UNIVERSITY OF THE CORDILLERAS

COLLEGE OF LAW
BAGUIO CITY
QUESTIONS & ANSWERS IN REMEDIAL LAW
JULY 16, 2014
By:
REYNALDO U. AGRANZAMENDEZ
Dean, College of Law
UNIVERSITY OF THE CORDILLERAS
Baguio City

CIVIL PROCEDURE
1. Spouses Manuel and Lolita signed a promissory
note binding themselves to pay solidarily to Boston the
sum of P1,400,000. As the debt already became due,
Boston filed against Manuel and Lolita a complaint for
collection. In her amended answer, Lolita alleged that
Manuel had already died two years before the filing of the
complaint. On Bostons motion, Lolita submitted the
names of the heirs of Manuel. Whereupon, Boston moved
for substitution, praying that Manuel be substituted by his
heirs. The court granted the substitution. Later, Lolita
filed a motion to dismiss, alleging among other grounds,
that the estate of Manuel should be impleaded as an
indispensable party. She also alleged that plaintiffs claim
should be presented as a money claim in the probate
proceedings of the estate of Manuel.
Questions:
a) Is the court correct in ordering the substitution of
Manuel by his heirs?
b) Is the estate of Manuel an indispensable party?
c) What is the remedy of Boston as creditor to file a
claim against estate of Manuel (the deceased spouse) or to
file an action for collection against Lolita (the surviving
spouse)?

In Boston Equity Resources, Inc. v. Court of Appeals and Lolita

G. Toledo, G.R. No. 173946, June 19, 2013, the Supreme Court held
that:
a) The court is not correct in ordering the substitution of
Manuel by his heirs. Substitution is proper only if the party to be
substituted died during the pendency of the case as expressly
provided for in Sec. 16, Rule 3. The Supreme Court said that the trial
court did not acquire jurisdiction over the person of Manuel since
there was no valid service of summons upon him, precisely because
he was already dead even before the complaint against him and his
wife was filed in the trial court.
b) The estate of Manuel is not an indispensable party to the
collection case because the obligation of Manuel and his wife is
solidary. Art. 1216 of the Civil Code provides: The creditor may
proceed against any one of the solidary debtors or some or all of
them simultaneously. Boston may therefore collect the entire
amount of the obligation from Lolita only. In other words, the
collection case can proceed against Lolita.
c) Being a creditor in a solidary obligation, Boston has the
option whether to file or not to file a claim against the estate of
Manuel. This is so because Art. 1216 of the Civil Code gives to the
creditor the right to proceed against one of the solidary debtors or
some or all of them simultaneously. In case of death of one of the
solidary debtors, the creditor may, if he chooses, proceed against the
surviving solidary debtor without necessity of filing a claim in the
estate of the deceased solidary debtor.
2.
Plaintiff filed an action for cancellation of
defendants certificate of title over a real property. The
complaint alleges that defendant was issued a certificate of
title on the basis of a deed of sale bearing the forged
signature of the plaintiff. Is this a real action?
Yes, this is a real action. As held in Padlan v. Dinglasan, G.R.
No. 180321, March 20, 2013, if plaintiffs ultimate objective is to
obtain title to real property, the action is a real action although
plaintiff is demanding the cancellation of defendants certificate of
title.
An action involving title to real property is a real action.
Involving title to real property means that the plaintiffs cause of
action is based on a claim that he owns such property or that he has
the legal rights to have exclusive control, possession, enjoyment, and

disposition of the real property. Title is the legal link between the
owner and the property. On the other hand, certificate of title is the
document of ownership under the Torrens system of registration
issued by the government through the Register of Deeds. While title
is the claim, right, or interest in real property, a certificate of title is
the evidence of such claim. In the problem presented, the issue of
who between plaintiff and defendant has the valid title to the subject
real property must first be determined before a determination of who
between them is legally entitled to the certificate of title covering the
real property involved.
3. There is a judgment against X. The judgment
became final, and a writ of execution was issued. The
sheriff levied on Xs house. The house was later sold to Y in
an execution sale. Xs certificate of title was cancelled and a
new one was issued to Y, the purchaser of the house at the
execution sale. Four years later, X filed an action for the
cancellation of Ys certificate of title. In his complaint
against Y, X alleged that the house is a family home and
therefore exempt from execution. May the action prosper?
No, the action may not prosper. Although the house is a family
home and therefore exempt from execution, X should have claimed
the exemption from execution before its sale on execution. The right
to exemption is a personal privilege granted to the judgment obligor,
and as such, it must be claimed not by the sheriff but by the judgment
obligor. It is not sufficient that the judgment obligor claiming
exemption merely alleges that such property is a family home. He
must set up his claim and prove to the sheriff the exemption of the
subject property before its sale on execution. (Oliva-de Mesa v. Acero
et al., G.R. No. 185064, Jan. 16, 2012)
4. X filed with the regional trial court a complaint for
collection of a sum of money. In his complaint, he prayed
that Y be ordered to pay the principal obligation with
interest thereon at 12% per annum. For failing to file his
answer despite being granted an extension, Y was declared
in default on motion of X. The trial court rendered
judgment ordering defendant Y to pay the principal
obligation with interest thereon at surprisingly 5%
monthly interest (or 60% interest per annum). Defendants
counsel received a copy of the judgment, but allowed it to
become final without even questioning the award of 5%
monthly interest. Y filed a petition for annulment of
judgment with the Court of Appeals. The Court of Appeals
granted the petition. X now claims that the Court of

Appeals erred in granting the petition, arguing that the only

grounds for annulment of judgment under Sec. 2, Rule 47
are extrinsic fraud and lack of jurisdiction. Is X correct?
No, X is not correct.
In Diona v. Balangue et al., G.R. No. 173559, Jan. 7, 2013, the
Supreme Court held that while under Sec. 2, Rule 47 annulment of
judgment may be based only on grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due process as
additional ground to annul a judgment. Here, the award of 5%
monthly interest violated Ys right to due process; hence, it may be set
aside in a petition for annulment of judgment filed under Rule 47.
In Diona, the Supreme Court also ruled that amendment to
conform to the evidence is not feasible when the defendant is
declared in default because Sec. 3(d), Rule 9 limits the relief that may
be granted by the courts to what has been prayed for in the complaint.
Sec. 3(d), Rule 9 states that a judgment rendered against a party in
default shall not exceed the amount or be different in kind from that
prayed for.
Also in Diona, defendants counsel was found to have been
grossly negligent in handling the case. He filed a motion for
extension of time to file answer, yet he allowed the extension to pass
without filing an answer. He did not question the award of 5%
monthly interest, although a simple reading of the dispositive portion
of the decision readily shows that the court awarded exorbitant rate of
interest. He allowed the decision to become final by not filing an
appeal. Ordinarily, the Supreme Court said, the mistake, negligence
or lack of competence of counsel binds his client. This is based on the
rule that any act performed by a counsel within the scope of hi
general or implied authority is regarded as an act of his client. A
recognized exception to the rule is when the lawyers were grossly
negligent in their duty to maintain their clients cause and such
amounted to a deprivation of their clients property without due
process of law. In such a situation, the client does not lose the
remedies of new trial, appeal, petition for relief, or annulment of
judgment.
5. The appellant files his notice of appeal within the
time for perfecting an appeal, but the trial court issues an
order denying the notice of appeal. May appellant still
question the order after 15 days from his receipt of a copy
thereof?

No more. While the denial of appellants notice of appeal is

erroneous, the order denying it has already attained finality after
fifteen days from his receipt of the order. Such order cannot anymore
be amended or modified. As the Supreme Court has said: The
doctrine of finality of judgment dictates that, at the risk of occasional
errors, judgments or orders must become final at some point in time.
(Bihag et al. v. Heirs of Nicasio Bathan, G.R. No. 181949, April 23,
2014)
6. Is a writ of execution that does not conform to the
dispositive portion of the decision valid?
No. An order of execution (and a writ of execution) that varies
the tenor of the judgment, or for that matter, exceeds the terms
thereof is void. (Golez v. Navarro, G.R. No. 192532, Jan. 30, 2013)
7. In execution pending appeal, the court must state in
a special order the good reason for execution pending
appeal. If the courts special order does not state the good
reason for execution pending appeal, is the execution
pending appeal valid?
No. In Carpio v. CA et al., G.R. No. 183102, Feb. 27, 2013, the
Supreme Court teaches that the statement of a good reason in a
special order is strictly required by the Rules of Court, because
execution before a judgment has become final and executory is the
exception rather than the rule. If the writ of execution is void, all
actions and proceedings conducted pursuant to it are also void.
8. May an appeal be taken from an order denying a
motion for reconsideration?
Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012, teaches:
An order denying a motion for reconsideration of an order
dismissing a complaint is a final order, not an interlocutory order, as
it puts an end to the particular matter resolved (which is the dismissal
of the complaint), or settles definitely the matter therein disposed of,
and nothing is left for the trial court to do other than to execute the
order. Hence, an order denying a motion for reconsideration of an
order dismissing a complaint is appealable.
But an order denying a motion for reconsideration of an
interlocutory order is not appealable.

9. Whose duty is it to have the case set for pretrial? If

the case has not been set for pretrial for a long period of
time, may the case be dismissed for failure to prosecute?
Section 1, Rule 18 of the 1997 Rules of Civil Procedure provides
that it is the duty of the plaintiff, after the last pleading has been
served and filed, to promptly move ex parte that the case be set for
pretrial.
A.M. No. 03-1-09-SC, which took effect on August 16, 2004,
provides, however, that: Within five (5) days from date of filing of
the reply, the plaintiff must promptly move ex parte that the case be
set for pre-trial conference. If the plaintiff fails to file said motion
within the given period, the Branch Clerk of Court shall issue a notice
of pretrial.
In Eloisa Merchandising, Inc. et al. v. Banco de Oro Universal
Bank et al., G.R. No. 192716, June 13, 2012, the Supreme Court said:
While under the present Rules, it is now the duty of the clerk of court
to set the case for pre-trial if the plaintiff fails to do so within the
prescribed period, this does not relieve the plaintiff of his own duty to
prosecute the case diligently. (RUA is of the opinion that where the
clerk of court fails to set the case for pretrial, and the plaintiff likewise
fails, within a reasonable time, to move that his case be set for
pretrial, the court may dismiss the case for failure to prosecute.)
10. May an amendment substantially alter the cause of
action or defense?
Yes. Whether made as a matter of right or with leave of court,
an amendment may now substantially alter the cause of action or
defense as stated in Section 3, Rule 10 of the 1997 Rules of Civil
Procedure. (Lisam Enterprises, Inc. et al. v. Banco de Oro Unibank et
al., G.R. No. 143264, April 23, 2012)
In Lisam Enterprises, Inc., the Supreme Court explained: The
courts should be liberal in allowing amendments to pleadings to avoid
a multiplicity of suits and in order that the real controversies between
the parties are presented, their rights determined, and the case
decided on the merits without unnecessary delay. This liberality is
greatest in the early stages of a lawsuit, especially in this case where
the amendment was made before the trial of the case, thereby giving
the petitioners all the time allowed by law to answer and to prepare
for trial.

11. May an action for quieting of title (which is a

special civil action governed by Rule 63) and for declaration
of nullity of title (which is an ordinary civil action) be
dismissed on ground of improper joinder of causes of
action?
No. While Section 5, Rule 2 of the 1997 Rules of Civil
Procedure requires that joinder shall not include special civil actions
or actions governed by special rules, Section 6 of the same Rule
provides that misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action may, on motion of
a party or on the initiative of the court, be severed and proceeded
with separately. (Roman Catholic Archbishop of San Fernando,
Pampanga v. Soriano et al., G.R. No. 153829, Aug. 17, 2011)
In Ada, et al. v. Baylon, G.R. No. 182435, Aug. 13, 2012, the
Supreme Court said that a cause of action for partition and a cause of
action for rescission cannot be joined in a single complaint because
partition is a special civil action governed by Rule 69, while an action
for rescission is an ordinary civil action. But if these two causes of
action are joined in one complaint, and the misjoined cause of action
is not severed, the court may render judgment on all these causes of
action.
The aforecited case of Ada, et al. v. Baylon has reiterated the
rule that misjoinder of causes of action is not a ground for dismissal.
The Supreme Court went on to explain that courts have the power,
acting upon the motion of a party to the case or sua sponte, to order
the severance of the misjoined cause of action to be proceeded with
separately. However, if there is no objection to the improper joinder
or the court did not motu proprio direct a severance, then there exists
no bar in the simultaneous adjudication of all the erroneously joined
causes of action. The High Tribunal, however, emphasized that the
foregoing rule only applies if the court trying the case has jurisdiction
over all the causes of action therein notwithstanding the misjoinder of
the same. If the court trying the case has no jurisdiction over a
misjoined cause of action, then such misjoined cause of action has to
be severed from the other causes of action, and if not so severed, any
adjudication rendered by the court with respect to the same would be
a nullity.
12. The complaint for the recovery of possession of
real property did not allege the assessed value thereof. The
defendant filed a motion to dismiss on ground of lack of
jurisdiction, but the trial court denied the motion to
dismiss. Is the trial court correct in denying the motion to
dismiss?

No, the trial court is not correct.

A complaint must allege the assessed value of the real property
subject of the complaint or the interest thereon to determine which
court has jurisdiction over the action. Where the plaintiff fails to
allege in his complaint the assessed value of the subject property, the
trial court seriously errs in denying a motion to dismiss. (Quinagoran
v. CA, G.R. No. 155179, Aug. 24, 2007)
13.
If a complaint involving an intracorporate
controversy is filed with the regional trial court (which has
not been designated as a special commercial court), may it
transfer the case to the regional trial court designated as a
special commercial court?
No.
In Calleja, et al. v. Panday, et al., G.R. No. 168696, Feb. 28,
2006, 483 SCRA 680, the RTC Branch 58, San Jose, Camarines
Norte, upon noticing that it did not have jurisdiction over the subject
matter of the case, issued an Order transferring the case to another
branch of the Regional Trial Court. The issue brought to the Supreme
Court was: WHETHER A BRANCH OF THE REGIONAL TRIAL
COURT WHICH HAS NO JURISDICTION TO TRY AND DECIDE A
CASE HAS AUTHORITY TO REMAND THE SAME TO ANOTHER
CO-EQUAL COURT IN ORDER TO CURE THE DEFECTS ON
VENUE AND JURISDICTION. The Supreme Court resolved the issue
in this wise:
Evidently, the RTC-Br. 58 in San Jose,
Camarines Sur is bereft of jurisdiction over
respondents petition for quo warranto. Based on the
allegations in the petition, the case was clearly one
involving an intra-corporate dispute. The trial court
should have been aware that under R.A. No. 8799 and
the aforementioned administrative issuances of this
Court, RTC-Br. 58 was never designated as a Special
Commercial Court; hence, it was never vested with
jurisdiction over cases previously cognizable by the
SEC.
Such being the case, RTC-Br. 58 did not have the
requisite authority or power to order the transfer of the
case to another branch of the Regional Trial Court. The
only action that RTC-Br. 58 could take on the matter
was to dismiss the petition for lack of jurisdiction. In
HLC Construction and Development Corp. v. Emily
Homes Subdivision Homeowners Association, the
Court held that the trial court, having no jurisdiction

over the subject matter of the complaint, should

dismiss the same so the issues therein could be
expeditiously heard and resolved by the tribunal which
was clothed with jurisdiction.
The same issue was presented to the Supreme Court in Home
Guaranty Corp. v. R-II Builders, Inc., et al., G.R. No. 192649, March
9, 2011, 645 SCRA 219. The Supreme Court summarized the
proceedings had in the court below, as follows:
The record shows that R-II Builders original
complaint dated 23 August 2005 was initially docketed
as Civil Case No. 05-113407 before Branch 24 of the
Manila, a designated Special Commercial Court. With
HGCs filing of a motion for a preliminary hearing on
the affirmative defenses asserted in its answer and R-II
Builders filing of its Amended and Supplemental
Complaint dated 31 July 2007, said court issued an
order dated 2 January 2008 ordering the re-raffle of
the case upon the finding that the same is not an intracorporate dispute.
Relying on its ruling in Calleja, the Supreme Court resolved the
issue in these words:
We find that, having squarely raised the matter
in its Rule 65 petition for certiorari and prohibition
docketed as CA-G.R. SP No. 111153, HGC correctly
faults the CA for not finding that Branch 24 of the
Manila RTC had no authority to order the transfer of
the case to respondent RTC. Being outside the
jurisdiction of Special Commercial Courts, the rule is
settled that cases which are civil in nature, like the one
commenced by R-II Builders, should be threshed out in
a regular court. With its acknowledged lack of
jurisdiction over the case, Branch 24 of the Manila RTC
should have ordered the dismissal of the complaint,
since a court without subject matter jurisdiction cannot
transfer the case to another court. Instead, it should
have simply ordered the dismissal of the complaint,
considering that the affirmative defenses for which
HGC sought hearing included its lack of jurisdiction
over the case.
Calleja v. Panday, while on facts the other way
around, i.e., a branch of the RTC exercising jurisdiction
over a subject matter within the Special Commercial
Courts authority, dealt squarely with the issue:

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Whether a branch of the Regional Trial Court

which has no jurisdiction to try and decide a case has
authority to remand the same to another co-equal Court
in order to cure the defects on venue and jurisdiction.
Calleja ruled on the issue, thus:
Such being the case, RTC Br. 58 did not have the
requisite authority or power to order the transfer of the
case to another branch of the Regional Trial Court. The
only action that RTC-Br. 58 could take on the matter
was to dismiss the petition for lack of jurisdiction.
14. On what date is an amended complaint deemed
filed?
The rule expressed in Sec. 5, Rule 1 is that a civil action is
commenced by the filing of the original complaint in court. But as
held in Dionisio v. Linsangan, G.R. No. 178159, March 2, 2011, an
amended complaint that changes the plaintiffs cause of action is
technically a new complaint. Consequently, the action is deemed filed
on the date of the filing of such amended complaint, not on the date
of the filing of the original complaint. Thus, the statute of limitation
resumes its run until it is arrested by the filing of the amended
complaint. However, an amendment which does not alter the cause
of action but merely supplements or amplifies the facts previously
alleged, does not affect the reckoning date of filing based on the
original complaint. The cause of action, unchanged, is not barred by
the statute of limitations that expired after the filing of the original
complaint.
15. In dela Cruz v. Andres, G.R. No. 161864, April 27,
2007, the Supreme Court explained that a petition for
relief from judgment under Rule 38 of the 1997 Rules of
Civil Procedure is an equitable remedy that is allowed only
in exceptional cases when there is no other available or
adequate remedy. It may be availed of only after a
judgment, final order, or other proceeding was taken
against petitioner in any court through fraud, accident,
mistake, or excusable negligence. Is petition for relief
from judgment available as a remedy in the Court of
Appeals or in the Supreme Court?
No. A petition for relief from judgment is not available as a
remedy in the Court of Appeals or in the Supreme Court. Although
Section 1, Rule 38 of the 1997 Rules of Civil Procedure provides that
a party in any court may file a petition for relief from judgment, Rule

11

56, which enumerates the cases originally cognizable by the Supreme

Court, does not include it. The phrase any court in Rule 38 refers
only to Municipal/Metropolitan Trial Court and the Regional Trial
Court. There is no provision in the Rules of Court making the
petition for relief applicable in the Court of Appeals or in the
Supreme Court. (Pucson Jr. v. MRM Philippines, Inc., et al., G.R.
No. 182718, Sept. 26, 2008).
16. It was held in Perkin Elmer Singapore Pte. Ltd. V.
Dakila Trading Corp., G.R. No. 172242, Aug. 14, 2007 that
extraterritorial service of summons upon a non-resident
defendant who is not in the Philippines applies only when
the action is in rem or quasi in rem, but not if an action is
in personam. What about if the defendant is a resident
defendant but his whereabouts are unknown, may
summons be served upon him by publication where the
action is in personam, as when the complaint is one for
collection of a sum of money?
Yes. Section 14, Rule 14 of the 1997 Rules of Civil Procedure
provides: In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service may,
by leave of court, be effected upon him by publication in a newspaper
of general circulation and in such places and for such times as the
court may order.
The in rem/in personam distinction was
significant under the old rule because it was silent as to the kind of
action to which the rule was applicable. The present rule, however,
states that it applies in any action, and the phrase in any action
means just that any action, whether in personam, in rem, or quasi
in rem. (Santos Jr. v. PNOC Exploration Corp., G.R. No. 170943,
Sept. 23, 2008)
17. What are the requisites for valid substitution of
public officer who has sued or has been sued in his official
capacity?
What is the effect of failure to make the
substitution?
Requisites for valid substitution of public officer who has sued
or has been sued in his official capacity are:
(1) satisfactory proof by any party that there is a substantial
need for continuing or maintaining the action;
(2) the successor adopts or continues or threatens to adopt or
continue the acts of his predecessor;

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(3) the substitution must be effected within 30 days after the

successor assumes office or within the time granted by the court; and,
(4) reasonable notice of the application for the substitution
shall be given to the other party or officer affected and accorded an
opportunity to be heard.
Failure to make the substitution pursuant to Sec. 17, Rule 3 is a
ground for the dismissal of the action. (Rodriguez, et al. v. Jardin,
G.R. No. 141834, July 30, 2007)
18. May a party file a petition for habeas corpus
despite the pendency of a petition for certiorari that
questions the validity of the order granting bail, which
order is precisely the very basis of the petition for habeas
corpus?
No. Where a party files a petition for habeas corpus despite the
pendency of a petition for certiorari that questions the validity of the
order granting bail, which order is precisely the very basis of the
petition for habeas corpus, he is guilty of forum shopping. (Pulido v.
Abu, G.R. No. 170924, July 4, 2007)
19. Mistakes of attorneys generally bind their clients.
Errors of the defense counsel in the conduct of the trial is
neither an error of law nor an irregularity upon which a
motion for new trial may be presented.
Are there
exceptions?
Yes, and these exceptions are the following: (1) the counsels
mistake is so great and serious that the client is prejudiced and
denied his day in court, or (2) the counsel is guilty of gross negligence
resulting in the clients deprivation of liberty or property without due
process of law. In these two instances, the client is not bound by his
counsels mistakes, and a new trial may be conducted. (CenizaManantan v. People, G.R. No. 156248, Aug. 22, 2007)
20. A complaint asserting a common cause of action
was filed against several defendants.
Some of these
defendants filed an answer, but the others did not. On
motion of the plaintiff, the defendants who did not file an
answer were declared in default. Is it correct for the trial
court to first hear the case ex parte as against the defaulted
defendants and render a default judgment against them,

13

then proceed to hear the case as to the non-defaulted

defendants?
No. In the problem presented, the trial court shall try the case
against all the defendants upon the answer thus filed and render
judgment upon the evidence presented. It is not within the authority
of the trial court to divide the case by first hearing it ex parte as
against the defaulted defendants and rendering a judgment by default
against them, then proceed to hear the case as to the non-defaulted
defendants. (Heirs of Mamerto Manguiat, et al. v. CA, et al., G.R. No.
150768, Aug. 20, 2008, and its companion case)
21. State the modes of service of summons upon
foreign juridical entity (like a foreign corporation).
The Supreme Court has adopted the use of electronic means to
serve summons on foreign juridical entities who are being sued in the
Philippines but has no resident agent or not registered to do business
in the country. Thus, as amendment to Section 12, Rule 14 of the 1997
Rules of Civil Procedure, A.M. No. 11-3-6 New Rule on Service of
Summons on Foreign Juridical Entities provides:
SEC. 12. Service upon foreign private juridical entity. When
the defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or, if there be no
such agent, on the government official designated by law to that
effect, or on any of its officers or agents within the Philippines.
If the foreign private juridical entity is not registered in the
Philippines or has no resident agent, service may, with leave of court,
be effected out of the Philippines through any of the following means:
a) By personal service coursed through the
appropriate court in the foreign country with the
assistance of the Department of Foreign Affairs;
b) By publication once in a newspaper of general
circulation in the country where the defendant may be
found and by serving a copy of the summons and the
court order by-registered mail at the last known address
of the defendant;
c) By facsimile or any recognized electronic means
that could generate proof of service; or
d) By such other means as the court may in its
discretion direct.

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As a result of such amendment, summons can now be served on

the foreign private juridical entity through the afore-quoted means,
provided leave of court is first obtained.
Although the Supreme Court did not specify the other forms of
electronic means, it is submitted that the use of e-mail is sufficient as
long as it can be proven in court that the defendant has received the
summon.
22. If the last day for filing of a pleading (or motion)
falls on a Saturday, when may the pleading (or motion) be
filed?
In Leynes v. CA, et al., G.R. No. 154462, Jan. 19, 2011, the tenday period for Spouses Leynes (defendants in the case for forcible
entry before the MTC) to file their Answer expired on May 20, 2000
(a Saturday). They filed their answer on May 22, 2000. The MTC
declared Spouses Leynes in default and rendered its Judgment on
May 29, 2000, because, according to the MTC, they had only up to
May 20, 2000 to file their Answer, and although May 20, 2000 was a
Saturday, the court was open and court personnel were present at
that time to receive cases and motions filed with the court. Held: The
MTC should not have rendered an ex-parte judgment against them.
Section 1, Rule 22 states: In computing any period of time prescribed
or allowed by these Rules, or by order of the court, or by any
applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date
of performance included. If the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or a legal holiday in the
place where the court sits, the time shall not run until the next
working day. Thus, Saturdays, Sundays, and legal holidays are
excluded from the counting of the period only when the last day of the
period falls on such days. SC Adm. Circular No. 2-99, which took
effect on February 1, 1999, requires certain trial court judges and
employees to be present on Saturdays primarily to act on petitions
for bail and other urgent matters. An answer cannot be considered
as among such urgent matters.
23. What are the sanctions that the court may impose
upon a party who fails to attend the mediation proceedings
notwithstanding due notice to him?
In Linda M. Chan Kent v. Spouses Alvaro E. Micarez and Paz
Micarez, et al., G.R. No. 185758, March 9, 2011, the RTC dismissed
the civil case because of the failure of plaintiffs duly authorized
representative and her counsel to attend the mediation proceedings.
The Supreme Court, however, found the dismissal too severe a

15

sanction because the records of the case is devoid of evidence of

willful or flagrant disregard of the rules on mediation proceedings.
A.M. No. 01-10-5-SC-PHILJA dated Oct. 16, 2001 (Second Revised
Guidelines for the Implementation of Mediation Proceedings) regards
mediation as part of pretrial, and the parties must personally attend
the proceedings. The non-appearance of a party may be excused only
when the representative, who appears in his behalf, is duly authorized
to enter into amicable settlement or to submit to alternative modes of
dispute resolution. The sanctions that the court may impose upon a
party who fails to attend the proceedings are censure, reprimand,
contempt, and even dismissal of the action in relation to Sec. 5, Rule
18 of the 1997 Rules on Civil Procedure. Unless the conduct of the
party is so negligent, irresponsible, contumacious, or dilatory as to
justify dismissal of the action, the court should consider lesser
sanctions.
24. May pretrial be conducted although no notices of
pretrial were sent to the parties?
No. In PNB v. Perez, G.R. No. 187640, June 15, 2011, it was
held that the absence of notice of pretrial renders the pretrial, if one is
held, void, and all the subsequent proceedings, including the
judgment, are also void. The absence of notice of pretrial constitutes
a violation of a persons constitutional right to due process.
(RUA: A notice of pretrial should notify the parties of the date,
time, and place of the pretrial and should require the parties to file
their respective pretrial briefs and served copies thereof on the
adverse party in such a manner as shall ensure receipt thereof at least
three days before the date of the pretrial. A notice that does not state
the date, time, and place of pretrial and does not require the
submission of pretrial briefs as stated above is not a valid notice of
pretrial.)
25. If a party, whether the defendant or plaintiff, fails
to seasonably file his pretrial brief, may the court
nonetheless conduct pretrial?
No. Rule 18 mandatorily requires the parties to seasonably file
their pretrial briefs. Plaintiffs failure to do so shall be cause for the
dismissal of the action. On the other hand, defendants failure to do
so shall be cause to allow the plaintiff to present his evidence ex parte
and the court to render judgment based thereon. The court cannot
hold pretrial without the parties filing their pretrial briefs. (Vera v.
Rigor, et al., G.R. No. 147377, Aug. 10, 2007)

16

26. Is a petition for certiorari and prohibition under

Rule 65 the proper remedy to nullify an executive order
issued by the Office of the President?
No. In Galicto v. Pres. Benigno Simeon C. Aquino et al., G.R.
No. 193978, Feb. 28, 2012, it was held that a petition for certiorari
and prohibition is available as a remedy to question judicial and
quasi-judicial acts. Since the issuance of an executive order is not
judicial or quasi-judicial, a petition for certiorari and prohibition is an
incorrect remedy. The correct remedy to assail the validity of an
executive order is a petition for declaratory relief under Rule 63 of the
1997 Rules of Civil Procedure, to be filed with the Regional Trial
Court.
Also, in Yusay v. CA, G.R. No. 156684, April 6, 2011, it was held
that certiorari will not lie against the Sangguniang Panglunsod
because it is not part of the judiciary settling an actual controversy
involving legally demandable and enforceable rights when it adopted
Resolution No. 552, but a legislative and policy-making body.
27. What are the modes of appeal?
The modes of appeal are specified in:
a) Rule 40 (ordinary appeal from MTC to RTC);
b) Rule 41 (ordinary appeal from RTC to CA);
c) Rule 42 (petition for review from RTC to CA);
d) Rule 43 (petition for review from quasi-judicial agencies to
the CA);
e) Rule 45 (petition for review on certiorari from CA,
Sandiganbayan, CTA, or RTC to the SC).
As explained in Latorre v. Latorre, G.R. No. 183926, March 29,
2010, the first mode of appeal, governed by Rule 41, is brought to the
Court of Appeals (CA) on questions of fact or mixed questions of fact
and law. The second mode of appeal, covered by Rule 42, is brought
to the CA on questions of fact, of law, or mixed questions of fact and
law. The third mode of appeal, provided in Rule 45, is filed with the
Supreme Court only on questions of law
Further explained:

17

In appeal from RTC to CA governed by Rule 41, the questions

that may be raised are questions of fact or mixed questions of fact and
law.
In appeal from RTC to CA under Rule 42, the questions that
may be raised are questions of fact, of law, or mixed questions of fact
and law.
In appeal from quasi-judicial agencies to the CA under Rule 43,
the questions to be raised are questions of fact, of law, or mixed
questions of fact and law.
In appeal to the Supreme Court under Rule 45, the questions
that may be raised are pure questions of law only, subject to some
exceptions. Take note, however, that in writ of kalikasan cases,
habeas data cases, amparo cases, appeal to the Supreme Court is by
petition for review on certiorari where the petitioner may raise
questions of law, questions of fact, or mixed questions of fact and
law.
But in Land Bank of the Philippines v. CA, et al., G.R. No.
190660, April 11, 2011, it was held that decisions and final orders of
RTCs sitting as special agrarian courts are appealable to the Court of
Appeals by petition for review under Rule 42, not through an
ordinary appeal under Rule 41. Under Sec. 60. R.A. No. 6657
(Comprehensive Agrarian Reform Law), special agrarian courts,
which are regional trial courts designated by the SC as special
agrarian courts, have original and exclusive jurisdiction over: (a) all
petitions for determination of just compensation to landowners; and
(b) the prosecution of all criminal offenses under RA No. 6657.
And, under A.M. No. 04-9-07-SC, all decisions and final orders
of RTC acting as special commercial courts in corporate rehabilitation
and intra-corporate controversies under R.A. No. 8799 are appealable
to the Court of Appeals through a petition for review under Rule 43.
(BPI Family Savings Bank, Inc. v. Pryce Gases, Inc. et al., G.R. No.
188365, June 29, 2011)
28. Suppose the appellant appeals from the judgment
of the RTC to the CA under Rule 41 by filing a notice of
appeal with the RTC, but his appeal raises pure questions of
law, may the CA take cognizance of the appeal?
No.
In Heirs Of Nicolas S. Cabigas, etc. v. Limbaco, et al., G.R. No.
175291, July 27, 2011, it was held that where a litigant files an
ordinary appeal with the CA that raises only questions of law, Section

18

2, Rule 50 of the Rules of Court expressly mandates that the CA

should dismiss the appeal outright as the appeal is not reviewable by
that court. When there is no dispute as to the facts, the question of
whether or not the conclusion drawn from these facts is correct is a
question of law. When the petitioners assailed the summary
judgment, they were in fact questioning the conclusions drawn by the
RTC from the undisputed facts, and raising a question of law.
In Cabigas, University of Cebu Banilad (UCB), AWG, Petrosa,
the defendants in the case below, filed a motion for summary
judgment, admitting as true the allegations in the complaint, but
claiming that the plaintiffs had no legal right to the property in
question. The RTC Cebu City granted the motion and dismissed the
complaint. Plaintiffs appealed to the CA by filing a notice of appeal
with the RTC. UCB et al. filed a motion to dismiss appeal, claiming
that plaintiffs raised only questions of law in their appeal; thus, they
should have filed an appeal by certiorari with the SC, and not an
ordinary appeal with the CA. The CA dismissed the appeal, ruling
that plaintiffs (now petitioners) should have filed a petition for review
on certiorari under Rule 45. The SC affirmed the CAs ruling.
St. Mary of the Woods School, Inc. et al. v. Office of the
Registry of Deeds of Makati City et al., G.R. No.s 174290, 176116,
Jan. 20, 2009 teaches that in a motion to dismiss based on failure to
state a cause of action, there cannot be any question of fact or doubt
or difference as to the truth of falsehood of facts simply because
there are no findings of fact in the first place. What the trial court
merely does is to apply the law to the facts as alleged in the
complaint, assuming such allegations to be true. If follows then that
any appeal therefrom could only raise questions of law or doubt or
controversy as to what the law is on a certain state of facts.
Therefore, a decision dismissing a complaint based on failure to state
a cause of action necessarily precludes a review of the same decision
on questions of fact. One is the legal and logical opposite of the other.
Thus, if from the judgment or final order of the Regional Trial
Court, the appellant raises only questions of law, the appeal should be
a direct appeal to the Supreme Court through a petition for review on
certiorari. (Sps. Dadizon v. CA, et al. G.R. No. 159116, Sept. 30,
2009).
29. If an appeal is taken to the wrong court, may this
erroneous appeal be transferred to the correct appellate
court?
No. Section 2, Rule 50 of the 1997 Rules of Civil Procedure
states: An appeal erroneously taken to the Court of Appeals shall not

19

be transferred to the appropriate court but shall be dismissed

outright.
There is no longer any justification for allowing transfer of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals. (Sps. Dadizon
v. CA, et al., G.R. No. 159116, Sept. 30, 2009).
Where the accused is a public officer occupying a position lower
than Salary Grade 27, and he commits an offense in relation to his
office, jurisdiction over the offense shall be vested in the RTC or MTC
pursuant to their respective jurisdictions. In Quileste v. People, G.R.
No. 180334, Feb. 18, 2009, the accused was a low-ranking
government employee who was charged with malversation. After he
was convicted by the RTC, he appealed to the CA. HELD: Accused
filed his appeal in the wrong court. The Sandiganbayan shall exercise
exclusive appellate jurisdiction over final judgments, resolutions, or
orders of regional trial courts whether in the exercise of their own
original jurisdiction or of their appellate jurisdiction.
In Balaba v. People, G.R. No. 169519, July 17, 2009, the
accused, a low-ranking government employee, was also charged with
malversation. He was convicted by the RTC. In his notice of appeal,
he specified the CA as the court to which he was taking his appeal.
The Supreme Court reiterated its pronouncement in Melencion v.
Sandiganbayan, G.R. No. 150684, June 12, 2008 that an error in
designating the appellate court is not fatal to the appeal. However,
the correction in designating the proper appellate court should be
made within the 15-day period to appeal. If the correction is not
made within the said 15-day period, the second paragraph of Section
2, Rule 50 of the 1997 Rules of Civil Procedure will apply. It states:
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
In Estarija v. People, et al., G.R. No. 173990, Oct. 27, 2009, the
accused, a public officer occupying a position lower than Salary Grade
27, was charged with violation of the Anti-Graft and Corrupt Practices
Act. He was convicted by the RTC and was meted a straight penalty
of seven years. The CA, to which Estarija brought his appeal,
affirmed the judgment of the RTC but modified the sentence to six
years and one month to nine years of imprisonment. HELD: The CA
erred in entertaining the appeal. Although the penalty imposed by
the RTC is erroneous as it did not apply the Indeterminate Sentence
Law, the decision of the RTC has long become final and cannot be
modified anymore.
Take note, however, of the case of Filomena Villanueva v.
People, G.R. No. 188630, Feb. 23, 2011. Filomena was the assistant

20

regional director of the Cooperative Development Authority, a

position lower than Salary Grade 27. She was charged before the
Municipal Circuit Trial Court with violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public Officials and Employees).
The trial court found her guilty and imposed upon her the penalty of
five years of imprisonment and disqualification to hold office. She
appealed to the RTC which affirmed the MCTC decision. She then
filed a petition for review before the CA, but the CA dismissed the
petition on the ground that it is the Sandiganbayan that has exclusive
jurisdiction over the petition. She filed a petition for review on
certiorari with the SC. The SC ruled: There is no question that
Filomena took the wrong procedure. She should have appealed the
RTC decision to the Sandiganbayan.
Under R.A. 8249, the
Sandiganbayan shall exercise exclusive appellate jurisdiction over
final judgments of regional trial courts whether in the exercise of their
own original jurisdiction or of their appellate jurisdiction. While the
SC said that the CA was correct in dismissing the appeal for lack of
jurisdiction, yet because of the peculiar circumstances of the case,
Filomena should be given a chance to bring her case to the
Sandiganbayan.
(These peculiar circumstances were: (a) the
administrative case against Filomena was eventually decided by the
CA in her favor; (b) Filomena was shown to have paid the loan which
became the subject of the criminal case; (c) there was no sufficient
showing that Filomena exerted undue influence in obtaining the loan;
(d) the civil case against Filomenas husband, which was intertwined
with the criminal case filed against her, was decided in favor of her
husband. Thus, the SC resolved to suspend the rules to give Filomena
a chance to seek relief from the Sandiganbayan by filing a petition for
review within ten days from receipt of the SCs decision. The SC,
however, said that it does not countenance the inexcusable negligence
committed by Filomenas former counsel.
30. What is the remedy against an order dismissing a
complaint in a civil action?
Appeal is the remedy against an order dismissing a complaint in
a civil action. As held in Heirs of Teofilo and Eliza Reterta v. Mores
et al., G.R. No. 159941, Aug. 17, 2011: For one, the order that the
petitioners really wanted to obtain relief from was the order granting
the respondents' motion to dismiss, not the denial of the motion for
reconsideration. The fact that the order granting the motion to
dismiss was a final order for thereby completely disposing of the case,
leaving nothing more for the trial court to do in the action, truly
called for an appeal, instead of certiorari, as the correct remedy.
But in Palma v. Galvez, et al., G.R. No. 165273, March 10,
2010, it was held that where there are several defendants, one of

21

whom files a motion to dismiss which was granted by the court,

plaintiffs remedy against such order of dismissal is certiorari under
Rule 65 because, as stated in Section 1(f), Rule 41 of the 1997 Rules of
Civil Procedure, no appeal may be taken from a judgment or final
order for or against one or more of several parties x x x while the
main case is pending, unless the court allows an appeal therefrom.
Since there is no appeal or any plain, speedy, and adequate remedy in
the ordinary course of law, the special civil action for certiorari is
proper.
31. If an interlocutory order of the MTC is assailed in a
petition for certiorari filed under Rule 65 with the RTC on
the ground that it was issued with grave abuse of discretion,
but the RTC dismissed the petition, what is the remedy
against the order of the RTC dismissing the petition?
The remedy is an ordinary appeal to the CA by filing a notice of
appeal with the RTC pursuant to Sec. 2, Rule 41 of the Rules of Court.
The petition for certiorari filed with the RTC is an original action, the
dismissal of which is a final order that completely disposed of the
petition. (Galzote v. Briones and People of the Philippines, G.R. No.
164682, Sept. 14, 2011)
32. May an appeal under Rule 45 and a special civil
action under Rule 65 be incorporated in a single petition?
No.
In Republic of the Philippines v. Hon. Mangotara, etc., et al.,
G.R. No. 170375, July 7, 2010, the Supreme Court explained: It is
apparent in the case at bar that the Republic availed itself of the
wrong mode of appeal by filing Consolidated Petitions for Review
under Rule 45 and for Certiorari under Rule 65, when these are two
separate remedies that are mutually exclusive and neither alternative
nor successive. Nevertheless, the Court shall treat the Consolidated
Petitions as a Petition for Review on Certiorari under Rule 45 and the
allegations therein as errors of judgment. As the records show, the
Petition was filed on time under Rules 45. Before the lapse of the 15day reglementary period to appeal under Rule 45, the Republic filed
with the Court a motion for extension of time to file its petition. The
Court, in a Resolution dated January 23, 2006, granted the Republic
a 30-day extension, which was to expire on December 29, 2005. The
Republic was able to file its Petition on the last day of the extension
period. In Ligon v. Court of Appeals where the petitioner described
her petition as "an appeal under Rule 45 and at the same time as a
special civil action of certiorari under Rule 65 of the Rules of Court,"
this Court, in frowning over what it described as a "chimera,"

22

reiterated that the remedies of appeal and certiorari are mutually

exclusive and not alternative nor successive.

33. Is failure to pay the appellate court docket and

other lawful fees a ground for the dismissal of the appeal?
Yes. In D.M. Wenceslao and Associates, Inc. v. City of
Paraaque, et al., G.R. No. 170728, Aug. 31, 2011, the Supreme Court
has explained that the payment of appellate court docket fees is not a
mere technicality of law or procedure. It is an essential requirement,
without which the decision or final order appealed from becomes
final and executory as if no appeal was filed. Under Sec. 1, Rule 50 of
the 1997 Rules of Civil Procedure, failure of the appellant to pay the
docket and other lawful fees is a ground for the dismissal of the
appeal. While there are circumstances, like fraud, accident, mistake,
or excusable negligence, that may justify the relaxation of the rules on
payment of docket fees, extremely heavy workload or excusable
inadvertence of appellants counsel is not among them.
34. In what instances is record on appeal necessary?
As provided for in Sec. 2, Rule 41, record on appeal is necessary
only in special proceedings and other cases of multiple or separate
appeals. (Rovira v. Heirs of Jose C. Deleste, etc., G.R. No. 160825,
March 26, 2010).
Where record on appeal is required, the period for perfecting an
appeal is 30 days from notice of the judgment or final order appealed
from or notice of the order denying motion for reconsideration or
motion for new trial.
An order appointing an administrator of a deceased persons
estate is a final determination of the rights of the parties in
connection with the administration, management and settlement of
the decedents estate; hence, it is a final order and thus appealable. In
special proceedings, such as appointment of an administrator, record
on appeal is required and is to be filed, along with the notice of
appeal, within 30 days from notice of the judgment or final order
appealed from. (Zayco, et al. v. Hinlo Jr., G.R. No. 170243, April 16,
2008).
Republic of the Philippines v. Nishina, G.R. No. 186053, Nov.
15, 2010 teaches that although Section 2, Rule 41 requires a record on
appeal in special proceedings and other cases of multiple or separate
appeals, in proceedings involving cancellation of birth record and

23

change of surname in the civil registry, record on appeal is not

necessary.
Rovira v. Heirs of Jose C. Deleste, etc., G.R. No. 160825, March
26, 2010, holds that a trial courts ruling on the matter of attorneys
fees initiated through a motion in the same case of recovery of
ownership and possession of land, may be appealed by a mere notice
of appeal. Since the suit for recovery of ownership and possession is
not one where multiple appeals are taken, a record on appeal is not
necessary.
Record on Appeal is not required in contempt proceedings.
(Flaviano B. Cortes v. Judge Felino Bangalan, etc., G.R. No. MTJ-97,
Jan. 19, 2000).
35. Are judgments rendered by the Family Courts (or
RTCs in places where there is no Family Courts) in
summary proceedings under Art. 238 of the Family Code
appealable?
No. Judgments rendered in summary proceedings under Art.
238 of the Family Code are immediately final and executory as
provided for in Art. 247 thereof; hence, they are not appealable. The
remedy of the aggrieved party is to file a petition for certiorari to
question grave abuse of discretion amounting to lack or excess of
jurisdiction. Such petition should be filed with the Court of Appeals
in accordance with the doctrine of hierarchy of courts. Even if the
Supreme Courts original jurisdiction to issue a writ of certiorari is
concurrent with the Court of Appeals and the Regional Trial Court in
certain cases, such concurrence does not sanction an unrestricted
freedom of choice of court forum. From the decision of the Court of
Appeals, the losing party may file a petition for review on certiorari
under Rule 45 with the Supreme Court. This is because the errors
which the court may commit in the exercise of jurisdiction are merely
errors of judgment which are the proper subject of an appeal.
(Republic of the Philippines v. Tango, G.R. No. 161062, July 31, 2009)
36. What is the remedy of a party who is aggrieved by
the resolution issued by the City/Provincial Prosecutor in a
preliminary investigation?
His remedy is to appeal to the Secretary of Justice. If the
Secretary of Justice dismisses his appeal, he must file a motion for
reconsideration. If his motion for reconsideration is denied by the
Secretary of Justice, he may now file a petition for certiorari under

24

Rule 65 with the Court of Appeals. (Filadams Pharma, Inc. v. CA,

G.R. No. 132422, March 30, 2004).
Take note also that the resolution of the DOJ in offenses where
the penalty imposable is reclusion perpetua to death is appealable
administratively to the Office of the President, and the decision of the
OP may be appealed to the CA pursuant to Rule 43. (de Ocampo v.
Sec. of Justice, G.R. No. 147932, Jan. 25, 2006; See also: Heirs of the
Late Nestor Tria v. Epifania Obias, G.R. No. 175887, Nov. 24, 2010;
Angeles v. Gaite, et al., G.R. No. 176596, March 23, 2011).

CRIMINAL PROCEDURE
1. The RTC issued a search warrant. On motion of the
person against whom it was issued, the RTC quashed the
search warrant. What is the remedy against the order
quashing search warrant? Is it appeal or a petition for
certiorari under Rule 65?
Worldwide Web Corporation et al. v. People of the Philippines
et al., G.R. No. 161106, Jan. 13, 2014, teaches that:
An application for search warrant may be filed as an incident in
a main criminal case already filed in court. Or, such an application
may be filed in court in anticipation of one yet to be filed (here, the
application for search warrant is instituted as a principal proceeding
prior to the filing of the criminal action).
Where the search warrant is issued as an incident in a pending
criminal action, an order quashing the search warrant is merely
interlocutory and therefore not appealable. Such order may only be
assailed in a petition for certiorari under Rule 65.
But an order quashing a search warrant issued independently
prior to the filing of a criminal action is a final order that can be the
proper subject of an appeal.
2. Suppose the court issued an order quashing the
search warrant.
The applicant filed a motion for
reconsideration of the order, but his motion was denied by
the court because it does not bear the conformity of the
public prosecutor. In denying the motion, the court relied
on Sec. 5, Rule 110, which provides: All criminal actions
commenced by a complaint or information shall be
prosecuted under the direction and control of the
prosecutor. Is the court correct?

25

No, the court is not correct. Sec. 5, Rule 110 does not apply
because an application for search warrant, although it is a criminal
process, is not a criminal action. Therefore, the conformity of the
public prosecutor is not necessary to give the applicant a personality
to question an order quashing the search warrant. (Worldwide Web
Corporation et al. v. People of the Philippines et al., G.R. No. 161106,
Jan. 13, 2014)
3. Notwithstanding notice to him, the accused failed to
appear during the promulgation of judgment. The RTC
promulgated the judgment, convicting him of the crime
charged. Later, the accused moved for reconsideration,
questioning the validity of the promulgation, the factual
and legal basis of his conviction, and the correctness of the
penalty imposed. The regional trial court denied his motion
for reconsideration. Accused then filed with the Court of
Appeals a petition for certiorari under Rule 65. The CA
granted the petition and acquitted the accused. Is the
acquittal of the accused correct?
No. Errors of the trial court in its judgment is correctible only
by appeal, not in a certiorari proceedings. In a petition for certiorari
under Rule 65 as in the problem presented, the Court of Appeals is
authorized to resolve only errors of jurisdiction and not errors of
judgment. (Almuete v. People, G.R. No. 179611, March 12, 2013)
4. What are the requirements for motion for bail in
offenses punishable by death, reclusion perpetua, or life
imprisonment?
As provided for in Section 6, A.M. No. 12-11-2-SC, March 14,
2014, but took effect May 1, 2014 (Guidelines for Decongesting
Holding Jails by Enforcing the Rights of Accused Persons to Bail and
to Speedy Trial), the requirements are:
a) the hearing of the motion for bail shall be summary;
b) the prosecution has the burden of showing that the evidence
of guilt is strong;
c) if the accused wants the court to consider his evidence, he
may submit the affidavits of his witnesses attesting to his
innocence;

26

d) at the hearing of the motion for bail, the prosecution shall

present its witnesses with the option of examining them on
direct or adopting the affidavits they executed during the
preliminary investigation as their direct testimonies;
e) the court shall examine the witnesses on their direct
testimonies or affidavits to ascertain if the evidence of guilt is
strong;
f) the court shall then allow counsel from both sides to examine
the witnesses as well;
g) afterwards, the court shall hear the oral arguments of the
parties on whether the evidence of guilt is strong;
h) within 48 hours after hearing, the court shall issue an order
containing a brief summary of the evidence adduced before
it, followed by its conclusion of whether the evidence of guilt
is strong.
5. What are the modes of service of subpoena?
Under Section 6, Rule 21 of the 1997 Rules of Civil Procedure,
service of subpoena shall be made in the same manner as personal or
substituted service of summons.
However, in criminal cases, the following are the additional
modes of service of subpoena as provided for in Section 11, A.M. No.
12-11-2-SC, March 14, 2014:
a) electronic mail (e-mail);
b) mobile phone, either through phone calls or through short
messaging service.
How may service of subpoena be proved? When served by
electronic mail or mobile phone, service of subpoena may be proved
by:
a) printouts of sent email and the acknowledgment of the
recipient;
b) printouts of electronic messages transmitted through the
courts equipment or device and the acknowledgment of the
recipient; or
c) reports of phone calls made by the court.

27

6. Under Section 5 of R.A. No. 10389, approved March

14, 2003, otherwise known as Recognizance Act of 2012,
release on recognizance is a matter of right. What are its
requisites?
Requisites:
Recognizance is a matter of right if the following requisites are
present:
a)

the offense is not punishable by death, reclusion perpetua,

of life imprisonment; and,
accused or a person on his behalf files an application before
or after conviction by the MTC or before conviction by the
RTC (But a person in custody for a period equal to or more
than the minimum of the imposable penalty shall be
released on his recognizance)

b)

Requirements:
But under Section 6 of R.A. No. 10389, the requirements for the
release by the court of a detained person on recognizance are:
a)

a sworn declaration by the accused of his indigency or

incapacity to post bail either in cash or property;
a certification issued by the head of DSWD of the city or
municipality where accused resides that he is indigent;
the accused has been arraigned; and,
the court has notified the city of municipal sanggunian
where the accused resides of the application for
recognizance.

b)
c)
d)

Disqualifications:
Although all the requisites and requirements have been
complied with, still the accused may not be released on recognizance
if he has any of the disqualifications mentioned in Section 7 of R.A.
No. 10389, which are as follows:
a)
b)
c)

the accused has made untruthful statement in his sworn

declaration;
the accused is a recidivist, quasi recidivist, habitual
delinquent, or has committed the offense with the
aggravating circumstance of reiteracion;
the accused had been found to have previously escaped
from legal confinement, evaded sentence, or has violated

28

d)
e)
f)
g)

the conditions of bail or release on recognizance without

valid justification;
the accused had previously committed a crime while on
probation, parole, or under conditional pardon;
the personal circumstances of the accused or narture of
the facts surrounding his case indicate the probability of
flight if released on recognizance;
there is a great risk that the accused may commit another
crime during the pendency of the case;
the accused has a pending criminal case which has the
same or higher penalty to the new crime he is being
accused of.

7. In a criminal case, the prosecution filed a motion to

take the testimony of its witness by oral deposition in Laos,
Cambodia, citing as its reason that this witness, himself the
private complainant, was sick and of advanced age. The
trial court granted the motion. Is the trial court correct?
No, the trial court is not correct. The applicable rule is Sec. 15,
Rule 119 that reads:
When it satisfactorily appears that a witness for the
prosecution is too sick or infirm to appear at the trial as
directed by the court, or has to leave the Philippines with
no definite date of returning, he may forthwith be
conditionally examined before the court where the case is
pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to
attend the examination has been served on him, shall be
conducted in the same manner as examination at the trial.

While the condition of the private complainant as being sick

and of advanced age falls within the provision of the Section 15, the
same rule provides that he should be conditionally examined before
the court where the case is pending. Nowhere in the said rule permits
the taking of deposition outside the Philippines whether the deponent
is sick or not. To take the deposition of a prosecution witness
elsewhere other than before the court where the case is pending
would not only deprive the accused of his right to attend the
proceedings, but also deprive the trial judge of the opportunity to
observe the prosecution witnesss deportment. It would also violate
the right of the accused to meet the witnesses face to face.
(RUA: For conditional examination of a defense witness before
trial in a criminal case, please read Secs. 12 and 13 of Rule 119. Note

29

that the conditional examination of a witness for the accused may be

taken before a judge, or, if not practicable, a member of the Bar in
good standing so designated by the judge in the order, or if the order
be made by a court of superior jurisdiction, before an inferior court to
be designated therein.)
It is different in civil cases. Rules 23 to 28 of the 1997 Rules of
Civil Procedure allow the taking of depositions in civil cases, either
upon oral examination or written interrogatories, before any judge,
notary public, or person authorized to administer oaths at any time or
place within the Philippines; or before any Philippine consular
official, commissioned officer or person authorized to administer
oaths in a foreign state or country, with no additional requirement
except reasonable notice in writing to the other party. (See: Harry L.
Go et al. v. People et al., G.R. No. 185527, July 18, 2012)
8. In what instances may habeas corpus be resorted to
as post-conviction remedy?
The writ of habeas corpus may be resorted to as post-conviction
remedy in any of the following exceptional circumstances:
a)

there has been a deprivation of a constitutional

right resulting in the restraint of a person;

b)

the court had no jurisdiction to impose the

sentence;

c)

the imposed penalty is excessive, thus voiding

the sentence as to such excess.

Under the Rule on DNA Evidence, habeas corpus may also be

resorted to as post-conviction remedy where the result of the DNA
examination is favorable to the accused.
Thus, the writ of habeas corpus was held available where an
accused was deprived of his right against self-incrimination. (cited in
de Villa v. The Director, New Bilibid Prisons, G.R. No. 158802, Nov.
17, 2004).
But habeas corpus is not available as post-conviction remedy
where the appeal is still pending. (People v. Maquilan, G.R. No.
126170, Aug. 27, 1998).
8. What is the rule regarding Post-Conviction DNA
Testing?

30

The rule on post-conviction DNA testing is expressed in A.M.

No. 06-11-5-SC, Effective Oct. 15, 2007, as follows:
Sec. 6. Post-conviction DNA Testing. Postconviction DNA testing may be available, without need of
prior court order, to the prosecution or any person
convicted by final and executory judgment provided that
(a) a biological sample exists, (b) such sample is relevant
to the case, and (c) the testing would probably result in
the reversal or modification of the judgment of
conviction. (Rule on DNA Evidence, A.M. No. 06-11-5SC, Effective Oct. 15, 2007)
Sec. 10. Post-conviction DNA Testing Remedy if
the Results Are Favorable to the Convict. The convict or
the prosecution may file a petition for a writ of habeas
corpus in the court of origin if the results of the postconviction DNA testing are favorable to the convict. In
case the court, after due hearing, finds the petition to be
meritorious, if shall reverse or modify the judgment of
conviction and order the release of the convict, unless
continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of
Appeals or the Supreme Court, or with any member of
said courts, which may conduct a hearing thereon or
remand the petition to the court of origin and issue the
appropriate orders.
9. As a general rule, courts will not issue writs of
prohibition or injunction, preliminary or final, to enjoin or
restrain criminal prosecution. What are the exceptions?
The exceptions are:
1) When the injunction is necessary to afford adequate
protection to the constitutional rights of the accused;
2) When it is necessary for the orderly administration of
justrice or to avoid oppression or multiplicity of actions;
3 When there is a prejudicial question which is sub judice;
4) When the acts of the officer are without or in excess of
authority;

31

5) When the prosecution is under an invalid law, ordinance or

regulation;
6 When double jeopardy is clearly apparent;
7 When the court has no jurisdiction over the offense;
8 When it is a case of persecution rather than prosecution;
9 When the charges are manifestly false and motivated by the lust for
vengeance;
10 When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied. (Borlongan Jr. v.
Pena, et al. G.R. No. 143591, Nov. 23, 2007)
10. C and L, who were charged as co-conspirators,
were convicted of violation of R.A. No. 3019 (Anti-Graft and
Corrupt Practices Act) in a judgment rendered by the
Sandiganbayan, imposing upon each of them the penalty of
imprisonment from six years and one month to twelve
years and one month. They filed separate appeals to the
Supreme Court by filing their respective petitions for
review on certiorari.
Ls appeal was dismissed on
technicality. During the pendency of the appeal, C died.
a) Should Cs appeal be dismissed on the ground that
his death has rendered his appeal moot and academic as his
death has already extinguished his criminal liability?
No. Cs appeal should not be dismissed. The two petitions are
so intertwined that the absolution of C is ultimately determinative of
the absolution of L. The exoneration of C will necessarily signify the
injustice of carrying out the penalty imposed on L. Thus, the SC, in
this instance, has to ascertain the merits of Cs appeal to prevent a
developing miscarriage of justice against L.
Courts must still decide cases, otherwise moot and academic, in
the following instances: (1) there is a grave violation of the
Constitution; (2) the exceptional character of the situation and the
paramount public interest is involved; (3) when constitutional issue
raised requires formulation of controlling principles to guide the
bench, the bar, and the public; (4) the case is capable of repetition yet
evading review.
In the problem presented, the exceptional character of the
appeal of C and L in relation to each other, as well as the higher

32

interest of justice, requires that the Court determine the merits of Cs

petition and not dismiss it outright on the ground of mootness.
b) Does the reversal of the decision of the
Sandiganbayan as against C benefit L whose appeal was
dismissed on technicality?
Section 11(a), Rule 122 of the Revised Rules of Criminal
Procedure provides: 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. The phrase did not appeal applies also to a co-accused who
withdrew his appeal, failed to file an appellants brief, or filed a notice
of appeal with the trial court but eventually withdrew the same. The
Supreme Court has at various times applied the foregoing provision
without regard to the filing or non-filing of an appeal by a co-accused,
so long as the judgment was favorable to him. Thus, the foregoing
provision should be applied to L whose appeal was dismissed on
technicality. (Constantino v. Sandiganbayan, et al., G.R. No. 140656,
Sept. 13, 2007; Lindong v. People, et al., G.R. No. 154482, Sept. 13,
2007.)
11. The accused, who claims that he was illegally
arrested, refused to enter a plea when arraigned;
whereupon, the court entered a plea of not guilty for him.
May he still question the validity of his arrest?
Yes. The principle that the accused is precluded from
questioning the legality of his arrest after arraignment is true only if
he voluntarily enters his plea and participates during the trial,
without previously invoking his objections thereto. (Borlongan Jr. v.
Pena, et al. G.R. No. 143591, Nov. 23, 2007). Thus, the accused may
still question the legality his arrest, etc. where, at the arraignment, it
is the court that entered the plea of not guilty for him.
12. Frank, who was 17 years of age at the time of the
commission of the offense, was charged with murder
punishable by reclusion perpetua to death. Crediting the
accused with the privileged mitigating circumstance of
minority, the RTC rendered judgment sentencing him to
suffer imprisonment of 12 years and one day to 17 years and
four months of reclusion temporal.
The trial court,
however, suspended Franks sentence and ordered his
commitment to the Regional Rehabilitation Center for
Youth, he being a juvenile in conflict with law. Is the trial
court correct in suspending Franks sentence?

33

No, the trial court is not correct.

Art. 192 of PD No. 603 provides that the benefits of the law on
suspension of sentence shall not apply to a youthful offender who has
once enjoyed suspension of sentence under its provisions or to one
who is convicted of an offense punishable by death or life
imprisonment or to one who is convicted of an offense by the Military
Tribunals.
A.M. No. 02-1-18-SC also provides that the benefits of
suspended sentence shall not apply to a juvenile in conflict with the
law who has once enjoyed suspension of sentence, or to one who is
convicted of an offense punishable by death, reclusion perpetua or
life imprisonment, or when at the time of promulgation of judgment
the juvenile is already eighteen (18) years of age or over.
It is clear, therefore, that a person who is convicted of an
offense punishable by death, life imprisonment, or reclusion
perpetua is disqualified from availing himself of the benefits of a
suspended sentence. The disqualification is based on the nature of
the crime charged and the imposable penalty therefor, and not on the
penalty imposed by the court after trial. It is not the actual penalty
imposed, but the imposable penalty which determines the
disqualification of a juvenile.
Thus, where the youthful offender is charged with an offense
punishable by death, life imprisonment, or reclusion perpetua, he is
not entitled to the benefit of suspended sentence although the penalty
actually imposed by the court is, say, reclusion temporal.
R.A. No. 9344, which took effect on May 20, 2006, did not
change the foregoing ruling. Section 38 of R.A. No. 9344 provides the
following: Once the child who is under eighteen (18) years of age at
the time of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the
court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is
already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt.
R.A. No. 9344 merely amended Art. 192 of P.D. 603 in that the
suspension of sentence shall be enjoyed by the juvenile even if he/she
is already 18 years of age or more at the time of the pronouncement of
his/her guilt. The other disqualifications in Art. 192 of P.D. 603 and

34

in Sec. 32 of A.M. No. 02-1-18-SC have not been deleted from Sec. 38
of R.A. No. 9344. Hence, juveniles who have been convicted of a
crime the imposable penalty for which is reclusion perpetua, life
imprisonment, or death are disqualified from having their sentence
suspended.
Take note, however, that in People v. Sarcia, G.R. No. 169641,
Sept. 10, 2009, 599 SCRA 20, cited in People v. Allen Udtojan
Mantalaba, G.R. No. 186227, July 20, 2011, it was held that although
suspension of sentence can still be applied even if the child in conflict
with the law is already 18 years of age or more at the time of the
pronouncement of his guilt, Sec. 40 of the same law limits the
suspension of sentence until the child reaches the maximum age of
21. Hence, the appellant, who is now beyond the age of 21 can no
longer avail himself of the provisions of Secs. 38 and 40 of RA 9344
as to suspension of his sentence because this has already become
moot and academic.
13. May the offended party in estafa and violation of
BP 22 arising from the single act of issuing a bouncing
check intervene through a private prosecutor in both
criminal cases?
Yes. Settled is the rule that the single act of issuing a bouncing
check may give rise to two distinct criminal offenses: estafa and
violation of Batas Pambansa Blg. 22. The Rules of Court allow the
offended party to intervene through a private prosecutor in each of
these two penal proceedings. However, the recovery of the single civil
liability arising from the single act of issuing a bouncing check in
either criminal case bars the recovery of the same civil liability in the
other criminal action. While the law allows two simultaneous civil
remedies for the offended party, it authorizes recovery in only one. In
short, while two crimes arise form a single set of facts, only one civil
liability attaches to it. (Rodriquez v. Ponferrada, et al., G.R. Nos.
155531-34, July 29, 2005)
14. After the prosecution has rested its case, the
accused files a demurrer to evidence. In resolving the
demurrer to evidence, should the trial court likewise decide
the civil aspect of the case and determine the civil liability of
the accused?
The answer should be qualified as follows:
a) If the demurrer to evidence is filed without leave of court:

35

If the demurrer to evidence is filed without leave of court, the

whole case is submitted for judgment on the basis of the evidence for
the prosecution as the accused is deemed to have waived his right to
present evidence. In this situation, the court is called upon to decide
the case including its civil aspect, unless the offended party has
waived the civil action, or has reserved his right to institute it
separately, or has instituted the civil action prior to the criminal
action.
In case of conviction, the trial court should state in its judgment
the civil liability or damages to be recovered by the offended party
from the accused.
In case of acquittal, the accused may still be adjudged civilly
liable where: (a) the acquittal is based on reasonable doubt; (b) the
court declares that the liability of the accused is only civil; or (c) the
civil liability of the accused does not arise from or is not based upon
the crime of which the accused is acquitted.
But if the accused is acquitted and there is a finding in the final
judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist, then the civil action based on
the delict is deemed extinguished.
b) If the demurrer to evidence is filed with leave of court:
If the court denies the demurrer to evidence because the
evidence presented by the prosecution is sufficient, the accused may
present evidence regarding both the criminal and civil aspect of the
case.
If the court grants the demurrer to evidence because the
evidence so far presented by the prosecution is insufficient as proof
beyond reasonable doubt, it does not follow that the same evidence is
insufficient to establish a preponderance of evidence. Thus, if the
court grants the demurrer, proceedings on the civil aspect of the case
shall proceed, except if the trial court finds that the act or omission
from which the civil liability may arise did not exist. (Hun Hyung
Park v. Eung Won Choi, G.R. No. 165496, Feb. 12, 2007)

15.a) The trial court granted the demurrer to evidence

filed by the accused. May the prosecution appeal from the
order granting demurrer to evidence?
No. An order granting the demurrer to evidence filed by the
accused is an adjudication of the case on the merits, and it amounts to

36

an acquittal. An appeal from said order would violate the right of the
accused against double jeopardy. This is based on the finality-ofacquittal rule which means that verdicts of acquittal are to be
regarded as absolutely final and irreviewable.
b) If appeal is not a remedy against an order granting
demurrer to evidence, what then is the remedy?
The remedy is a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure upon a clear showing by the petitioner that
the lower court, in acquitting the accused, committed not merely
reversible errors of judgment but also grave abuse of discretion
amounting to lack or excess of jurisdiction or a denial of due process,
thus rendering the assailed judgment void. In Sanvicente v. People,
441 Phil. 139 (2002), the Supreme Court upheld the decision of the
CA which reversed the acquittal of the accused upon a demurrer to
evidence, holding that the trial court committed grave abuse of
discretion in preventing the prosecution from establishing the due
execution and authenticity of a certain letter marked as Exh. LL
which positively identified the accused as the perpetrator of the crime
charged.
To put it another way, any further prosecution of the accused
after an acquittal would violate the right of the accused against double
jeopardy. To this rule, there are exceptions as follows: (1) when the
prosecution is denied due process, as in the case of Galman v.
Sandiganbayan, G.R. No. L-72670, Sept. 12, 1986, where the
Supreme Court declared the sham trial a mock trial, and the
predetermined judgment of acquittal was held unlawful and void ab
initio; (2) when the trial court commits grave abuse of discretion in
granting the demurrer to evidence filed by the accused.
Thus, double jeopardy will not attach when the trial court acted
with grave abuse of discretion amounting to lack of excess of
jurisdiction, such as where the prosecution was denied the
opportunity to present its case or where the trial was a sham. (People
v. Laguio Jr., G.R. No. 128587, March 16, 2007)
In People v. Sandiganbayan and Barcenas, G.R. No. 174504,
March 21, 2011, it was held that although the grant of demurrer is not
subject to appeal it is still reviewable through certiorari under Rule
65.
The Supreme Court ruled, in Ysidoro v. Hon. Leonardo-de
Castro et al., G.R. No. 171513, Feb. 6, 2012, that the rule against
double jeopardy cannot be properly invoked in a Rule 65 petition,
predicated on two exceptional grounds, namely: in a judgment of
acquittal rendered with grave abuse of discretion by the court; and

37

where the prosecution had been deprived of due process. The rule
against double jeopardy does not apply in these instances because a
Rule 65 petition does not involve review of facts and law on the merits
in the manner done in an appeal. A review under Rule 65 only asks
the question of whether there has been a validly rendered decision,
not the question of whether the judgment is legally correct. In the
other words, the focus of the review is to determine whether the
judgment is per se void on jurisdictional grounds. (RUA: A petition
purportedly brought under Rule 65 should be dismissed if it does not
raise any jurisdictional ground, as when, for example, it seeks to have
the evidence reviewed by the higher court.)
16. Jayson was involved in a vehicular collision where
Nestor, the driver of the other vehicle, died. Evangeline,
Nestors wife, sustained only minor injuries, although their
vehicle was heavily damaged. Jayson was charged with two
offenses before the MeTC of Pasig City, namely: (1) Criminal
Case No. 82367, for Reckless Imprudence Resulting in
Slight Physical Injuries; and (2) Criminal Case No. 82366,
for Reckless Imprudence Resulting in Homicide and
Damage to Property. Jayson pleaded guilty to the charge in
Criminal Case No. 82367 and was meted the penalty of
public censure. Invoking his conviction in Criminal Case
No. 82367, he moved to quash the Information in Criminal
Case No. 82366 on the ground of double jeopardy, but the
trial court denied Jaysons motion. Is the trial court correct
in refusing the quashal of the information?
No, the trial court is not correct. In Ivler v. Modesto-San Pedro
et al., G.R. No. 172716, Nov. 17, 2010, the Supreme Court, held that
double jeopardy has already set in. Citing the opinion of Justice
J.B.L. Reyes in the earlier case of People vs. Buan, 22 SCRA 1383,
March 29, 1968, it said: as the careless act is single, whether the
injurious result should affect one person or several persons, the
offense (criminal negligence) remains one and the same, and can not
be split into different crimes and prosecutions.
17.
If the trial court convicted the accused of
frustrated homicide, but on appeal the appellate court
found him guilty of attempted homicide as the accused had
insisted all along, may he apply for probation?
Yes, as held by the Supreme Court (En Banc) in Colinares v.
People, G.R. No. 182748, Dec. 13, 2011.

38

Arnel Colinares was charged before the RTC of San Jose,

Camarines Sur, with frustrated homicide. Convicted of frustrated
homicide, he was meted the penalty of from 2 years and 4 months of
prision correccional, as minimum, to 6 years and 1 day of prision
mayor, as maximum. He appealed to the CA, but the CA affirmed the
decision of the RTC. He then went to the SC on petition for review on
certiorari. The SC found him guilty of attempted homicide only as the
injury he had inflicted on the victim was not fatal. The SC sentenced
him to suffer the penalty of 4 months of arresto mayor, as minimum,
to 2 years and 4 months of prision correccional, as maximum. Is
Colinares entitled to probation? Yes. The SC held: In appealing his
case, Colinares raised the issue of correctness of the penalty imposed
on him. He claimed that the evidence at best warranted his
conviction for attempted homicide only, which crime calls for a
probationable penalty. In a way, therefore, he sought from the
beginning to bring down the penalty to the level where the law would
allow him to apply for probation. In a real sense, the SCs finding that
Colinares was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time
imposes on him a probationable penalty.
18. May a judgment be promulgated in a criminal case
even in the absence of the counsel for the accused?
Yes.
The presence of counsel for the accused is not
indispensable for promulgation. (Icdang v. Sandiganbayan, G.R. No.
185960, Jan. 25, 2012)
19. Is the fresh period rule laid down by the
Supreme Court in Neypes, et al. v. CA, et al., G.R. No.
141524, Sept. 14, 2005, applicable in criminal cases?
Yes. In Yu v. Samson-Tatad, et al., G.R. No. 170979, Feb. 9,
2011, the SC ruled that its pronouncement of a fresh period to
appeal in Neypes, et al. v. CA, et al., G.R. No. 141524, Sept. 14, 2005,
should equally apply to the period for appeal in criminal cases under
Sec. 6, Rule 122 of the Revised Rules of Criminal Procedure.
Neypes is also applicable in special proceedings where record
on appeal is required. (Zayco, et al. v. Hinlo Jr., G.R. No. 170243,
April 16, 2008)
EVIDENCE
1. Sec. 24 (c), Rule 130 states that a physician cannot
in a civil case, without the consent of the patient, be

39

examined regarding advice or treatment given by him to

his patient which would blacken the reputation of the
patient. Does this apply only to testimonial evidence?
Chan v. Chan, G.R. No. 179786, July 24, 2013, is a case for
declaration of nullity of marriage. The wife, plaintiff in the court
below, sought the production of her husbands hospital records. She
argued that the rule on physician-patient privilege applies only to
testimonial evidence. The Supreme Court said the physician-patient
privilege applies not only to testimonial evidence but also to patients
records. The physician may not be compelled to disclose the records
of his patient.
2. Is a certified copy of the report of a government
medical, chemical, or laboratory expert relating to a
criminal case admissible in evidence even if the witness
who prepared the report does not appear in court to testify
thereon?
Yes. Sec. 13, A.M. No. 12-11-2-SC provides: A certified copy of
the report of a government medical, chemical, or laboratory expert
relating to a criminal case shall be admissible as prima facie evidence
of the truth of its contents. The personal appearance in court of a
witness who prepared the report shall be unnecessary unless
demanded by the accused for the purpose of cross-examination.
3.
What are the guidelines that will serve as
jurisprudential benchmark in appreciating age of the victim
either as an element of the crime or as a qualifying
circumstance:
The guidelines as formulated in People v. Pruna, 439 Phil. 440
(2002), and reiterated in People v. Padigos, G.R. No. 181202, Dec. 5,
2012, are:
a) the best evidence to prove the age of the offended party is an
original or certified true copy of the certificate of live birth of such
party;
b) in the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age;
c) if the certificate of liver birth or authentic document is
shown to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victims mother or a member of

40

the family either by affinity or consanguinity who is qualified to

testify on matters respecting pedigree such as the exact age or date of
birth of the offended party pursuant to Section 40, Rule 130 of the
Rules on Evidence shall be sufficient under the following
circumstances:
1) if the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is less than 7
years old;
2) if the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is less than 12
years old;
3) if the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less than 18
years old.
d) in the absence of a certificate of live birth, authentic
document, or the testimony of the victims mother or relatives
concerning the victims age, the complainants testimony will suffice
provided that it is expressly and clearly admitted by the accused.
e) it is the prosecution that has the burden of proving the age of
the offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against him.
f) the trial court should always make a categorical finding as to
the age of the victim.
4. Is a police report admissible in evidence even if the
police investigator who prepared it was not presented as a
witness in court?
Yes. A police report is considered an entry in official records;
hence, it is admissible as an exception to the hearsay rule. Section 44,
Rule 130 provides: 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.
The requisites for the admissibility of entries in official records
are:
a) that the entry was made by a public officer or by another
person specially enjoined by law to do so;

41

b) that it was made by the public officer in the performance of

his or her duties or by such other person in the performance of a duty
specially enjoined by law;
c) that the public officer or other person had sufficient
knowledge of the facts by him or her stated, which must have been
acquired by the public officer or other person personally or through
official information.
Thus, the presentation of the police report itself is admissible as
an exception to the hearsay rule even if the police investigator who
prepared it was not presented in court, as long as the above requisites
could be adequately proved. (Malayan Insurance Co., Inc. v. Ablerto
et al., G.R. No. 194320, Feb. 1, 2012)
5. Is plaintiffs evidence the only basis in resolving a
demurrer to evidence?
No. Sec. 1, Rule 33 provides, in part: After the plaintiff has
completed the presentation of his evidence, the defendant may move
for dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. x x x The facts referred to in
Section 8 should include all the means sanctioned by the Rules of
Court in ascertaining matters in judicial proceedings. These include
judicial admissions, matters of judicial notice, stipulations made
during the pre-trial and trial, admissions, and presumptions, the only
exclusion being the defendants evidence. (Casent Realty
Development Corp. v. Philbanking Corp., G.R. No. 150731, Sept. 14,
2007)
6. Sec. 34, Rule 132 of the Rules of Court provides that
the court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is
offered must be specified. Why is a formal offer of
evidence necessary?
A formal offer of evidence is necessary because judges are
mandated to rest their findings of facts and their judgment only and
strictly upon the evidence offered by the parties at the trial. (Heirs of
Pedro Pasag, etc., et al. v. 55483, April 27, 2007)
7. What is the principle of adoptive admission?

42

By adoptive admission, a third persons statement becomes the

admission of the party embracing or espousing it. Adoptive
Admission occurs when a party:
(a) expressly agrees to or concurs in an oral statement made by
another;
(b) hears a statement and later on essentially repeats it;
(c) utters an acceptance or builds upon the assertion of another;
(d) replies by way of rebuttal to some specific points raised by
another but ignores further points which he or she has heard the
other make; or
(e) reads and signs a written statement made by another.
(Republic of the Philippines v. Kenrick Development Corporation,
G.R. No. 149576, Aug. 8, 2006)
8. In paternity cases, is it necessary that there be a
prima facie showing of paternity before the court may issue
an order for DNA testing?
Yes. Lucas v. Lucas, G.R. No. 190710, June 6, 2011 holds that a
prima facie showing is necessary before a court can issue a DNA
testing order. During the hearing on the motion for DNA testing in
paternity cases, the petitioner must present prima facie evidence or
establish a reasonable possibility of paternity.
9. In cases involving paternity, if the results of DNA
examination show that the value of probability of paternity
(VPP) is 99.9% or higher, are the results already conclusive
evidence of paternity?
No.
Section 9(c) of the Rule on DNA Evidence states the rule as
follows:
a)

DNA results that exclude the putative parent from

paternity shall be conclusive proof of non-paternity;

b)

If the value of the Probability of Paternity is less than

99.9%, the results of the DNA testing shall be
considered as corroborative evidence;

43

c)

If the value of the Probability of Paternity is 99.9% or

higher, there shall be a disputable presumption of
paternity.

10. What are the guidelines to be used by courts in

assessing the probative value of DNA evidence?
In People v. Vallejo, 382 SCRA 192 [2002], which involves a
rape-slay of a 9-year old girl, the court admitted in evidence the DNA
samples of the victim which were found on the bloodstained garments
of the accused. In this case, the Supreme Court adopted the following
guidelines to be used by courts 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
f) the qualification of the analyst who conducted the test.
In People v. Yatar, 428 SCRA 504 [2004], the SC affirmed the
conviction of the accused for rape with homicide when the test
showed that a match existed between the DNA profile of the semen
found in the victim and the DNA profile of the blood sample given by
the accused. Yatar upheld the constitutionality of compulsory DNA
and rejected the contention that compulsory DNA testing violates the
right of the accused against self-incrimination.
11.
What is the Doctrine of Presumed Identity
Approach?
The Doctrine of Presumed Identity Approach, also known as the
Doctrine of Processual Presumption, holds that in the absence of
proof, the foreign law will be presumed to be the same as the law of
the jurisdiction hearing the case. This doctrine comes into play where
a foreign law is not pleaded or, even if pleaded, is not proved, in
which event the presumption is that the foreign law is the same as our
law on the matter. (ATCI Overseas Corp. et al. v. Echin, G.R. No.
178551, Oct. 11, 2010)
12. On parental and filial privilege, Section 25, Rule
130 of the Rules of Court, provides: No person may be
compelled to testify against his parents, other direct
ascendants, children or other direct ascendants. Does this

44

apply to stepdaughters or those not connected by common

ancestry?
No. In Lee v. CA, 625 SCRA 66, July 13, 2010, it was pointed
out that Sec. 25 was taken from Art. 315 of the Civil Code that applies
only in criminal cases. But those who revised the Rules of Court
extended the prohibition to all kinds of actions, whether civil,
criminal, or administrative filed against parents and other direct
ascendants or children and other direct descendants. The privilege
applies only to direct ascendants and descendants, a family tie
connected by common ancestry. Since a stepdaughter has no
common ancestry with her stepmother, one can be compelled to
testify against the other.
Take note, however, that under Art. 215 of the Family Code, a
descendant may be compelled in a criminal case to testify against his
ascendant when such testimony is indispensable in: (a) a crime
committed against the descendant; (b) a crime committed by one
parent against the other.
13. What is the purpose for establishing a chain of
custody?
The purpose of establishing a chain of custody is to guaranty the
integrity of the physical evidence and to prevent the introduction of
evidence which is not authentic. Since it is called chain, there must
be links to the chain. The links are the people who handled or had
custody of the object. As long as one of the chains testifies and his
testimony negates the possibility of tampering and that the integrity
of the evidence is preserved, his testimony alone is adequate to prove
the chain of custody.
SPECIAL PROCEEDINGS
1. Gerbert, a Filipino who became a Canadian citizen,
married Daisylyn in Pasig. Because of work commitments,
Gerbert left for Canada soon after the wedding. After about
five months, he returned to the Philippines, but was
shocked to discover that Daisylyn was having an affair with
another man. Disappointed, Gerbert went back to Canada
and filed a petition for divorce. After obtaining a divorce
decree, he returned to the Philippines and registered the
divorce decree in Pasig local civil registry. Then, he filed a
petition with the RTC for judicial recognition of the foreign
divorce decree.
The court, however, denied Gelberts
petition on the ground that the remedy under the second

45

paragraph of Article 26 of the Family Code is available only

to the Filipino spouse. The second paragraph of Art. 26 of
the Family Code reads: Where a marriage between a
Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under
Philippine law.
Is the court correct in holding that the remedy under
the second paragraph of Article 26 of the Family Code is
available only to the Filipino spouse?
Is the court correct in dismissing Gerberts petition?
Yes, the court correct in holding that the remedy under the
second paragraph of Article 26 of the Family Code is available only to
the Filipino spouse. In Corpuz v. Sto. Tomas et al., G.R. No. 186571,
Aug. 11, 2010, it was held that the alien spouse can claim no right
under the second paragraph of Article 26 of the Family Code as the
substantive right that it establishes is in favor of the Filipino spouse.
The court, however, is not correct in dismissing Gerberts
petition. The Supreme Court has explained in Corpuz v. Sto. Tomas
et al. that the foreign divorce decree itself, after its authenticity and
conformity with the aliens national law have been duly proven
according to our rules of evidence, serves as a presumptive evidence
of right in favor of Gerbert, pursuant to Sec. 48, Rule 39 which
provides for the effect of foreign judgments. This section provides:
Sec. 48. Effect of foreign judgments or final orders. The
effect of a judgment or final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or final order is as follows:
a) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title of the thing; and
b) 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 or notice to the party,
collusion, fraud, or clear mistake of law or fact.
The foreign judgment (or foreign divorce decree), once
recognized, shall have the effect of res judicata between the parties.

46

In Corpuz v. Sto. Tomas et al., the Supreme Court also

explained that the recording of the divorce decree by the Pasig local
civil registry on the strength alone of the foreign divorce decree
presented by Gerbert is improper because there is no judicial order
yet recognizing the foreign divorce decree.
If there is now an order recognizing the foreign divorce decree,
such an order does not by itself authorize the cancellation of the entry
in the civil registry. A petition for recognition of a foreign judgment
(or foreign divorce decree) is not the proper proceeding contemplated
under the Rules of Court for the cancellation or correction of entries
in the civil registry. A petition under Rule 108 must be filed. Rule
108 sets in detail the jurisdictional and procedural requirements that
must be complied with before a judgment authorizing the
cancellation or correction may be annotated in the civil registry.
Does it mean that two petitions must be filed one for judicial
recognition of the foreign divorce decree and another for cancellation
of entry in the civil registry? No. Corpus v. Sto. Tomas et al. explains
that recognition of foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings (such as that in
Rule 108 of the Rules of Court) is precisely to establish the status or
right of a party or a particular fact. Rule 108 of the Rules of Court can
serve as the appropriate adversarial proceeding by which the
applicability of the foreign judgment can be measured and tested in
terms of jurisdictional infirmities, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
Fujiki v. Marinay et al., G.R. No. 196049, June 26, 2013,
reiterates the ruling in Corpuz v. Sto. Tomas et al. that recognition of
a foreign judgment may be made in a special proceeding for
cancellation or correction of entries in the civil registry under Rule
108.
2. Fujiki, a Japanese national, married Marinay in the
Philippines. After the marriage, Fujiki returned to Japan,
but Marinay remained in the Philippines because the
marriage did not sit well with Fujikis parents. Two years
later, Marinay met Maekara, also a Japanese national.
Without the first marriage being dissolved, Marinay and
Maekara got married. Maekara brought Marinay to Japan.
But because of physical abuse, Marinay left Maekara. Soon,
Marinay and Fujiki met and reestablish their relationship.
With the help of Fujiki, Marinay obtained a judgment from
a family court in Japan which declared the marriage
between Marinay and Maekara void on ground of bigamy.
Fujiki came to the Philippine and filed with the RTC a

47

petition entitled Judicial Recognition of Foreign Judgment

(or Decree of Absolute Nullity of Marriage). A few days
after the filing of the petition, the RTC dismissed the
petition, citing Section 2(a) of A.M. No. 02-11-10-SC (Rule
on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages), which provides: A
petition for declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife. Is the
dismissal of the petition correct?
No, the dismissal of the petition is not correct.
Fujiki is a real party in interest (he has the personality) to file
the petition because the foreign judgment concerns his civil status as
married to Marinay.
A.M. No. 02-11-10-SC is not applicable in a petition for
recognition of foreign judgment relating to the status of marriage
where one of the parties is a foreigner. It does not also apply if the
reason for the petition is bigamy. (Fujiki v. Marinay et al., G.R. No.
196049, June 26, 2013)
3. Merlinda requested from the NSO a certificate of no
marriage (CENOMAR) as one of the requirements for her
marriage with her boyfriend of five years. Upon receipt
thereof, she discovered that she was already married to a
certain Ye Son Sune, a Korean national, on June 24, 2002.
She denied having contracted marriage and claimed that
she did not know Ye Son Sune and that the signature
appearing in the marriage certificate is not hers. She then
filed a petition for cancellation of entries in the marriage
contract, especially the entries in the wife portion thereof.
She impleaded the local civil registrar and Ye Son Sune as
parties to the case. The RTC granted the petition and
ordered the local civil registrar to cancel all the entries in
the WIFE portion of the alleged marriage contract of
Merlinda and Ye Son Sune. The Republic appealed, alleging
that granting the cancellation of all the entries in the wife
portion of the alleged marriage contract is in effect
declaring the marriage void ab initio. Is Republics appeal
meritorious?
No. In Republic of the Philippines v. Merlinda L. Olaybar,
G.R. No. 189538, Feb. 14, 2014, which has the same factual backdrop,
the Supreme Court said that while it is true that the court has no
jurisdiction of declare a marriage void in a Rule 108 proceeding, the

48

trial court in this case did not declare the marriage void because there
was no marriage to speak of in the first place.
4. Where may the estate of a deceased person be
settled?
The estate of the a deceased person may be settled
a) in the province or city where he resided at the time of his
death, if he was a resident of the Philippines.
Note that under Sec. 1, Rule 73 of the Rules of Court, the estate
of a deceased person shall be settled in the Regional Trial Court of the
province in which he resides at the time of his death. As held in
Garcia Fule v. CA, G.R. Nos. L-40502 & L-42670, Nov. 29,1976 [74
SCRA 189], the term resides connotes actual residence as
distinguished from legal residence or domicile. In other words,
resides should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a person,
actual
residence
or
place
of
abode.
(See
also:
San Luis v. San Luis, G.R. No. 133743 and G.R. No. 134029, Feb. 6,
2007)
b) in the province where he had estate, if he was not a resident
of the Philippines.
5. What are the two exceptions to the requirement
that the estate of a decedent be judicially administered
through an administrator or executor?
The two exceptions are:
a) if there is extrajudicial settlement among the heirs; and
b) in summary settlement of estate of small value.
6. What are the requisites of a valid extrajudicial
settlement?
The following are the requisites:
a) the decedent died intestate;
b) there is no outstanding debts of the estate at the time of
settlement;

49

c) the heirs are all of legal age; or if minors and incapacitated,

they are represented by their judicial guardians or representatives;
d) the settlement is made in a public instrument;
e) the fact of extrajudicial settlement is published in a
newspaper of general circulation once a week for three consecutive
weeks.
(Note that if the case is proper for extrajudicial settlement, an
heir cannot insist on instituting administration proceedings which
would be superfluous and unnecessary. If the heirs cannot agree on
the manner of partition, they may institute an action for partition.)
If there is only one heir, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of
deeds.
7. What is the Statute of Non-Claims?
The Statute of Non-Claims is the period for the filing of claims
against the estate, which period shall not be more than 12 months nor
less than 6 months after the date of the first publication of the notice
to the creditors.
Note that immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all persons
having money claims against the decedent to file them in the office of
the clerk of said court.
The following are barred forever if not filed within the time
specified in the notice to the creditors:
a) all claims for money against the decedent arising from
contract, express or implied, whether the same be due, not due, or
contingent;
b) all claims for funeral expenses and expenses for the last
sickness of the decedent;
c) judgment for money against the decedent.
But though barred forever, the aforesaid claims may
nonetheless be set forth as counterclaims in any action that the
executor/administrator may bring against the claimant.

50

8. How may a claim be filed, and where?

A claim may be filed with the clerk of court, serving a copy
thereof on the executor/administrator. Within 15 days from service
thereof, the executor/administrator shall file his answer, admitting or
denying the claim specifically and setting forth the substance of the
matters which are relied upon to support his admission or denial. He
shall serve a copy of his answer on the claimant.
Any claim admitted entirely by the executor/administrator shall
be immediately submitted by the clerk to the court who may approve
the same without hearing, although the court, in its discretion may
notify all known heirs, legatees, or devisees. If any heir, legatee, or
devisee opposes the claim, the court may allow him 15 days to file his
answer.
Contested claim shall be set for trial, with notice to both parties.
The court may refer the claim to a commissioner. The judgment of
the court approving or disapproving the claim is appealable. Note
that the appeal should be by notice of appeal and record on appeal.
9. So it is said that the creditors claim is barred
forever if not filed within the time specified in the notice.
But, does the creditor who fails to file his claim within the
time specified in the notice still have a remedy?
Yes. His remedy is to file a motion for leave to file his claim.
He may file this motion at any time during the administration
proceedings provided no order of distribution has yet been entered.
The court may grant the creditor one-month period from notice of
order granting his motion to file his claim.
10. What are the remedies of a creditor holding a
claim secured by a mortgage?
a) he may waive the mortgage and claim the entire debt from
the estate of the deceased debtor-mortgagor as an ordinary claim;
b) he may foreclose the mortgage judicially and prove any
deficiency as an ordinary claim;
c) he may rely on the mortgage exclusively, foreclosing the
same at any time before it is barred by prescription without right to
file a claim for any deficiency. (Sec. 7, Rule 86; Maglague v. Planters
Development Bank, G.R. No. 109472, May 18, 1999.)

51

11. May a probate court issue a writ of execution?

No. A probate court may not issue a writ of execution because
its orders usually refer to the adjudication of claims against the estate
which the executor or administrator may satisfy without the need of
writ of execution.
But by way of exceptions, the probate court may issue a writ of
execution in the following instances:
a) to satisfy the contributive shares of devisees, legatees and
heirs, who have taken possession of decedents estate, for debts and
expenses of the estate;
b) to enforce payment of expenses of partition;
c) to satisfy the costs when a person is cited for examination in
probate proceedings.
12. When may distribution of the estate be made?
It may only be made after all debts, funeral charges, expenses of
administration, allowance to the widow, and estate taxes have been
paid.
It may also be made before payment of such obligations,
provided the distributees or any of them gives a bond in a sum fixed
by the court conditioned upon the payment of said obligation within
such time as the court directs, or when provision is made to meet
those obligations.
13. AA, BB, CC, and DD are the heirs of XX who died
on July 16, 2003. XX had three other children by his
paramour. His illegitimate children are: MM, NN, and OO.
AA filed a petition for his appointment as administrator of
the estate of XX. During the pendency of the petition for
issuance of letters of administration, AA, BB, CC, and DD
discovered that MM, NN, and OO had executed an
extrajudicial settlement of the estate of XX involving a
property located in Dagupan City. AA, BB, CC, and DD filed
a complaint against MM, NN, and OO for the annulment of
the extrajudicial settlement and for the recovery of the
Dagupan property. Defendants MM, NN, and OO filed a
motion to dismiss on the ground that plaintiffs AA, BB, CC,

52

and DD are not the real parties-in-interest but rather the

Estate of XX in view of the pendency of the administration
proceedings. Question: May the heirs (AA, BB, CC, and DD)
bring suit to recover property of the estate pending the
appointment of an administrator?
Yes. During the pendency of the administration proceedings,
the heirs without doubt have legal personality to bring suit in behalf
of the estate of the decedent in accordance with the provision of
Article 777 of the New Civil Code that the rights to succession are
transmitted from the moment of the death of the decedent.
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator has
not yet been appointed. This is the proper modality despite the total
lack of advertence to the heirs in the rules on party representation,
namely Section 3, Rule 3 and Section 2, Rule 87 of the Rules of Court.
The legal standing of the heirs to represent the rights and properties
of the decedent under administration pending the appointment of an
administrator has long been recognized. The heirs cannot be
expected to wait for the appointment of an administrator; then wait
further to see if the administrator appointed would care enough to file
a suit to protect the rights and the interests of the deceased; and in
the meantime do nothing while the rights and the properties of the
decedent are violated or dissipated.
In fact, even if an administrator is already appointed, the heirs
may still institute the proper action for the recovery of a property of
the estate in the following instances: (1) if the executor or
administrator is unwilling or refuses to bring suit; and (2) when the
administrator is alleged to have participated in the act complained of
and he is made a party defendant.
Thus, if the question is: What are the exceptions to the rule that
the heirs have no legal standing to sue for the recovery of property of
the estate during the pendency of the administration proceedings?
Then the answer is as follows: (1) if the executor or administrator is
unwilling or refuses to bring suit; (2) when the administrator is
alleged to have participated in the act complained of and he is made a
party defendant; and (3) when no administrator has yet been
appointed. (Rioferio, et al. v. CA, et al., G.R. No. 129008, Jan. 13,
2004).
14. Betty was appointed administratrix of the estate of
deceased Jose. She submitted an inventory to the court of
the real and personal properties of the deceased. AMC, one
of the creditors of the deceased, filed a claim against the

53

estate. Thereafter, AMC noticed that the shares of stocks of

the deceased with Ayala were not included in the inventory.
AMC then filed a motion to require Betty to explain the noninclusion of these shares of stocks. Betty explained that
these shares of stocks had already been transferred to other
persons prior to the death of Jose. AMC filed a motion for
the examination of the supposed transferees. The trial
court denied the motion on the ground that it was merely a
fishing expedition. Is the trial court correct?
No, the trial court is not correct.
Persons, or third persons, to whom the decedents assets had
been conveyed may be cited to appear in court and examined under
oath as to how they came into possession of the decedents assets. If
they refuse to appear, the court may punish them for contempt.
The trial court has the inherent duty to see to it that the
inventory lists all the properties, rights and credits which the law
requires the administrator to include in his inventory. In compliance
with this duty, the court has also the inherent power to determine
what properties, rights and credits of the deceased should be included
by the administrator in the inventory. An heir or person interested in
the properties of a deceased may call the courts attention that certain
properties, rights and credits are left out from the inventory. In such
a case, it is likewise the courts duty to hear the observations of such
party. The court has the power to determine if such observations
deserve attention and if such properties belong prima facie to the
estate. However, in such proceedings the trial court has no authority
to decide whether the properties, real or personal, belong to the estate
or to the persons examined. If after such examination there is good
reason to believe that the person is keeping properties belonging to
the estate, then the administrator should file an ordinary action in
court to recover the same. A separate action is necessary for
determination of ownership and recovery of possession. (Betty T.
Chua, et al. v. Absolute Management Corporation, et al., G.R. No.
144881, Oct. 16, 2003)