When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. When an entry is repeated in the regular course of business one being copied from another at or near the time of the transaction, all entries are likewise equally regarded as originals (Rule 130, Sec. 4, Rules of Court).

Requisites for introduction of secondary evidence 1. The presentation of the original is not an absolute rule. Secondary evidence may be admissible provided the offeror satisfies the requirements for laying the basis for the presentation of secondary evidence. Laying the basis involves explaining to the satisfaction of the court the reason for the inability to offer the original of the document. For instance, where the original is lost or destroyed or cannot be produced in court, laying the basis for the offering of secondary evidence involves showing the following: (a) that an original exists; (b) that the original was duly executed; (c) that the cause of its unavailability like loss, destruction, etc. is explained; and (d) that its unavailability was without bad faith on the part of the offeror (Rule 130, Sec. 5, Rules of Court). If the offeror has successfully laid the basis for the presentation of the secondary evidence, then the original need not be presented. However, one must observe the order in which secondary evidence is to be offered. This is because not every secondary evidence can be offered. The following order must therefore, be observed: (a) a copy of the original; (b) if there is no copy, then a recital of its contents in some authentic document; (c) in default of the above, by the testimony of witnesses (Rule 130, Sec. 5, Rules of Court).

2.

Rules on electronic evidence (A.M. No. 01-7-01- SC) 1. The rules shall apply to all civil actions and proceedings, as well as quasijudicial and administrative cases (Rule 1 Sec. 2,, Rules on Electronic Evidence, effective August 1, 2001). Note that the coverage of the applicability of the Rules on Electronic Evidence is broader than the Rules of Evidence in the Rules of Court which by definition applies only to judicial proceedings.

Meaning of electronic evidence; electronic data message 1. The Rules on Electronic Evidence shall apply whenever an electronic data message is offered or used in evidence (Rule 1, Sec. 1, Rules on Electronic Evidence). An electronic data message refers to information generated, sent, received, or stored by electronic, optical, or similar means (Rule 2, Sec. 1 (g), Rules on electronic Evidence). This term covers an electronic document and is the functional equivalent of paperbased documents (Rule 3, Sec. 1, Rules on Electronic Evidence). Its admissibility depends on its compliance with the rules on admissibility prescribed under the Rules of Court (Rule 3, Sec. 2, Rules on Electronic Evidence). The term electronic data message or electronic document under the Electronic Document Act of 2000 does not include a facsimile transmission. It is not the functional equivalent of an electronic document. When the Congress drafted the law, it excluded the earlier forms of technology like telegraph, telex, and telecopy (except computer-generated faxes) when the law defined electronic data message (MCC Industrial Sales Corporation vs. Ssangyong Corporation, G.R. No. 170633, October 17, 2007).

2.

Probative value of electronic documents or evidentiary weight; method of proof 1. All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct Page 103 of 166

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personal knowledge of the affiant or based on authentic documents. The affiant however, shall be made to confirm the contents of the affidavit in open court (Rule 9, Sec. 1, 2, Rules on Electronic Evidence). Authentication of electronic documents and electronic signatures 1. The person seeking to introduce an electronic document has the burden of proving its authenticity (Rule 5, Sec. 1, Rules on Electronic Evidence) by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for the authentication of electronic documents were applied to the document; (c) by other evidence showing its integrity and reliability to the satisfaction of the judge (Rule 5, Sec. 2, Rules on Electronic Evidence).

Electronic documents and the hearsay rule 1. The Rules on Electronic Evidence also recognizes business records as exception to the hearsay rule. Records or data that are made by electronic, optical or similar means is considered as an exception to the rule precluding the admission of hearsay evidence if such data are (a) kept by a person with knowledge thereof; (b) kept in the regular course or conduct of a business activity; and (c) such was the regular practice. All these elements must be shown by the testimony of the custodian or other qualified witness (Rule 8, Sec. 1, Rules on Electronic Evidence).

Audio, photographic, video and ephemeral evidence 1. Audio, photographic, video and ephemeral evidence shall be admissible provided it shall be shown, presented or displayed to the court. In court, it shall be identified, explained or authenticated by (a) the person who made the recording; or (b) by the person competent to testify on the accuracy thereof (Rule 11, Sec. 1, Rules on Electronic Evidence). A recording of a telephone conversation or ephemeral electronic communication shall be proven by the testimony of a person (a) who was a party to the same; or (b) who has personal knowledge thereof (Rule 11, Sec. 2, Rules on Electronic Evidence). An ephemeral electronic communication refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communications, the evidence of which is not recorded or retained (Rule 2, Sec. 1 (k) Rules on Electronic Evidence).

2.

3.

Parol Evidence rule Application of the parol evidence rule 1. The term parol refers to evidence that is outside a writing. Sometimes it is referred to as extrinsic evidence or evidence aliunde. The rule applies only to contracts which the parties have decided to set forth in writing i.e., as Sec. 9 of Rule 130 provides: when the terms of the agreement have been put in writing (Rule 130, Sec. 9, Rules of Court). When the agreement is merely oral, the parol evidence should not be applied.

When parol evidence can be introduced 1. If a party wants to introduce parol evidence, he must put in issue in his pleading the fact that the terms of the agreement of the parties is not what the written agreement provides because of any of the following reasons: (a) there is an intrinsic ambiguity in the writing, or mistake or imperfection in the writing; (b) the Page 104 of 166

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written agreement failed to express the true intent of the parties; (c) the written agreement is not valid; or (d) the parties have another agreement after the execution of the written agreement (Rule 130, Sec. 9, Rules of Court).

Distinction between the best evidence rule and parol evidence Best evidence rule Parol evidence

1. The best evidence rule establishes a 1. The parol evidence rule is not concerned preference for the original document over a with the primacy of evidence but presupposes secondary evidence thereof. that the original is available.

2. The best evidence rule precludes the 2. The parol evidence precludes the admission admission of secondary evidence if the of other evidence to prove the terms of a original document is available. document other than the contents of the document itself for the purpose of varying the terms of the writing. 3. The best evidence rule can be invoked by 3. The parol evidence rule can be invoked only any litigant to an action whether or not said by the parties to the document and their litigant is a party to the document involved. successors in interest.

4. The best evidence rule applies to all forms of 4. The parol evidence applies to written writing. agreements (contracts) and wills.

Authentication and proof of documents Concept and meaning 1. Authentication means the process of proving the due execution and genuineness of a document. Evidence when presented in court is not presumed authentic. The general rule therefore is to prove its authenticity unless it is selfauthenticating.

Public and private documents 1. Public documents are: (a) the written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) documents acknowledged before a notary public except last wills and testaments; and (c) public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private (Rule 132, Sec. 19, Rules of Court).

When a private writing requires authentication; proof of a private writing 1. The due execution and authenticity of a private document must be proved either by: (a) anyone who saw the document executed or written; or (b) evidence of the genuineness of the signature or handwriting of the maker (Rule 132, Sec. 20, Rules of Court).

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d. When evidence of authenticity of a private writing is not required (ancient document) 1. When a document is considered ancient, evidence of its authenticity need not be given. A private document is considered ancient when it is more than thirty (30) years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion (Rule 132, Sec. 21, Rules of Court).

How to prove genuineness of a handwriting 1. The handwriting may be proven by a witness who believes it to be the handwriting of a person because: (1) he has seen the person write; (2) he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person; (3) by a comparison made by the witness or court, with writings admitted or treated as genuine by the party against whom the document is offered, or proved to be genuine to the satisfaction of the judge (Rule 132, Sec. 22, Rules of Court).

Public documents as evidence; proof of official record 1. The record of a public document may be evidenced by: (1) official publication; (b) copy of the document attested by the officer having legal custody of the record or by the attestation of his deputy; if the record is not kept in the Philippines (Rule 132, Sec. 22, Rules of Court).

Attestation of a copy 1. The attestation must state in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of court having a seal, under the seal of such court (Rule 132, Sec. 25, Rules of Court).

Public record of a private document 1. A public record of a private document may be proved by: (1) by the original record; (2) by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody (Rule 132, Sec. 27, Rules of Court).

Proof of lack of record 1. Proof of lack of record of a document consists of written statement signed by an officer having custody of an official record or by his deputy. The written statement must contain the following: (1) there has been a diligent search of the record; (2) that despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office. The written statement must be accompanied by a certificate that such officer has the custody of official records (Rule 132, Sec. 28, Rules of Court).

How a judicial record is impeached 1. The rules of court authorize the impeachment of any judicial record if there be evidence of any of the following grounds: (a) want of jurisdiction in the court or judicial officer; (b) collusion between the parties; (c) fraud in the party offering the record, in respect to the proceedings (Rule 132, Sec. 29, Rules of Court).

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Proof of notarial documents 1. Documents acknowledged before a notary public is considered a public document and enjoys the presumption of regularity. Thus, due execution and authenticity need not be proved. The person who notarized the document must really be a notary public, and that he has notarized it in accordance with the Notarial Law.

How to explain alterations in a document 1. The party producing a document as genuine which has been altered and appears to have been altered after its execution has the duty to account for any alteration found in a document purported to be genuine. He may show any of the following: (1) that the alteration was made by another, without his concurrence; (2) that it was made with the consent of the parties affected by it; (3) that it was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument (Rule 132, Sec. 31, Rules of Court). If he fails to do that, the document shall not be admissible in evidence.

m. Documentary language in an unofficial language 1. Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial (Rule 132, Sec. 33, Rules of Court). Testimonial evidence Qualification of witnesses 1. Except as provided in Section 21 of Rule 130, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification (Rule 130, Sec. 20, Rules of Court). He must also take either an oath or an affirmation (Rule 132, Sec. 1, Rules of Court) and he must not possess the disqualifications imposed by law or these Rules. Competency versus credibility of a witness Competency A matter of law and a matter of rule. Credibility

Refers to the believability of a witness and has nothing to do with the law or the rules. Refers to the basic qualifications of a Refers to the weight and the witness as his capacity to perceive and his trustworthiness or reliability of the capacity to communicate his perception to testimony. others.

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In deciding the competence of a witness, the court will not inquire into his trustworthiness.

Disqualifications of witnesses Disqualification by reason of mental capacity or immaturity 1. The following persons cannot be witnesses: (a) those whose mental condition, at the time of their production or examination, is such that they are incapable of intelligently making known their perception to others; (b) children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully (Rule 130, Sec. 21, Rules of Court) Mental incapacity To be disqualified as a witness by reason of mental incapacity, the following must concur: Immaturity To be disqualified as a witness by reason of immaturity, the following must concur: 1. The mental maturity of the witness must render him incapable of perceiving the facts respecting which he is examined; and 2. He is incapable of relating his perception truthfully.

1. The person must be incapable of intelligently making known his perception to others; and 2. His incapability must exist at the time of his production for examination.

The incompetence of the witness must exist not at the time of his perception of the facts but at the time he is produced for examination and consists in his inability to intelligently make known what he has perceived.

The incompetence of the witness must occur at the time the witness perceives the event including his incapability to relate his perceptions truthfully.

Disqualification by reason of marriage 1. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants (Rule 130, Sec. 22, Rules of Court).

Disqualification by reason of death or insanity of adverse party 1. Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased

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person or before such person became of unsound mind (Rule 130, Sec. 23, Rules of Court). Disqualification by reason of privileged communication. 1. Husband and wife The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants (Rule 130, Sec. 24 (a), Rules of Court). 2. Attorney and client An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity (Section 24 (b), Rule 130, Rules of Court). 3. Physician and Patient A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient (Rule 130, Sec. 24 (c), Rules of Court). 4. Priest and penitent A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs (Rule 130, Sec. 24 (d), Rules of Court). 5. Public officers A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure (Rule 130, Sec. 24 (e), Rules of Court). 6. Parental and filial privilege No person may be compelled to testify against his parents, other direct ascendants, children, or other direct descendants (Rule 130, Sec. 25 Rules of Court). Examination of Witnesses Rights and obligations of a witness 1. A witness has obligation to answer question, although his answer may tend to establish a claim against him. However it is the right of the witness: (a) not to give an answer that will tend to subject him to a penalty for an offense; (b) to be protected

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from irrelevant, improper or insulting questions and from harsh or insulting demeanor; (c) not to be examined except only as to matters pertinent to the issue; (d) not to be detained longer than the interest of justice requires; (e) not to give an answer which will tend to degrade his reputation unless it be the very fact at issue or to a fact from which the fact in issue would be presumed (Rule 132, Sec. 3, Rules of Court). Order in the examination of an individual witness 1. Direct examination is an examination-in-chief of a witness by the party presenting him on the facts relevant to the issue (Rule 132, Sec. 5, Rules of Court). Upon the termination of the direct examination, the witness may be crossexamined by the adverse party as to any matters stated in the direct examination or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, to elicit all important facts bearing upon the issue (Rule 132, Sec. 6, Rules of Court). Re-direct examination is conducted after the cross examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination (Rule 132, Sec. 27, Rules of Court).A witness on direct examination may be re-examined to explain or supplement his answer given during cross-examination. The counsel may elicit testimony to correct or repel any wrong impression or interferences that may be created in the cross examination. It is an opportunity to rehabilitate a witness whose credibility has been damaged. Re-cross examination is an examination conducted upon conclusion of the redirect examination. The adverse party may question the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion (Rule 132, Sec. 8, Rules of Court). 5. Recalling the witness occurs if the witness has been examined by both sides. The witness cannot be recalled without leave of court. Its a matter of judicial discretion to which the court shall be guided by the interest of justice. Leading and misleading questions 1. A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed except: (a) on cross-examination; (b) on preliminary matters (c) when there is difficulty in getting direct and intelligible answers from a witness who is ignorant or a child of tender years or is of feeble mind or a deaf mute; (d) of an unwilling or hostile witness; (e) of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. A misleading question is one which assumes as true a fact not yet testified to by the witness or contrary to that which he has previously stated. It is not allowed on any type of examination (Rule 132, Sec. 10, Rules of Court) . Methods of impeachment of adverse partys witness 1. A witness may be impeached by the party against whom he was called by: (a) contradictory evidence; (b) by evidence that his general reputation for truth, honesty,

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4.

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and integrity is bad; (c) by evidence that he has made at other times statements inconsistent with his present testimony(Rule 132, Sec. 11, Rules of Court).. How the witness is impeached by evidence of inconsistent statements (laying the predicate) 1. Court). 2. Laying the predicate is a preliminary requirement before the impeachment process prospers. The elements: a) the alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him. b) He must be asked whether he made such statements and also explain them if he admits making those statements. Evidence of the good character of a witness 1. A party calling a witness cannot initiate proof of his good moral character. He does not need to prove because he is presumed to be truthful and of good character. It is only when his character has been impeached that he can prove his being good (Rule 132, Sec. 14, Rules of Court).This rule refers only to mere witness. Prior inconsistent statements are statements made by a witness on an earlier occasion which is inconsistent with his present testimony (Rule 132, Sec. 13, Rules of

Admissions and Confessions Res inter alios acta rule 1. The expression if fully expressed reads: res inter alios acta alteri nocere non debet which literally means that things done to strangers ought not to injure those who are not parties to them (Blacks, 5th Ed., 1178). The res inter alios acta rule has two branches, namely: (a) the rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28, Rule 130, Rules of Court); (b) the rule that evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the same act at another time (Rule 132, Sec. 34, Rules of Court).

2.

Admissions of a party 1. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him (Rule 130, Sec. 26, Rules of Court).

Admissions by third- party 1. The rights of a third party cannot be prejudiced by an act, declaration or omission of another, except as provided in Sections 29, 30, 31 and 32, Rule 130 of the Rules of Court.

Admission by a co- partner or agent 1. The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party (Rule 130, Sec. 29, Rules of Court).

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Admission by conspirator 1. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration (Rule 130, Sec. 30, Rules of Court).

Admission by privies 1. Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former (Rule 130, Sec. 31, Rules of Court).

Admission by silence 1. An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him (Rule 130, Sec. 32, Rules of Court).

Confessions 1. The declaration of an accused acknowledging his guilt of the offense charged, or any offense necessarily included therein, may be given in evidence against him (Rule 130, Sec. 33, Rules of Court).

Similar acts as evidence 1. Evidence that one did or did not do a certain thing at one time, is not admissible to prove that he did or did not do the same or similar thing at another time but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage and the like (Rule 130, Sec. 34, Rules of Court)..

Hearsay Rule Meaning of hearsay 1. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules (Rule 130, Sec. 36, Rules of Court). Everything then which is not of ones personal knowledge are considered hearsay.

Reason for the exclusion of hearsay rule 1. Generally, hearsay evidence is inadmissible because the person who testifies does so based on matters not of his personal knowledge but based on the knowledge of another who is not in court and cannot therefore, be cross-examined. The one who is in court is the person who merely repeats matters witnessed personally by another. This type of evidence is inadmissible because of its inherent unreliability.

Exceptions to the hearsay rule Dying declaration 1. The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death (Rule 130, Sec. 37, Rules of Court).

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2.

This is the most significant exception to the hearsay evidence rule. If before he died, X told a police officer that it was Y who shot him, it would be the officer who would be testifying in court. The officer has no personal knowledge of the event. If the dying declaration of X is offered to prove the guilt of Y, the testimony of the officer in court is definitely hearsay. The dying declaration of X is however, an exception to the inadmissibility of hearsay evidence. There has been a traditional acceptance of dying declarations because of the presumption that a dying person will tell the truth before he meets his Creator. While there is no guarantee that a person in the throes of death will tell the truth, this assumption has been traditionally accepted for almost two hundred years, an assumption which has trickled down to modern times. The most significant element therefore, of a dying declaration is that the declarant must have been conscious of his impending death. It is this consciousness which is assumed to be the compelling motive to tell the truth. To be admissible as a dying declaration, the declaration must relate to the cause and circumstances of the declarant. Any statement he makes not related to the circumstances of his death is inadmissible as a dying declaration. The dying declaration is admissible in any case provided the subject of inquiry in that case is the death of the declarant. The old rule that it is admissible only in a criminal case no longer holds true because of the phraseology of Section 37 of Rule 130. It is required that the declarant should die. If he lives, there is no need for the dying declaration because the declarant may testify personally based on his own personal knowledge. Suppose by chance he survives but is unable to testify due to severe physical and emotional infirmity, may his declaration be admitted in evidence? Yes, but not as a dying declaration. It could be admitted as a statement made by a person immediately subsequent to a startling occurrence. The shooting of the declarant is the startling occurrence. The statement made as to the circumstances of the shooting, while not a dying declaration because he survived, could be considered as part of the res gestae under Section 42 of Rule 130.

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4.

5.

6.

Declaration against interest 1. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons (Rule 130, Sec. 38, Rules of Court).

Act or declaration about pedigree 1. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree (Rule 130, Sec. 39, Rules of Court).

Family reputation or tradition regarding pedigree 1. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if Page 113 of 166

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the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree (Rule 130, Sec. 40, Rules of Court). Common reputation 1. Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation (Rule 130, Sec. 41, Rules of Court).

Part of res gestae 1. Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae (Rule 130, Sec. 42, Rules of Court). This exception presupposes that there is a startling occurrence, an event which causes excitement to the perceiver. A statement made by the declarant about the occurrence or event while the event is taking place or immediately prior or subsequent thereto is admissible as part of the res gestae. Note that the one who made the statement is not the one testifying in court. Under normal circumstances he should be the one in court as the actual perceiver of the event. But if he is not available, the person who heard his utterances may testify. The in-court witness is the person who did not perceive the occurrence. His testimony is actually hearsay for lack of personal knowledge. But he is allowed to testify as to what he heard under the presumption that the statement he heard is reliable because when one describes an event as it is taking place or immediately prior or subsequent thereto, there is no room for fabrication. Another part of the res gestae refers to the so-called verbal acts. These are statements made which accompany an equivocal act material to the issue, and gives the act legal significance. An equivocal act is an act which may be subject to various interpretations. Thus, if X testifies that W, a customs broker handed a thick wad of bills to a customs employee, one cannot presume automatically that the money was handed as a bribe. It may have been given in payment of a debt or the receiver was merely asked to give the money to someone else. However, when the handing of the money was coupled with the statement, Here is the money you asked for. Can I expect you now to sign for the release of the goods today? The statement has given the act of giving money a legal significance. The person who heard such words uttered may testify on the statement he heard to prove bribery.

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Entries in the course of business 1. Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty (Rule 130, Sec. 43, Rules of Court).

Entries in official records 1. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated (Rule 130, Sec. 44, Rules of Court). Page 114 of 166

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Commercial lists and the like 1. Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein (Rule 130, Sec. 45, Rules of Court).

Learned treatises 1. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject (Rule 130, Sec. 46, Rules of Court).

Testimony or deposition at a former proceeding 1. The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him (Rule 130, Sec. 47, Rules of Court).

Opinion rule Opinion of expert witness 1. The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence (Rule 130, Sec. 49, Rules of Court). Opinion of ordinary witness 1. The opinion of a witness for which proper basis is given, may be received in evidence regarding: (a) the identity of a person about whom he has adequate knowledge; (b) a handwriting with which he has sufficient familiarity; and (c) the mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person (Rule 130, Sec. 50, Rules of Court). Character evidence 1. Character is the aggregate of moral qualities which belong to and distinguish an individual person; the general results of one's distinguishing attribute (Black Law's Dictionary). While character is what the person really is, reputation is what he is supposed to be in accordance with what people say he is, and is dependent on how people perceive a person to be. Character evidence is, as a rule, not admissible (Rule 130, Sec. 51, Rules of Court) Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause (People vs. Lee, G.R. No. 139070, May 29, 2002)

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Criminal cases

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1.

In criminal cases the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged (Rule 130, Sec. 51 (1), Rules of Court). When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation is established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him (People vs. Lee, G.R. No. 139070, May 29, 2002). Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged (Rule 130, Sec. 52 (2), Rules of Court). The prosecution cannot prove the bad moral character of the accused in its evidence-in-chief. It can only do so in rebuttal (Sec. 51[a][2], Rule 130, Rules of Court). This means that the prosecution may not offer evidence of the character of the accused unless the accused himself has offered evidence of his bad moral character. The prosecution therefore, must wait until the accused puts his character in issue during the proceedings. The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged (Rule 130, Sec. 51 (3), Rules of Court). The above provision pertains only to criminal cases, not to administrative offenses. Also, not every good or bad moral character of the offended party may be proved under the provision but only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged (Civil Service Commission vs Belagan, 440 SCRA 578).

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Civil cases 1. Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case (Rule 130, Sec 51 (b), Rules of Court).

Rule on examination of child witness (A.M. No. 004-07-SC) Applicability of the rule 1. Unless otherwise provided, this rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to a crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses (Sec. 1, Rule on Examination of a Child Witness, A.M. No. 004-07-SC). Meaning of child witness 1. A child witness is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition (Sec. 4[a], Rule on Examination of a Child Witness, A.M. No. 004-07-SC) Competency of a child witness 1. Every child is presumed qualified to be a witness (Sec. 6, Rule on Examination of a Child Witness). To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6[b], Rule on Examination of a Child Witness).

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2.

3.

4.

When the court finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, the court shall conduct a competency examination of the child. The court may do so motu proprio or on motion of a party (Sec. 6, Rule on Examination of a Child Witness). The competency examination of the child shall be conducted only by the judge. If counsels of parties desire to ask questions, they cannot do so directly. Instead, they are allowed to submit questions to the judge which he may ask the child in his discretion (Sec. 6[d], Rule on Examination of a Child Witness). The questions asked at the competency examination shall be appropriate to the age and developmental level of the child. The questions shall not be related to the issues at the trial but shall focus on the ability of the child to remember, to communicate, to distinguish between truth and falsehood and to appreciate the duty to testify truthfully (Sec. 6[e], Rule on Examination of a Child Witness).

Examination of a child witness 1. The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule (Sec. 8, Rule on Examination of a Child Witness). Live- link TV testimony of a child witness 1. If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; (2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded; (3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor; (4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child; (5) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section (Sec. 25, Rule on Examination of a Child Witness). Videotaped deposition of a child witness 1. The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section. 2. If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

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3.

4. 5.

The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by livelink television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused (Rule on Examination of a Child Witness).

Hearsay exception in child abuse cases 1. A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rule. 2. Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent (Sec. 28, Rule on Examination of Child Witness). Sexual abuse shield rule 1. The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) evidence offered to prove the sexual predisposition of the alleged victim. Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible (Sec. 30, Rule on Examination of Child Witness). Protective orders 1. Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem; (2) No tape, or any portion thereof, shall be divulged by any person mentioned in subsection (1) to any other person, except as necessary for the trial; (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court; (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without

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prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law. (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court; (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party and (7) This protective order shall remain in full force and effect until further order of the court (Sec. 31[b], Rule on Examination of a Child Witness). 2. The court may motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child (Sec. 31[c], Rule on Examination of a Child Witness)

Offer and objection Offer of evidence 1. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified (Rule 132, Sec. 34, Rules of Court).

When to make an offer 1. When the offer of evidence is made depends upon the nature of the evidence; (a) As regards the testimony of a witness, the offer must be made at the time the witness is called to testify; (b) Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing (Rule 132, Sec. 35, Rules of Court).

Objection 1. An objection must point out the specific ground of the objection, and if it does not do so, no error is committed in overruling it (75 Am. Jur. 2d, 2nd Ed., 254256). The last paragraph of Sec. 36, Rule 132 provides, . . . the grounds for the objections must be specified. An objector must be explicit as to the legal ground he invokes. The following examples are considered as general objections: (a) Objection, the evidence is incompetent!; (b) Objection! Inadmissible!; (c) Objection: incompetent, irrelevant, and improper!; (d) Objection: Improper! They do not clearly indicate to the judge the ground upon which the objections are predicated.

2.

Repetition of an offer 1. When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which the objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions (Rule 132, Sec. 37, Rules of Court).

Ruling 1. The ruling of the court must be given immediately after the objection is made except when the court desires to take reasonable time to inform itself on the

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question presented. However, the court must give its ruling during the trial and at such time as will give a party an opportunity to meet the situation presented by the ruling (Rule 132, Sec. 38, Rules of Court). 2. The ruling of the court sustaining or overruling an objection need not be stated except if the objection is based on two or more grounds. In such case, a ruling sustaining the objection must specify the ground or grounds relied upon (Rule 132, Sec. 38, Rules of Court).

Striking out of an answer 1. 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. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper (Rule 132, Sec. 39, Rules of Court).

Tender of excluded evidence 1. If the documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony (Rule 133, Sec. 40, Rules of Court). The foregoing rule, called offer of proof in other jurisdictions, embodies the procedure for the tender of excluded evidence. Why make a tender of excluded evidence? There are two reasons: (1) to allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and (2) even, if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal.

-oOo-

REMINDERS IN DNA EVIDENCE AND ELECTRONIC RULES OF EVIDENCE A. DNA EVIDENCE 1. The case of People vs. Vallejo, 382 SCRA 192, a case involving the rape-slay of a nine-year old girl, is considered by the Court as the first real breakthrough of DNA as an admissible and authoritative evidence in Philippine jurisprudence. Vallejo adopted the following guidelines to be used in court in assessing the probative value of DNA evidence: (a) (b) (c) (d) (e) How the samples were collected; How they were handled; The possibility of contamination of the samples; The procedure followed in analyzing the samples; Whether the proper standards and procedure were followed in conducting the tests; and the qualifications of the analysts who conducted the test;

Subsequently in People vs. Yatar, 428 SCRA 504, the Court ruled that a compulsory testing would not infringe on the constitutional right against self-incrimination. Yatar also

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recognized the admissibility of the results of DNA testing. DNA testing and the results it may provide was likewise recognized in the case of Estate of Rolando Ong vs. Diaz, G.R. No. 171713, December 17, 2007). NOTE: DNA evidence obtained in the testing is not automatically admissible. Its admissibility rests upon the exercise of sound judicial discretion (Sec. 7, The Rule on DNA Evidence). 2. When DNA evidence is offered in a case, the primary rule to apply is the Rule on DNA Evidence which took effect on October 15, 2007. DNA evidence may be offered in (a) criminal actions (b) civil actions, or (c) special proceedings (Sec. 1 of Rule on DNA Evidence). DNA is the acronym for deoxyribonucleic acid and is the chain of molecules found in every nucleated cell of the body. DNA testing results in the formulation of a persons DNA profile which is the genetic information derived from the testing of biological samples. The totality of these profiles is called DNA Evidence (Sec. 3(b), Rule on DNA Evidence). The totality of a persons DNA is unique for each individual, except in identical twins (Sec. 3(b), The Rule on DNA Evidence). A DNA testing may be applied for and obtained by a person who has a legal interest in the litigation but the court may also order a testing motu propio (Sec. 4, The Rule on DNA Evidence). Even before a suit or proceeding is commenced, a DNA testing may be conducted at the behest of any party including law enforcement agencies (Sec. 4, The Rule on DNA Evidence). A court order granting a DNA testing is not appealable and is immediately executory. The remedy is a petition for certiorari but the petition shall not stay the implementation of the order, unless a higher court issues an injunctive order (Sec. 5, The Rule on DNA Evidence). DNA profiles of a person obtained from DNA testing are confidential and can only be released to (a) the person from whom the sample was taken; (b) lawyers representing a party in a case; (c) lawyers of private complainants in a criminal case; (d) duly authorized law enforcement agencies; and other persons as determined by the court (Sec. 11, Rule on DNA Evidence). A person already convicted under a final and executory judgment may still avail of DNA testing. This test is called post-conviction DNA testing. It is available to the (a) prosecution, or (b) person convicted by a final and executory judgment providing the following are met: (a) (b) (c) a biological sample exists; such sample is relevant to the case; and the testing would probably result in the reversal of the judgment of conviction (Sec. 6, The Rule on DNA Evidence). B. RULES ON ELECTRONIC EVIDENCE

3.

4.

5.

6.

7.

8.

1.

The Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases (Sec. 2, Rule 1, Rules on Electronic Evidence, effective August 1, 2001). Note that the coverage of the applicability of the Rules on Electronic Evidence is broader than the Rules of Evidence in the Rules of Court which by definition applies only to judicial proceedings. The Rules on Electronic Evidence shall apply whenever an electronic data message is offered or used in evidence (Sec. 1, Rule 1). An electronic data message refers to information generated, sent, received, or stored by electronic, optical, or similar means (Sec. 1(g), Rule 2). This term covers an electronic document and is the functional equivalent of paper-based documents (Sec. 1, Rule 3). Its admissibility depends on its compliance with the rules on admissibility prescribed under the Rules of Court (Sec. 2, Rule 3).

2.

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3.

The term electronic data message or electronic document under the Electronic Document Act of 2000 does not include a facsimile transmission. It is not the functional equivalent of an electronic document. When the Congress drafted the law, it excluded the earlier forms of technology like telegraph, telex, and telecopy (except computer-generated faxes) when the law defined electronic data message (MCC Industrial Sales Corporation vs. Ssangyong Corporation, G.R. No. 170633, October 17, 2007). For the application of the Best Evidence Rule, an electronic document shall be considered an original if it is a printout or output readable by sight or other means, shown to reflect the data accurately (Sec. 2, Rule 4). The person seeking to introduce an electronic document has the burden of proving its authenticity (Sec. 1, Rule 5) by any of the following means: (a) (b) by evidence that it had been digitally signed by the person purported to have signed the same; by evidence that other appropriate security procedures or devices as may be authorized by the Supreme court or by law for the authentication of electronic documents were applied to the document; by other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2, Rule 5).

4.

(c)

5.

An electric document may be signed by electronic signature. This signature refers to any distinctive mark, characteristics and/or sound in electronic form that represents the identity of a person and attached or associated with the electronic data message. It includes digital signatures (Sec. 1(j), Rule 2). An electronic signature may be authenticated in any of the following manner: (a) (b) (c) By evidence that a method or process was utilized to establish a digital signature and verify the same; By any other means provided by law; or By any other means satisfactory to the judge (sec. 2, Rule 6).

6.

The Rules on Electronic Evidence also recognizes business records as exception to the hearsay rule. Records or data that are made by electronic, optical or similar means is considered as an exception to the rule precluding the admission of hearsay evidence if such data are (a) kept by a person with knowledge thereof; (b) kept in the regular course or conduct of a business activity; and (c) such was the regular practice. All these elements must be shown by the testimony of the custodian or other qualified witness (Sec. 1, Rule 8). All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic documents. The affiant however, shall be made to confirm the contents of the affidavit in open court (Sec. 1, 2, Rule 9). Audio, photographic, video and ephemeral evidence shall be admissible provided it shall be shown, presented or displayed to the court. In court, it shall be identified, explained or authenticated by (a) the person who made the recording; or (b) by the person competent to testify on the accuracy thereof (Sec. 1, Rule 11). A recording of a telephone conversation or ephemeral electronic communication shall be proven by the testimony of a person (a) who was a party to the same; or (b) who has personal knowledge thereof (Sec. 2, Rule 11). An ephemeral electronic communication refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communications, the evidence of which is not recorded or retained (Sec. 1(k), Rule 2). -o0o-

7.

8.

9.

10.

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A.M.NO. 08-8-7 SC- THE RULE OF PROCEDURE FOR SMALL CLAIMS CASES, AS AMENDED:

1)

When is the period of effectivity of the Rule? The Rule took effect on October 1, 2008, following its publication in two (2) newspapers of general circulation.

2)

What is the period of the effectivity of the amendment to the Rule? The amendment to the Rule took effect on November 3, 2009.

3)

Applicability of the Rules of Civil Procedure? The Rules of Civil Procedure shall apply suppletorily insofar as they are not inconsistent with this Rule?

4)

What is the scope of the Rule? The Rule shall apply in all action before the MTC/MCTC for payment of money where the value of the claim does not exceed P100,000.00, exclusive of interest and cost (Sec.2 of the Rule).

5)

In what cases will the Rule apply? a) b) Actions which are purely civil in nature where the claim or relief prayed for by the plaintiff is solely for the payment or reimbursement of sum of money; and The civil aspect of a criminal action, either filed before the institution of criminal action or reserved upon the filing of the criminal action in court in court pursuant to Rule 111 of the Rules on Criminal Procedure (Sec.4 of the Rule).

6)

What are the sources of the claim or demand under the Rule? a) For money owed under any of the following: i. ii. iii. iv. v. b) Contract of Lease; Contract of Loan; Contract of Services; Contract of Sale; or Contract of Mortgage

For damages arising from: i. ii. iii. Fault or negligence; Quasi-contract; Contract

The enforcement of barangay amicable settlement or an arbitration award involving a monetary claim covered by Sec.417 of R.A 7160, otherwise known as the Local government Code of 1991 (Sec. 4 of the Rule). 7) How to commence a Small Claims action? a) Filing with the court of an accomplished verified Statement of Claims in duplicate accompanied by a certification of non-forum shopping (Sec.5 of the Rule);

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b) c) d)

Payment of docket and other legal fees under Rule 141 of the Revised Rules of Court, unless allowed as indigent (Sec. 8 of the Rule); Certified photocopies of the actionable document/s subject of the claims (Sec.5 of the Rule); and Affidavits of witnesses based on personal knowledge and other evidence (Secs. 5 & 7 of the Rule).

8)

Is there a formal requirement for the commencement of small of claims cases? No formal pleading, other than the Statement of Claims described in the Rule is necessary to initiate a small claims action (Sec. 5 of the Rule, as amended).

9)

What is the limitation in the prosecutions of small claims cases? Exception? No evidence shall be allowed during the hear4ing which was not attached to or submitted together with the Claim, unless good cause shown for the admission of additional evidence. (Sec. 5 of the Rule).

10)

How can a pauper litigant prosecute a small claim case? File a Statement of Claims with motion to sue as indigent party (Sec. 8 of the Rule).

11)

What is the effect if the motion is granted? If denied? a) b) If granted, the case shall be raffled off or assigned to the court designated to hear the small claims cases. If denied, the plaintiff shall be given five (5) days within which to pay the docket fees (Sec. 8 of the Rule).

12)

What is the effect of non-payment of docket fees? Remedy of the plaintiff: a) b) In case of non-payment of the required docket fees, the case shall be dismissed without prejudice (Sec. 8 of the Rule). The remedy of the plaintiff would be to re-file the case.

13)

Can the court dismiss the small claims case motu propio? After the court determines that the case falls under this Rule, it may from an examination of the allegations of the Statement of Claims and such evidence attached therein, by itself, dismiss the case outright on any of the grounds apparent from the claim for the dismissal of a civil action (Sec.9 of the Rule).

14)

What are the grounds for the dismissal of the small claims cases motu propio by the court? a) b) c) d) Lack of jurisdiction over the subject matter of the case; Litis pendentia; Res judicata; and Prescription.

15)

What will be the courses of action of the court if there is no ground for dismissal? a) b) The court shall issue a Summons directing the defendant to submit a verified response. It shall also issue a Notice to both parties, directing the parties to appear before it on a specific date and time for hearing (Sec. 10 of the Rule).

16)

What is the rule on the postponement of hearing? What is the exception? a) No unjustified postponement shall be allowed, as provided under Section 19 of the Rule.

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b)

Except, proof of physical impossibility of the party to appear on the scheduled date and time. Only one postponement is allowed (Sec. 19 of the Rule).

17)

What are the defenses that may be raised in the Response? The grounds for the dismissal of the claim under Rule 16 of the Rules of Court may be pleaded (Sec. 11 of the Rule-as amended), such as: a) b) c) d) e) f) g) h) i) j) That the court has no jurisdiction over the person of the defending party; That the court has no jurisdiction over the subject matter of the claim; That the venue is improperly laid; That the plaintiff has no legal capacity to sue; That there is another action pending between the same parties for the same cause; That the cause of action is barred by prior judgment or by statute of limitations; That the pleading asserting the claim states no cause of action; That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned or otherwise extinguished; That the claim on which the action is founded is unenforceable under the provisions of statute of frauds; That the condition precedent for filing the claim has not been complied with (Sec. 1, Rule 16).

18)

What is the period to file a response? Defendant shall file a verified Response within a non-extendible period of ten (10) days from receipt of the Summons, accompanied by certified photocopies of documents, affidavit of witnesses, and other evidence (Sec. 11 of the Rule).

19)

What is the effect of failure to file a Response? In case defendant failed to file his Response within the prescribed period, and fail to appear at the date set for hearing, the court, render judgment on the same day as may be warranted by the facts (Sec. 12 of the Rule, as amended).

20)

What is the effect if the defendant failed to file his Response, but appeared in the hearing? The court shall ascertain what defense he has to offer and proceed to hear, mediate, or adjudicate the case on the same day, as if a Response has been filed (Sec. 12 of the Rule, as amended).

21)

Can the defendant interpose a compulsory counterclaim against the plaintiff? Yes, if at the time of the action is commenced, the defendant possesses a claim against the plaintiff it shall be filed as a counterclaim in the Response, otherwise, the defendant shall be barred from suit on the counterclaim (Sec. 12 of the Rule, as amended).

22)

What are the requisites in order for a compulsory counterclaim may be raised in the Response? a) b) c) d) The counterclaim must be within the coverage of the Rule, exclusive of interest and cost; It must arise out of the same transaction or event that is the subject matter of the plaintiffs claim; It does not require for its adjudication the joinder of third parties; and It is not the subject of a pending action (Sec. 12 of the Rule, as amended).

23)

May a permissive counterclaim be raised in the Response by the defendant? The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence.

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24)

What are the requisites in order that permissive counterclaim may be raised in the Response by the defendant? a) b) c) The counterclaim does not arise out of the same transaction or occurrence; That the amount and nature of the claim are within the coverage of the Rule; and The prescribed docket and other legal fees are paid (Sec. 12 of the Rule 12, as amended).

25)

What are the prohibited pleadings and motions under the Rule? The following pleadings, motion and petitions shall not be allowed under the Rule: a) b) c) d) e) f) g) h) i) j) k) l) Motion to Dismiss; (as amended) Motion for bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for reopening of the trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits, or any other paper; Memoranda; Petition for certiorari, mandamus or prohibitions against any interlocutory orders issued by the court; Motion to declare defendant in default; Dilatory motion for postponement; Reply; Third-party complaints; and Intervention (Sec.14 of the Rule, as amended).

26)

Who may appear during the hearing on the small claims? The parties shall appear at the designated date of hearing, or through a representative (Sec.16 of the Rule, as amended).

27)

What is the rule in case a party shall appear through a representative? In case of juridical entities? a) Appearance through a representative must be for a valid cause. The representative of an individual- party must not be lawyer, and must be related to or next of kin of the individual party (Sec. 16 of the Rule as amended). Juridical entities shall not be represented by a lawyer in any capacity (Sec. 16 2nd paragraph of the Rule, as amended).

b)

28)

What is the requirement in case a party will appear through a representative? The representative may be authorized with a Special Power of Attorney with the power to enter an amicable settlement, to submit to Judicial Dispute Resolution (JDR), and to enter into stipulations or admissions of facts and of documentary exhibits (Sec. 16 of the Rule).

29)

What is the option of the court in case a party cannot present his claims or defense during the hearing? The Court may, in its discretion, allow another individual who is not an attorney to assist the party upon the latters consent (Sec. 17 2nd paragraph of the Rule, as amended).

30)

What is the rule on the appearances of lawyers during the hearing? No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant (Sec. 17 of the Rule).

31)

What are the effects of failure of the parties to appear? Remedy?

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a)

On the part of the plaintiff: Dismissal of the claim without prejudice, and the defendant who appeared shall be entitled to judgment on a permissive counterclaim. (Sec.18 of the Rule) a.1) Remedy of the plaintiff: Re-file the case

b)

c) 32)

On the part of the defendant: It shall have the effect of as failure to file a Response, and. the court, by itself render judgment based on the facts alleged in the Statement of Claims but only limited to what is prayed for therein (Secs. 18 and 12 of the Rule). On both parties: Dismissal of both the claim and counterclaim with prejudice.

What is the rule in case there are two or more defendants? This rule shall not apply where one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears in the hearing (Sec.18 of the Rule, as amended).

33)

What is the duty of the court at the start of the hearing? At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases (Sec. 20 of the Rule, as amended).

34)

What is the primary duty of the judge during the hearing? At the hearing, the judge shall exert efforts to bring the parties to an amicable settlement of their dispute (Sec. 21 of the Rule, as amended).

35)

What is the requirement in case of amicable settlement? Any settlement or resolution of the dispute shall be reduced into writing, signed by the parties and submitted for the court for approval (Sec. 21 of the Rule as amended).

36)

What is the nature of the settlement discussion? Settlement discussion shall be strictly confidential and any reference to any settlement made in the course of discussions shall be punishable by contempt (Sec. 21, 2nd paragraph of the Rule, as amended).

37)

In case of failure of settlement, what is the nature of the hearing that will be conducted? If efforts of settlement fail, the hearing shall proceed in an informal and expeditious manner and shall be terminated within one (1) day (Sec. 22 1st paragraph of the Rule, as amended).

38)

Is reassignment of the case allowed? Yes, either party may move in writing to have another judge hear and decide the case. The reassignment of the case shall be done in accordance with the existing issuances (Sec. 22 of the Rule, as amended).

39)

How is reassignment of the case being made? a) The referral by the original judge to the Executive judge shall be made within the same day the motion is filed and granted, and by the Executive Judge to the designated judge within the same day of the referral; The new judge shall hear and decide the case within five (5) working days from receipt of the order of reassignment (Sec.22, 2nd paragraph of the Rule as amended).

b)

40)

What is the nature of the Decision rendered? The decision shall be final and unappealable (Sec. 23 of the Rule).

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41)

What is the possible remedy in case of adverse decision? A petition for certiorari with application for a temporary restraining order and/or writ of preliminary injunction under Rule 65 may be availed of since there is no appeal or plain, speedy ad adequate remedy in the ordinary course of law (Sec. 1, Rule 65).

42)

How can the decision be executed? By way of motion (Sec. 24 of the Rule).

LECTURE NOTES IN KATARUNGANG PAMBARANGAY (Sec. 399-422 of R.A 7160) 1) What is the nature of barangay proceedings: The proceedings before the Lupong Tagapamanyapa or the Pangkat ng Tagappagkasundo of the Barangay are not judicial proceedings. (Sec. 413, Chapter 7, Title One Book III, R.A. 7160 2) What are the objectives of barangay conciliation: The primordial objective of Presidential Decree No. 1508 is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought by the indiscriminate filing of cases in the courts. To ensure this objective, Section 6 of Presidential Decree No. 1508 requires the parties to undergo a conciliation process before the Lupon Chairman or the Pangkat ng Tagapagkasundo as a precondition to filing a complaint in court subject to certain exceptionswhich are inapplicable to this case. The said section has been declared compulsory in nature. (LIBRADA M. AQUINO, vs. ERNEST S. LAURE, G.R. No. 153567, February 18, 2008) 4) How to commence an action before the barangay: Upon payment of the appropriate filing fee, any individual who has a cause of action against another individual involving any matter within the authority of the Lupon may complain, orally or in writing to the chairman of the lupon. (Sec. 410 (a), R.A. 7160) 5) Personal appearance of the parties in the conciliation proceedings required: Rationale: Prohibition of lawyers:

The above-quoted provision clearly requires the personal appearance of the parties in katarungan pambarangay conciliation proceedings, unassisted by counsel or representative. The rationale behind the personal appearance requirement is to enable the lupon to secure first hand and direct information about the facts and issues, the exception being in cases where minors or incompetents are parties. There can be no quibbling that laymen of goodwill can easily agree to conciliate and settle their disputes between themselves without what sometimes is the unsettling assistance of lawyers whose presence could sometimes obfuscate and confuse issues. Worse still, the participation of lawyers with their penchant to use their analytical skills and legal knowledge tend to prolong instead of expedite settlement of the case. (ATTY. EVELYN J. MAGNO, vs. ATTY. OLIVIA VELASCO- JACOBA, NOVEMBER 22, 2005, A.C. No. 6296) 6) What is the rule on the referral to the barangay for conciliation? SEC. 412 Conciliation.- (a) Pre-condition to filing of complaint in court. No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed

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or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon chairman or pangkat chairman or unless the settlement has been repudiated by the parties thereto. (R.A. 7160) 7) What are the exceptions: Under Sec. 408 of the same Code, parties actually residing in the same city or municipality are bound to submit their disputes to the Lupon for conciliation/amicable settlement, unless otherwise provided therein: SEC. 408. Subject Matter for Amicable Settlement; Exception Thereto. The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except: (a) Where one party is the government or any subdivision or instrumentality thereof;\ (b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; (c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five Thousand pesos (P5,000.00); (d) Offenses where there is no private offended party; (e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; (f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; (g) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. 8) Other instances where the party can go directly with the court: SEC. 412 Conciliation.- x x x x x x x x x x x x x x x x x x (b) Where parties may go directly to court. The parties may go directly to court in the following instances: (1) Where the accused is under detention; (2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and (4) Where the action may otherwise be barred by the statute of limitations. (c) Conciliation among members of indigenous cultural communities. The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.

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9) Barangay conciliation not applicable in habeas corpus cases: The barangay conciliation requirement in Section 412 of the LGC does not apply to habeas corpus proceedings where a person is deprived of personal liberty. In such a case, Section 412 expressly authorizes the parties to go directly to court without need of any conciliation proceedings. There is deprivation of personal liberty warranting a petition for habeas corpus where the rightful custody of any person is withheld from the person entitled thereto. Thus, the Court of Appeals did not err when it dismissed Edwins contentions on the additional ground that Section 412 exempts petitions for habeas corpus from the barangay conciliation requirement. (EDWIN N. TRIBIANA, vs. LOURDES M. TRIBIANA [G.R. No. 137359. September 13, 2004]

10) Barangay conciliation not applicable in case respondent is a resident of Hongkong: In its decision dated 28 March 2000, the trial court held that the case is not covered by the barangay conciliation process since respondent is a resident of Hongkong. The trial court noted that petitioner did not controvert respondents allegation that petitioner ejected respondents lodgers sometime in March 1996 even if the contract of lease would expire only on 7 July 1996. The trial court found untenable petitioners contention that subleasing the rented premises violated the lease contract. The trial court held that respondents act of accepting lodgers was in accordance with the lease contract which allows the lessee to use the premises as a dwelling or as lodging house. Thus, the trial court ordered petitioner to pay respondent actual damages of P45,000 for respondents lost income from her lodgers for the months of April, May, and June 1996, and attorneys fees ofP8,000. In this case, it is undisputed that petitioner ejected respondents lodgers three months before the expiration of the lease contract on 7 July 1996. Petitioner maintains that she had the right to terminate the contract prior to its expiration because respondent allegedly violated the terms of the lease contract by subleasing the rented premises. Petitioners assertion is belied by the provision in the lease contract which states that the lessee can use the premises as a dwelling or as lodging house. Furthermore the lease contract clearly provides that petitioner leased to respondent the ground floor of her residential house for a term of one year commencing from 7 July 1995. Thus, the lease contract would expire only on 7 July 1996. However, petitioner started ejecting respondents lodgers in March 1996 by informing them that the lease contract was only until 15 April 1996. Clearly, petitioners act of ejecting respondents lodgers resulted in respondent losing income from her lodgers. Hence, it was proper for the trial court and the appellate court to order petitioner to pay respondent actual damages in the amount of P45,000. (DORIS U. SUNBANUN, vs. AURORA B. GO, G.R. No. 163280 February 2, 2010)

11 Actual residency necessary in order for the lupon to acquire jurisdiction: In fine, since the plaintiff-herein petitioner, the real party in interest, is not an actual resident of the barangay where the defendant-herein respondent resides, the locallupon has no jurisdiction over their dispute, hence, prior referral to it for conciliation is not a precondition to its filing in court. (DANTE M. PASCUAL, represented by REYMEL R. SAGARIO, vs. MARILOU M. PASCUAL, G.R. No. 157830 November 17, 2005)

12) New complaint should be filed before the barangay against the heirs of the original respondent, otherwise there is non-compliance of the rule: The Court thus rules that the petitioners complaint against respondent Heirs of Carlos Palanca was premature. It bears stressing that they were not impleaded by the petitioner as

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parties-respondents before the Lupon. The petitioner filed her complaint solely against respondent Josephine Pablo. Moreover, the said respondent heirs were not privy to the said agreement, and, as such, were not bound by it. Section 412 of the Local Government Code. If the complainant/plaintiff fails to comply with the requirements of the Local Government Code, such complaint filed with the court may be dismissed for failure to exhaust all administrative remedies. (ESTELA L. BERBA, vs. JOSEPHINE PABLO and THE HEIRS OF CARLOS PALANCA, G.R. No. 160032 November 11, 2005)

13) Lack of conciliation process does not affect the jurisdiction of the court once it acquires jurisdiction over the subject matter and the defendant: It is true that the precise technical effect of failure to comply with the requirement of Section 412 of the Local Government Code on barangay conciliation (previously contained in Section 5 of Presidential Decree No. 1508) is much the same effect produced by non-exhaustion of administrative remedies -- the complaint becomes afflicted with the vice of pre-maturity; and the controversy there alleged is not ripe for judicial determination. The complaint becomes vulnerable to a motion to dismiss. Nevertheless, the conciliation process is not a jurisdictional requirement, so that non-compliance therewith cannot affect the jurisdiction which the court has otherwise acquired over the subject matter or over the person of the defendant. (LIBRADA M. AQUINO, vs. ERNEST S. LAURE, G.R. No. 153567, February 18, 2008)

14) Why is conciliation required? Failure to undergo conciliation proceedings is non compliance with condition precedent before the filing of a complaint before the court.

15) What is the effect of non-compliance of barangay conciliation? A motion to dismiss the complaint may be filed on the ground of failure to comply with a condition precedent. (Sec. 1 (j), Rule 16 of the 1997 Rules of Civil Procedure)

16) Lack of barangay conciliation must be raised in a motion to dismiss, otherwise waived: It is well-settled that the non-referral of a case for barangay conciliation when so required under the law is not jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a motion to dismiss. The Court notes that although petitioners could have invoked the ground of prematurity of the causes of action against them due to the failure to submit the dispute to Lupon prior to the filing of the cases as soon as they received the complaints against them, petitioners raised the said ground only after their arraignment. (Fidel M. Baares Li, et. al., Vs. Elizabeth Balising, et al., G.R. No. 132624. March 13, 2000]

17) What is the nature of the dismissal of the case for failure to refer the case with the barangay? The dismissal is without prejudice. (Sec.412 in relation to Sec.408 of R.A. 7160) 18) In Summary proceedings cases, remedy of the plaintiff in case of dismissal: Where there is non-compliance with ushc requirement, shall be dismissed without prejudice, and may be revived only after such requirement shall have been complied with. (Sec. 18, Rule on Summary Proceedings)

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19) Dismissal of the case for failure to refer to barangay is without prejudice, and cannot be revived by motion after it becomes final: Equally erroneous is private respondents contention that the rules regarding finality of judgments under the Revised Rules of Court[ do not apply to cases covered by the 1991 Revised Rule on Summary Procedure. Private respondents claim that Section 18 of the 1991 Revised Rule on Summary Procedure allows the revival of cases which were dismissed for failure to submit the same to conciliation at the barangay level, as required under Section 412 in relation to Section 408 of the Local Government Code. The said provision states: Referral to Lupon. Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant. There is nothing in the aforecited provision which supports private respondents view. Section 18 merely states that when a case covered by the 1991 Revised Rule on Summary Procedure is dismissed without prejudice for non-referral of the issues to the Lupon, the same may be revived only after the dispute subject of the dismissed case is submitted to barangay conciliation as required under the Local Government Code. There is no declaration to the effect that said case may be revived by mere motion even after the fifteen-day period within which to appeal or to file a motion for reconsideration has lapsed. (Fidel M. Baares Li, et. al., Vs. Elizabeth Balising, et al., G.R. No. 132624. March 13, 2000]

20) What is the remedy of the plaintiff? Refiling of the case, and compliance with the barangay conciliation.

21) May the court dismiss the case motu propio? The court may not motu propio dismiss the case on the ground of failure to comply with the barnagay conciliation since it is not of the grounds mentined under Sec. 1, Rule 9.

22) Earnest efforts towards amicable settlement between members of the same family Ander Art. 151 of the Family Code must be complied with: The petitioners were able to comply with the requirements of Article 151 of the Family Code because they alleged in their complaint that they had initiated a proceeding against the respondent for unlawful detainer in the Katarungang Pambarangay, in compliance with P.D. No. 1508; and that, after due proceedings, no amicable settlement was arrived at, resulting in the barangay chairmans issuance of a certificate to file action. The Court rules that such allegation in the complaint, as well as the certification to file action by the barangay chairman, is sufficient compliance with article 151 of the Family Code. It bears stressing that under Section 412(a) of Republic Act No. 7160, no complaint involving any matter within the authority of the Lupon shall be instituted or filed directly in court for adjudication unless there has been a confrontation between the parties and no settlement was reached. (APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA MARTINEZ, vs. RODOLFO G. MARTINEZ [G.R. No. 162084. June 28, 2005]

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23) Execution of amicable settlement within six months from execution before filing of the action to the court: Effect: We agree with the contention of the petitioners that under Section 416 of the LGC, the amicable settlement executed by the parties before the Lupon on the arbitration award has the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless the settlement is repudiated within the period therefor, where the consent is vitiated by force, violence or intimidation, or a petition to nullify the award is filed before the proper city or municipal court. The repudiation of the settlement shall be sufficient basis for the issuance of a certification to file a complaint. (MA. TERESA VIDAL, LULU MARQUEZ, and CARLOS SOBREMONTE, petitioners, vs. MA. TERESA O. ESCUETA, represented by HERMAN O. ESCUETA[G.R. No. 156228. December 10, 2003]

24) What is the duty of the Lupon Secretary as regards the amicable settlement: Enforcement of the amicable settlement: a) We also agree that the Secretary of the Lupon is mandated to transmit the settlement to the appropriate city or municipal court within the time frame under Section 418 of the LGC and to furnish the parties and the Lupon Chairman with copies thereof. The amicable settlement which is not repudiated within the period therefor may be enforced by execution by the Lupon through the Punong Barangay within a time line of six months, and if the settlement is not so enforced by the Lupon after the lapse of the said period, it may be enforced only by an action in the proper city or municipal court as provided for in Section 417 of the LGC of 1991, as amended, which reads: SEC. 417. Execution. The amicable settlement or arbitration award may be enforced by execution by the Lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the proper city or municipal court. (Underlining supplied). Section 417 of the Local Government Code provides a mechanism for the enforcement of a settlement of the parties before the Lupon. It provides for a two-tiered mode of enforcement of an amicable settlement executed by the parties before the Lupon, namely, (a) by execution of the Punong Barangay which is quasi-judicial and summary in nature on mere motion of the party/parties entitled thereto; and (b) by an action in regular form, which remedy is judicial. Under the first remedy, the proceedings are covered by the LGC and the Katarungang Pambarangay Implementing Rules and Regulations. The Punong Barangay is called upon during the hearing to determine solely the fact of non-compliance of the terms of the settlement and to give the defaulting party another chance at voluntarily complying with his obligation under the settlement. Under the second remedy, the proceedings are governed by the Rules of Court, as amended. The cause of action is the amicable settlement itself, which, by operation of law, has the force and effect of a final judgment. Section 417 of the LGC grants a party a period of six months to enforce the amicable settlement by the Lupon through the Punong Barangay before such party may resort to filing an action with the MTC to enforce the settlement. The raison d etre of the law is to afford the parties during the six-month time line, a simple, speedy and less expensive enforcement of their settlement before the Lupon. (MA. TERESA VIDAL, LULU MARQUEZ, and CARLOS SOBREMONTE, petitioners, vs. MA. TERESA O. ESCUETA, represented by HERMAN O. ESCUETA[G.R. No. 156228. December 10, 2003]

25) How to execute agreement after the six months period under Sec. 417: Venue? a) Parenthetically, the Katarungang Pambarangay Implementing Rules and Regulations, Rule VII, Section 2 provides:

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SECTION 2. Modes of Execution. - The amicable settlement or arbitration award may be enforced by execution by the Lupon within six [6] months from date of the settlement or date of receipt of the award or from the date the obligation stipulated in the settlement or adjudged in the arbitration award becomes due and demandable. After the lapse of such time, the settlement or award may be enforced by the appropriate local trial court pursuant to the applicable provisions of the Rules of Court . An amicable settlement reached in a case referred by the Court having jurisdiction over the case to the Lupon shall be enforced by execution by the said court. (Underlining supplied). By express provision of Section 417 of the LGC, an action for the enforcement of the settlement should be instituted in the proper municipal or city court. This is regardless of the nature of the complaint before the Lupon, and the relief prayed for therein. The venue for such actions is governed by Rule 4, Section 1 of the 1997 Rules of Civil Procedure, as amended. An action for the enforcement of a settlement is not one of those covered by the Rules on Summary Procedure in civil cases; hence, the rules on regular procedure shall apply, as provided for in Section 1, Rule 5 of the Rules of Civil Procedure, as amended. (MA. TERESA VIDAL, LULU MARQUEZ, and CARLOS SOBREMONTE, petitioners, vs. MA. TERESA O. ESCUETA, represented by HERMAN O. ESCUETA[G.R. No. 156228. December 10, 2003]

26) If the amount involve in the amicable settlement or arbitral award does not exceed P100,000.00, it is governed by the Rules on Small Claims (A.M. No. 08-8-7 SC, as amended October 1, 2008): The enforcement of a barangay amicable settlement or an arbitration award involving money claims covered by this Rule prisuant to Sec. 417 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991). (Sec. 4, (A.M. No. 08-8-7 SC, as amended)

Criminal Procedure General matters Distinguish jurisdiction over subject matter from jurisdiction over person of the accused 1. Jurisdiction over the subject matter refers to the authority of the court to hear and determine a particular criminal case, whereas, jurisdiction over the person of the accused refers to the authority of the court, not over the subject matter of the criminal litigation, but over the person charged. This kind of jurisdiction requires that the person charged with the offense must have been brought in to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court (Antiporda vs. Garchitorena, 321 SCRA 551). 2. Jurisdiction over the subject matter is derived from the law. It can never be acquired solely by consent of the accused. Jurisdiction over the person of the accused may be acquired by consent of the accused or by waiver of objections. Requisites for exercise of criminal jurisdiction 1. The following are the basic requisites before a court can acquire jurisdiction over criminal cases: (1) jurisdiction over the subject matter; (2) jurisdiction over the territory; and (3) jurisdiction over the person of the accused.

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2.

The court acquires jurisdiction over the subject matter if the offense, by virtue of the penalty prescribed or its nature, is one which the court is by law authorized to take cognizance of. It is the power to hear and determine cases of the general class to which the proceeding in question belong and is conferred by the sovereign authority which organizes the court and defines its powers. It is conferred by law, not by the consent of the parties.

3.

For jurisdiction over the territory to be acquired the offense must have been committed or any of its essential elements took place within the territorial jurisdiction of the court. It cannot be waived and where the place of the commission was not specifically charged, the place may be shown by evidence. It is the limits of the geographical boundaries of a place within which a court has jurisdiction to act judicially and outside of which its judicial acts are null and void.

4.

For jurisdiction over the person of the accused the person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. It may be deemed waived if the accused fails to make a seasonable objection thereto. Similarly, one who desires to object to the jurisdiction of the court over his person must appear in court.

Jurisdiction of criminal courts 1. The Municipal Trial Court (MTC), under Republic Act 7691 (R.A. 7691), has exclusive original jurisdiction over offenses punishable with imprisonment not exceeding six (6) years regardless of the fine and other accessory penalties and civil liability. Under Batas Pambansa 129 (BP 22), before the amendments introduced by R.A. 7691, the jurisdiction of the MTC was for offenses not exceeding four (4) years and two (2) months and 1 day/or a fine not exceeding P4,000.00. In cases where the only penalty provided by law is a fine, the MTC has exclusive original jurisdiction over offenses punishable with a fine not exceeding P4, 000.00. The MTC also has exclusive original jurisdiction over all violations of city or municipal ordinances committed within its respective territorial jurisdiction. The MTC also has a special jurisdiction to hear and decide petitions for a writ of habeas corpus or applications for bail in the province or city where the RTC judges are absent. In addition, the following cases should also be filed with the MTC: a) Cases involving BP 22; and b) Offenses involving damage to property through criminal negligence (B.P. 129 as amended by R.A. 7691). The RTC shall exercise original jurisdiction over criminal cases not within the jurisdiction of any court, tribunal or body. This is because the RTC is a court of general jurisdiction. The following are cases under the exclusive original jurisdiction of the Sandiganbayan: (a) violation of RA 3019 as amended (Anti Graft and Corrupt Practices Act) and RA 1379 (An Act Declaring Forfeiture in favor of the state any property found to have been unlawfully acquired by Public Officer or Employee and providing for the procedure therefore, which prescribes the penalties for violation thereof); (b) other offenses or felonies, whether simple or complexed with other

2.

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crimes, committed by public officials and employees mentioned in Sec. 4 (a) PD 1606 as amended by RA 7975 in relation to their office; (c) crimes mentioned in Chapter 2 Section 2 Title VII Book 2 of the Revised Penal Code i.e. Art. 210: Bribery, Art. 211: Indirect Bribery, Art. 212: Corruption of Public Officials. When injunction may be issued to restrain criminal prosecution 1. Criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. The reason being, public interest requires that the criminal acts be immediately investigated and prosecuted for the protection of the society (Domingo v. Sandiganbayan, G.R. No. 103276, April 14, 1996), unless: a) it is necessary to afford adequate protection to the constitutional rights of the accused; b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; c) When there is a prejudicial question which is subjudice; d) When the acts of the officer are without or in excess of authority; e) When the prosecution is under an invalid law, ordinance or regulation; f) When double jeopardy is clearly apparent; g) When the court has no jurisdiction over the offense; h) When it is a case of persecution rather than prosecution; i) When the charges are manifestly false and motivated by the lust for vengeance; j) When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; k) Prevent the threatened unlawful arrest of petitioners (Brocka v. Enrile, G.R. Nos. 69863-65, Dec. 10, 1990). Prosecution of offenses Criminal actions, how instituted 1. The institution of a criminal action depends upon whether or not the offense is one which requires a preliminary investigation (Sec. 1, Rule 110, Rules of Court). Where a preliminary investigation is required, a criminal action is instituted by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation (Sec. 1, Rule 110, Rules of Court). Where a preliminary investigation is not required, a criminal action is instituted in either of two ways: a) by filing the complaint or information directly with the Municipal Trial Court or Municipal Circuit Trial Court (MCTC), or b) by filing the complaint with the office of the prosecutor (Sec. 1, Rule 110, Rules of Court). A query that is often involved at this juncture is why the rule makes reference only to the Municipal Trial Court and the Municipal Circuit Trial as the courts in which offenses may be prosecuted by the direct filing of the information or complaint. The Regional Trial Court and the Metropolitan Trial Court (MeTC) are not mentioned in the rule. The reason is obvious. There is no direct filing of an information or complaint with the Regional Trial Court because its jurisdiction covers offenses which require preliminary investigation. A preliminary investigation is to be conducted for offenses where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day (Sec. 1, Rule 112, Rules of Court). The Regional Trial Court has jurisdiction over an offense punishable with imprisonment of more than six (6) years, way above the minimum penalty for an offense that requires a preliminary investigation. On the other hand, the Municipal Trial Court has exclusive jurisdiction

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over offenses punishable with imprisonment not exceeding six (6) years (Sec. 32[2], Judiciary Reorganization Act of 1980 [BP 129]). 5. There is likewise no direct filing with the Metropolitan Trial Court because in Manila, including other chartered cities, the complaint, as a rule, shall be filed with the office of the prosecutor, unless otherwise provided by their charters (Sec. 1, Rule 110, Rules of Court). The rule is that in chartered cities, the complaint shall be filed with the prosecutor but in case of a conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, shall prevail.

Who may file them, crimes that cannot be prosecuted de officio 1. The prosecution of adultery and concubinage is done upon a complaint filed by the offended spouse. The rule stresses that the action cannot be instituted against one party alone. It must be instituted against both guilty parties, unless one of them is no longer alive (Sec. 5, Rule 110, Rules of Court). The offense of adultery and concubinage may not be instituted if it is shown that the offended party has consented to the offense or has pardoned the offenders (Sec. 5, Rule 110, Rules of Court). Since the rule does not distinguish, the consent or pardon may either be expressed or implied. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by them (Sec. 5. Rule 110, Rules of Court). Note that the pardon must be expressly made. It is clear that an implied pardon is not contemplated under Section 5 of Rule 110. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf (Sec. 5, Rule 110, Rules of Court). Also, under Section 5 of Rule 110, the offended party, even if a minor, has the right to initiate the prosecution of the offense, independently of her parents, grandparents or guardian except if she is incompetent or incapable of doing so (Sec. 5, Rule 110, Rules of Court). Where the minor fails to initiate the prosecution of the offense, the complaint may be filed by the minors parents, grandparents or guardian in the successive order mentioned. This right to file the complaint shall be exclusive of all other persons except with respect to the state under the conditions in the immediately preceding paragraph (Sec. 5, Rule 110, Rules of Court). The crime of rape is no longer a private crime. Hence, it no longer requires the filing of a complaint by the offended party or her parents, grandparents or guardian (Sec. 5 of Rule 110, 3rd paragraph). Under Sec. 2 of the Anti-Rape Law of 1997 (RA 8353), the crime of rape is now classified as a crime against persons. In complex crimes, where one of the component offenses is a private crime and the other a public offense, the fiscal may initiate the proceedings de officio. The reason therefore is that since one of the component offenses is a public crime, the latter should prevail, public interest being always paramount to private interest.

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9.

Under Section 27 of Republic Act 7610, complaints on cases of unlawful acts mentioned in the law committed against children, may be filed by the following: a) offended party; b) parents or guardians; c) ascendant or collateral relative within the third degree of consanguinity; d) officer, social worker or representative of a licensed child-caring institution; e) officer or social worker of the Department of Social Welfare and Development; f) barangay chairman; or g) at least three (3) concerned, responsible citizens where the violation occurred. The defamation under this rule (Sec. 5, Rule 110, Rules of Court) consists only in the imputation of the offenses of adultery, concubinage, seduction, abduction and acts of lasciviousness (Sec.5, Rule 110, Rules of Court). The criminal action for defamation under the rule shall be at the instance of the offended party only and upon a complaint filed by said offended party i.e., only the offended party can file the complaint (Sec. 5, Rule 110, Rules of Court). Where the offense is a violation of a special law, the same shall be prosecuted pursuant to the provisions of said law (Sec. 5, Rule 110, Rules of Court).

10.

11.

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Criminal actions, when enjoined 1. Criminal actions are deemed enjoined: (1) when the court through its sound discretion deems such criminal action enjoined; (2) when there is a prejudicial question; (3) motion to quash; or (4) double jeopardy. Control of prosecution 1. A criminal action is prosecuted under the direction and control of the prosecutor. This is the general rule and this applies to a criminal action commenced either by a complaint or an information (Sec. 5, Rule 110, Rules of Court). Even if there is a private prosecutor, the criminal action is still prosecuted under the direction and control of the public prosecutor. The appointment of a private prosecutor is done by the offended party and is the mode by which the latter intervenes in the prosecution of the offense. This intervention is however, only allowed where the civil action for the recovery of the civil liability is instituted with the criminal action pursuant to Rule 111 (Sec. 16, Rule 110, Rules of Court). Hence, the offended party may not intervene in the prosecution of the offense through a private prosecutor if the offended party (a) waives the civil action, (b) reserves the right to institute it separately, or (c) institutes the civil action prior to the criminal action.

2.

Sufficiency of complaint or information 1. A complaint or information is deemed sufficient if it contains the following: a) the name of the accused; if the offense is committed by more than one person, all of them shall be included in the complaint or information; b) the designation of the offense given by statute; c) the acts or omissions complained of as constituting the offense; d) the name of the offended party; e) the approximate date of the commission of the offense; and f) he place where the offense was committed (Sec. 6, Rule 110, Rules of Court). Designation of offense

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1.

In designating the offense, the following rules must be observed: a) the designation of the offense requires, as a rule, that the name given to the offense by statute must be stated in the complaint or information. If the statute gives no designation to the offense, then reference must instead be made to the section or subsection punishing it (Sec. 8, Rule 110, Rules of Court); b) included in the complete designation of the offense is an averment of the acts or omissions constituting the offense (Ibid); c) the present rule also provides for a mandatory requirement i.e., that the complaint or information must specify the qualifying and aggravating circumstances of the offense (Ibid); and d) the twin circumstances of minority and relationship under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of qualifying circumstances because they alter the nature of the crime of rape and increase the penalty. As special qualifying circumstances, they must be specifically pleaded or alleged with certainty in the information; xxx If the offender is merely a relation - not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim the specific relationship must be alleged in the information, i.e., that he is a relative by consanguinity or affinity *as the case may be+ within the third civil degree.

Cause of accusation 1. In informing the accused of the cause of accusation against him, it is not necessary to employ the words used in the statute alleged to have been violated. It is sufficient for the complaint or information to use ordinary and concise language sufficient to enable a person of common understanding to know the following: (a) the offense being charged; (b) the acts or omissions complained of as constituting the offense; and (c) the qualifying and aggravating circumstances (Sec. 9, Rule 110, Rules of Court). Duplicity of the offense; exception 1. The general rule is that a complaint or information must charge only one offense. More than one offense may however, be charged when the law prescribes a single punishment for various offenses (Sec. 13, Rule 110, Rules of Court). When two or more offenses are charged in a single complaint or information, the accused must object to such fact before trial. If he does not so object, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense (Sec. 3, Rule 120, Rules of Court).

2.

Amendment or substitution of complaint or information 1. The general rule is that any amendment, formal or substantial, before the accused enters his plea may be done without leave of court (Sec. 14, Rule 110, Rules of Court). An exception however as provided by the rules is that any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court (Ibid).

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2.

After the accused enters his plea only formal amendment provided that leave of court is obtained and such amendment is not prejudicial to the rights of the accused. Exception: when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, amendment as to substance may be made but there is a need for another arraignment of the accused under the amended information.

3.

An amendment is in form where it neither affects nor alters the nature of the offense charged or where the charge does not deprive the accused of a fair opportunity to present his defense or where it does not involve a change in the basic theory of the prosecution. An amendment is in substance where it covers matters involving the recital of facts constituting the offense charged and determinative of the jurisdiction of the court (Almeda v. Villaluz, G.R. No. L-31665, Aug. 6, 1975).

4.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Sec. 14,Rule 110, Rules of Court).

5.

However substitution is allowed only when: a) no judgment has yet been rendered; b) the accused cannot be convicted of the offense charged or of any other offense necessarily included therein; and c) The accused would not be placed in double jeopardy (Sec.14, Rule 110, Rules of Court).

6.

The test to determine propriety of amendment after plea are: a) When a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and b) When any evidence the accused might have, would be inapplicable to the complaint or information as amended (People v. Montenegro, G.R. No. L-45772, Mar 25, 1988).

Venue of criminal action 1. Venue in criminal cases is jurisdictional. The general rule is that the offender must be prosecuted in the territory where the offense or any of its elements are committed. This may not be the case on the following: (a) where the offense was committed under Article 2 of the Revised Penal Code; (b) in cases of piracy hostes humani generis; (c) Where an offense is committed on a railroad train, in an aircraft, or in any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, its place of departure or its place of arrival; (d) where an offense is committed on board a vessel in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law; (e) the Supreme Court has the power under the Constitution to order a change of venue or place of trial to avoid a miscarriage of justice; (f) in cases of written defamation under RA 4363 or libel; and g) in cases filed under B.P. 22.

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2.

As a rule, the criminal action shall be instituted and tried in the court of the municipality or territory (a) where the offense was committed, or (b) where any of its essential ingredients occurred. This rule is however, subject to existing laws (Sec. 15(a), Rule 110, Rules of Court).

3.

Where an offense is committed in a train, aircraft, or vehicle, whether public or private, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. Note that this rule applies when the offense is committed in the course of the trip of the train, aircraft or vehicle (Sec. 15(b), Rule 110, Rules of Court).

4.

Where an offense is committed on board a vessel, the criminal action shall be instituted and tried in (a) the court of the first port of entry, or (b) the municipality or territory where the vessel passed during its voyage. This rule applies when the offense is committed during the voyage of the vessel and is subject to the generally accepted principles of international law (Sec. 15(c), Rule 110, Rules of Court).

5.

Crimes committed outside the Philippines but punishable under Art. 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed (Sec. 15(d), Rule 110, Rules of Court).

Intervention of offended party 1. The offended party may intervene in the prosecution of the offense. This right to intervene presupposes that civil action is instituted with the criminal action (Sec. 16, Rule 110, Rules of Court). In other words, if there is no civil action instituted with the criminal action because the same has been waived, filed ahead of the criminal action or filed separately, such intervention cannot be done. 2. If however, the civil action for damages filed separately from the criminal action is based upon an independent civil action under Articles 32, 33, 34 or 2176 of the Civil Code, the right to intervene is not lost because the subject of the suit does not arise from the crime. The civil action to recover civil liability arising from the offense charged is not the one separately filed (Philippine Rabbit vs. People, 427 SCRA 456). Prosecution of civil action Rule on implied institution of civil action with criminal action 1. When a criminal action is instituted, the civil action for the recovery of the civil liability is deemed instituted. But the phraseology of the present rule indicates that it is only the civil liability arising from the offense charged which is deemed instituted with the criminal action (Sec. 1, Rule 111, Rules of Court). The exceptions to the foregoing rule are: a) when the offended party waives the civil action; b) when the offended party reserves his right to institute a separate civil action; and c) when the offended party institutes a civil action prior to the criminal action.

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2.

Reservation shall be made: a) before the prosecution starts to present its evidence; and b) under circumstances affording the offended party a reasonable opportunity to make such reservation. No reservation to file the civil action separately shall be allowed in: a) BP 22 cases; b) cases cognizable by the Sandiganbayan; and c) tax cases.

3.

When civil action may proceed independently 1. The civil actions which have sources apart from the crime like quasi-delicts (culpa aquiliana) and independent civil actions under Articles 32, 33, 34 and 2176 of the New Civil Code are not deemed instituted with the criminal action and may be brought separately by the offended party. They shall proceed independently of the criminal action and require only a preponderance of evidence (Secs. 1 and 3 of Rule 111, Rules of Court). They need not be reserved (Neplum vs. Orbeso, 384 SCRA 466). The rulings in Maniago vs. CA, 253 SCRA 674, and San Ildefonso Lines, Inc. vs. CA, 289 SCRA 568, are abandoned. These cases required reservation even in cases of quasidelicts and independent civil actions. When separate civil action is suspended 1. After the filing of the criminal action, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action (Sec. 2 Rule 111, Rules of Court). If the civil action is instituted before the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment in the criminal action has been rendered. However, civil action enjoys preference in the following: a) in cases of independent civil actions based upon Arts. 32, 33, 34 and 2176 of the Civil Code; b) in cases where the civil action presents a prejudicial question; c) in cases where the civil action is consolidated with the criminal action; and d) where the civil action is not one intended to enforce the civil liability arising from the offense. 2. Acquittal in a criminal case does not bar the filing of the civil case in the following circumstances: (1) the acquittal is based on reasonable doubt, if the civil case has been reserved; (2) the decision contains a declaration that the liability of the accused is not criminal but only civil in nature; and (3) the civil liability is not derived from or based on the criminal act of which the accused is acquitted (Sapiera v. CA, G.R. No. 128927, September 14, 1999) 3. Extinction of the penal action does not carry with it the extinction of the civil action, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. Effect of the death of accused or convict on civil action 1. The following are the effects of the death of accuse or convict on a civil action: (a) after arraignment and during the pendency of the criminal action such death extinguishes the civil liability arising from delict, except where civil liability is

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predicated on other sources of obligations such as law, contract, quasi-contract and quasi-delict (Sec. 4, Rule 111, Rules of Court); (b) before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased; (c) pending appeal of his conviction such death extinguishes his criminal liability as well as the civil liability based solely thereon; (d) prior to final judgment death terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed; (e) after final appeal the pecuniary liabilities of the accused are not extinguished. Claims shall be filed against the estate of the accused. Prejudicial question 1. Prejudicial Question is one which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal. The following are its elements: a) the civil action must be instituted prior to the criminal action; b) the civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and c) the resolution of such issue determines whether or not the criminal action may proceed (Sec. 7, Rule 111, Rules of Court).

Rule on filing fees in civil action deemed instituted with the criminal action 1. Filing fees apply when damages are being claimed by the offended party. The following summarizes the rule on filing fees: a. No filing fees are required for amounts of actual damages, except with respect to criminal actions for violation of BP 22 in which case, the offended party shall pay in full the filing fees based on the face value of the check as the actual damages; b. If damages, other than actual (moral, exemplary and other damages), are specified in the complaint or information, the corresponding filing fees shall be paid; c. Where moral, exemplary and other damages are not specified in the complaint or information (the grant and amount thereof are left to the sound discretion of the trial court), the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment awarding such damages (Sec. 1(b), Rule 111, Rules of Court). Preliminary investigation Nature of right 1. The holding of a preliminary investigation is not required by the Constitution. It is not a fundamental right and is not among those rights granted in the Bill of Rights. The right thereto is of a statutory character and may be invoked only when specifically created by statute (Marinas vs. Siochi, 104 SCRA 423). But while the right is statutory rather than constitutional, since it has been established by

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statute, it becomes a component of due process in criminal justice (Doromal vs. Sandiganbayan, 177 SCRA 354). Purposes of preliminary investigation

1.

Preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial (Sec. 1, Rule 112, Rules of Court). A preliminary investigation is not a trial but is, in certain cases, the initial step towards the criminal prosecution of a person. It is a mere inquiry or a proceeding which do not involve the examination of witnesses by way of direct or cross-examinations. Its purpose is not to determine the guilt of the respondent beyond reasonable doubt, but to determine (a) whether or not a crime has been committed, and (b) that the respondent is probably guilty of said crime. The purposes of preliminary investigation are the following: (a) for the investigation prosecutor to determine if a crime has been committed; (b) to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer; (c) to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from trouble, expenses and anxiety of public trial; (d) to protect the state from having to conduct useless and expensive trials.

2.

3.

Who may conduct the determination of existence of probable cause 1. Under A.M. No. 05-8-26-SC effective October 3, 2005, only the following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) other officers as may be authorized by law.

Resolution of investigation prosecutor 1. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend dismissal of the complaint. Within 5 days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within 10 days from their receipt thereof and shall immediately inform the parties of such action.

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No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation (Sec. 4, Rule 112, Rules of Court). Review 1. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigation conducted by the officers of the Office of the Ombudsman (Sec. 4, Rule 112, Rules of Court). When warrant of arrest may issue 1. A warrant of arrest may be issued by the Regional Trial Court within 10 days from the filing of the complaint or information; the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence: (1) he may immediately dismiss the case if the evidence on record clearly fails to establish probable cause; (b) if he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed when the accused was lawfully arrested without warrant. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved by the court within 30 days from filing of the complaint or information (Sec. 5, Rule 112, Rules of Court). 2. When required, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court (MTC), shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be the same as in RTC (Sec. 5, Rule 112, Rules of Court, as amended by A.M. No. 058-26-SC). A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by MTC, or if the complaint or information was filed

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when the accused was lawfully arrested without warrant or for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. Cases not requiring a preliminary investigation 1. If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation, i.e., the penalty is at least four (4) years, two (2) months and one (1) day, an information or complaint may be filed against him without need for a preliminary investigation. If he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of a preliminary investigation. In the absence or unavailability of an inquest prosecutor, the complaint may be filed directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person (Sec. 7, Rule 112, Rules of Court).

Remedies of accused if there was no preliminary investigation a. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground; b. Insist on a preliminary investigation; c. File certiorari if refused d. Raise lack of preliminary investigation as error on appeal (US v. Banzuela, G.R. No. 10172, 1915) e. File for prohibition (Conde v. CFI, G.R. No. L-21236, October 1, 1923) Inquest 1. Inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly charged in court (DOJ Circular No. 61, Sept. 21, 1993). Arrest Arrest, how made 1. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of the offense (Sec. 1, Rule113, Rules of Court). 2. The following are the modes of effecting arrest: a) by an actual restraint of the person to be arrested; and b) by his submission to the custody of the person making the arrest. Arrest without warrant, when lawful 1. A peace officer or a private person may, without a warrant, arrest a person: a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) when an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) when the person to be arrested is a prisoner who has escaped from a penal establishment

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or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 5, Rule 113, Rules of Court). 2. There is another ground for a warrantless arrest other than those provided for under Sec. 5 of Rule 113 of the Rules of Court. That ground is when a person previously lawfully arrested escapes or is rescued. Under the Rules, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines (Sec. 13, Rule 113, Rules of Court).

Method of arrest By officer with warrant 1. When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest, except when he flees or forcibly resists before the officer has opportunity so to inform him or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable (Sec. 7, Rule 113, Rules of Court). By officer without warrant 1. When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense or is pursued immediately after its commission or has escaped, or flees or forcibly resists before the officer has the opportunity so to inform him, or when the giving of such information will imperil the arrest (Sec. 8, Rule 113, Rules of Court). By private person 1. When making an arrest, a private person when making an arrest shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the later is either engaged in the commission of an offense, or is pursued immediately after its commission or has escaped, or flees or forcibly resists before the person making the arrest has opportunity so to inform him, or when the giving of such information will imperil the arrest (Sec. 9, Rule 113, Rules of Court). Requisites of a valid warrant of arrest 1. The law provides that in order for an arrest to be valid the following requisites should be present: (1) issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce; (2) after evaluation of prosecutors report and the evidence adduced during the preliminary investigation (Soliven v. Makasiar, G.R. No. l-82585, Nov. 14, 1988); (3) the warrant must particularly described the person to be arrested; (4)should be given in connection with specific offense or crime.

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2.

A warrant of arrest has no expiry date. It remains valid until arrest is effected or warrant is lifted (Manangan v. CFI, G.R. No. 82760, Aug. 30, 1990).

Determination of probable cause for issuance of warrant of arrest 1. Probable cause as basis for the issuance of a warrant of arrest is that which, based on facts and circumstances obtaining, would lead a reasonable discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause requires less than evidence which would justify conviction. It is not a pronouncement of guilt (Webb v. De Leon, 247 SCRA 653). 2. Judges of the Regional Trial Court and inferior courts need not personally examine the complainant and witnesses in the determination of probable cause for the issuance of the warrant of arrest (Soliven v. Makasiar, G.R. No. L-82585, Nov. 14, 1988). He is only required to personally evaluate the report and the supporting documents submitted by the fiscal and on the basis thereof he may dismiss, issue warrant, or require further affidavits. Distinguish probable cause of fiscal from that of a judge 1. The determination by the prosecutor of probable cause is for the purpose of either filing an information in court or dismissing the charges against the respondent, which is an executive function. The determination by the judge of probable cause begins only after the prosecutor has filed the information in court and the latters determination of probable cause is for the purpose of issuing an arrest warrant against the accused, which is judicial function (People v. CA, 301 SCRA 475). Bail Nature 1. There are certain constitutional principles on bail, namely: (a) the general rule that all persons shall, before conviction, be bailable by sufficient sureties, except those charged with offense punishable by reclusion perpetua or higher when evidence of guilt is strong; (b) the principle that the suspension of the privilege of the writ of habeas corpus does not impair the right to bail; and; (c) the principle that excessive bail shall not be required (Sec. 13, Art. III, Constitution of the Philippines). The constitutional provision on bail makes reference to the word conviction. It suggests that bail applies to those arrested for the violation of criminal laws. Does it apply to extradition proceedings? One case held, generally NO! However, it was ruled that there is no logic to confine bail to criminal proceedings. Bail should be made available in all cases where there is deprivation of liberty prior to or during trial. Although not a matter of right in extradition proceedings, bail may be granted if: (a) the extraditee is not a flight risk; and (b) there are special, humanitarian and compelling reasons (Government of the U.S. vs. Purganan, 389 SCRA 623).

2.

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3.

Bail is the security given for the release of a person in the custody of the law (Sec. 1, Rule 114, Rules of Court). Note the word, custody. This means that bail is not available to those who are free. It would be incongruous for someone to apply for bail if he is not in the custody of the law. However, there is an instance where a person who is not under the custody of the law may be required to post bail. Under Sec. 14 of Rule 119, if a material witness will not testify when required, the court, may, upon motion of either party, order the witness to post bail. If he refuses, he shall be committed to prison until he complies or is legally discharged after his testimony.

When a matter of right; exceptions 1. Bail is a matter of right (a) before or after conviction by the Municipal Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. After conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, bail is a matter or discretion (Sections 4 and 5, Rule 114, Rules of Court). When a matter of discretion 1. Bail is a matter of discretion in the following instances: (a) before conviction of a capital offense or a crime punishable by death, reclusion perpetua or life imprisonment, the exercise of discretion being dependent on whether the evidence of guilt is strong; (b) upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; and (c) after conviction by the RTC wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the following circumstances is present and proved: (i) recidivism, quasi-recidivism or habitual delinquency or commission of crime aggravated by the circumstances of reiteration; (ii) previous escape from legal confinement, evasion of sentence or violation of the conditions of bail without valid justification; (iii) commission of an offense while on probation, parole or under conditional pardon; (iv) circumstance of the accused or his case indicates the probability of flight if released on bail; and (v) undue risk of commission of another crime by the accused during pendency of appeal (Sec. 5, Rule 114, Rules of Court). Hearing of application for bail in capital offenses 1. The hearing for bail in capital offenses is summary. By summary hearing is meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail (Agpalo, Ruben, Handbook on Criminal Procedure, 2nd Edition, p. 278). 2. At the hearing of an application for bail, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing is automatically reproduced at the trial (Sec. 8, Rule 114, Rules of Court).

Guidelines in fixing amount of bail

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1.

The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to the following guidelines: (a) financial ability of the accused to give bail; (b) nature and circumstances of the offense; (c) penalty of the offense charged; (d) character and reputation of the accused; (e) age and health of the accused; (f) the weight of the evidence against the accused; (g) probability of the accused appearing at the trial; (h) forfeiture of other bail; (i) the fact that the accused was a fugitive from justice when arrested and; (j) the pendency of other cases where the accused is under bond. Excessive bail is not required (Sec. 9, Rule 114, Rules of Court).

Bail when not required 1 No bail shall be required when the law or these rules so provide (Sec. 16 Rule 114, Rules of Court). 2. Instances when the law or rules provide that no bail is required: (a) RA 6036 offenses charged is violation of an ordinance, light felony or a criminal offense, the imposable penalty wherefore does not exceed 6 months of imprisonment and/or fine of P2,000; (b) PD 603 as amended in cases of a youthful offender held for physical or mental examination, trial or appeal, if unable to furnish bail and under the circumstances; (c) where the accused has applied for probation and before the same has been resolved but no bail was filed by the accused because he is incapable of filing one, in which case he may be released on recognizance; and b) when a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after 30 days of preventive imprisonment (Sec. 16, Rule 114, Rules of Court). Increase or reduction of bail 1. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court( Sec. 16, Rule 114, Rules of Court). 2. After the accused shall have been admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount thereof within a reasonable period. An accused held to answer a criminal charge who is released without bail on the filing of a complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof may be committed to custody (Sec. 20, Rule 114, Rules of Court). Forfeiture and cancellation of bail

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1.

The foregoing are the rules regarding the forfeiture of bail bond: a) when the presence of the accused is specifically required by the court or the Rules of Court, his bondsmen may be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen are given 30 days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (i) produce the body of their principal or give the reason for his non-production; and (ii) explain why the accused did not appear before the court when first required to do so; and b) Failing in these two requisites, a judgment shall be rendered against the bondmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted (Sec. 21, Rule 114, Rules of Court).

2.

Enumerated are the rules that govern the cancellation of a bail bond: a) upon application of the bondsmen filed with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death; b) the bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction; and c) in all instances, the cancellation shall be without prejudice to any liability on the bail (Sec. 22, Rule 114, Rules of Court).

Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation 1. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case (Sec. 26, Rule 114, Rules of Court). Hold departure order and bureau of immigration watchlist 1. Supreme Court Circular No. 39-97 dated June 19, 1997 limits the authority to issue hold departure orders to the regional trial courts in criminal cases within their exclusive jurisdiction. Consequently, MTC judges have no authority to issue hold departure orders, following the maxim, express mention implies the exclusion. Neither does he have authority to cancel one which he issued. 2. Where it appears that the accused had the propensity to evade or disobey lawful orders, the issuance of a hold departure order is warranted (Agpalo, Ruben, Handbook in Criminal Procedure, 2nd Edition, p. 300). Rights of the accused Rights of the accused at the trial 1. Section 1, Rule 115 of the Rules of Court enumerates the rights of the accused at the trial.

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It provides that In all criminal prosecutions the accused shall be entitled to the following rights:(a) to be presumed innocent until the contrary is proved; (b) to be informed of the nature and cause of accusation against him; (c) to be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment; (d) to testify as witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him; (e) to be exempt from being compelled to be a witness against himself; (f) to confront and cross-examine the witnesses against him at the trial; (g) to have compulsory process issued to secure the attendance of the witnesses and production of other evidence in his behalf; (h) to have speedy, impartial, and public trial; (i) to appeal in all cases allowed and in a manner prescribed by law.

2.

Among the rights of the accused is the right against self-incrimination the right to be exempt from being compelled to be a witness against himself (Sec. 1[e], Rule 115). This right is a right against testimonial compulsion and prohibits the use of physical or moral compulsion to extort communications from the accused (People vs. Ayson, 175 SCRA 216). Common reason then suggests that a corporation cannot invoke the right because it is not a natural person that can testify. The right does not apply to the physical examination of the accused like ultraviolet ray examination to determine presence of ultraviolet powder in the hands (People vs. Tranca, 235 SCRA 455). It does not prohibit photographing, fingerprinting and paraffin testing of the accused (Alih vs. Castro, 151 SCRA 279). Taking of hairstrands of the accused is not a violation of the right (People vs. Rondero, 320 SCRA 383), or taking of blood sample (People vs. Yatar, 428 SCRA 504).

3.

The right against self-incrimination may be invoked not only in a criminal proceeding but also in all types of suits, including forfeiture cases (Galman vs. Pamaran, 138 SCRA 294). It may also be invoked in administrative proceedings if they partake of a criminal proceeding or is analogous to a criminal proceeding. It is hence, also available in legislative hearings (Benzon vs. Senate Blue Ribbon Committee, 203 SCRA 767).

Rights of persons under custodial investigation 1. Every person under investigation for an offense shall have the right to have a competent and independent counsel preferably of his own choice. Included in this right is the right to be informed of his right to counsel (Sec. 12 (1), Art. II, 1987 Constitution of the Philippines; Sec. 2 (b), R.A. 7438). 2. The right of a person under interrogation to be informed implies the correlative obligation on the part of the police investigator to explain and contemplate and effective communication that results in an understanding of what is conveyed (People vs. Guillermo, 420 SCRA 326). Arraignment and plea Arraignment and plea, how made

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1.

An arraignment is that stage where, in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him (Brig Gen. [Ret] Jose Ramiscal, Jr. vs. Sandiganbayan and People of the Philippines, G.R. No. 172476-99, September 15, 2010).

2.

Arraignment is made in an open court where the complaint or information has been filed. Arraignment is conducted by the judge to whom the case is pending, by furnishing him the copy of the complaint, reading the same in the language or dialect known to the accused and asking the latter whether he pleads guilty or not guilty. The accused should be arraigned within a period of thirty (30) days from the date the court acquired jurisdiction over the person of the accused, unless a shorter period is provided by law.

When should plea of not guilty be entered 1. The following are instances when a plea of not guilty may be entered: a) when the accused so pleaded; b) when he refuses to plead; c) where in admitting the act charged, he sets up matters of defense or with lawful justification; d) when he enters a conditional plea of guilty; e) where, after plea of guilty, he introduces evidence of self-defense or other exculpatory circumstances; and f) when the plea is indefinite or ambiguous. When may accused enter a plea of guilty to a lesser offense 1. During arraignment the accused may be allowed to plead guilty to a lesser offense provided the following requisites concur: (a) the lesser offense to be pleaded is necessarily included in the offense charge (if the charge is attempted homicide, the accused may plead guilty to the lesser offense of slight physical injuries; but where the offense charge is estafa, he cannot plead guilty to theft. Theft is not included in estafa). (b) there must be consent of the prosecutor and the private offended party (Sec. 2, Rule 116, Rules of Court). This is the reason for the notice to be given to the private offended party of the date of arraignment. He is supposed to appear for purposes of plea bargaining (Sec. 1 (f), Rule 116, Rules of Court). 2. After arraignment but before trial, the accused may still be allowed to plead guilty to lesser offense after withdrawing his plea of not guilty. No amendment of complaint or information is necessary (Sec. 2, Rule 116, Rules of Court). Accused plead guilty to capital offense, what the court should do 1. If the accused pleads guilty to a capital offense, the court is not authorized to render judgment merely on the basis of the plea of guilty. The court is mandated to conduct first a searching inquiry to determine the voluntariness of the plea and whether or not the accused fully comprehends the consequences of his plea. Furthermore, the court shall require the prosecutor to prove the guilt of the accused and the degree of his culpability. This is true even if the accused has already entered a plea of guilty (Sec. 3, Rule 116, Rules of Court). Where the offense is not capital, reception of the evidence is discretionary on the court to determine the penalty imposed (Ibid).

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2.

The concept of a capital offense remains. What has been affected by the new law is the penalty, not the concept. Said law (R.A. 9346- An Act Prohibiting the Inposition of Death Penalty in the Philippines), prohibits the imposition of the death penalty. In lieu of the death penalty in a capital offense, the penalty of reclusion perpetua shall be imposed when the law violated makes use of the nomenclature of the penalties of the Revised Penal code. If not, then life imprisonment shall be imposed.

Searching inquiry 1. Guidelines in the conduct of a searching inquiry: 1)ascertain from the accused himself a) how he was brought into the custody of law; b)whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and under what conditions he was detained and interrogated during the investigations; 2) ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to the accused the meaning and consequences of a plea of guilty; 3) elicit information about the personality profile of the accused (e.g. age, status, educational background), which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty; 4) inform the accused of the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence; 5) inquire if the accused knows the crime with which he is charged and to fully explain to him the elements of the crime which is the basis of his incident; 6) all questions posed to the accused should be in a language known and understand by the latter; and 7) the trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty (People vs. Toncayao 433 SCRA 513). Improvident plea 1. Where the trial court failed to conduct the prescribe searching inquiry into the voluntariness of the accuseds plea of guilty and full comprehension thereof, the plea of guilty is deemed made improvidently and rendered inefficacious (People vs. Gumimba, 517 SCRA 25). Grounds for suspension of arraignment 1. The following are the grounds for suspension of arraignment: a) unsound mind of the accused; b) there is a prejudicial question; and c) there is a petition for review pending in the Department of Justice or the Office of the President (Sec. 11, Rule 116, Rules of Court) Motion to quash Grounds 1. Section 3, Rule 117, of the Rules of Court provide the grounds for a motion to quash: a) the facts charged do not constitute an offense; b) the court trying the case has no jurisdiction over the offense charged; c)the court trying the case has no jurisdiction over the person of the accused; d) that the officer who filed the

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information had no authority to do so; e) that it does not conform substantially to the prescribed form; f) that more than one offense is charged except when a single punishment for various offenses is prescribed by law; g) that the criminal action or liability has been extinguished; h) that it contains averments, which if true would constitute a legal excuse for justification; and i) that the accused has been previously convicted or acquitted of the offense charged, or of the case against him was dismissed or otherwise terminated without his express consent. Distinguish from demurrer to evidence 1. Motion to quash contemplates an initial action originating from the accused. The right to file a motion to quash belongs only to the accused (People vs. Nitafan, 302 SCRA 424). Demurrer to evidence is an objection by one of the parties in an action to the effect that the evidence his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. (Katigbak vs. Sandiganbayan, 405 SCRA 558) Effects of sustaining the motion to quash 1. If the ground is neither under (a), (d), (e), and (f) of Sec. 3, Rule 117 of the Rules of Court, the court may order that another information be filed or an amendment thereof be made, as the case may be, within a definite period. If such order is not made, or if having been made, another information is not filed within the time specified in the order, or within such time as the court may allow, the accused if in custody, shall be discharged therefrom, unless he is also in custody on some other charge. 2. If the ground is neither under (g), (h), (i) of Sec. 3, Rule 117 of the Rules of Court, the court must state, in its order granting the motion, the release of the accused if he is in custody or the cancellation of his bond if he is on bail. Exception to the rule that sustaining the motion is not a bar to another prosecution 1. An order sustaining a motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the following grounds: (a) criminal action or liability has been extinguished; (b) double jeopardy (Sec. 6, Rule 117, Rules of Court). Double jeopardy 1. The elements constituting double jeopardy: (a) the accused has been convicted or acquitted or the case against him was dismissed or terminated without his express consent; (b) the court has jurisdiction; (c) there is a valid complaint or information; (d) there was plea to the charge upon arraignment (e) the accused is charged anew for an offense constituting an attempt or a frustration of the previous offense charged or for an offense that necessarily includes or is necessarily included in the former charge (Sec. 7, Rule 117, Rules of Court).

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Provisional dismissal 1. When a case is provisionally dismissed, the case may be later on revived. A provisional dismissal of a case may be made provided the following requisites concur: (a) there is express consent of the accused, and (b) there is notice to the offended party (Sec. 8, Rule 117). The case of People vs. Lacson, 400 SCRA 267(April 1, 2003), has modified the requisites for a provisional dismissal, to wit: (a) the prosecution with the expressed consent of the accused moves for a provisional dismissal of the case; or both the accused and the prosecution move for the provisional dismissal (b) the offended party is notified of the motion for provisional dismissal of the case; (c) the court issues an order granting the motion and dismissing the case provisionally; and the public prosecutor is served with a copy of the order of provisional dismissal. Note also that under Sec. 8 of Rule 117, the one -year and two- year time line shall be counted from the date of the issuance of the order of dismissal. In People Lacson the reckoning period starts from the service of the order of dismissal on the public prosecutor who has control of the prosecution. Accordingly, the public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal. Pre-trial Matters to be considered during pre-trial 1. The following are matter that need to be considered during the pre-trial: a) plea bargaining; b) stipulation of facts; c) marking of the evidences of the parties; d) waiver of objections to admissibility of evidence; e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case (Sec. 1, Rule 118, Rules of Court). The agreements made on the above matters in order to be binding need approval of the court (Sec. 2, Rule 118, Rules of Court). What the court should do when prosecution and offended party agree to the plea offered by the accused 1. At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary (Sec.2, Rule 116, Rules of Court). Pre-trial agreement 1. Agreements or admissions made during the pre-trial cannot be used against the accused unless they are reduced in writing and signed by the accused and counsel (Sec. 2, Rule 118, Rules of Court).

2.

Non-appearance during pre-trial

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1.

The court may impose proper sanctions or penalties on the counsel or prosecutor who does not appear at the pre-trial conference. To avoid such sanctions, an acceptable excuse for the absence must be offered to the satisfaction of the court (Sec. 3, Rule 18, Rules of Court).

Pre-trial order 1. The pre-trial order shall be issued by the court after the pre-trial conference. This order shall contain the following: (a) a recital of the actions taken; (b) the facts stipulated; and (c) the evidences marked (Sec. 4, Rule 118, Rules of Court). 2. The pre-trial order shall (a) bind the parties and shall limit the trial to matters not disposed of; and (b) control the course of the proceedings during the trial, unless modified by the court to prevent manifest injustice (Sec. 4, Rule 118, Rules of Court).

Referral of some cases for court annexed mediation and judicial dispute resolution 1. The following are under the mandatory coverage for court-annexed mediation (CAM) and judicial dispute resolution (JDR): a) all civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of B.P. 22, except those which by law may not be compromised; b) special proceedings for the settlement of estates; c) all civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law; d) the civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code; e) the civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment, where the offended party is a private person; f) the civil aspect of estafa, theft and libel; All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980; g) all cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (2) of the Judiciary Reorganization Act of 1980; h) all civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; and i) all habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980 (AM. No, 11-1-6SC-PHILJA). Trial Instances when presence of accused is required by law 1. In the following instances the presence of the accused is required: (a) at arraignment and plea, whether for innocence or for guilt; (b) during trial, whenever

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necessary for identification purposes; and (c) at the promulgation of sentence, unless it is for a light offense, in which case, the accused may appear by counsel or representative. At such stages of the proceedings, his presence is required and cannot be waived (People vs. Joven de Grano, et al., G.R. No. 167710, June 5, 2009). Requisite before trial can be suspended on account of absence of witness 1. Trial can be suspended on account of absence of a witness provided that the following requisites are present: a) that the witness is material and appears to the court to be so; b) that the party who applies has been guilty of no neglect; c) that the witnesses can be had at the time to which the trial is deferred and incidentally that no similar evidence could be obtained; and d) that an affidavit showing the existence of the above circumstances must be filed. Trial in absentia 1. The provision in the constitution authorizing the trial in absentia after the accused in case of his non appearance after arraignment despite due notice simple means that he waives his right to meet the witnesses face to face, among others. The following are the requirements for trial in absentia: a) the accused has been arraigned; b) he has been duly notified of the trial; and c) his failure to appear was unjustified (Sec. 14 (2), Art. III, 1987 Constitution of the Philippines). Remedy when accused is not brought to trial within the prescribed period 1. The remedy of the accused is to file a motion to dismiss the information on the ground of denial of his right to speedy trial. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of his right to dismiss under (Section 9 of Rule 119). The dismissal shall be subject to the rules on double jeopardy. So if the dismissal is with prejudice, the case cannot be revived anymore. But if the dismissal is without prejudice, the revival of the case is proper. Requisites for discharge of accused to become a state witness 1. There are instances when two or more accused are jointly charged with the commission of an offense. One or more of them may be discharged so they may be witnesses for the state. Before an accused is discharged as a state witness, the following requisites must be complied with: (1) (2) (3) (4) (5) (6) (7) The discharge must be with the consent of the accused; There is absolute necessity for the testimony of the accused whose discharge is requested; There is no other direct evidence available for the prosecution of the offense committed, except the testimony of the accused to be discharged; The testimony of the accused can be substantially corroborated in its material points; The said accused does not appear to be the most guilty; The accused has not been at any time been convicted of a crime involving moral turpitude; There must be a motion to discharge the accused made by the prosecution before it rests its case; and

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(8)

The prosecution must be required to present evidence and the sworn statement of the proposed state witness at a hearing in support of the discharge (Sec. 17, Rule 119, Rules of Court).

Effects of discharge of accused as state witness 1. Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion to discharge the accused as state witness, his sworn statement shall be inadmissible in evidence. Discharge of accused operates as acquittal and bar to further prosecution for the same offense (Sec. 17 and 18, Rule 119, Rules of Court). Demurrer to evidence 1. A demurrer to evidence is a motion to dismiss the case. In a criminal case, it is filed after the prosecution rests its case. The ground to be relied upon is insufficiency of evidence of the prosecution. Recall that under the rules of evidence, the prosecution must prove the guilt of the accused beyond reasonable doubt (Sec. 2, Rule 133, Rules of Court). If this quantum of evidence is not met, a demurrer may lie. The court may demur to the evidence on its own initiative or motu propio but after giving the prosecution an opportunity to be heard. The accused may also file a demurrer to the evidence with or without leave of court (Sec. 23, Rule 119, Rules of Court). Judgment Requisites of a judgment 1. Sec. 1, Rule 120 of the Rules of Court provide for the following requisites of a judgment : a) in writing; b) in the official language; c) personally and directly prepared and signed by the judge; and d) with a concise statement of the fact and the law on which it is based. Contents of judgment 1. If the judgment is of conviction, it shall state: a) legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending its commission; b) participation of the accused, whether as principal, accomplice or accessory; c) penalty imposed upon the accused; and d) civil liability or damages caused by the wrongful act or omission, unless a separate civil action has been reserved or waived (Sec. 2, Rule 120, Rules of Court). 2. If the judgment is of acquittal, it shall a) whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt; and b) in either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist (Ibid). Promulgation of judgment; instances of promulgation of judgment in absentia

2.

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1.

The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. If the conviction is for a light offense, the judgment may be pronounced in the presence of the counsel of the accused or his representative (Sec. 6, Rule 120, Rules of Court). The court promulgating the judgment shall have authority to accept the notice of appeal of the accused and approve the bail bond but if the decision of the trial court changed the nature of the offense from bailable to non-bailable, the application for bail can only be resolved by the appellate court (Sec. 6, Rule 120, Rules of Court). In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel (Sec. 6, Rule 120, Rules of Court). If the accused is convicted and his failure to appear was without justifiable cause, he shall lose his remedies against the judgment under the Rules, and the court shall order his arrest. If he surrenders within 15 days from the promulgation of judgment, he may file a motion for leave to avail of the remedies. The motion shall state the reason for his absence and was for a justifiable cause and within 15 days from notice, he shall then be allowed to avail of the remedies against the judgment (Sec. 6, Rule 120, Rules of Court).

2.

3.

When does judgment become final (four instances) 1. A judgment becomes final (a) after the lapse of the period for perfecting an appeal, or (b) when the sentence has been partially or totally served, or (c) when the accused has waived his right to appeal in writing or (d) has applied for probation (Sec. 7, Rule 120, Rules of Court). New trial or reconsideration Grounds for new trail 1. The grounds for a new trial are: a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; and b) That new and material evidence has been discovered which the accused could not have discovered with reasonable diligence and produced during the trial and which if introduced and admitted would probably change the judgment (Sec. 2, Rule 121, Rules of Court). Grounds for reconsideration 1. The grounds for a motion for reconsideration are errors of law or fact in the judgment which requires no further proceedings (Sec. 3, Rule 121, Rules of Court).

Requisites before a new trial may be granted on ground of newly discovered evidence 1. New trial may be granted on the ground of newly discovered evidence if the following requisites are present: a) that the evidence was discovered after trial; b) that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; c) that it is material, not merely cumulative, corroborative or impeaching; and d) the evidence is of such a weight that it would probably change the judgment if admitted. Effects of granting a new trial or reconsideration

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1.

When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all proceedings and evidence not affected by the commission of such errors and irregularities shall stand, BUT those affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence;

2.

When a new trial is granted on the ground of newly discovered evidence, the evidence already taken shall stand, and the newly discovered and such other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record;

3.

In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside and a new judgment rendered accordingly (Sec. 6, Rule 121, Rules of Court).

Application of Neypes doctrine in criminal cases 1. The Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. The period for appeal is interrupted from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run (Neypes vs. CA, G.R. No. 141524, September 14, 2005).. 3. While Neypes involved the period to appeal in civil cases, the Courts pronouncement of a "fresh period" to appeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons: First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that "[t]he period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from." Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction.17 Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed. Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997

2.

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Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure (Judith Yu vs. Hon. Rosa Samson-Tatad, G. R. No. 170979, February 9, 2011).

Appeal Effect of an appeal 1. An appeal in a criminal case opens the whole case for review and this includes the review of the penalty, indemnity, and the damages involved. Consequently, on appeal, the appellate court may increase the penalty, indemnity, or the damages awarded by trial court, although the offended party had not appealed from said award, and the party who sought a review of the decision was the accused. Where to appeal 1. The appeal to the RTC is by way of notice of appeal filed with the MTC which rendered the judgment or final order and serving a copy thereof upon the adverse party (Sec. 3, Rule 122, Rules of Court). 2. The appeal to the CA is by way of notice of appeal filed with the RTC which rendered the judgment or final order and serving a copy thereof upon the adverse party. This mode applies where the judgment of the RTC was rendered in the exercise of its original jurisdiction If the judgment of the RTC was in the exercise of its appellate jurisdiction, the appeal shall be by a petition for review under Rule 42 to the CA (Sec. 3, Rule 121, Rules of Court). Appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45 (Sec. (e), Rule 122, Rules of Court). When the Supreme Court en banc cannot have the requisite majority on whether to acquit the appellant, the case shall be deliberated upon anew. If no decision is reached after re-deliberation, the decision of conviction of the lower court shall be reversed and the appellant shall be acquitted (Sec. 3, Rule 125, Rules of Court).

3. 4.

How appeal taken a. Appeal to the Regional Trial Court: by filing a notice of appeal with the court that rendered the judgment or order appealed from and serving a copy to the adverse party; b. Appeal to the Court of Appeals from decision of the Regional Trial Court in the exercise of its original jurisdiction: by filing a notice of appeal with the court which rendered the judgment or order appealed from and serving a copy to the adverse party; c. Appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction: by petition for review under Rule 42. d. Appeal to the Court of Appeals in cases where penalty imposed is reclusion perpetua, life imprisonment or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed: by filing a notice of appeal with the Court of Appeals;

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e. Death penalty: automatic review by the Court of Appeals (A.M. No. 00-5-03-SC, October 15, 2004). f. Other appeals to the Supreme Court: by petition for review on certiorari.

Effect of appeal by any of several accused a. An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter; b. The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from; c. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. Grounds for dismissal of appeal 1. The grounds are: a) failure on the part of the appellant to file brief within the reglementary period, except when he is represented by a counsel de officio; b) escape of the appellant from prison or confinement; c) when the appellant jumps bail; and d) flight of the appellant to a foreign country during the pendency of the appeal. Search and seizure Nature of search warrant 1. A search warrant is an order in writing issued in the name of the People of

the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court (Sec. 1, Rule 126, Rules of Court). Distinguish from warrant of arrest 1. Warrant of arrest is an order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense. Search Warrant is an Order in writing in the name of the RP signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court. (Sec.1, Rule 126, Rules of Court). 2. 3. Warrant of arrest does not become stake. Search Warrant is valid for 10 days only (Sec. 9, Rule 126, Rules of Court). Warrant of arrest may be served on any day and at any time of day or night (Sec. 6, Rule 113, Rules of Court). Search warrant is to be served only in daytime unless the affidavit alleges that the property is on the person or in the place to be searched. (Sec. 9, Rule 126, Rules of Court). 4. In issuing warrant of arrest, searching examination of witnesses is not necessary. In search warrant, the judge must personally conduct an examination of the complainant and the witnesses. 5. In issuing warrant of arrest, the judge is merely called upon to examine and evaluate the report of the fiscal and the evidence. In search warrant, the examination

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by the judge must be probing. Not enough to merely adopt the questions and answers asked by a previous investigator. Application for search for search warrant, where filed 1. As a rule, search warrants should be filed with the court within whose territorial jurisdiction the crime was committed (Sec. 2 (a), Rule 126, Rules of Court). The exceptions to the general rule are: a) for compelling reasons, it can be filed with the court within whose judicial region the offense was committed or where the warrant is to be served; b) but if the criminal action has already been filed, the application for a search warrant can only be made in the court where the criminal action is pending; c) in case of search warrants involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti- Money Laundering Act of 2001, the Tariff and Customs Code, the Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the Vice-Executive Judges of the RTC of manila shall have authority to act on applications filed by the NBI, PNP and the Anti-Crime Task Force (ACTAF) (Sps. Marimla vs. People of the Philippines, G.R. No. 158467, Oct. 16, 2009). Probable cause 1. Probable Cause refers to the facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense in the place sought to be searched. The basis must be the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The test of sufficiency of a deposition or affidavit is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. Personal examination by judge of the applicant and witnesses 1. The judge is required to personally examine the applicant and his witnesses to determine probable cause before issuing search warrant (Article III, Sec. 2, 1987 Constitution). 2. Deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of deportation (Harvey vs. Defensor-Santiago, G.R. No. 82544, June 28, 1988). Particularity of place to be searched and things to be seized 1. The purpose of the rule is to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made that abuses may not be committed (Stonehill vs. Diokno, G.R. No. L-19550, June 19, 1967).

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2.

Test to determine particularity: a) when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio, G.R. No. L-35500, Oct. 27, 1932); b) when the description express a conclusion of fact not of law which the warrant officer may be guided in making the search and seizure; and c) when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.

Personal property to be seized 1. Kinds of property to be seized by virtue of a warrant: a) subject of the offense; b) stolen or embezzled and other proceeds or fruits of the offense; c) the means used or intended to be used for committing an offense. Exceptions to search warrant requirement a) Search incidental to lawful arrest 1. Sec. 13 of Rule 126 specifically enumerates the allowable scope of a search incident to a lawful arrest. The provision limits the search to the following: (a) dangerous weapons; (b) anything which may have been used in the commission of the offense; (c) anything which constitute proof in the commission of the offence. b) Consented search 1. The consent to a warrantless search must be voluntary, that is, it must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion. Consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence (Valdez vs. People, 538 SCRA 611, November 23, 2007). c) Search of moving vehicle 1. A warrantless search on a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought (People vs. Tuazon, 532 SCRA 152, September 3, 2007). d) Check points; body checks in airport 1. Searches conducted on checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorist. For as long as the vehicle is neither searched nor its occupants subjected to body search, and the inspection of the vehicle is limited to visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search (People vs. Vinecario, G.R. No. 141137, January 20, 2004, 420 SCRA 280). e) Plain view situation 1. Under the plain view doctrine, objects falling in the plain view of the officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has prior justification for an intrusion or is in a position from which he can view a particular area: (2) the discovery of the evidence in plain view is inadvertent; (3) it is

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immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure ( Judge Felimon Abelita, III vs. P/ Supt. German Doria and SPO3 Cesar Ramirez, G.R. No. 170672, August 14, 2009). f) Stop and frisk situation 1. A stop-and-frisk situation must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in the light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him (Valdez vs. People, 538 SCRA 611, November 23, 2007). g) Enforcement of custom laws 1. Routine customs searches require no warrant or no probable cause, though extended detention of travelers must be justified by reasonable suspicion (United States v. Montoya de Hernandez, 1985). Remedies from unlawful search and seizure 1. The following are the remedies for an unlawful search and seizure: a) a motion to quash the search warrant; b) motion to suppress as evidence the objects illegally taken (exclusionary rule any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding); and c) replevin, if the objects are legally possessed. Provisional remedies Nature 1. The provisional remedies available in civil cases may be availed of in a criminal case in connection with the civil action deemed instituted with the criminal action (Sec. 1, Rule 127, Rules of Court). 2. The offended party may have the property of the accused attached as security for the satisfaction of any judgment in the civil aspect of the case. The reasons to support the attachment are the following: (a) (b) The accused is about to abscond from the Philippines; The criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation of duty; When the accused has concealed, removed, or disposed of his property, or is about to do so; When the accused resides outside the Philippines.

(c) (d)

Kinds of provisional remedies a. Attachment; b. Injunction; c. Receivership; d. Delivery of personal property; e. Support pendente lite. -oOo-

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