GENERAL PRINCIPLES

1. What is the Principle of Judicial Hierarchy of Courts? When may it be disregarded?

The Doctrine of Hierarchy of Courts, as a rule, requires that recourse must be first made to the
lower-ranked courts exercising concurrent jurisdiction with a higher court. (Dio vs. Subic Bay Marine
Exploration, Inc., GR No. 189532, June 11, 2014)

The principle may be disregarded:

a. if warranted by the nature and importance of the issues raised in the interest of speedy justice
and to avoid future litigations
b. in cases of national interest and of serious implications.

2. What is the theory of the case?

A comprehensive and orderly mental arrangement of principle and facts, conceived and constructed
for the purpose of securing a judgment or decree of a court in favor of a litigant; the particular line of
reasoning of either party to a suit, the purpose being to bring together certain facts of the case in a
logical sequence and to correlate them in a way that produces in the decision makers mind a definite
result or conclusion favored by the advocate.

A party is bound by the theory he adopts and by the cause of action he stands on and cannot be
permitted after having lost thereon to repudiate his theory and cause of action and adopt another
and seek to re-litigate the matter anew either in the same forum or on appeal. (Bote vs. Veloso, G.R.
No. 194270, December 3, 2012)

3. Distinguish Residual Prerogative from Residual Jurisdiction.

Residual prerogative refers to the general residual power of the courts to dismiss an action motu
proprio based on (1) lack of jurisdiction over the subject matter, (2) litis pendentia, (3) res judicata
and (4) prescription. On the other hand, residual jurisdiction is available at a stage in which the
court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the
appeal. This stage is reached upon the perfection of the appeals by the parties or upon the approval
of the records on appeal, but prior to the transmittal of the original records or the records on appeal.
In either instance, the trial court still retains its so-called residual jurisdiction to issue protective
orders, approve compromises, permit appeals of indigent litigants, order execution pending appeal,
and allow the withdrawal of the appeal. (Katon vs. Palanca, G.R. No. 151149, September 7, 2004)

4. What are the requisites of residual jurisdiction?

a) Trial on the merits;

b) Judgement rendered by the trial court; and
c) Appeal therefrom by the aggrieved party. (DBP vs. Carpio, G.R. No. 195450, February 1, 2017)

5. What is the extended or expanded jurisdiction?

Extended or Expanded Jurisdiction is the authority of the court, in aid of its appellate
jurisdiction, to control all auxiliary and incidental matters necessary to the efficient and proper
exercise of that jurisdiction. (City of Manila vs. Judge Cuerdo, G.R. No. 175723, February 4, 2014)
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 Example: Authority of the CTA to take cognizance of petitions for certiorari questioning interlocutory
orders issued by the RTC in a local tax case. (Ibid.)

6. What is concurrent jurisdiction?

Concurrent jurisdiction is that which is possessed over the same parties or subject matter at the
same time by two or more separate tribunals.(Pat-og, Sr. vs. Civil Service Commission, G.R. No.
198755, June 5, 2013)

7. What is the Principle of Non-Interference or Judicial Stability?

The doctrine of judicial stability or non-interference provides that no court can interfere by injunction
with the judgments or orders of another court of concurrent jurisdiction having the power to grant
the relief sought by the injunction. The rationale for the rule is founded on the concept of
jurisdiction: a court that acquires jurisdiction over the case and renders judgment therein has
jurisdiction over its judgment, to the exclusion of all other coordinate courts, for its execution and
over all incidents, and to control, in furtherance of justice, the conduct of ministerial officers acting in
connection with this judgment. (Del Rosario vs. Ocampo-Ferrer, G.R. No. 215348. June 20, 2016, J.
Perlas-Bernabe)

8. What is split jurisdiction?

The exercise by two judicial bodies, of jurisdiction over basically the same subject matter – precisely
the split jurisdiction situation which is anathema to the orderly administration of justice. Stated
differently, it would be somewhat incongruent with the pronounced judicial abhorrence to split
jurisdiction to conclude that the intention of the law is to divide the authority over a local tax case
filed with the RTC by giving to the CA or this Court jurisdiction to issue a writ of certiorari against
interlocutory orders of the RTC but giving to the CTA the jurisdiction over the appeal from the
decision of the trial court in the same case. (City of Manila vs. Judge Cuerdo, G.R. No. 175723,
February 4, 2014)

9. Distinguish appellate jurisdiction from equity jurisdiction.

The appellate jurisdiction of courts is conferred by law. The appellate court acquires jurisdiction over
the subject matter and parties when an appeal is perfected. On the other hand, equity jurisdiction
aims to provide complete justice in cases where a court of law is unable to adapt its judgments to the
special circumstances of a case because of a resulting legal inflexibility when the law is applied to a
given situation. The purpose of the exercise of equity jurisdiction, among others, is to prevent unjust
enrichment and to ensure restitution. (Regulus Development, Inc. vs. Dela Cruz, G.R. No. 198172,
January 25, 2016)

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 JURISDICTION

10. What are the aspects of jurisdiction?

Jurisdiction Meaning How Conferred/Acquired

over
Subject Matter The power to hear and determine cases of Conferred by law.
the general class to which the proceedings in
question belong and is conferred by the
sovereign authority which organizes the
court and defines its powers.

Parties It is the legal power of the court to render 1. Plaintiff:

personal judgment against a party to an a. By the filing of the complaint; and
action or proceeding. b. Timely payment of the correct docket
fees.

2. Defendant:
a. Valid service of summons; OR
b. Voluntary Appearance in Court.

3. Intervenor:
Upon the approval of the motion for
leave to intervene.

Issues Power of the court to try and decide issues Determined by the allegations in the
raised in the pleadings of the parties or by pleadings.
their agreement in a pre-trial order or those
tried by the implied consent of the parties.

Res Jurisdiction over the thing which is the
subject of the case.
Territory Venue is jurisdictional in criminal cases.
The place where the crime was committed
determines not only the venue of the action
but it is an essential element of jurisdiction.
1. By the seizure of the property under
legal process, whereby it is brought into
actual custody of the law. (e.g.
Attachment); or
2. As a result of the institution of legal
proceedings, in which the power of the
court is recognized or made effective.
The offense must have been committed
or any one of its essential ingredients
should have taken place within the
territorial jurisdiction of the court.

11. What is the Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction? When is it

not applicable?

The Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction provides that jurisdiction, once
attached, cannot be ousted by subsequent happenings or events although of a character which would
have prevented jurisdiction from attaching in the first instance, and the court retains jurisdiction until
it finally disposes of the case. (Aruego vs. CA, G.R. No. 112193, March 13, 1996; Vda. De Ballesteros
vs. Rural Bank of Canaman, Inc., G.R. No. 176260, November 24, 2010)
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 The doctrine shall not apply when:
1. A subsequent statute expressly prohibits the continued exercise of jurisdiction;
2. The penal law where the action is based is repealed by a subsequent law;
3. Constitutional right has been violated;
4. Where the statute expressly provides, or is construed to the effect that it is intended to
operate as to actions pending before its enactment;
5. When the proceedings in the court acquiring jurisdiction is terminated, abandoned or
declared void;
6. Appeal has been perfected;
7. Curative statutes. (Herrera, Vol. I, p. 106, 2007 ed.).

12. Does jurisdictional estoppel apply to jurisdiction over the person of the defendant?

No. The aspect of jurisdiction which may be barred from being assailed as a result of estoppel by
laches is jurisdiction over the subject matter. Instead, the principles relating to jurisdiction over the
person of the parties should apply. Since the defense of lack of jurisdiction over the person of a party
to a case is not one of those defenses which are not deemed waived under Section 1 of Rule 9, such
defense must be invoked when an answer or a motion to dismiss is filed in order to prevent a waiver
of the defense. If the objection is not raised either in a motion to dismiss or in the answer, the
objection to the jurisdiction over the person of the plaintiff or the defendant is deemed waived by
virtue of the first sentence of the Sec. 1 of Rule 9 of the Rules of Court. (Boston Equity Resources,
Inc. vs. Court of Appeals, G.R. No. 173946. June 19, 2013)

13. Jurisdiction: Small Claims Cases, Summary, and Barangay Conciliation.

Jurisdiction Small Claims Cases Summary Procedure Barangay Conciliation

Civil Cases Actions for payment of 1) All cases of forcible
money where the value of entry and unlawful
the claim does not exceed detainer, irrespective of
the jurisdictional amount of the amount of damages or
P400,000 for MeTCs and unpaid rentals sought to
P300,000 for MTCCs, MTCS be recovered. Where
and MCTCs, exclusive of attorney‘s fees are
interest and costs (OCA awarded, the same shall
Circular No. 45-2019, not exceed P20,000;
effective April 1, 2019).
Note: Joinder of Claims.
The plaintiff may join in a 2) All other cases, except
single statement of claim probate proceedings,
one or more separate small where the total amount of
claims against a defendant the plaintiff‘s claim does
provided that the total not exceed P100,000
amount claimed does not (outside MM) or P200,000
exceed the above (in MM), exclusive of
jurisdictional amount. interest
Actions covered are: and costs.
a) purely civil in nature
where the claim or relief
All disputes between parties
actually residing in the same city
or municipality for amicable
settlement, EXCEPT the
following:
Substantive Exceptions:
(a) Where one party is the
government, or any subdivision or
instrumentality thereof;
(b) Where one party is a public
officer or employee, and the
dispute relates to the
performance of his official
functions;
(c) Offenses punishable by
imprisonment exceeding one (1)
year or a fine exceeding Five
Thousand Pesos (P5,000.00);

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 prayed for by the (d) Offenses where there is no
plaintiff is solely for private offended party;
payment or
reimbursement of sum (e) Where the dispute involves
of money; and real properties located in different
b) the civil aspect of cities or municipalities.
criminal actions, either
filed before the
EXN to the EXN: the parties
institution of the criminal
thereto agree to submit their
action, or reserved upon
differences to amicable
the filing of the criminal
settlement by an appropriate
action in court, pursuant
lupon;
to Rule 111 (Sec. 4, AM
08-8-7-SC).
(f) Disputes involving parties who
actually reside in barangays of
different cities or municipalities
These claims may be:
(MDE)
EXN to the EXN: where such
barangay units adjoin each other
a) For money owed under
and the parties thereto agree to
the contracts of lease,
submit their differences to
loan, services, sale, or
amicable settlement by an
mortgage;
appropriate lupon;
b) For liquidated
damages arising from
fault or negligence, (g) Such other classes of disputes
quasi-contract, or which the President may
contract; and determine in the interest of
Justice or upon the
recommendation of the Secretary
c) The enforcement of a
of Justice.
barangay amicable
settlement or an
arbitration award
involving a money claim Procedural Exceptions
pursuant to Sec. 417 of
RA 7160 (LGC). (Sec. 4,
AM 08-8-7-SC).
Criminal 1) Violations of traffic law, a. Accused is under police
Cases rules and regulations; custody;
b. Person has been deprived of
2) Violation of the rental personal liberty thus calling
law; for a habeas corpus
proceeding;
3) All other criminal cases c. Actions coupled with
where the penalty provisional remedies;
prescribed is imprisonment d. Action barred by prescription;
not exceeding six (6) e. Labor disputes;
months, or fine not f. As determined by the
exceeding P1,000, or both, President in the interest of
irrespective of other justice;
imposable penalties, g. CARL disputes;
accessory or otherwise, or h. Those involving the traditions
of the civil liability arising of indigenous cultural
therefrom, provided, that
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 in offenses involving community.
damage to property
through criminal
negligence, RSP shall Notes:
govern where the
In actions to annul judgment
imposable fine does not upon a compromise, parties
exceed P10,000. may, at any stage of the
Cases Not 1. A civil case where proceedings, agree in writing to
Covered the plaintiff‘s cause of have the matter in dispute
action is pleaded in the decided by arbitration by either
same complaint with the Punong Barangay or pangkat.
another cause of action Then, arbitrational hearings shall
subject to the ordinary follow the order of adjudicative
procedure; trials.

2. A criminal case GR: No complaint, petition,

where the offense charged action or proceeding involving
is necessarily related to any matter within the authority of
another criminal case the lupon shall be filed or
subject to the ordinary instituted directly in court or any
procedure. government office for
adjudication.

EXN:
 There has been a
confrontation between the
parties before the lupon
chairman or pangkat; and
 No conciliation or settlement
has been reached or if a
conciliation or settlement is
reached, that it has been
repudiated by the parties
thereto (Sec. 412, R.A. 7160)

14. State the civil cases that fall under the exclusive original jurisdiction of the Regional Trial
Court.

a. Actions in which the subject of litigation is incapable of pecuniary estimation;

b. Actions which involve the title to, or possession of, real property, or any interest therein, where
the assessed value of the property involved exceeds P20,000 or P50,000 in Metro Manila, except
forcible entry and unlawful detainer;
c. In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds Three
Hundred Thousand (P300,000.00) or, in Metro Manila, where such demand or claim exceeds Four
Hundred Thousand (P400,000.00);
d. (4) In all matters of probate, both testate and intestate , where the gross value of the estate
exceeds Three Hundred Thousand (P300,000.00) or, in probate matters in Metro Manila, where
such gross value exceeds Four Hundred Thousand (P400,000.00);
e. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions;
f. In all other cases in which the demand, exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds
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 Three Hundred Thousand (P300,000.00) or, in such other cases in Metro Manila, where the
demand exclusive of the abovementioned items exceeds Four Hundred Thousand (P400,000.00);
g. In all civil actions and special proceedings falling within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by
law;
h. Intra-corporate controversies under Sec. 5.2 of the Securities and Regulation Code (Special
Commercial Courts).

15. Determine the jurisdiction of the following actions:

a. An action for foreclosure of mortgage where the mortgaged property’s assessed value
is P17,000.

Municipal Trial Court. As an action for foreclosure of mortgage is a real action, it is the assessed
value of the property which determines the court's jurisdiction. Considering that the assessed
value of the mortgaged property is only P17,000, the action falls within the jurisdiction of the first
level court. (Roldan vs. Barrios, G.R. No. 214803, April 23, 2018)

b. A complaint for quieting of title where the assessed value of the property involved is
P32,000 which is located in Candaba, Pampanga.

Regional Trial Court.

i. An action for quieting of title falls under the second paragraph of Sec. 1, Rule 63 (Declaratory
Relief and Similar Remedies). To determine which court has jurisdiction over the actions
identified in the second paragraph of Sec. 1, Rule 63, said provision must be read together
with those of the Judiciary Reorganization Act of 1980, as amended. Since an action for
quieting of title involves title to or possession of real property, it is the assessed value of the
property which determines the court's jurisdiction. Considering that the assessed value of the
property involved is P32,000 and it is located outside of Metro Manila, then it is the Regional
Trial Court which has jurisdiction. (Malana vs. Tappa, G.R. No. 181303, September 17, 2009)

ii. In Sabitsana vs. Mertegui (G.R. No. 181359, August 5, 2013), the Court held that an action for
quieting of title may be instituted in the RTC, regardless of the assessed value of the real
property in dispute.

c. A complaint in which the principal relief sought is the enforcement of a seller’s

contractual right to repurchase a lot with an assessed value of P15,000.

Regional Trial Court. An action in which the principal relief sought is the enforcement of a seller’s
contractual right to repurchase a lot is one for specific performance to enforce a contractual right.
Thus, it is incapable of pecuniary estimation and therefore cognizable by the RTC. (Surviving
Heirs of Bautista vs. Lindo, G.R. No. 208232, March 10, 2014)

d. A complaint for annulment of real estate mortgage prior to the registration of the
Certificate of Sale with the Registry of Deeds.

Regional Trial Court. Since the Certificate of Sale is not yet not registered with the Registry of
Deeds, the action cannot be considered as an action to recover a real property. Thus, the action

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 is actually incapable of pecuniary estimation. Thus, it is cognizable by the RTC. (First Sarmiento
Property Holdings, Inc., vs. Philippine Bank of Communications, G.R. No. 202836, June 19, 2018)

e. An action filed on November 2, 2018 to recover the possession of a condo unit in

Pasig City being occupied by the defendant by mere tolerance of the plaintiff, after
the former ignored the last demand to vacate that was duly served upon and received
by him on August 1, 2017.

It depends. The instant action is an accion publiciana considering that more than a year has
lapsed from the date of last demand. Thus, jurisdiction would depend on the assessed value of
the property. If the assessed value of the condo unit does not exceed P50,000.00, the
Metropolitan Trial Court has jurisdiction. On the other hand, if the assessed value exceeds
P50,000.00, the RTC has exclusive original jurisdiction over the action. (Penta Pacific Realty
Corporation vs. Ley Construction and Development Corporation, G.R. No. 161589, November 24,
2014)

f. A criminal action charging the accused, a public officer who has a salary grade 30, for
violation of Section 5 in relation to Section (jj), Section 26(b), and Section 28 of RA
9165 (Comprehensive Dangerous Drugs Act of 2002).

Regional Trial Court. RA 9165 specifies the RTC as the court with the jurisdiction to exclusively try
and hear cases involving violations of the Comprehensive Dangerous Drugs Act of 2002. (De
Lima vs. Guerrero, G.R. No. 229781, October 10, 2017)

16. Cassie, invoking the provisions of the Rule on Violence Against Women and their
Children, filed with the RTC of Manila designated as a Family Court a petition for
issuance of a Temporary Protection Order (TPO) against her husband, Kristoff. Kristoff,
in his opposition, raised the constitutionality of R.A. No. 9262 (Anti-VAWC Law) arguing
that the law authorizing the issuance of a TPO violates the equal protection and due
process clauses of the 1987 Constitution. Can the Family Court rule on the
constitutionality of R.A. No. 9262 despite being a special court of limited jurisdiction?

Yes. Family Courts are special courts, of the same level as Regional Trial Courts. In spite of its
designation as a family court, the RTC of Manila remains possessed of authority as a court of general
original jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land
registration, guardianship, naturalization, admiralty or insolvency. It is settled that RTCs have
jurisdiction to resolve the constitutionality of a statute, "this authority being embraced in the general
definition of the judicial power to determine what are the valid and binding laws by the criterion of
their conformity to the fundamental law." The Constitution vests the power of judicial review or the
power to declare the constitutionality or validity of a law, treaty, international or executive
agreement, presidential decree, order, instruction, ordinance, or regulation not only in Supreme
Court, but in all RTCs. (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013, J. Perlas-Bernabe)

17. Tom filed a Complaint with the Shari'a District Court against the Municipality of Tangkal,
represented by Mayor Aamir, a Muslim, for recovery of possession and ownership of a
parcel of land. He alleged that he is the owner of the land, and that he entered into an
agreement with the Municipality of Tangkal allowing the latter to "borrow" the land to
pave the way for the construction of the municipal hall and a health center building. The
agreement allegedly imposed a condition upon the Municipality of Tangkal to pay the
value of the land within 35 years; otherwise, ownership of the land would revert to Tom.
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 Tom claimed that the Municipality of Tangkal neither paid the value of the land within
the agreed period nor returned the land to him. Thus, he prayed that the land be
returned to him. Does the Shari'a District Court have jurisdiction over the case?

No. In determining whether the Shari'a District Court has jurisdiction over the case, the threshold
question is whether both parties are Muslims. It is clear from the title and the averments in the
complaint that Mayor Aamir was impleaded only in a representative capacity, as chief executive of
the local government of Tangkal. When an action is defended by a representative, that
representative is not -and neither does he become- a real party in interest. The person represented
is deemed the real party in interest; the representative remains to be a third party to the action.
That the mayor of the Municipality is a Muslim is therefore irrelevant for purposes of complying with
the jurisdictional requirement under Article 143(2)(b) that both parties be Muslims. To satisfy the
requirement, it is the real party defendant, the Municipality of Tangkal, who must be a Muslim.
(Municipality of Tangkal vs. Balindong, G.R. No. 193340, January 11, 2017)

CIVIL PROCEDURE

18. Santos’ car was bumped by a truck driven by Pinion and owned by Iniego, the employer
of Pinion. Santos filed an action for quasi-delict against Pinion and Iniego with the RTC
of Manila. In the prayer of his complaint, Santos asked for P40,000 as actual damages,
P300,000 as moral damages, P150,000 as exemplary damages, and attorney’s fees of
P50,000. The moral damages and exemplary damages were prayed for because of
defendants’ adamant refusal to admit liability and to pay actual damages. Which court
shall have jurisdiction over the action?

It is the Regional Trial court which has jurisdiction. The moral damages and exemplary damages are
included in computing the jurisdictional amount of P400,000 since said damages arose from the
same cause of action, that is, quasi-delict. The total claim of P490,000 thus falls within the
jurisdiction of the RTC (Iniego v. Purganan, G.R. No. 166876, March 24, 2006 cited in Primer-
Reviewer on Remedial Law 1, Riguera [2017]).

19. State the rules on venue of civil actions.

a. Where a specific rule or law provides the venue, the same shall be followed. (Sec. 4(a), Rule 4)

b. If there is no law or rule providing for the venue and there is a stipulation between the parties as
to the venue, the same shall govern, provided, it contains restrictive words like "only," "solely,"
"exclusively in this court," "in no other court save —," "particularly," "nowhere else but/except —
," or words of equal import. In the absence of such restrictive words, the stipulated venue shall
only be considered as merely an agreement or an additional forum. (Pacific Consultants vs.
Schonfeld, G.R. No. 166920, February 19, 2007)

c. In cases where there is no rule or law providing for the venue or where there is no venue
stipulation, the venue depends on whether the action is real or personal. (Sec. 1, Rule 4)

20. When is there a splitting of a single cause of action? What is its effect?

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 There is a splitting of a single cause of action when two or more suits are instituted on the basis of
the same cause of action, in which case the filing of one or a judgement upon the merits in any one
is available as a ground for the dismissal of the others. (Sec. 4, Rule 2)

21. What are the requisites for proper joinder of causes of action?

a. The party joining the causes of action shall comply with the rules on joinder of parties;
b. The joinder shall not include special civil actions or actions governed by special rules;
c. Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes
of action falls within the jurisdiction of said court and the venue lies therein; and
d. Where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction (Totality Rule). (Sec. 5, Rule 2)

22. What are the requisites of joinder of parties?

Before causes of action and parties can be joined in a complaint involving multiple parties:

a. the right to relief must arise out of the same transaction or series of transactions; and
b. there must be a question of law or fact common to all the parties.

23. Radiopoor, Inc. extended a loan to Spouses Dizon in the amount of P800,000 as
evidenced by a Promissory Note. The Promissory Note states that "Any action to enforce
payment of any sums due under this Note shall exclusively be brought in the proper court
within the National Capital Judicial Region or in any place where Radiopoor, Inc. has a
branch/office, at its sole option." Due to Spouses Dizon’s default, Radiopoor demanded
payment of the whole remaining balance of the loan. As the demands went unheeded,
Radiopoor filed a Complaint for Sum of Money before the RTC of San Mateo Rizal
alleging that it has its branch in San Mateo. The RTC dismissed the Complaint. It pointed
out that since: (a) Radiopoor's principal place of business is in Caloocan City; and (b)
Spouses Dizon's residence is in Porac, Pampanga, it has no jurisdiction over any of the
party-litigants, warranting the dismissal of the complaint.

a. Rule on the propriety of the dismissal based on lack of jurisdiction.

The dismissal was not proper. The RTC confused the concepts of jurisdiction and venue which
are not synonymous with each other. Jurisdiction is defined as the authority to hear and
determine a cause or the right to act in a case. This is markedly different from the concept of
venue, which only pertains to the place or geographical location where a case is filed.

Here, Radiopoor filed a complaint for sum of money involving the amount of P800,000. Pursuant
to Section 19 (8) of Batas Pambansa Blg. (BP) 129, as amended by Section 5 of R.A. 7691, the
RTC irrefragably has jurisdiction over Radiopoor's complaint. Thus, the dismissal based on lack of
jurisdiction was clearly incorrect. (Radiowealth Finance Company, Inc. vs. Pineda, G.R. No.
227147, July 30, 2018, J. Perlas-Bernabe)

b. Was venue properly laid in this case?

Yes. The venue stipulation in the Promissory Note is restrictive in nature, considering that it
effectively limits the venue of the actions arising therefrom to the courts of: (a) the National
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 Capital Judicial Region; or (b) any place where Radiopoor has a branch/office. In light of
Radiopoor's standing allegation that it has a branch in San Mateo, Rizal, it appears that venue
has been properly laid. (Radiowealth Finance Company, Inc. vs. Pineda, G.R. No. 227147, July
30, 2018, J. Perlas-Bernabe)

c. If the venue was improperly laid, will this justify the dismissal of the complaint?

Even if it appears that venue has been improperly laid, it is well-settled that the courts may
not motu proprio dismiss the case on the ground of improper venue. Without any objection at the
earliest opportunity, as in a motion to dismiss or in the answer, it is deemed waived.
(Radiowealth Finance Company, Inc. vs. Pineda, G.R. No. 227147, July 30, 2018, J. Perlas-
Bernabe)

24. What is a compulsory counterclaim? What are the tests in determining whether a
counterclaim is compulsory or permissive?

A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out
of or is connected with the transaction or occurrence constituting the subject matter of the opposing
party’s claim and does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction.

The criteria or tests that may be used in determining whether a counterclaim is compulsory or
permissive are:
1. Are the issues of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory
counterclaim rule?
3. Will substantially the same evidence support or refute plaintiffs claim as well as defendant’s
counterclaim?
4. Is there any logical relation between the claim and the counterclaim?

Another test is the “compelling test of compulsoriness” which requires “a logical relationship
between the claim and counterclaim, that is, where conducting separate trials of the respective
claims of the parties would entail a substantial duplication of effort and time by the parties and the
court.” (Alday vs. FGU, G.R. No. 138822, January 23, 2001)

25. Haus Walk and Spouses Lunes entered into a Contract to Sell whereby Haus Walk agreed
to sell a parcel of land to the spouses payable in 120 equal monthly installments.
Subsequently, Haus Walk executed a Deed of Assignment in favor of River Bank,
assigning its rights and interests as seller in the aforesaid Contract to Sell with Spouses
Lunes, including the right to collect payments and execute any act or deed necessary to
enforce compliance therewith. When Spouses Lunes defaulted in their payments, River
Bank rescinded the Contract to Sell. Consequently, River Bank filed an unlawful detainer
case against Spouses Lunes. Acting on the Motion of Spouses Lunes, the Municipal Trial
Court ordered River Bank to implead Haus Walk ruling that since legal title to the subject
property was retained by Haus Walk, the latter is not only a real party in interest, but
also an indispensable party which should have been impleaded as a plaintiff.

a. Distinguish a necessary party from an indispensable party.

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 A necessary party is one who is not indispensable but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action (Sec. 8, Rule 3). On the
other hand, an indispensable party is a party-in-interest in interest without whom no final
determination can be had of an action (Sec. 7, Rule 3).

b. Did the MTC correctly rule that Haus Walk is an indispensable party?

No. A person is not an indispensable party if his interest in the controversy or subject
matter is separable from the interest of the other parties, so that it will not necessarily be
directly or injuriously affected by a decree which does complete justice between them.

Here, the only issue in an unlawful detainer suit is who between the litigating parties has
the better right to possess de facto the subject property. Thus, Haus Walk’s interest in
the subject property, as one holding legal title thereto, is completely separable from
River Bank’s rights under the Contract to Sell, which include the cancellation or rescission
of such contract and resultantly, the recovery of actual possession of the subject
property by virtue of this case. Hence, the courts can certainly proceed to determine who
between the Bank and the Spouses have a better right to the possession of the subject
property, and complete relief can be had, even without Haus Walk’s participation.
(Philippine Veteran’s Bank vs. Spouses Sabado, G.R. No. 224204, August 30, 2017, J.
Perlas-Bernabe)

26. Pedro filed an action to recover possession and ownership of a parcel of land against
Juan and Juana. During the pendency of the case, Pedro died but no substitution by his
heirs was effected. The trial court ruled in favor of the Heirs of Pedro. Juan and Juana
assert that the RTC’s decision was invalid for lack of jurisdiction, since the heirs were
not substituted for the deceased Pedro. Was the trial court’s decision valid?

Yes. Notwithstanding the general rule in Sec. 16 of Rule 3, a formal substitution of heirs is not
necessary when they themselves voluntarily appear, participate in the case and present evidence in
behalf of the deceased. Strictly speaking, the rule on the substitution of heirs is not a matter of
jurisdiction but a requirement of due process. Thus, when due process is not violated, as when the
right of the representative or heir is recognized and protected, non-compliance or belated
compliance with the Rules cannot affect the validity of a promulgated decision. Mere failure to
substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court’s decision. The
alleging party must prove that there was undenialbe violation of due process (De la Cruz vs. Joaquin,
G.R. No. 162788, July 28, 2005, cited in Primer-Reviewer on Remedial Law 1, Riguera [2017])

27. What are the instances when an amendment may be made to conform to or authorize
presentation of evidence?

a. When issues not raised by the pleadings are tried with the express or implied consent of the
parties;
Note: Failure to amend does not affect the result of the trial of said issue.
b. When the presentation of the merits of the action and the ends of substantial justice will be
subserved by the presentation of the evidence, even if evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings (Sec. 5, Rule 10).

28. What are the three (3) modes of Specific Denial?

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 a. Absolute Denial – done by specifying each material allegation of fact the truth of which a party
does not admit and, whenever practicable, setting forth the substance of the matters upon which
he relies to support his denial;
b. Partial Denial – denial of only a part of an averment. It is done by specifying so much of the
material allegation of ultimate facts as is true and material, then denying only the remainder;
c. Denial by Disavowal of Knowledge – done by stating in the answer that one is without
knowledge or information sufficient to form a belief as to the truth of a material averment made
in the complaint.

Note: It is settled that denials based on lack of knowledge or information of matters clearly
known to the pleader, or ought to be known to it, or could have easily been known by it are
insufficient, and constitute ineffective or sham denials. (Fernando Medical Enterprises vs.
Wesleyan University, G.R. No. 207920, January 20, 2016)

29. CPR Promotions obtained loans from River Bank. To secure the loans, CPR Promotions
executed a real estate mortgage in favor of River Bank. When CPR Promotions
defaulted, River Bank extra-judicially foreclosed the mortgage, and in auction sale, River
Bank emerged as the highest bidder. Despite the sale, there remained a deficiency
balance so River Bank filed a collection suit against CPR Promotions. After trial, it turned
out that there was no deficiency balance but there was actually excess from the
proceeds of the sale. Can CPR Promotions institute a separate action to refund the
excess amount?

No. Such refund is a compulsory counterclaim. First, in both cases, substantially the same evidence
is needed in order to prove their respective claim. Second, adjudication in favor of one will
necessarily bar the other since these two actions are absolutely incompatible with each other; a debt
cannot be fully paid and partially unpaid at the same time. Third, these two opposing claims arose
from the same set of transactions. And finally, if these two claims were to be the subject of separate
trials, it would definitely entail a substantial and needless duplication of effort and time by the
parties and the court, for said actions would involve the same parties, the same transaction, and the
same evidence. . However, it is elementary that a defending party’s compulsory counterclaim should
be interposed at the time he files his Answer, and that failure to do so shall effectively bar such
claim. (Metrobank vs. CPR Promotions and Marketing, Inc., G.R. No. 200567, June 22, 2015)

30. What is the rule on omitted counterclaims or cross-claims?

When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence or

excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgement. (Sec. 10, Rule 11)

31. What is a negative pregnant?

A negative pregnant is a denial coupled with admission of substantial facts in the pleading
responded to which are not squarely denied. Stated otherwise, a negative pregnant is a form of
negative expression which carries with it an affirmation or at least an implication of some kind
favorable to the adverse party. (Valdez v. Dabon, Jr., A. C. No. 7353, November 16, 2015)

32. Joyce filed a complaint before the RTC in the name of Clive. However, it was Joyce who
executed the verification and certification of forum shopping, alleging that she was
Clive’s attorney-in fact, pursuant to a Special Power of Attorney (SPA) executed by Clive
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 and which was appended to the complaint. May the complaint filed by Joyce be
considered compliant with the rule requiring a valid certification against forum
shopping?

Yes. An SPA was constituted precisely to authorize the agent to file and prosecute on behalf of the
principal, then it is such agent who has actual and personal knowledge whether he or she has
initiated similar actions or proceedings before various courts on the same issue on the principal’s
behalf. Thus, the rule on the certification against forum shopping has been properly complied with
when it is Joyce, as attorney-in-fact, who iniated the action on behalf of Clive and subsequently
signed the certification against forum shopping. (Heirs of Josefina Gabriel vs. Secundina Cebrero,
G.R. No. 222737, November 12, 2018)

33. Who can sign a verification and certificate against forum-shopping in behalf of a
corporation even without being authorized by a Board Resolution?

The following officers of a corporation can always sign a verification and certificate against forum-
shopping without a Board Resolution:

1. Chairman of the Board of Directors;

2. President of the Corporation;
3. General Manager;
4. Acting Manager;
5. Personnel Officer;
6. Employment Specialist in a labor case (Powerhouse Staffbuilders International, Inc. vs. Rey, G.R.
No. 190203, November 7, 2016)

34. Can a complaint still be amended as a matter of right before an answer has been served,
even if a Motion to Dismiss has already been filed and served?

Yes. Section 2, Rule 10 of the Revised Rules of Court explicitly states that a pleading may be
amended as a matter of right before a responsive pleading is served. This only means that prior to
the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new
cause of action or change in theory is introduced. The right granted to the plaintiff under procedural
law to amend the complaint before an answer has been served is not precluded by the filing of a
motion to dismiss or any other proceeding contesting its sufficiency. (Remington Industrial Sales
Corporation vs. Court of Appeals, G. R. No. 133657, May 29, 2002)

35. Bobie filed with the RTC a Complaint for a Sum of Money against Hersan. The claim is
for P1.5 Million. The complaint alleges that Hersan borrowed the amount from Bobie and
duly executed a promissory note as evidence of the loan. Hersan’s office secretary, Pau,
received the summons at Hersan’s office. Hersan failed to file an answer within the
required period. Bobie then moved to declare Hersan in default and that she be allowed
to present evidence ex parte. Ten days later, Hersan filed his verified answer, raising the
defense of full payment with interest. What are the remedies available to Hersan in case
he was declared in default?

Hersan has the following remedies:

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 a. He may, at anytime after discovery of the default but before judgment, file a motion under oath
to set aside the order of default on the ground that his failure to answer was due to fraud,
accident, mistake or excusable negligence and that he has meritorious defense;
b. If judgment has already been rendered when he discovered the default but before the same has
become final and executory, he may file a motion for new trial under Sec. 1 (a) of Rule 37;
c. If he discovered the default after the judgment has become final and executory, he may file a
petition for relief under sec. 2 of Rule 38; and he may also appeal from the judgment rendered
against him as contrary to the evidence or to the law, even if no petition to set aside the order of
default has been presented by him;
d. He may also appeal from the judgment rendered against him as contrary to the evidence or to
the law, even if no petition to set aside the order of default has been presented by him.
(Ramnani vs. CA, G.R. No. 101789, April 28, 1993)

36. Does a stipulation on the venue of an action preclude the parties from bringing a case in
other venues?

No, unless the parties are able to show that such stipulation is exclusive. In the absence of
qualifiying or restrictive words, the stipulation should be deemed as merely an agreeement or an
additional forum, not as limiting venue to the specified place. (Planters Development Bank vs. Sps.
Ramos, G.R. No. 228617, September 20, 2017)

37. Where is the venue of actions against non-residents affecting the personal status of the
plaintiff and actions affecting property of the non-resident in the Philippines?

If any of the defendants does not reside and is not found in the Philippines, and the action affects
the personal status of the plaintiff, or any property of said defendant located in the Philippines, the
action may be commenced and tried in the court of the place where the plaintiff resides, or where
the property or any portion thereof is situated or found. (Sec. 3, Rule 4)

38. When can the court make a motu proprio dismissal based on improper venue?

The court may make a motu proprio dismissal based on improper venue on the following instances:

a) In an action covered by the Rules on Summary Procedure. In this type of action, the court may
motu proprio dismiss a case, from an examination of the allegations of the complaint and such
evidence as may be attached thereto, on any of the grounds apparent therefrom for the dismissal
of a civil action. (Sec. 4, Revised Rules on Summary Procedure)

b) In small claims cases. After the court determines that the action falls under the rules for such
cases, it may, from an examination of the allegations of the Statement of Claim and such
evidence attached thereto, by itself, dismiss the case outright on any of the grounds apparent
from the claim for the dismissal of civil action. (Sec. 9, A.M. 08-7-7-SC)

39. Kobe filed a Complaint for Sum of Money for a total amount of P600,000 against Ricci
alleging that the latter borrowed from him certain amounts in three separate occasions
which he failed to pay. In his Answer with Counterclaim, Ricci specifically denied his
indebtedness to Kobe and claimed that it was the latter who owed him P500,000.00, as
evidenced by a receipt. The receipt reads:

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 June 13, 2003

I receive the total amount of P500,000.

Signed

Kobe / Ricci

Kobe wanted to file a Reply to deny his alleged indebtedness to Ricci. He sought your
advice and asked you whether his Reply to the Answer with Counterclaim should be
verified or not. What would you tell him?

His Reply need not be verified. A receipt is defined as a written and signed acknowledgment that
money or good was delivered or received. In this case, the receipt upon which Ricci relies to support
his counterclaim, sufficiently satisfies this definition. However, while indubitably containing the
signatures of both parties, a plain reading of the contents of the receipt negates any inference as to
the nature of the transaction for which the P500,000 was received and who between the parties is
the obligor and the obligee. What is apparent is a mere written and signed acknowledgment that
money was received. There are no terms and conditions found therein from which a right or
obligation may be established. Hence, it cannot be considered an actionable document upon which
an action or defense may be founded. Consequently, there was no need to deny its genuineness and
due execution under oath in accordance with Section 8, Rule 8 of the Rules of Civil Procedure.
(Ogawa vs. Menigishi, G.R. No. 193089, July 9, 2012, J. Perlas-Bernabe)

40. In a proceeding in rem or quasi in rem, is service of summons upon the defendant
necessary to vest the court with jurisdiction?

No. In a proceeding in rem or quasi in rem, summons must be served upon the defendant not for
the purpose of vesting the court with jurisdiction but merely for satisfying the due process
requirements. Consequently, violation of a defendant’s constitutional right to due process arising
from want of valid service of summons on him warrants the annulment of the judgment which
extended beyond the res. (Biaco vs. Philippine Countryside Rural Bank, G. R. No. 161417, February
8, 2007).

41. May a trial court acquire jurisdiction over the person of a defendant domestic
corporation by service of summons upon its mere employee?

No. When the defendant is a domestic corporation, service of summons may be made only upon the
persons enumerated in Section 11, Rule 14 of the Rules of Court, namely: the president,
managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
The enumeration of persons to whom summons may be served is restricted, limited and exclusive.
Substantial compliance cannot be invoked; thus, service of summons upon person other than those
officers specifically mentioned in the cited provision is void, defective and not binding to said
corporation. (Nation Petroleum Gas, Inc. vs. RCBC, G.R. No. 183370, August 17, 2015)

42. River Bank filed an action for damages against Ladia Corporation. The summons was
served by the Sheriff and was received by Mau, Ladia Corporation’s Liaison Officer. Mau
received the summons upon telephone instruction of Tricia, Ladia Corporation’s
Corporate Secretary. Was there a valid service of summons?

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 Yes. There was constructive service of summons. Although there was no direct, physical handing of
the summons to the corporate secretary, the latter could at least be charged with, which having
constructively received the same, amounts to a valid service of summons. In so receiving the
summons, Mau did so in representation of the corporate secretary, who is one of the officers
competent to receive summons on behalf of a private juridical person. (Nation Petroleum Gas vs.
RCBC, G.R. No. 183370, August 17, 2015)

43. What are the requirements for substituted service of summons to be valid?

a. Impossibility of Prompt Personal Service

There must be several attempts by the sheriff to personally serve the summons within a
reasonable period.

Note: To the plaintiff, "reasonable time" means no more than seven (7) days since an
expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time"
means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of
court to require the sheriff to submit a return of the summons assigned to the sheriff for service.
The Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly
Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10)
days of the succeeding month. Thus, one month from the issuance of summons can be
considered "reasonable time" with regard to personal service on the defendant.

"Several attempts" means at least three (3) tries, preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.Specific Details in the Return

b. Specific Details in the Return

The sheriff must describe in the Return of Summons the facts and circumstances surrounding the
attempted personal service. The date and time of the attempts on personal service, the inquiries
made to locate the defendant, the name/s of the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to serve the summons on defendant must be
specified in the Return to justify substituted service.

c. The person receiving the summons must be a person of suitable age and discretion.

Note: A person of suitable age and discretion is one who has attained the age of full legal
capacity (18 years old) and is considered to have enough discernment to understand the
importance of a summons. Discretion" is defined as "the ability to make decisions which
represent a responsible choice and for which an understanding of what is lawful, right or wise
may be presupposed". Also, the person must have the "relation of confidence" to the defendant,
ensuring that the latter would receive or at least be notified of the receipt of the summons.

d. A Competent Person in Charge

If the substituted service will be done at defendant's office or regular place of business, the
person on whom the substituted service will be made must be the one managing the office or
business of defendant, such as the president or manager; and such individual must have
sufficient knowledge to understand the obligation of the defendant in the summons, its
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 importance, and the prejudicial effects arising from inaction on the summons. (Manotoc vs. Court
of Appeals, G.R. No. 130974 August 16, 2006)

44. Cardo and Catriona were married. Sometime in 1991, Catriona left for the US due to her
alleged “irreconcilable differences” with Cardo. In 1992, she obtained a divorce decree
and subsequently married Ted in California. Cardo filed a petition for the declaration of
nullity of his marriage with Catriona. He also filed a Motion for Issuance of Summons by
Publication because Catriona, who already resided abroad, could not be personally
served with summons. The motion was granted and the summons, along with a copy of
the petition, was published in the San Pedro Express. No answer was filed by Catriona
and so the RTC granted the petition, which decision had become final and executory.
After more than seven years, Catriona filed a petition for annulment of judgment before
the CA, claiming that the RTC Decision was rendered without jurisdiction. The CA
granted the petition for annulment, stating that Cardo should have also sent a copy of
the summons to Catriona’s last known address. For his part, Cardo lamented that the
RTC only ordered that the summons be published in a newspaper of general circulation,
which mode of service falls under the third mode of extraterritorial service of summons
and should be differentiated from the second mode which requires publication and
service by registered mail to the defendant’s last known address. Is the CA correct?

No. If the RTC intended to direct extraterritorial service of summons under the second mode, then it
should have so indicated that the publication be complemented by sending a copy thereof to the last
known address of Catriona through registered mail. However, it clearly did not. The RTC's call not to
have a copy of the summons sent to Catriona's last known address in addition to the publication of
the summons is amply justified by the circumstances of this case. It is undisputed that Catriona had
left the Philippines and had been estranged from Cardo as early as 1991. Catriona has been residing
in San Diego, California, without any showing that she had informed Cardo, or that Cardo knew, of
her foreign address. It is quite understandable why it would have been futile, more so, logistically
improbable, to have the summons sent to Catriona's "last known address." At the very least, the
publication of summons should be considered as substantial compliance with the rules on service.
(Arrieta vs. Arrieta, G.R. No. 234808, November 19, 2018, J. Perlas-Bernabe)

45. Under what instances may the summons of a non-resident defendant who is not found
in the Philippines be effected upon him by extraterritorial service?

a. When the action affects the personal status of the plaintiffs;

b. When the action relates to, or the subject of which is property within the Philippines, in which the
defendant claims a lien or interest, actual or contingent;
c. When the relief demanded in such action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines; and
d. When the defendant non-residents’ property has been attached within the Philippines (Sec. 17,
Rule 14; Banco do Brasil vs. Court of Appeals, G.R. No. 121576, June 16, 2000).

46. Cassy filed a complaint to collect an unpaid loan of P500,000 from Marga. Summons and
copy of the complaint was served upon Marga. Cassy then filed and served upon Marga
an amended complaint changing, after a recomputation, the amount of the unpaid loan
from P500,000 to P600,000. No summons was issued to serve the amended complaint.
Upon Cassy’s motion, the court rendered a default judgment for P600,000 against
Marga. May the default judgment be set aside on the ground that there was no service
of summons on the amended complaint?
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 No. The rule is that it is only when new causes of action are alleged in an amended complaint filed
before the defendant has appeared in court that another summons must be served on the defendant
with the amended complaint. Here, the cause of action remained the same, the amendment
consisting of a mere correction. Hence, the judgment of the court is valid. (De Dios vs. CA, G.R. No.
80491, August 12, 1992, cited in Primer-Reviewer on Remedial Law 1, Riguera, [2017])

47. What is the Omnibus Motion Rule?

It is a procedural principle, which requires that every motion that attacks a pleading, judgment,
order or proceeding shall include all grounds then available. All objections not so included shall be
deemed waived. (Sec. 8, Rule 15)

48. What is the effect of failure to set the motion for hearing and non-service of notice of
the hearing?

Elementary is the rule that every motion must contain the mandatory requirements of notice and
hearing and that there must be proof of service thereof. The Court has consistently held that a
motion that fails to comply with the above requirements is considered a worthless piece of paper
which should not be acted upon. The rule, however, is not absolute. There are motions that can be
acted upon by the court ex parte if these would not cause prejudice to the other party. They are not
strictly covered by the rigid requirement of the rules on notice and hearing of motions. (Anama vs.
Philippine Savings Bank, 187021, January 25, 2012)

49. Is a motion for extension of time a litigated motion which requires notice and hearing?

No. A motion for extension of time is not a litigated motion where notice to the adverse party is
necessary to afford the latter an opportunity to resist the application, but an ex parte motion made
to the court in behalf of one or the other parties to the action, in the absence and usually without
the knowledge of the other party or parties. (Amante vs. Hon. Sunga, L-40491, May 28, 1975)

50. On what grounds may the court dismiss the case motu proprio?

a. Lack of jurisdiction over the subject matter (Sec. 1, Rule 9);

b. Litis Pendentia (Sec. 1, Rule 9);
c. Res Judicata (Sec. 1, Rule 9);
d. Prescription (Sec. 1, Rule 9);
e. When the plaintiff fails to appear on the date of the presentation of his evidence in chief on the
complaint (Sec. 3, Rule 17);
f. When the plaintiff fails to prosecute his action for an unreasonable length of time (Sec. 3, Rule
17);
g. Failure comply with the Rules or any order of the court (Sec. 3, Rule 17);
h. Summary Procedure. (Sec. 4, Revised Rules on Summary Procedure)

51. Is the non-joinder of indispensable parties a ground for dismissal of an action?

No. Section 11, Rule 3 of the Rules of Court prohibits the dismissal of a suit on the ground of non-
joinder or misjoinder of parties and allows amendment of the complaint at any stage of the
proceedings, through motion or order of the court on its own initiative. Only if plaintiff refuses to
implead an indispensable party, despite the order of the court, may it dismiss the action (Valdez-
Tallorin vs. Heirs of Juanito Tarona, G.R. No. 177429, November 24, 2009).
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52. What is the proper remedy in case of non-joinder of indispensable parties?

The proper remedy in case of non-joinder of indispensable parties is to implead such parties. They
may be added by order of the court on motion of the party or on its own initiative at any stage of
the action and/or at such times as are just. (Plasabas vs. Court of Appeals, G.R. No. 166519, March
31, 2009)

53. What is the remedy of the defendant in case of the denial of his motion to dismiss?

The defendant shall file his answer within the balance of the period prescribed by Rule 11 to which
he was entitled at the time of serving his motion, but not less than 5 days in any event. This period
shall be computed from the receipt of the order denying the motion to dismiss. (Sec. 4, Rule 16)

54. What is forum shopping?

Forum shopping happens when, in the two or more pending cases, there is identity of parties,
identity of rights or causes of action, and identity of reliefs sought. Where the elements of litis
pendentia are present, and where a final judgment in one case will amount to res judicata in the
other, there is forum shopping.

For litis pendentia to be a ground for the dismissal of an action, there must be: ( a) identity of the
parties or at least such as to represent the same interest in both actions; ( b) identity of rights
asserted and relief prayed for, the relief being founded on the same acts; and ( c) the identity in the
two cases should be such that the judgment which may be rendered in one would, regardless of
which party is successful, amount to res judicata in the other. For forum shopping to exist, both
actions must involve the same transaction, same essential facts and circumstances and must raise
identical causes of action, subject matter and issues. (Jose vs. Javellana, G.R. No. 158239, January
25, 2012)

55. State the rules on non-compliance with the requirements on, or submission of defective,
verification and certification against forum shopping.

a. A distinction must be made between non-compliance with the requirement on or submission of

defective verification, and non-compliance with the requirement on or submission of defective
certification against forum shopping.
b. As to verification, non-compliance therewith or a defect therein does not necessarily render the
pleading fatally defective. The court may order its submission or correction or act on the pleading
if the attending circumstances are such that strict compliance with the Rule may be dispensed
with in order that the ends of justice may be served thereby.
c. Verification is deemed substantially complied with when one who has ample knowledge to swear
to the truth of the allegations in the complaint or petition signs the verification, and when matters
alleged in the petition have been made in good faith or are true and correct.
d. As to certification against forum shopping, non-compliance therewith or a defect therein, unlike in
verification, is generally not curable by its subsequent submission or correction thereof, unless
there is a need to relax the Rule on the ground of "substantial compliance" or presence of
"special circumstances or compelling reasons."
e. The certification against forum shopping must be signed by all the plaintiffs or petitioners in a
case; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable
or justifiable circumstances, however, as when all the plaintiffs or petitioners share a common

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 interest and invoke a common cause of action or defense, the signature of only one of them in
the certification against forum shopping substantially complies with the Rule.
f. Finally, the certification against forum shopping must be executed by the party-pleader, not by
his counsel. If, however, for reasonable or justifiable reasons, the party- pleader is unable to
sign, he must execute a Special Power of Attorney designating his counsel of record to sign on
his behalf. (Bandillon vs. La Filipina Uygongco Corporation, G.R. No. 202446, September 16,
2015)

56. Monark Equipment filed a Complaint for Sum of Money against Asian Construction for
non-payment of rentals of several equipment. Asian Construction filed a third-party
complaint against Betchel alleging that the equipment leased were used in the
construction project of Betchel and it was not paid of its services that resulted to the
non-payment of rentals of the leased equipment. Should Asian Construction’s third
party complaint be allowed?

No. The third-party complaint is improper. A defendant may implead another as third-party
defendant (a) on an allegation of liability of the latter to the defendant for contribution, indemnity,
subrogation or any other relief; (b) on the ground of direct liability of the third-party defendant to
the plaintiff; or (c) the liability of the third-party defendant to both the plaintiff and the defendant.
There must be a causal connection between the claim of the plaintiff in his complaint and a claim for
contribution, indemnity or other relief of the defendant against the third-party defendant.

Here, the claim of Monark Equipment against Asian Construction arose out of the contracts of lease,
such transactions are different and separate from those between Betchel and Asian Construction as
third-party plaintiff for the construction of the Betchel’s project where the equipment leased from
Monark Equipment was used by Asian Construction. There is no causal connection between the
claim of Monark Equipment for the rental and the failure of Betchel to pay its account with Asian
Construction for the former’s project. (Asian Construction Development Corp. vs. Court of Appeals,
G.R. No. 160242, May 17, 2005)

57. Briefly explain the situations of dismissal of actions under Rule 17 of the Rules of Court.

a. Where a plaintiff requests the dismissal of the case before any responsive pleadings have been
served by the defendant. It is done through notice by the plaintiff and confirmation by the court.
The dismissal is without prejudice unless otherwise stated in the notice.
b. Where a counterclaim has been pleaded by the defendant before the service on him or her of the
plaintiff’s motion to dismiss. It requires leave of court, and the dismissal is generally without
prejudice unless otherwise declared by the court.
c. Dismissals due to the fault of the plaintiff such as failure to prosecute. The case is dismissed
either upon motion of the defendant or by the court motu proprio. Generally, the dismissal is with
prejudice unless otherwise declared by the court.

In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not of the defendant.
Dismissals upon the instance of the defendant are generally governed by Rule 16, which covers
motions to dismiss. (Ching vs. Cheng, G.R. No. 175507, October 8, 2014)

58. What are the requisites for the Two-Dismissal Rule to apply?

a. There was a previous case that was dismissed by a competent court;

b. Both cases were based on or include the same claim;
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 c. Both notices for dismissal were filed by the plaintiff; and
d. When the motion to dismiss filed by the plaintiff was consented to by the defendant on the
ground that the latter paid and satisfied all the claims of the former. (Ching vs. Cheng, G.R. No.
175507, October 8, 2014)

59. What is the viatory right of the witness?

The viatory right of a witness refers to the right not to be compelled by subpoena to attend the
court hearing in a civil case if he resides more than 100 kilometers to the place where he is to testify
by the ordinary course of travel. (Sec. 10, Rule 21)

60. Rudy filed a complaint against Asa. Asa, instead of filing an Answer, filed a motion to
dismiss. Rudy, without prior leave, filed and served a notice to take deposition upon Asa
and upon the person to be deposed, and the deposition was subsequently taken. Can
such deposition be given probative value?

No. A deposition which did not comply with Section 1, Rule 23 of the Rules of Court may not be
given probative value. Here, the deposition should have been taken with leave of court since the
defendant has not yet served an answer. (Georg vs. Holy Trinity College, G.R. No. 190408, July 20,
2016)

61. What are the requisites for an intervention by a non-party in an action pending in court?

a. Legal interest in the matter in controversy; or

b. Legal interest in the success of either of the parties; or
c. Legal interest against both; or
d. So situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof;
e. Intervention will not unduly delay or prejudice the adjudication of the rights of original parties;
f. Intervenor’s rights may not be fully protected in a separate proceeding (Acenas II vs. Court of
Appeals, G.R. No. 107762, August 29, 1995; Sec. 1, Rule 19).

62. Before whom may a deposition be taken in foreign countries?

a. On notice before a secretary of embassy or legation, consul general, consul, vice consul, or
consular agent of the Republic of the Philippines;
b. Before such person or officer as may be appointed by commission or under letters rogatory; or
c. Before any person authorized to administer oaths as stipulated in writing by the parties. (Dulay
vs. Dulay, G.R. No. 158857, November 11, 2005)

63. Inna filed a Complaint for Nullification of Mortgage, Foreclosure, Auction Sale, and
Certificate of Sale with Damages against Gahaman Bank. After Pre-Trial, Inna filed a
Motion for issuance of subpoena duces tecum and ad testificandum to require Gahaman
Bank’s officers to appear and testify as Inna’s initial witness during the pre-scheduled
hearing for her presentation of evidence in chief and to bring documents relative to
Inna’s loan with Gahaman Bank and all documents relative to the extrajudicial
foreclosure sale. Gahaman Bank opposed the motion on the ground that they are
adverse parties and hence, cannot be compelled to testify for Inna. May the officers of
Gahaman Bank be compelled to testify in favor of Inna?

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 No. Section 6, Rule 25 of the Rules provides that a party not served with written interrogatories may
not be compelled by the adverse party to give testimony in open court, or to give a deposition
pending appeal. Here, it does not appear that Inna served Gahaman Bank’s officers with written
interrogatories. Thus, Gahaman Bank’s officers may not be compelled to testify in open court.
(Afulugencia vs. Metrobank, G.R. No. 185145, February 5, 2014)

64. Carlos filed a complaint against Pedro in the RTC of Ozamis City for the recovery of the
ownership of a car. Pedro filed his answer within the reglementary period. After the pre-
trial and after Carlos has completed the presentation of his evidence, Pedro filed a
Demurrer to Evidence on the ground that under the facts proven and under the law
applicable to the case, Carlos is not entitled to the ownership of the car. The RTC
granted the demurrer and dismissed the complaint. Carlos appealed the order of
dismissal. The appellate court reversed the order and remanded the case to the trial
court. Thereafter, Pedro filed a motion with the RTC asking the latter to allow him to
present his evidence. Carlos objected to the presentation of evidence by Pedro.

a. Should the RTC grant Pedro’s motion to present his evidence? Why?

No, Pedro’s motion should not be granted. He can no longer present evidence. The Rules provide
that if the demurrer is granted by the trial court but on appeal, the order of dismissal is reversed,
the defendant shall be deemed to have waived his right to present evidence. (Sec. 1, Rule 33;
Radiowealth Finance Co. vs. Del Rosario, G.R. No. 138739 July 6, 2000)

b. Is the CA correct in remanding the case to the trial court? Why?

No. Applying Rule 33, Section 1 of the 1997 Rules of Court, the CA should have rendered
judgment on the basis of the evidence submitted by Carlos. The CA had sufficient evidence on
record to decide the case. To add, a remand is not only frowned upon by the Rules, it is also
logically unnecessary on the basis of the facts on record. (Radiowealth Finance Co. vs. Del
Rosario, G.R. No. 138739 July 6, 2000)

65. Mark filed a case against Javi for a sum of money. After Mark has presented his
evidence, Javi filed a demurrer to evidence. Both the trial court and the appellate court
granted the demurrer and dismissed the complaint. If the Supreme Court would reverse
the decision of the trial and appellate courts, can it remand the case to the trial court for
further proceedings and reception of evidence?

Yes. Despite the fact that Javi is deemed to have waived his right to present evidence before the
trial court pursuant to Section 1, Rule 33 of the Rules of Court, the case should still be remanded to
the trial court for the judgment on the merits (Claudio vs. Saraza, G.R. No. 213286, August 26,
2015).

66. Ernie filed a petition for guardianship over the person and properties of his father,
Ernesto. Upon receipt of the notice of hearing, Ernesto filed an opposition to the
petition. Ernie, before the hearing of the petition, filed a motion to order Ernesto to
submit himself for mental and physical examination which the court granted. After
Ernie's lawyer completed the presentation of evidence in support of the petition and the
court's ruling on the formal offer of evidence, Ernesto's lawyer filed a demurrer to
evidence. Ernie's lawyer objected on the ground that a demurrer to evidence is not
proper in a special proceeding. Was Ernie's counsel's objection proper?

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 No. The Rule on demurrer to evidence is applicable to Special Proceedings. Moreover, Section 2 of
Rule 72 of the Rules of Court provides that in the absence of special rules, the rules provided for in
ordinary actions shall be applicable, as far as practicable, to special proceedings. (Matute vs. Court
of Appeals, G.R. No. 26751, January 31, 1969; Oropesa vs. Oropesa, G.R. No. 184528, April 25,
2012)

67. What is the effect of the Revised Guidelines for Continuous Trial of Criminal Cases to
Demurrer?

Under the Revised Guidelines for Continuous Trial of Criminal Cases, the need to file a motion for
leave to file Demurrer remains, but it is now at the instance of the court.

Part III, No. 13(d) of the Revised Guidelines specifically provides that after the prosecution has
rested its case, the court shall inquire from the accused his/her desire to move for leave of court to
file demurrer to evidence or to proceed with the presentation of his/her evidence. If the accused
orally moves for leave of court to file a demurrer to evidence, the court shall orally resolve the same.
(A.M. No. 15-06-10-SC)

68. Provide the similarities and distinctions between a demurrer to evidence in civil and
criminal cases.

CIVIL ACTIONS CRIMINAL ACTIONS

(1) Demurrer is a kind of a Motion to Dismiss. But It is NOT a prohibited pleading under the
Rules on Summary Procedure.
Similarities (2) The ground is insufficiency of evidence.
(3) Only available AFTER the presentation of the evidence of the plaintiff or after the
prosecution rested its case.
(4) Court may either grant or deny the demurrer.
(1) More difficult to file because
(1) Easier to file because the prosecution is required
the plaintiff is only required to
to prove the guilt of accused beyond reasonable
present his case by preponderance
doubt
of evidence
(2) If DENIED - distinguish whether there had been
prior leave of court (1) if with leave, accused may
proceed with presentation of his evidence; (2) if
(2) If DENIED - plaintiff presents
without leave, accused can no longer present his
evidence.
evidence (Bernardo vs. Leviste, G.R. No. 119010,
September 5, 1997)

Differences (3) If GRANTED - accused is acquitted; order of

acquittal is NOT appealable; otherwise, it will be a
violation of his right against double jeopardy
(3) If GRANTED - the case is
dismissed; order of dismissal is a
Exception: Appeal can be had as to the civil aspect.
FINAL order, hence appealable.
(Hun Hyung Park vs. Choi, G.R. No. 165496,
February 12, 2007).

(4) If plaintiff appeals and the

appellate court REVERSES -
defendant is no longer allowed to
present evidence.

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69. Distinguish Summary Judgment, Judgment on the Pleadings, and Judgment by Default.

SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS JUDGMENT BY DEFAULT

Based on the pleadings, Based on the complaint and
depositions, admissions and Based solely on the pleadings. evidence, if presentation is
affidavits. required.
Generally available to the plaintiff,
Available to both plaintiff and
unless the defendant presents a Available to plaintiff.
defendant.
counterclaim.
The answer fails to tender an issue or There is no issue because no
There is no genuine issue
there is an admission of material answer is filed by the defending
between the parties.
allegations. party.
10-day notice required. 3-day notice required. 3-day notice rule applies.
Available in any action except
May be interlocutory or on the
annulment of marriage or legal On the merits.
merits.
separation cases

70. What is a “genuine issue of fact” in relation to summary judgment?

A “genuine issue” is an issue of fact which requires the presentation of evidence as distinguished
from a sham, fictitious, contrived or false claim. (Philippine Bank of Communications vs. Go, G.R. No.
175514, February 14, 2011)

71. May there be a partial summary judgment?

Yes. A partial summary judgment arises where a motion for summary judgment is filed, but the trial
court finds that judgment cannot be rendered upon the whole case or for all the reliefs sought
because there are controverted facts, in which case trial shall be conducted on such controverted
facts (Rule 35, Section 4). No appeal, however, may be taken from partial summary judgment
because a partial summary judgment is interlocutory. A partial summary judgment shall be taken
together with the judgment that the trial court may render in the entire case after trial is conducted
on the controverted facts. Hence, a partial summary judgment cannot be enforced by execution if
the entire case has not been resolved yet (Province of Pangasinan vs. Court of Appeals, G.R. No.
104266, March 31, 1993) (Agranzamendez 2018, Questions and Answer in Remedial Law, p. 214).

72. What are the post-judgment remedies available to the aggrieved party?

Against Final Judgements Against Executory Judgements

a. Motion for Reconsideration; a. Petition for Relief from Judgement;
b. Motion for New Trial; and b. Action to Annul a judgement;
c. Appeal. c. Certiorari; and
d. Collateral attack of a judgment.

73. What are the remedies against FINAL JUDGMENTS, the period and grounds for their
filing?

Remedy When to file Grounds

Motion for Within the period for taking an appeal: 1. That the damages
Reconsideration awarded are excessive;
(Rule 37)  Appeal by notice of appeal – within 15 days from 2. That the evidence is

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 notice of the judgement or final order appealed insufficient to justify the
from decision or final order; or
 Appeal by record on appeal – within 30 days from 3. That the decision or final
notice of the judgement or final order appealed order is contrary to law
from. A record on appeal shall be required only (a) (Sec. 1, Rule 37)
in special proceedings; and (b) other cases of
multiple or separate appeals (Sec. 3, Rule 40)

Notes:
 No motion for extension of time to file a motion
for reconsideration shall be allowed. (Sec. 2, Rule
40; Sec. 3, Rule 41)

Motion for New Within the period for taking an appeal: Note: Do not forget the
Trial (Rule 37) qualifications.
 Appeal by notice of appeal – within 15 days from 1. Fraud, accident, mistake
notice of the judgement or final order appealed or excusable negligence
from a. which ordinary
 Appeal by record on appeal – within 30 days from prudence could not
notice of the judgement or final order appealed have guarded against
from. A record on appeal shall be required only (a) and,
in special proceedings; and (b) other cases of b. by reason of which,
multiple or separate appeals (Sec. 3, Rule 40) such aggrieved party
has probably been
Notes: impaired in his rights;
 No motion for extension of time to file a motion or
for reconsideration shall be allowed. (Sec. 2, Rule 2. Newly-discovered evidence
40; Sec. 3, Rule 41) a. which the aggrieved
party could not, with
reasonable diligence,
have discovered and
produced at the trial,
and
b. which, if presented,
would probably alter
the result (Sec. 1,
Rule 37)
Appeal 1. Appeal from MTC to RTC (Rule 40) – within 15
days (if by notice of appeal) or within 30 days (if
by record on appeal)

2. Appeal from RTC to CA (Rule 41) – same as

above
 Ordinary Appeal
 Petition for Review
 Petition for Review on Certiorari

Note: In habeas corpus cases, the appeal shall be

taken within 48 hours from notice of judgment or
final order (Sec. 3, Rule 41).

3. Petition for Review from RTC to CA (Rule

42) – within 15 days from notice of the decision
sought to be reviewed or of the denial of

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 petitioner’s MNT or MR.

Notes:
 The court may grant an additional period of 15
days only provided the extension is sought (a)
upon proper motion; and (b) there is payment of
the full amount of the docket and other lawful
fees.
 No further extension shall be granted EXCEPT for
the most compelling reason and in no case to
exceed 15 days (Sec. 1, Rule 42; Go vs. BPI, G.R.
No. 199354, June 26, 2013)

4. Appeal by Certiorari to the Supreme Court

(Rule 45) – within 15 days from notice of
judgement, final order or resolution appealed from
(Sec. 2, Rule 45)

5. Other Appeals/Reviews
 Appeal from Quasi-Judicial bodies (Rule 43) –
within 15 days from notice of judgement or
final order

74. What are the remedies against EXECUTORY JUDGEMENTS, the period and grounds for
their filing?

Remedy When to file Grounds

Petition for Relief Beyond the 15-day period but within 60 days Fraud, accident, mistake or
from Judgment from knowledge of the judgment and within 6 excusable negligence.
(Rule 38) months from entry of judgment.
Annulment of 1. If based on extrinsic fraud - within four (4) 1. Extrinsic fraud or collateral
Judgment or Final years from its discovery. fraud;
Orders or 2. If based on lack of jurisdiction - before the 2. Lack of jurisdiction over
Resolutions action is barred by laches or estoppel (Sec. the subject matter and
(Rule 47) 2, Rule 47). over the person;
3. Denial of due process.
Certiorari 1. The petition shall be filed not later than sixty Lack of jurisdiction or excess of
(Rule 65) (60) days from notice of the judgment, jurisdiction, or grave abuse of
order or resolution. discretion amounting to lack or
2. In case a motion for reconsideration or new excess of jurisdiction.
trial is timely filed, whether such motion is
required or not, the sixty (60)-day period
shall be counted from notice of the denial of
said motion.

Collateral attack of a A collateral attack is done through an action Void judgments.

judgment which asks for a relief other than the declaration
of the nullity of the judgment but requires such a
determination if the issues raised are to be
definitively settled. (Imperial & Nidsland vs. Hon.
Armes, G.R. No. 178842, January 30, 2017)

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75. What is a nunc pro tunc judgment or order?

A judgment nunc pro tunc is made to enter into the record an act previously done by the court,
which had been omitted either through inadvertence or mistake. It neither operates to correct
judicial errors nor to "supply omitted action by the court." Its sole purpose is to make a present
record of a "judicial action which has been actually taken ." (Mercury Drug Corporation vs. Sps.
Huang, G.R. No. 197654, August 30, 2017)

76. What are the purposes of the doctrine of immutability of final judgment?

The doctrine of immutability and inalterability of a final judgment has a two-fold purpose:

a. To avoid delay in the administration of justice and thus, procedurally, to make orderly the
discharge of judicial business; and
b. To put an end to judicial controversies, at the risk of occasional errors, which is precisely why
courts exist. Controversies cannot drag on indefinitely. The rights and obligations of every litigant
must not hang in suspense for an indefinite period of time. (Mercury Drug Corporation vs. Sps.
Huang, G.R. No. 197654, August 30, 2017)

77. CASAP, a union in PHIAL, filed a Complaint against PHIAL for unfair labor practice, and
illegal retrenchment before the Labor Arbiter. The Labor Arbiter ruled in favor of CASAP.
Aggrieved, PHIAL appealed to the NLRC, which reversed the LA’s decision. CASAP went
to the Court of Appeals. The CA affirmed the ruling of the NLRC. PHIAL filed a Petition
for Certiorari before the Supreme Court. The Third Division of the Supreme Court
granted the petition and held that PHIAL was guilty of illegal dismissal. PHIAL filed a
Motion for Reconsideration. It was denied. PHIAL filed its Second Motion for
Reconsideration. The was then transferred to the Second Division. The Supreme Court
Second Division denied with finality PHIAL’s second motion for reconsideration. PHIAL’s
collaborating counsel sent a series of letters to the Supreme Court. The Supreme Court
then issued a resolution (a) recalling the resolution denying the second motion for
reconsideration and (b) ordering the re-raffle of the case.

(a) CASAP also argued that the second motion for reconsideration filed by PHIAL is a
prohibited pleading. Is the contention correct?

No. The rule prohibiting the filing of a second motion for reconsideration is by no means absolute
Although Section 2, Rule 52 of the Rules of Court disallows the filing of a second motion for
reconsideration, the Internal Rules of the Supreme Court (IRSC) allows an exception, to wit:

Section 3. Second motion for reconsideration. - The Court shall not entertain a second
motion for reconsideration, and any exception to this rule can only be granted in the
higher interest of justice by the Court en banc upon a vote of at least two-thirds of its
actual membership. There is reconsideration "in the higher interest of justice" when the
assailed decision is not only legally erroneous, but is likewise patently unjust and
potentially capable of causing unwarranted and irremediable injury or damage to the
parties. A second motion for reconsideration can only be entertained before the ruling
sought to be reconsidered becomes final by operation of law or by the Court's declaration.

The conditions that must concur in order for the Court to entertain a second motion for
reconsideration are the following, namely:
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 a) The motion should satisfactorily explain why granting the same would be in the higher
interest of justice;
b) The motion must be made before the ruling sought to be reconsidered attains finality;
c) If the ruling sought to be reconsidered was rendered by the Court through one of its
Divisions, at least three members of the Division should vote to elevate the case to the
Court En Banc; and
d) The favorable vote of at least two-thirds of the Court En Banc’s actual membership must be
mustered for the second motion for reconsideration to be granted.

Under the IRSC, a second motion for reconsideration may be allowed to prosper upon a showing by
the movant that a reconsideration of the previous ruling is necessary in the higher interest of justice.
There is higher interest of justice when the assailed decision is not only legally erroneous, but is
likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or
damage to the parties.

(b) CASAP also argues that the Resolutions of the Court have already become final, since
a second motion for reconsideration is prohibited; and that once a judgment attains
finality, it thereby becomes immutable and unalterable, however unjust the result of
error may appear. Did the Court’s action violate the doctrine of immutability of
judgment?

No. The doctrine of immutability of decisions applies only to final and executory decisions. Since the
present case may involve a modification or reversal of a Court-ordained doctrine or principle, the
judgment rendered by the Special Third Division may be considered unconstitutional, hence, it can
never become final. A decision rendered by a Division of this Court in violation of this constitutional
provision would be in excess of jurisdiction and, therefore, invalid. Any entry of judgment may thus
be said to be "inefficacious" since the decision is void for being unconstitutional. (FASAP vs. PAL,
G.R. No. 178083, March 13, 2018)

78. What are the exceptions to the doctrine of immutability of final judgment?

a. The correction of clerical errors;

b. The so-called nunc pro tunc entries which cause no prejudice to any party;
c. Void judgments; and
d. Whenever circumstances transpire after the finality of the decision rendering its execution unjust
and inequitable. (Mercury Drug Corporation vs. Sps. Huang, G.R. No. 197654, August 30, 2017)

79. What is the effect of a grant of motion for reconsideration or new trial by the court?

a. Motion for reconsideration: The court may amend the judgment or final order accordingly. The
amended judgment is in the nature of a new judgment, which supersedes the original judgment;
b. Motion for new trial: The original judgment shall be vacated, and the action shall stand for trial
de novo. The recorded evidence upon the former trial shall be used at the new trial without
retaking them, if they are material and competent. (Sec. 7, Rule 37)

80. What are the requisites a Motion for New Trial on the ground of newly discovered
evidence?

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 A motion for new trial upon the ground of newly discovered evidence is properly granted only where
there is concurrence of the following requisites, namely:

a. the evidence had been discovered after trial;

b. the evidence could not have been discovered and produced during trial even with the exercise of
reasonable diligence; and
c. the evidence is material and not merely corroborative, cumulative or impeaching and is of such
weight that if admitted, would probably alter the result. (Chua vs. People, G.R. No. 196853. July
13, 2015)

81. After the lapse of five (5) years from the entry of a final and executory judgment or
order, may the same be still enforced?

Yes. As a rule, a prevailing party may move for the execution of a final and executory judgment as a
matter of right within five (5) years from the entry of judgment. If no motion is filed within this
period, the judgment is converted to a mere right of action and can only be enforced by instituting a
complaint for the revival of judgment in a regular court within 10 years from finality of judgment.
(Heirs of Piedad vs. Bobilles, G.R. No. 208614, November 7, 2017)

82. RCBC filed a Complaint for Specific Performance against Serra to compel the latter to
execute and deliver the proper deed of sale in favor of RCBC. The RTC ruled in favor of
RCBC. Serra appealed to the Court of Appeals. During the pendency of the appeal, Serra
donated the subject property to his mother. His mother then sold it to Liok. Due to this,
RCBC filed a Complaint for Nullification of Deed of Donation and Deed of Sale
(Annulment Case). The CA and later on the Supreme Court affirmed the decision of the
RTC in the Specific Performance case and on April 15, 1994, the decision ordering Serra
to execute and deliver the proper deed of sale in favor of RCBC attained finality. While
the Annulment Case was pending, RCBC moved to execute the decision in the Specific
Performance case on August 25, 2011. Serra opposed the motion contending that RCBC
is barred from executing the April 15, 1994 Decision by motion. Is Serra correct?

No. A final and executory judgment may be executed by motion within five years from the date of its
entry or by an action after the lapse of five years and before prescription sets in. But the Court
allows exceptions when execution may be made by motion even after the lapse of five years. These
exceptions have one common denominator: the delay is caused or occasioned by actions of the
judgment obligor and/or is incurred for his benefit or advantage. Here, to evade his obligation to
RCBC, Serra transferred the property to his mother. Clearly, the delay in the execution of the
decision was caused by Serra for his own advantage. Thus, the pendency of the Annulment case
effectively suspended the five-year period to enforce through a motion the decision in the Specific
Performance case. (RCBV vs. Serra, G.R. No. 203241, July 10, 2013)

83. What are the requirements in order that discretionary execution may issue?

The general rule is that only judgments which have become final and executory may be executed.
However, discretionary execution of appealed judgments may be allowed under Section 2(a) of Rule
39 of the Revised Rules of Civil Procedure upon concurrence of the following requisites:

a. there must be a motion by the prevailing party with notice to the adverse party;
b. there must be a good reason for execution pending appeal; and

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 c. the good reason must be stated in a special order. (Abenion vs. Pilipinas Shell Petroleum
Corporation, G.R. No 200749, February 6, 2017)

84. When is a second motion for reconsideration allowed?

a. Motion for reconsideration of an interlocutory order, unless it is a mere reiteration of arguments

already passed upon by the court (San Juan, Jr. vs. Cruz, G.R. No. 167321, July 31, 2006); and
b. If filed before the Supreme Court, only after meeting the following requirements:

i. with express leave of court;

ii. for extraordinarily persuasive reasons;
iii. by a vote of at least 2/3 of the actual membership of the SC En Banc; and
iv. before the ruling sought to be reconsidered becomes final by operation of law or by the court’s
declaration (League of Cities of the Philippines vs. COMELEC, G.R. No. 176951, June 28,
2011).

85. What are the modes of appeal from the decision of the Regional Trial Court?

There are three (3) modes of appeal from the decision of the Regional Trial Court, namely:

a. By ordinary appeal or appeal by writ of error, where judgement was rendered by the Regional
Trial Court in the exercise of its original jurisdiction. This mode of appeal is governed by Rule 41
of the Rules of Court and is taken to the Court of Appeals on questions of fact or mixed questions
of fact and law.
b. By petition for review, where judgement was rendered by the Regional Trial Court in the exercise
of its appellate jurisdiction. This mode of appeal is covered by Rule 42 of the Rules of Court and
is brought to the Court of Appeals on questions of fact, questions of law or mixed questions of
fact and law.
c. By petition for review in certiorari or appeal by certiorari to the Supreme Court. This mode is
brought to the Supreme Court from the decision of the Regional Trial Court in the exercise of its
original jurisdiction and only on questions of law. This is governed by Sec. 2(c), Rule 41 of the
Rules of Court.

86. The Ombudsman put Mayor Kenneth Salot under preventive suspension. Kenneth filed a
petition for certiorari before the Court of Appeals seeking the nullification of the
preventive suspension order. The Office of the Ombudsman filed a Motion to Dismiss
contending that the Court of Appeals has no jurisdiction over the petition because under
Sec. 14 of RA 6770 (the Ombudsman Act), the decisions or findings of the Ombudsman
can only be appealed to the Supreme Court via Rule 45. Is the contention tenable?

No. The second paragraph of Sec. 14, RA 6770 was declared unconstitutional because it attempts to
effectively increase the Supreme Court's appellate jurisdiction without its advice and concurrence. As
a consequence of this unconstitutionality, the Supreme Court has ruled that Rule 65 petitions for
certiorari against unappealable issuances of the Ombudsman ( i.e. preventive suspension order)
should be filed before the CA, and not directly before the Supreme Court. (Carpio-Morales vs. Court
of Appeals, G.R. Nos. 217126-27, November 10, 2015, J. Perlas-Bernabe)

87. What is the remedy of the aggrieved party in an application for land registration before
the MTC in the exercise of its delegated jurisdiction?
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 The remedy would be an ordinary appeal to the Court of Appeals under Rule 41. Under Sec. 34 of
B.P. 129, as amended, judgment of the MTC in the exercise of its delegated jurisdiction in the land
registration cases shall be appealable in the same manner as decisions of the RTC. Hence, an
ordinary appeal to the Court of Appeals is the appropriate remedy.

88. Distinguish a third-party complaint from a third-party claim.

A third-party complaint is a pleading by which a person, not a party to the original action, may be
impleaded by an original party and brought into the action. On the other hand, a third-party claim is
a claim of a person, not a party to the action, who believes that he has a legal interest in the matter
in litigation. (Riano, Civil Procedure, Vol. I, p. 22 [2014 ed.])

89. What is terceria?

The remedy granted to a third-party claimant. If the property levied by virtue of a writ of execution
is claimed by a third person who is not the judgment obligor, Section 16 of Rule 39 of the 1997
Rules of Civil Procedure provides for the remedy of such third party claimant. The third-party
claimant may execute an affidavit of his title or right to the possession of the property levied, and
serve the same to the officer making the levy and a copy thereof to the judgment creditor. This
remedy is known as terceria. (PSALM vs. Maunlad Homes, G.R. No. 215933. February 8, 2017)

PROVISIONAL REMEDIES

90. What are the grounds for the issuance of preliminary attachment?

a. In an action for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines with intent to defraud his creditors;
b. In an action for money or property embezzled or fraudulently misapplied or converted to his own
use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or
for a willful violation of duty;
c. In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of
to prevent its being found or taken by the applicant or an authorized person;
d. In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the performance thereof;
e. In an action against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
f. In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication (Sec. 1, Rule 57).

91. What are the three stages in the grant of the provisional remedy of attachment? Is it
necessary for the court to have jurisdiction over the person of the defendant in all these
stages?

First, the court issues the order granting the application; second, the writ of attachment issues
pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages,
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 it is not necessary that jurisdiction over the person of the defendant be first obtained. However,
once the implementation of the writ commences, the court must have acquired jurisdiction over the
defendant, for without such jurisdiction, the court has no power and authority to act in any manner
against the defendant. Any order issuing from the Court will not bind the defendant. Thus, it is
indispensable not only for the acquisition of jurisdiction over the person of the defendant, but also
upon consideration of fairness, to apprise the defendant of the complaint against him and the
issuance of a Writ of Preliminary Attachment and the grounds therefor that prior or
contemporaneously to the serving of the (a) writ of attachment, (b) service of summons, together
with a (c) copy of the complaint, the (d) application for attachment, the (e) applicant’s affidavit and
bond, and the (f) order must be served upon him. (Torres vs. Satsatin, G.R. No. 166759, November
25, 2009)

92. How can a writ of attachment be discharged?

It can be discharged upon giving a counterbond, after a writ of attachment has been enforced . It
can also be discharged by motion if the same was improperly or irregularly issued or enforced, or
that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the
excess. (Sec. 12 and 13, Rule 57)

93. Alfredo filed a complaint for a sum of money with a prayer for the issuance of a writ of
preliminary attachment against Spouses Atienza. The RTC issued the corresponding writ.
Three parcels of land owned by Spouses Atienza were levied upon. The parties later
entered into a Compromise Agreement whereby Spouses Atienza agreed to pay Alfredo a
certain amount on an installment basis. The RTC rendered a decision on the basis of the
compromise agreement. Spouses Atienza then filed an Omnibus Motion, seeking to lift
the writ of preliminary attachment annotated on the subject titles. In granting the
Motion, the RTC ruled that considering that the case had already been closed and
terminated by the rendition of the decision based on the compromise agreement, the
writ of preliminary attachment should be lifted and quashed. Is the RTC correct?

No. While the provisions of Rule 57 are silent on the length of time within which an attachment lien
shall continue to subsist after the rendition of a final judgment, jurisprudence dictates that the said
lien continues until the debt is paid, or the sale is had under execution issued on the judgment or
until the judgment is satisfied, or the attachment discharged or vacated in the same manner
provided by law. (Lim, Jr. vs. Spouses Lazaro, G.R. No. 185734, July 3, 2013, J. Perlas-Bernabe)

94. If the writ of preliminary attachment was issued on the ground of fraud which at the
same time is also the applicant’s cause of action, can the defendant file a motion to
discharge the writ under Sec. 13, Rule 57?

No. When the preliminary attachment is issued upon a ground which is at the same time the
applicant’s cause of action, the defendant is not allowed to file a motion to dissolve the attachment
under Sec. 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiffs
application and affidavits on which the writ was based—and consequently that the writ based
thereon had been improperly or irregularly issued—the reason being that the hearing on such a
motion for dissolution of the writ would be tantamount to a trial of the merits of the action. In other
words, the merits of the action would be ventilated at a mere hearing of a motion, instead of at the
regular trial. (Chuidian vs. Sandiganbayan, G.R. No. 139941, January 19, 2001)

95. What are the grounds for the issuance of preliminary injunction?
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 a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists
in restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts either for a limited period or perpetually;

Note: There must exist a right in esse or a clear and unmistakable right to be protected.
(Spouses Dulnuan vs. MBTC, G.R. No. 196864, July 8, 2015)

b. That the commission, continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or
c. That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual (Sec. 3, Rule 58)

96. How do you discharge the writ of Preliminary Injunction?

The only way to discharge the writ of preliminary injunction is to question the propriety or regularity
of its issuance. It may be dissolved if it appears after hearing that although the applicant is entitled
to injunction or restraining order, the continuance thereof would cause irreparable damage to a
party enjoined while the applicant can be fully compensated for such damages as he may suffer. If it
appears that the extent of the preliminary injunction or restraining order is too great, it may be
modified. Unlike other provisional remedies, you cannot discharge the writ through a counter
bond. (Sec. 6, Rule 58).

97. Distinguish Preliminary Injunction from Final Injunction.

Preliminary Injunction Final Injunction

It does not determine the merits of a case or decide
controverted facts. Since it is a mere preventive remedy,
it only seeks to prevent threatened wrong, further injury
and irreparable harm or injustice until the rights of the
parties are settled.
It perpetually restrains the party or person
enjoined from the commission or continuance of
an act, or in case of mandatory injunctive writ,
one which confirms the preliminary mandatory
injunction.

It is usually granted when it is made to appear that there

is a substantial controversy between the parties and one
of them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or
destroy the status quo of the controversy before a full
hearing can be had on the merits of the case.

Granted at any stage of an action or proceeding prior to
judgment or final order.
For its issuance, the applicant is required to show, at least
tentatively, that he has a right which is not vitiated by any
substantial challenge or contradiction.
It is issued when the court, after trial on the
merits, is convinced that the applicant is entitled
to have the act or acts complained of permanently
enjoined.
To be a basis for a final and permanent
injunction, the right and the act violative thereof
must be established by the applicant with
absolute certainty. (Republic of the Philippines vs.
Rev. Cortez, Sr., GR. No. 197472, September 7,
2015)

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98. Give the instances when injunction is prohibited and its exception.

The following are matters beyond Injunction:

a. Tax collection;
b. Execution of judgement;
c. Labor cases;
d. Criminal prosecution; and
e. Infrastructure projects of the government

The only exception would be if the matter is of extreme urgency involving a constitutional issue,
such that unless the temporary restraining order is issued, grave injustice and irreparable injury
will arise. (Dynamic Builders and Construction Co. (Phil.) Inc. vs. Presbiterio, G.R. No. 174202, April
7, 2015)

99. When does a TRO expire?

Regional Trial Court After 20 days; No extension, no renewal, with or without a writ of preliminary
injunction
Court of Appeals After 60 days
Supreme Court Until further orders of the Court

100. What is a sunset clause in a temporary restraining order?

Sunset clause refers to the non-extendibility of the temporary restraining order (TRO). A TRO
cannot be extended indefinitely to take the place of a writ of preliminary injunction, since a
temporary restraining order is intended only to have a limited lifespan and is deemed automatically
vacated upon the expiration of 72 hours or 20 days, as the case may be. (First Sarmiento Property
Holdings, Inc., vs. Philippine Bank of Communications, G.R. No. 202836, June 19, 2018)

101. What is replevin?

Replevin is an action whereby the owner or person entitled to repossession of goods or chattels
may recover those goods or chattels from one who has wrongfully distrained or taken, or who
wrongfully detains such goods or chattels. It is designed to permit one having right to possession
to recover property in specie from one who has wrongfully taken or detained the property. (Smart
Communications vs. Astorga, G.R. No. 148132, January 28, 2008)

102. Is prior demand necessary before the filing of an action for a writ of replevin?

No. For a writ of replevin to issue, all that the applicant must do is to file an affidavit and bond,
pursuant to Sec. 2, Rule 60 of the Rules, which states: “Affidavit and bond. The applicant must
show by his own affidavit or that of some other person who personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled
to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention
thereof according to the best of his knowledge, information, and belief;

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 (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or custody; and
(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the
property as stated in the affidavit aforementioned, for the return of the property to the
adverse party if such return be adjudged, and for the payment to the adverse party of such
sum as he may recover from the applicant in the action

There is nothing in this provision which requires the applicant to make a prior demand on the
possessor of the property before he can file an action for a writ of replevin. Thus, prior
demand is not a condition precedent to an action for a writ of replevin. (Navarro vs. Escobido,
G.R. No. 153788. November 27, 2009)

103. Liwayway Banking Corporation was placed under receivership, with the Philippine
Deposit Insurance Corporation (PDIC) as its receiver. Liwayway Banking then entered
into a series of discussions and negotiations with the Bangko Sentral ng Pilipinas (BSP)
in order to obtain financial assistance. The latter required Liwayway Banking to
execute a rehabilitation plan as a requirement in obtaining such financial assistance.
After several negotiations and revisions of such plan, the BSP allowed Liwayway
Banking to obtain a P20 billion assistance fund. Such granting of financial assistance
comes with several terms and conditions, among which was the withdrawal by
Liwayway Banking of the civil case it previously filed with the BSP. Liwayway Banking
then filed a Petition for Certiorari against BSP alleging grave abuse of discretion in
requiring such terms and conditions. Can Liwayway Banking file the present petition?

No. A closed bank under receivership can only sue or be sued through its receiver, the Philippine
Deposit Insurance Corporation. The relationship between the PDIC and a closed bank is fiduciary in
nature. Under the New Central Bank Act, the receiver of a closed bank is directed to "immediately
gather and take charge of all the assets and liabilities of the institution" and "administer the same
for the benefit of its creditors. Considering that the receiver has the power to take charge of all the
assets of the closed bank and to institute for or defend any action against it, only the receiver, in
its fiduciary capacity, may sue and be sued on behalf of the closed bank. As fiduciary of the
insolvent bank, PDIC conserves and manages the assets of the bank to prevent the assets'
dissipation. This includes the power to bring and defend any action that threatens to dissipate the
closed bank's assets. The inclusion of the PDIC as a representative party in the case is therefore
grounded on its statutory role as the fiduciary of the closed bank which, under Section 30 of R.A.
7653 (New Central Bank Act), is authorized to conserve the latter's property for the benefit of its
creditors. (Banco Filipino vs. Bangko Sentral ng Pilipinas and the Monetary Board, G.R. No. 200678,
June 4, 2018)

104. Rose filed a petition for the issuance of protection order under the provisions of RA
9262 (Anti-Violence Against Women and Their Children Act of 2004), against her
husband, S/Sgt. Karlo, a retired personnel of the Philippine Army. The RTC granted the
TPO with an order to the AFP to automatically deduct a percentage from the retirement
benefits of S/Sgt. Karlo and to give the same directly to Rose as spousal support. The
AFP refused to obey with that directive in the TPO contending that retirement benefits
may not be subject to execution under Sec. 13 of Rule 39. Is the contention of the AFP
correct?
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 No. Sec. 8(g) of RA 9262 provides that: Notwithstanding other laws to the contrary, the court shall
order an appropriate percentage of the income or salary of the respondent to be withheld regularly
by the respondent’s employer for the same to be automatically remitted directly to the woman.
Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her
child without justifiable cause shall render the respondent or his employer liable for indirect
contempt of court. This should be construed as laying down an exception to the general rule under
Sec. 13 of Rule 39 providing that retirement benefits are exempt from execution. The law itself
declares that the court shall order the withholding of a percentage of the income or salary of the
respondent by the employer, which shall be automatically remitted directly to the woman
“notwithstanding other laws to the contrary.” (Republic vs. Yahon, G.R. No. 201043, June 16,
2014)

SPECIAL CIVIL ACTIONS

105. Distinguish Ordinary Civil Action from Special Civil Action.

ORDINARY CIVIL ACTION SPECIAL CIVIL ACTION

Governed by Ordinary Rules Governed by Rules 62-71

Involves formal demand of one’s legal right in a Involves special features not found in ordinary civil
court of justice. action.
Must be based on a cause of action. GR: Based on a cause of action.

EXN: Some special civil actions are not based on a

cause of action. (i.e. Interpleader and Declaratory
Relief)

 INTERPLEADER - filed by a plaintiff-

Action is commenced by complaints.
interpleader who either have NO INTEREST
whatever in the subject matter or an
INTEREST in whole or in part is NOT
DISPUTED by the claimants. (Sec. 1, Rule
62)
 DECLARATORY RELIEF – must be filed
before breach or violation of deed, will,
contract or other written instrument; or
statute, executive order or regulation,
ordinance, or any other governmental action.
(Sec.1, Rule 63)
Initiated by either filing a COMPLAINT for:
1. Interpleader;
2. Expropriation;
3. Foreclosure of Real Estate Mortgage
4. Partition; and
5. Forcible Entry and Unlawful Detainer

or PETITIONS for:
1. Declaratory Relief;
2. Review of Judgements of COMELEC and
COA;
3. Certiorari, Prohibition and Mandamus;
4. Quo Warranto; and
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 5. Indirect Contempt.

JURISDICTION is determined by nature of action JURISDICTION depends on the type of special action.
or jurisdictional amount involved.

May be filed either in MTC or RTC.
Proper service of summons is imperative. A
decision rendered without proper service of
summons suffers a defect in jurisdiction. (De
Pedro vs. Romasan Dev’t Corporation, G.R. No.
194751, November 26, 2014; Riano, Civil
Procedure Volume I, p. 83 [2016 ed]).
Some can ONLY be filed in MTC while other actions
cannot be filed therein.
Summons is NOT mandatory. The court acquires
jurisdiction over the respondent in a different manner
(e.g. issuance of order to file a comment).

106. Eternal Gardens and Mission executed a Land Development Agreement (LDA) whereby
the former undertook to introduce and construct necessary improvements on the
property owned by Mission into a memorial park to be subdivided into and sold as
memorial plot lots. Out of the proceeds from the sale, Mission is entitled to receive
40% of the net gross collection from the project to be remitted monthly by Eternal
Gardens. Subsequently, however, Maysilo Estate asserted its claim of ownership over
the parcel of land subject of the LDA.

a. If you were the counsel of Eternal Gardens, what action would you file to protect
your client’s interest?

I will file a Complaint for Interpleader against Mission and Maysilo Estate. An interpleader is
proper whenever conflicting claims upon the same subject matter are or may be made against
a person who claims no interest whatever in the subject matter, or an interest which in whole
or in part is not disputed by the claimants. Such action against the conflicting claimants aims
to compel them to interplead and litigate their several claims among themselves. (Sec. 1, Rule
62)

b. Should Eternal Gardens be ordered to deposit the amount due under the LDA to a
bank approved by the court?

Yes. The essence of an interpleader, aside from the disavowal of interest in the property in
litigation on the part of the petitioner, is the deposit of the property or funds in controversy
with the court. It is a rule founded on justice and equity: “that the plaintiff may not continue
to benefit from the property or funds in litigation during the pendency of the suit at the
expense of whoever will ultimately be decided as entitled thereto.” (Eternal Gardens Memorial
Parks Corp. vs. IAC, G.R. No. L-73794, September 19, 1988)

107. May an interpleader be properly initiated in an Answer?

Yes. Rule 62 does not expressly authorize the filing of a complaint-in-interpleader as part of,
although separate and independent from, the answer. Similarly, Section 5, Rule 6, in relation to
Section 1, Rule 9 of the Rules of Court does not include a complaint-in-interpleader as a claim, a
form of defense, or as an objection that a defendant may be allowed to put up in his answer or in

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 a motion to dismiss. This does not mean, however, that a "counter-complaint/cross-claim for
interpleader" runs counter to general procedures.

An interpleader may also be asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-
party complaint, or complaint-in-intervention or in the answer-(of the conflicting claimants)-in-
interpleader. (Bank of Commerce vs. Planters Dev. Bank, G.R. Nos. 154470-71, September 24,
2012)

108. What are the requisites of an action for declaratory relief?

a. The subject matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance;
b. The terms of said documents and the validity thereof are doubtful and require judicial
construction;
c.There must have been no breach of the documents in question;
d. There must be an actual justiciable controversy or the “ripening seeds” of one between persons
whose interests are adverse;
e. The issue must be ripe for judicial determination; and
f. Adequate relief is not available through other means or other forms of action or proceeding.
(Almeda vs. Bathala Marketing Industries, Inc., G.R. No. 150806, January 28, 2008)

109. Can court orders or decisions be made the subject of a petition for declaratory relief?

No. Court orders or decisions cannot be the subject matter of a petition for declaratory relief. They
are not included within the purview of the words “other written instrument” in Rule 63 of the Rules
of Court governing petitions for declaratory relief. The same principle applies to orders, resolutions,
or decisions of quasi-judicial bodies, and this is anchored on the principle of res judicata.
Consequently, a judgment rendered by a court or a quasi-judicial body is conclusive on the parties,
subject only to appellate authority. The losing party cannot modify or escape the effects of
judgment under the guise of an action for declaratory relief. (Erice vs. Sison, A.M. No. RTJ-15-
2407, November 22, 2017)

110. Distinguish among Certiorari, Prohibition and Mandamus.

Certiorari Prohibition Mandamus

Petitioner Aggrieved party
Respondents  Tribunal  Tribunal  Tribunal
 Board  Board  Board
 Officer  Officer  Officer
 Person (w/ quasi-judicial  Person (w/ quasi-judicial
function) function)
Grounds  Lack of jurisdiction (on subject matter)  Neglect in the
 Excess of jurisdiction performance of duty
 Grave abuse of discretion amounting to enjoined by law; or
lack/excess of jurisdiction (whimsical, capricious,  Excludes someone
arbitrary and despotic) from the enjoyment of
office of franchise
Functions Discretionary judicial/quasi- Ministerial or Discretionary Ministerial
judicial only
Note: Applies to Note: Applies to judicial/quasi-
Note: It cannot be brought judicial/quasi-judicial only. It judicial only. It cannot be

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 against legislative or cannot be brought against brought against legislative or
executive functions. legislative or executive executive functions.
functions.
Condition No appeal or any other adequate, speedy remedy in the ordinary courts of law
Prayer Nullify the final judgement, Cease and desist from doing To do or perform plus damages,
or final orders, or something. No claim for if any.
resolutions. No claim for damages.
damages.

111. What is grave abuse of discretion as contemplated in Rule 65?

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment which is
equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. (Republic vs. Yang Chi Hao, G.R. No. 165332,
October 2, 2009)

112. Does the non-appealable nature of small claims cases preclude the aggrieved party
from filing a petition for certiorari under Rule 65?

No. Section 23 of the Rules of Procedure for Small Claims cases states that after the hearing, the
court shall render its decision on the same day, based on the facts established by the evidence.
The decision shall immediately be entered by the clerk of court in the court docket for civil cases
and a copy thereof forthwith served on the parties. Then, the decision shall be final and
unappealable. Considering the final nature of the small claims case decision under the above rule,
the remedy of appeal is not allowed and the prevailing party may thus immediately move for its
execution. Nevertheless, the proscription on appeals in small claims cases, similar to other
proceedings where appeal is not an available remedy, does not preclude the aggrieved party from
filing a petition for certiorari under Rule 65 of the Rules of Court. In Okada vs. Security Pacific
Assurance Corporation, it was held that “the extraordinary writ of certiorari is always available
where there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of
law.” (A.L. Ang Network, Inc. vs. Emma Mondejar, G.R. No. 200804, January 22, 2014, J. Perlas-
Bernabe).

113. What are the exceptions to the doctrine of hierarchy of courts where direct resort to
the Court is allowed for petitions for the extraordinary writs of certiorari, prohibition
and mandamus?

a. When there are genuine issues of constitutionality that must be addressed at the most
immediate time;
b. When the issues involved are of transcendental importance;
c.When cases of first impression are involved; and
d. When constitutional issues raised are better decided by the Court;
e. When the time element presented in the case cannot be ignored;
f. When the filed petition reviews the act of a constitutional organ;
g. When petitioners rightly claim that they had no other plain, speedy and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents' acts in
violation of their right to freedom of expression; and

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 h. When the petition includes questions that are "dictated by public welfare and the advancement
of public policy, or demanded by the broader interest of justice, or the orders complained of
were found to be patent nullities, or the appeal was considered as clearly an inappropriate
remedy (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21,
2015).

114. What are the instances whencertiorari can be considered as the proper remedy despite
the availability of appeal, or other remedy in the ordinary course of law?

a. When it is necessary to prevent irreparable damages and injury to a party;

b. Where the trial judge capriciously and whimsically exercised his judgment;
c.Where there may be danger of a failure of justice;
d. Where an appeal would be slow, inadequate, and insufficient;
e. Where the issue raised is one purely of law;
f. Where public interest is involved; and
g. In case of urgency.

Specifically, the availability of appeal as a remedy does not constitute sufficient ground to prevent
or preclude a party from making use of certiorari if appeal is not an adequate remedy, or an
equally beneficial, or speedy remedy. It is inadequacy, not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari. A remedy is plain, speedy and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or
agency. (Heirs of Spouses Reterta vs. Spouses Mores, G.R. No. 159941, August 17, 2011)

115. Distinguish certiorari as a Mode of Appeal (Rule 45) from certiorari as a Special Civil
Action (Rule 65).

Petition for Review on Certiorari Under
Rule 45 (Mode of Appeal)
A mode of appeal, a continuation of the
Nature
case subject of the appeal.
Questions of law.
Basis
Final judgements or final orders.
Subject
Parties are the original parties to the action:
Special Civil Action for Certiorari
Under Rule 65 (Original Action)
A special civil action, an original action
and NOT a mode of appeal.
Questions of jurisdiction because a
tribunal, board or officer exercising
judicial or quasi-judicial functions has
acted:
- without jurisdiction;
- in excess of jurisdiction; or
- with grave abuse of
discretion amounting to lack of
jurisdiction
Interlocutory orders prior to appeal or
matters where no appeal or any other
plain, speedy or adequate remedy may
be taken from.
Parties are:

- Petitioner (appealing party) - Petitioner (aggrieved party)

Parties - Respondent (adverse party) - Respondents (lower court or quasi-
judicial agency and prevailing parties)
The lower court or its judge is NOT
impleaded. The tribunal, board or officer exercising

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 Petition for Review on Certiorari Under Special Civil Action for Certiorari
Rule 45 (Mode of Appeal) Under Rule 65 (Original Action)
judicial or quasi-judicial functions is
impleaded as respondent.
Only with the Supreme Court.  RTC
 Court of Appeals
 Sandiganbayan,
 Supreme Court;

Where to File Note: In election cases involving an

Must be filed within 15 days from notice of
judgment, final order or resolution appealed
from.
act or omission of MTC or RTC, the
petition shall be filed exclusively with
the COMELEC, in aid of its appellate
jurisdiction (A.M. No. 07-7-12-SC,
December 27, 2007)
Must be filed not later than 60 days
from notice of judgment, order or
resolution or denial of MR or MNT.

Supreme Court may grant an extension of No extension of time to file petition

Period for Filing
30 days. under this rule. (A.M. No. 07-7-12-SC 2
[effective December 27, 2007]
amended Sec. 4 of Rule 65 and deleted
the provision granting 15 days
extension for compelling reasons).
It stays the judgment appealed from. It does not stay the judgement or order
subject of the petition UNLESS a
Effect
temporary restraining order or a writ of
preliminary injunction has been issued.
Filing of a Prior filing of a motion for reconsideration is A motion for reconsideration is,
Motion for not required. generally, a condition precedent.
Reconsideration
Appellate jurisdiction of the Supreme Court a. Concurrent original jurisdiction of
over judgments of the Court of Appeals, the Supreme Court with the RTC
Sandiganbayan, CTA, RTC and other courts. and Court of Appeals.
Jurisdiction b. Exclusive original jurisdiction of the
Supreme Court as to judgment,
final order or resolution of
COMELEC and COA.

116. Distinguish Quo Warranto from Impeachment as a remedy to remove an impeachable

officer.

QUO WARRANTO IMPEACHMENT

Judicial in nature. Political in nature.
Cause of action lies on usurping, intruding or Cause of action is the commission of impeachable
unlawfully holding/ exercising a public office. offense.

Respondent is ordered to cease holding a public Conviction shall result to removal of the respondent
position, which he/she is ineligible to hold. from the public office that he/she is legally holding.
Commenced by a verified petition brought in the It must be initiated by filing of the Articles of
name of the Republic of the Philippines. Impeachment before the senate.

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 An act or omission committed prior to or at the time of appointment or election relating to an
official’s qualifications to hold office as to render such appointment or election invalid is properly
the subject of a quo warranto petition, provided that the requisites for the commencement thereof
are present. On the contrary, acts or omissions, even if it relates to the qualification of integrity,
being a continuing requirement but nonetheless committed during the incumbency of a validly
appointed and/or validly elected official, cannot be the subject of a quo warranto proceeding, but
of something else, which may either be impeachment if the public official concerned is
impeachable and the act or omission constitutes an impeachable offense, or disciplinary,
administrative or criminal action, if otherwise. (Republic vs. Sereno, G.R. No. 237428, May 11,
2018)

117. If the petitioner in a petition for quo warranto is the Solicitor General, does the one-
year prescriptive period provided under Rule 63 apply?

No. The one-year limitation is not applicable when the petitioner is not a mere private individual
pursuing a private interest, but the government itself seeking relief for a public wrong and suing
for public interest. In the three instances enumerated by Rules of Court, the Solicitor General is
mandated under the Rules to commence the necessary quo warranto petition, as seen in the use
of the word “must.” As a general principle, it may be stated that ordinary statutes of limitation, civil
or penal, have no application to quo warranto proceeding brought to enforce a public right. In
effect, when the government is the real party in interest, and is proceeding mainly to assert its
rights, there can be no defense on the ground of laches or prescription. (Republic vs. Sereno, G.R.
No. 237428, May 11, 2018)

118. Distinguish the procedures for expropriation proceedings under (a) Rule 67 of the
Rules of Court, (b) Expropriation for national infrastructure project pursuant to R.A.
8974 and (c) Expropriation under the Local Government Code.

Rule 67, Rules of Court RA 8974 Local Government Code

Initiated by filing of the
complaint and due notice to
the defendant
Requires the deposit with an
authorized government
depository of the assessed
value of the property for
expropriation. (National
Power Corp vs. Jocson, G.R.
Nos. 94193-99, February 25,
1992)
Initiated by filing of the complaint
and due notice to the defendant
Requires the immediate payment
of 100% of the following:
 value of the property based on
the current relevant zonal
valuation of the BIR; and
 value of the improvements
and/or structures.
If there is no existing valuation
and expropriation is of utmost
urgency and importance, there
shall be payment of the proffered
value (Republic vs. Gingoyan, G.R.
No. 166429, December 19, 2005;
Republic vs. Holy Trinity
Development Corp., G.R. No.
172410, April 14, 2008)
Initiated by filing of the complaint for
expropriation sufficient in form and
substance.
Requires the deposit of the amount
equivalent to 15% of the fair
market value of the property
based on the current tax
declaration of the property to be
expropriated provided that the
amount to be paid for the
expropriated property shall be
determined by the proper court,
based on the fair market value at the
time of the taking of the property.
(Section 19 of the Local Government
Code).

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119. If there is a pending unlawful detainer case and the same property subject thereon is
expropriated by the Government, what is the effect of that expropriation proceeding to
the unlawful detainer case?

The unlawful detainer case is suspended for a period of one (1) year. But the unlawful or informal
settlers will have to pay the rental to the owner of the property also within that one-year period.
(Sec. 1, CA No. 538; Abad vs. Fil-Homes Realty Development Corporation, G.R. No. 189239,
November 24, 2010)

120. Ana, the registered owner of a parcel of land which was subjected to compulsory
acquisition under the Comprehensive Agrarian Reform Program (CARP), received an
order of land valuation from the Department of Agrarian Reform (DAR)/ Land Bank of
the Philippines (LBP). 15 days had lapsed from the receipt of the order.

a. Can Ana still file a petition for determination of just compensation with the Special
Agrarian Court?

Yes. Since the determination of just compensation is a judicial function, the Court must
abandon its ruling in Veterans Bank, Martinez, Soriano and Limkaichong that a petition for
determination of just compensation before the SAC shall be proscribed and adjudged
dismissible if not filed within the 15-day period prescribed under the DARAB Rules. To maintain
the rulings would be incompatible and inconsistent with the legislative intent to vest the original
and exclusive jurisdiction in the determination of just compensation with the SAC.

b. When should Ana file a petition for determination of just compensation with the
Special Agrarian Court?

While R.A. No. 6657 itself does not provide for a period within which a landowner can file a
petition for the determination of just compensation before the SAC, it cannot be imprescriptible
because the parties cannot be placed in limbo indefinitely. The Civil Code settles such
conundrum. Considering that the payment of just compensation is an obligation created by
law, it should only be ten (10) years from the time the landowner received the notice
of coverage. (LBP vs. Dalauta, G.R. No. 190004, August 8, 2017)

121. Goldenway Corporation executed a real estate mortgage in favor of Equitable Bank
over its properties to secure a P2 million loan. The former failed to pay hence, the
latter foreclosed and sold the properties where Equitable Bank emerged as the highest
bidder. The certificate of sale was then registered with the Registry of Deeds. After
two months from the date of sale, the corporation offered to redeem the properties but
the Bank refused the offer to redeem. Was the bank’s refusal proper?

Yes. Pursuant to Sec. 47 of R.A. No. 8791 (The General Banking Law of 2000), juridical persons
whose property is being sold pursuant to an extrajudicial foreclosure, shall have the right to
redeem the property until, but not after, the registration of the certificate of foreclosure sale with
the applicable Register of Deeds which in no case shall be more than three (3) months after
foreclosure, whichever is earlier. Since the certificate of sale had already been registered, the
Corporation cannot redeem the property anymore. (Goldenway Merchandising Corporation vs.
Equitable PCI Bank, G.R. No. 195540, March 13, 2013)

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122. Distinguish extrajudicial foreclosure from judicial foreclosure.

EXTRA-JUDICIAL FORECLOSURE JUDICIAL FORECLOSURE

(ACT 3135) (RULE 68)
No complaint is filed. Complaint is filed with the courts
There is a right of redemption. Mortgagor has a right of No right of redemption EXCEPT when mortgagee is
redemption for 1 year from registration of the sale. a banking institution.
There is equity of redemption only (90 to 120 days,
and any time before confirmation of foreclosure
sale).
Mortgagee has to file a separate action to recover any Mortgagee can move for deficiency judgment in the
deficiency. same action.
Buyer at public auction becomes absolute owner only Buyer at public auction becomes absolute owner
after finality of an action for consolidation of only after confirmation of the sale.
ownership.
Mortgagee is given a special power of attorney in the Mortgagee need not be given a special power of
mortgage contract to foreclose the mortgaged property attorney.
in case of default.
No court intervention necessary. Requires court intervention.
Filed with the office of the sheriff of the province where Filed before the MTC or RTC where the mortgaged
the sale is to be made. property or any part thereof is situated.
There can be no judgement for deficiency because there
There could be a deficiency judgment rendered by
is no judicial proceeding although recovery of deficiency
the court in the same proceeding.
is allowed.
The recovery of the deficiency is through an Recovery for the deficiency can be done by mere
independent action. motion.

123. What are the three types of recovery actions?

a. Accion interdictal comprises two distinct causes of action, namely, forcible entry
(detentacion) and unlawful detainer (desahuico);
b. Accion publiciana is the plenary action to recover the right of possession which should be
brought in the proper Regional Trial Court when dispossession has lasted for more than one
year. It is an ordinary civil proceeding to determine the better right of possession of realty
independently of title. In other words, it is proper if at the time of the filing of the complaint,
more than one year had elapsed since defendant had turned plaintiff out of possession or
defendant’s possession had become illegal;
c. Accion reivindicatoria is an action to recover ownership also brought in the proper regional
trial court in an ordinary civil proceeding. (Suarez vs. Emboy, G.R. No. 187944, March 12, 2014)

124. How may a losing defendant stay the immediate execution of a judgment in an
unlawful detainer case?

The defendant may have such judgment stayed only by:

a. perfecting an appeal;
b. filing a supersedeas bond; and
c. making a periodic deposit of the rental or reasonable compensation for the use and
occupancy of the property during the pendency of the appeal.

The failure of the defendant to comply with any of these conditions is a ground for the outright
execution of the judgment, the duty of the court in this respect being ministerial and imperative
2019 REMEDIAL LAW |45
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 (Atty. Alconera vs. Pallanan, A.M. No. P-12-3069, January 20, 2014 in relation to Ferrer vs. Judge
Rabaca, A.M. No. MTJ-05-1580 dated October 6, 2010).

125. What are the elements of a cause of action for unlawful detainer?

A complaint sufficiently alleges a cause of action for unlawful detainer if it states the following
elements:

a. Initially, the possession of the property by the defendant was by contract with or by tolerance
of the plaintiff;
b. Eventually, the possession became illegal upon the plaintiff’s notice to the defendant of the
termination of the latter’s right of possession;
c. Thereafter, the defendant remained in possession of the property and deprived the plaintiff of
the latter’s enjoyment;
d. Within one year from the making of the last demand on the defendant to vacate the property,
the plaintiff instituted the Complaint for Ejectment. (Fairland Knitcraft Corporation vs. Loo Po,
G.R. No. 217694 January 27, 2016)

126. What is needed for tolerance to be a valid ground for Unlawful Detainer?

To justify an action for unlawful detainer, it is essential that the plaintiff’s supposed acts of
tolerance must have been present right from the start of the possession which is later sought to be
recovered. (Zacarias vs. Anacay, G.R. No. 202354, September 24, 2014)

127. Distinguish Unlawful Detainer from Forcible Entry.

FORCIBLE ENTRY UNLAWFUL DETAINER

The possession of the defendant is unlawful from The possession of the defendant is lawful from the
the beginning. The issue is which party has prior beginning but becomes illegal by reason of the expiration
de facto possession. or termination of his right to the possession of the
property under any contract, express or implied.
The law does not require previous demand for the Plaintiff must first make such demand which is
defendant to vacate. jurisdictional in nature.
The plaintiff must prove that he was in prior The plaintiff need not have been in prior physical
physical possession of the premises until he was possession.
deprived by the defendant.
The one-year period is generally counted from The one-year period is counted from the date of last
the date of actual entry on the property. demand.
Defendant’s possession was acquired by force, Defendant’s possession was acquired by tolerance or
intimidation, threat, stealth and strategy. contract.

128. Distinguish Criminal Contempt from Civil Contempt.

CRIMINAL CONTEMPT CIVIL CONTEMPT

Any conduct directed against the authority or
dignity of the court.
Proceedings are to be conducted in accordance
with the principles and rules applicable to criminal
cases. The State is the real prosecutor.
Initiated by the court or tribunal exercising the
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Failure to do something ordered by a court to be
done for the benefit of a party.
Generally held to be remedial and civil in their
nature; that is, they are proceedings for the
enforcement of some duty, and essentially a remedy
for coercing a person to do the thing required.
Instituted by an aggrieved party, or his successor, or
 power to punish a given contempt.
Purpose is primarily punishment.
The defendant is presumed innocent and the
burden is on the prosecution to prove the charges
beyond reasonable doubt.
someone who has a pecuniary interest in the right to
be protected.
Purpose is primarily compensatory or remedial.
There is no such presumption, although the burden
of proof is on the complainant, and burden of proof
in a civil contempt proceeding lies somewhere
between the criminal “reasonable doubt” burden and
the civil “fair preponderance” burden.

(Oca vs. Custodio, G.R. No. 199825, July 26, 2017)

129. What is a Sub Judice Rule? What is the rationale for this rule?

The sub judice rule restricts comments and disclosures pertaining to the judicial proceedings in
order to avoid prejudging the issue, influencing the court, or obstructing the administration of
justice. A violation of this rule may render one liable for indirect contempt. The rationale for this
rule is for the courts, in the decision of issues of fact and law, to be immune from every
extraneous influence; for the case to be decided upon evidence produced in court; and for the
determination of such facts be uninfluenced by bias, prejudice or symphathies. In fine, what is
sought to be protected is the primary duty of the courts to administer justice in the resolution of
cases before them. (Republic vs. Sereno, G.R. No. 237428, May 11, 2018)

SPECIAL PROCEEDINGS

130. Which Court has jurisdiction over the Settlement of Estate of a Deceased person?

It depends upon the gross value of the estate of the decedent:

a. In Metro Manila: MTC, when the gross value does not exceed P400,000; otherwise, RTC; or
b. Outside Metro Manila: MTC, when the gross value does not exceed P300,000; otherwise, RTC.
(B.P. Blg. 129, Sec. 19[4], Sec. 33[1])

131. What is the venue of settlement of estate of a deceased person?

a. Resident citizen or alien: Court of the Province or City where the deceased resides at the time
of death;
b. Non-Resident: Court of any Province or City where he had his estate (Sec. 1, Rule 73).

132. What does residence in relation to venue in settlement of estate mean?

The “residence” of a person is his personal, actual or physical habitation, or actual residence or
place of abode, which may not necessarily be his legal residence or domicile provided he resides
therein with continuity and consistency. (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)

133. What does “interested person” mean in relation to filing of petition for letters of
administration?

An “interested person” has been defined as one who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such as a creditor. The interest must be material

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 and direct, and not merely indirect or contingent. (San Luis vs. San Luis, G.R. No. 133743,
February 6, 2007)

134. Distinguish between extrajudical settlement and summary settlement of estate.

Extrajudicial Settlement Summary Settlement

No court intervention.
Value of the estate is immaterial.
It is allowed only in intestate succession.
There must be no outstanding debts of the estate
at the time of the settlement of the estate.
It may be resorted to at the instance of and by
agreement of all the heirs.
The amount of bond is equivalent to the value of
the personal property.
(De Leon & Wilwayco, Special Proceedings Essential for Bench and Bar, pp. 37-38, [2015 Ed.])
Judicial adjudication although summary in nature.
Gross value of the estate must not exceed
PhP10,000.00.
It is allowed in both testate and intestate succession.
It is available even if there are debts.
Note: It is the court that which will make provision
for its payment.
It may be instituted by any interested party, even a
creditor of the estate without the consent of all the
heirs.
The amount of the bond is to be determined by the
court.

135. May a probate court, after admitting the will to probate but before payment of the
estate’s debts and obligations, grant an allowance from the funds of the estate for the
support of the testator’s grandchildren?

No. Sec. 3 of Rule 83 of the Rules of Court provides: “The widow and minor or incapacitated
children of a deceased person, during the settlement of the estate, shall receive therefrom under
the direction of the court, such allowance as are provided by law.” The law clearly limits the
allowance to “widow and children” and does not extend it to the deceased’s grandchildren,
regardless of their minority or incapacity. (Estate of Hilario Ruiz vs. CA, G.R. No. 118671, January
29, 1996)

136. Can the probate court determine issue of ownership?

The general rule is that the jurisdiction of the trial court, either as a probate or an intestate court,
relates only to matters having to do with the probate of the will and/or settlement of the estate of
deceased persons, but does not extend to the determination of questions of ownership that arise
during the proceedings. The patent rationale for this rule is that such court merely exercises
special and limited jurisdiction. A probate court or one in charge of estate proceedings, whether
testate or intestate, cannot adjudicate or determine title to properties claimed to be a part of the
estate and which are claimed to belong to outside parties, not by virtue of any right of inheritance
from the deceased but by title adverse to that of the deceased and his estate. All that the said
court could do as regards said properties is to determine whether or not they should be included in
the inventory of properties to be administered by the administrator. If there is no dispute, there
poses no problem, but if there is, then the parties, the administrator, and the opposing parties
have to resort to an ordinary action before a court exercising general jurisdiction for a final
determination of the conflicting claims of title.

Exceptions:
First, the probate court may provisionally pass upon in an intestate or a testate proceeding the
question of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to
the final determination of ownership in a separate action.
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 Second, if the interested parties are all heirs to the estate, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the probate court and
the rights of third parties are not impaired, then the probate court is competent to resolve issues
on ownership. (Agtarap vs. Agtarap, G.R. No. 177099, June 8, 2011)

137. Distinguish Executor from Administrator.

Executor Administrator
As to Appointment
A person named as executor in the will A person appointed by the Court in cases:
a. The testator did not appoint an executor; or
b. If the executor refused appointment (administrator
with a will annexed); or
c. If the will was disallowed; or
d. if a person did not make a will (intestate succession)

As to Duty to Present Will

He must present the will to the court within No such duty
twenty (20) days after he knows of the death
of testator or after he knew that he was
appointed as executor (if he obtained such
knowledge after death of testator), unless the
will has reached the court in any manner.
As to Requirement to File a Bond
Testator may provide he may serve without a Required to file a bond, unless exempted by law.
bond (but court may direct him to give a bond
conditioned only to pay debts).
As to Compensation
Compensation may be provided for by the Compensation is governed by Rule 85 Sec. 7 of the Rules
testator in the will. Otherwise, Rule 85 Sec. 7 of Court.
of the Rules of Court will be followed

138. What are the actions that may be commenced directly against the Executor and
Administrator and those that may be commenced directly against the Estate of the
deceased?

Actions against the Executor and Actions against the Estate of the deceased
Administrator
a. Recovery of real or personal property (or a. Money claims, debts incurred by the deceased
any interest therein) from the estate; during his lifetime arising from contract
b. Enforcement of a Lien; b. Claims for funeral expenses or for the last sickness
c. Action to recover damages arising from of the decedent;
injury. c. Judgement for money against decedent.

139. Distinguish Special Administrator from Regular Administrator.

Special Administrator Regular Administrator

As to Effect of Order of Appointment
It is interlocutory and is not appealable. Final and appealable.
As to Obligation to Pay Debts
He cannot pay the debts of the estate unless It is his obligation as an administrator of the estate.
otherwise ordered by the Court.
As to When Appointed
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 When there is delay in granting letters When decedent died intestate or did not appoint an
testamentary or administration or when executor in the will or will was disallowed.
executor is a claimant of the estate.

140. Distinguish Statute of Non-Claims from Statute of Limitations.

The Statute of Non-Claims is the period fixed for the filing of claims against the estate such that
claims not filed within the said period are barred forever. The period fixed by probate court must
not be less than six months nor more than 12 months from the date of first publication of the
notice. (De Leon and Wilwayco, Special Proceedings: Essentials for Bench and Bar, p. 131 [2015])

On the other hand, the Statute of Limitations states that a legal action must be brought before a
particular period of time has passed.

Note: The statute of non-claims supersedes the statute of limitations.

141. What is the exception to the rule that claims against the estate must be filed within the
statute of non-claims?

a) Tardy claims. Under the rules, at any time before an order of distribution is entered, on
application of a creditor who has failed to file his claim within the time previously limited, the
court may, for cause shown and on such terms as are equitable, allow such claim to be filed
within a time not exceeding one (1) month. (Sec. 2, Rule 86)
b) The claimant may set up the claim as counterclaim in any action that the executor or
administrator may bring against him/her. (Sec. 5, Rule 86)

142. What may be claimed against the estate?

a) Claims for money against the decedent arising from contract, express or implied, whether due,
not due or contingent;
b) Claims for funeral expenses and expenses for the last sickness of the decedent;
c) Judgment for money against the decedent. (Sec. 5, Rule 86)

143. May a Probate Court issue writ of Execution?

General Rule: No because its orders, as a rule, refer to the adjudication of claims against the
estate which the executor or administrator may satisfy without the need of executory process.
(Vda. De Valera vs. Ofilada, G.R. No. L-27526, September 12, 1974)

Exceptions:

a. Contributive shares (Sec. 6, Rule 88)

b. Examination costs (Sec. 13, Rule 142)
c. Partition expenses (Sec. 3, Rule 90)
d. Surety’s liability on bonds (De Mendoza v. Pacheco, G.R. No. 43351, February 26, 1937)

144. What are instances to institute Escheat Proceedings?

a. When a person dies intestate leaving no heir but leaving property in the Philippines (Sec. 1,
Rule 91)
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 b. Reversion Proceedings - as when property was alienated in violation of the Constitution or law
(Sec. 5, Rule 91)
c.Unclaimed Balances Act – Dormant Accounts for 10 years shall be escheated (Act No. 3936, as
amended by P.D. 679)

145. In default of parents or a court-appointed guardian, who may be appointed as

guardian of the person or property or both of a minor?

In default of parents or a court-appointed guardian, the court may appoint a guardian of the
person or property, or both, of a minor, observing as far as practicable, the following order of
preference:

a. the surviving grandparent and In case several grandparents survive, the court shall select any
of them taking Into account all relevant considerations;
b. the oldest brother or sister of the minor over twenty-one years of age, unless unfit or
disqualified;
c. the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and
d. any other person, who in the sound discretion of the court, would serve the best interests of
the minor. (A.M. No. 03-02-05-SC, Proposed Rule on Guardianship of Minors)

146. Distinguish Peremptory Writ from Preliminary Citation.

Peremptory Writ is issued if the cause of the detention appears to be patently illegal.
Noncompliance with this is punishable. On the other hand, preliminary citation is when the person
under governmental authority and the illegality of his detention is not patent from the petition for
the writ, the court issues the citation to the government officer having custody to show cause why
the habeas corpus writ should not issue. (Lee Yick Hon vs. Insular Collector of Customs, G.R. No.
L-16779, March 30, 1921)

147. Who may file a petition for writ of Habeas Corpus involving the custody of minors?

A verified petition for the rightful custody of a minor may be filed by any person claiming such
right. (Sec. 2 of A.M. No.03-04-04-SC)

Note: The grant of the writ depends on the concurrence of the following requisites:

a. that the petitioner has the right of custody over the minor;
b. that the rightful custody of the minor is being withheld from the petitioner by the respondents;
and
c. that it is to the best interest of the minor concerned to be in the custody of petitioner and not
that of the respondents. (Masbate vs. Relucio, G.R. No. 253498, July 30, 2018, J. Perlas-
Bernabe)

148. In what court should the petition for writ of Habeas Corpus involving the custody of
minors be filed?

The petition shall be filed with:

a. Family Court of the province or city where the petitioner resides or where the minor may be
found
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 b. Regular Court in the absence of the presiding judge of the Family Court

Note: Regular Court shall refer the case to the Family Court as soon as its presiding judge
returns to duty.

c. Regular court in places where there are no Family Courts

d. Supreme Court, Court of Appeals, or with any of its members (Sec. 20, A.M. No. 03-04-04-SC)

149. Is a motion to dismiss allowed in case of petitions for writ of habeas corpus involving
custody of minors?

No. A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over
the subject matter or over the parties. Any other ground that might warrant the dismissal of the
petition may be raised as an affirmative defense in the answer. ( Sec. 6 of A.M. No. 03-04-04-SC)

150. Differences of Rule 103, R.A. No. 9048 and Rule 108.

Rule 103 Rule 108 R.A. 9048, as

amended by R.A. No.
10172
Rule or Law Change of Name Cancellation / Clerical Error Act
Correction of Entries in
the Civil Registry
Subject Matter Change of full name or Cancellation or correction Change of first name or
family name (substantial of civil registry entries nickname and correction
corrections) (substantial corrections) of civil registry entries
(only typographical or
clerical errors)
Who may File A person desiring to Any person interested in Any person having direct
change his name. (Sec. 1) any act, event, order or and personal interest in
decree concerning the civil the correction of a clerical
status of persons which or typographical error in
has been recorded in the an entry and/or change
civil register. (Sec. 1) of first name or
nickname. (Sec. 3)
Venue RTC of the province in RTC of city or province 1. Local civil registry
which petitioner resided for where the corresponding office of the city or
3 years prior to filing. civil registry is located. municipality where
the record being
sought to be
corrected or changed
is kept;
2. Local civil registrar of
the place where the
interested party is
presently residing or
domiciled;
3. Philippine Consulate
Contents of 1. That petitioner has —- 1. Facts necessary to
Petition been a bona fide establish the merits
resident of the of petition;
province where the 2. Particular erroneous
petition is filed for at entry or entries,

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 least three (3) years which are sought to
prior to the date of be corrected and/or
such filing; the change sought to
2. The cause for which be made.
the change of
petitioner's name is Petition shall be
sought; supported by the
3. The name asked for. following documents:
(Sec. 2) a) A certified true
machine copy of the
certificate or of the
page of the registry
book containing the
entry or entries
sought to be
corrected or
changed;
b) At least two (2)
public or private
documents showing
the correct entry or
entries upon which
the correction or
change shall be
based; and
c) Other documents
which petitioner or
the city or municipal
civil registrar or the
consul general may
consider relevant
and necessary for
the approval of
petition. (Sec. 5)
Grounds 1. Name is ridiculous, Upon good and valid 1. The petitioner finds
tainted with dishonor grounds. the first name or
and extremely difficult nickname to be
to write or pronounce; ridiculous, tainted
2. Consequence of with dishonor or
change of status; extremely difficult to
3. Necessity to avoid write or pronounce.
confusion; 2. The new first name
4. Having continuously or nickname has
used and been known been habitually and
since childhood by a continuously used by
Filipino name, the petitioner and he
unaware of her alien has been publicly
parentage; known by that by
5. A sincere desire to that first name or
adopt a Filipino name nickname in the
to erase signs of community: or
former alienage all in 3. The change will
good faith and without avoid confusion.
prejudicing anybody. (Sec. 4, RA 9048)
6. when the surname

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 causes
embarrassment and
there is no showing
that the desired
change of name was
for a fraudulent
purpose or that the
change of name would
prejudice public
interest. (Chua vs.
Republic, G.R. No.
231998, November
20, 2017)
Kind of Judicial Proceeding
Proceeding
What to File File a signed and verified
petition.
Notice and At least once a week for
Publication three consecutive weeks in
a newspaper of general
circulation (notice of
hearing).
Posting No posting.
Who The Solicitor General or
Participates on the proper provincial or
the part of the city fiscal shall appear on
Government behalf of the Government
of the Republic.
Where to Appeal decision to the
Appeal: Court of Appeals under
Rule 41.
151. What are the entries subject to correction under Rule 108 in relation to R.A. No. 9048,
as amended by R.A. No. 10172?
a. Births;
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Judicial Proceeding
Adversarial in nature
because it involves
substantial changes and
affects the status of an
individual.
File a verified petition for
the cancellation or
correction of any entry.
At least once a week for
three consecutive weeks in
a newspaper of general
circulation (notice of
hearing).
No posting.
The Civil Registrar.
Appeal decision to the
Court of Appeals under 41.
Administrative Proceeding
File an affidavit.
At least once a week for
two consecutive weeks
(publish the whole
affidavit) in a newspaper
of general circulation – in
change of first name or
nickname, or for
correction of erroneous
entry concerning the day
and month in the date of
birth or the sex of a
person. (Sec. 5)
Duty of the civil registrar
or Consul to post petition
in a conspicuous place for
10 consecutive days.
The Civil Registrar or
Consul.
Appeal decision to the
Civil Registrar General
(head of NCSO) under
Section 7 or Court of
Appeals under Rule 43.
 b. Marriages;
c. Deaths;
d. Legal separation;
e. Judgments of annulment of marriage;
f. Judgments of declaring marriages void from the beginning;
g. Legitimations;
h. Adoptions;
i. Acknowledgements of natural children;
j. Naturalizations;
k. Election, loss or recovery of citizenship;
l. Civil interdiction;
m. Judicial declaration of filiation;
n. Change of name (De Leon & Wilwayco, Special Proceedings Essential for Bench and Bar, 2015 );
o. Clerical or typographical errors and change of first name or nickname;
p. Clerical or typographical errors day and month in the date of birth;
q. Sex of a person where it is patently clear that there was a clerical or typographical error or
mistake in the entry. (Sec. 1, R.A. No. 9048, as amended by R.A. No. 10172)

152. What is clerical or typographical error?

Clerical or typographical error refers to a mistake committed in the performance of clerical

work in writing, copying, transcribing or typing an entry in the civil register that is harmless and
innocuous, such as misspelled name or misspelled place of birth, mistake in the entry of day and
month in the date of birth or the sex of the person or the like, which is visible to the eyes or
obvious to the understanding, and can be corrected or changed only by reference to other existing
record or records: Provided, however, That no correction must involve the change of nationality,
age, or status of the petitioner. (R.A. 9048, as amended by R.A. No. 10172)

153. May an alien change name in the Philippines?

Yes, but only if he is domiciled in the Philippines. The Supreme Court ruled that only alien
domiciled in the Philippines may apply for change of name in the courts thereof. The broad general
doctrine is that the status of an alien individual is governed and controlled by the lex domicilii.
Implicit in this precept is that an alien may be allowed to change his name here only if he be
domiciled in the Philippines. (In the Matter of The Petition to Change Name Of Ong Huan Tin To
Teresita Tan Ong, G.R. No. L-20997 April 27, 1967)
154. Can Rule 108 be used to change the surname of illegitimate children?

No. The proper recourse is an adversarial contest. It must be stressed that Rule 108 does not
contemplate an ordinary civil action but a special proceeding. By its nature, this recourse seeks
merely to correct clerical errors, and nor to grant or deny substantial rights. Where the effect of a
correction in a civil registry will change the civil status of petitioner from legitimate to illegitimate,
the same cannot be granted except only in an adversarial proceeding. To hold otherwise is
tantamount to a denial of due process to third parties and the whole world. (Republic vs. Labrador,
G.R. No. 132980 March 25, 1999)

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 CRIMINAL PROCEDURE

155. Union Bank and Julie Magdangal filed two complaints for sum of money with prayer for
a writ of replevin against the spouses Togonon. The first complaint was filed before the
RTC of Pasay City while the second complaint was filed and raffled to the MeTC of
Pasay City. Both complaints showed that Julie executed and signed the Certification
against Forum Shopping. Accordingly, she was charged of perjury before the MeTC-
MakatiCity under Article 183 of the RPC by falsely declaring under oath in the
Certificate against Forum Shopping in the second complaint that she did not commence
any other action or proceeding involving the same issue in another tribunal or agency.
Julie filed a Motion to Quash arguing that the venue was improperly laid since it is the
Pasay City court, where the Certificate against Forum Shopping was submitted and
used, and not the MeTC-Makati City, where the Certificate against Forum Shopping was
subscribed, that has jurisdiction over the perjury case. The MeTC-Makati City denied
the Motion to Quash, ruling that it has jurisdiction over the case since the Certificate
against Forum Shopping was notarized in Makati City. Was the denial proper?

Yes. The first element of the crime of perjury, the execution of the subject Certificate against
Forum Shopping was alleged in the Information to have been committed in Makati City. Likewise,
the second and fourth elements, requiring the Certificate against Forum Shopping to be under oath
before a notary public, were also sufficiently alleged in the Information to have been made in
Makati City. The third element of willful and deliberate falsehood was also sufficiently alleged to
have been committed in Makati City, not Pasay City. Julie’s deliberate and intentional assertion of
falsehood was allegedly shown when she made the false declarations in the Certificate against
Forum Shopping before a notary public in Makati City, despite her knowledge that the material
statements she subscribed and swore to were not true. Thus, Makati City is the proper venue and
MeTC-Makati City is the proper court to try the perjury case, pursuant to Section 15(a), Rule 110 of
the 2000 Revised Rules of Criminal Procedure as all the essential elements constituting the crime of
perjury were committed within the territorial jurisdiction of Makati City, not Pasay City. (Union Bank
of the Philippines vs. Tomas, G.R. No. 192565, February 28, 2012)
156. What are the criteria to determine whether the Sandiganbayan has jurisdiction?

a. What offense was committed?

i. RA 3019 (Anti-Graft and Corrupt Practices Act);

ii. RA 1379 (An Act Declaring Forfeiture in favor of the State any Property found to
have been unlawfully acquired by any Public Officer or Employee and Providing for
the Proceeding Therefor);
iii. Violation of EO 1, 2, 14, 14-A (PCGG Cases);
iv. Bribery under RPC;

Jurisprudence dictates additional offenses cognizable by the Sandiganbayan:

v. Estafa (Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008);
vi. Falsification (Ramiscal vs. Sandiganbayan)

b. Who committed the offense?

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 i. Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade 27 and higher, of the Compensation and Position
Classification Act of 1989, specifically including:
a. Provincial governors, vice-governors, members of the sangguniang panlalawigan
and provincial treasurers, assessors, engineers and other provincial department
heads;
b. City mayors, vice mayors, members of the sangguniang panlunsod, city
treasurers, assessors, engineers and other city department heads;
c. Officials of the diplomatic service occupying the position of consul and higher;
d. Philippine army and air force colonels, naval captains and all officers of higher
rank;
e. Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintendent or higher;
f. City and provincial prosecutors and the assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor;
g. Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations;
ii. Members of the Congress and officials thereof classified as Grade 27 and up under the
Compensation and Position Classification Act;
iii. Members of the judiciary without prejudice to the provisions of the Constitution;
iv. Chairmen and members of Constitutional Commissions, without prejudice the provisions
of the Constitution;
v. All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act.

c. How the offense was committed?

In criminal cases, Sandiganbayan shall have original jurisdiction where there are specific
allegations of facts showing that the offense was committed in relation to their office. Otherwise,
regular courts shall take cognizance in accordance to their vested jurisdictions.

“In relation to the public office” means that the public office must be an essential ingredient to
the commission of the offense or that the office facilitated the commission of the offense. (Riano,
Criminal Procedure, p. 55, 2016 ed.).

157. Can a case against an accomplice be dismissed solely on the ground that the case
against the principal was previously dismissed?

No. It is a settled rule that the case against those charged as accomplices is not ipso facto
dismissed in the absence of trial of the purported principals; the dismissal of the case against the
latter; or even the latter’s acquittal, especially when the occurrence of the crime has in fact been
established. In one case, it was held that corresponding responsibilities of the principal,
accomplice, and accessory are distinct from each other. As long as the commission of the offense
can be duly established in evidence, the determination of the liability of the accomplice or
accessory can proceed independently of that of the principal. (People vs. Bayabos, G.R. No.
174786 February 18, 2015)

158. How to determine whether the Information may be quashed on the ground that the
facts charged do not constitute an offense?

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 In assessing whether the Information must be quashed on that ground, the basic test is to
determine if the facts averred would establish the presence of the essential elements of the crime
as defined in the law. The information is examined without consideration of the truth or veracity of
the claims therein, as these are more properly proven or controverted during the trial. In the
appraisal of the information, matters aliunde are not taken into account. (People vs. Bayabos, G.R.
No. 174786 February 18, 2015)

159. Anne, Mazell, Joana, together with Congressman Rex were charged as co-conspirators
for their respective participations in the illegal pillaging of public funds sourced from
the Priority Development Assistance Fund (PDAF) of Congressman Rex. The
Ombudsman issued a Resolution finding probable cause to indict Congressman Rex for
Plunder and for violation of Section 3(e) of RA 3019 or the Anti-Graft and Corrupt
Practices Act. The bases of the Ombudsman were (1) the testimonies of Anne, Mazell
and Joana; and (2) the testimony of a certain Clive who lacked personal knowledge of
the disbursement of the PDAF. Congressman Rex seeks to annul the Resolution of the
Ombudsman on two grounds: (1) the Ombudsman cannot consider the testimonies of
Anne, Mazell and Joana who purportedly were his co-conspirators pursuant to the res
inter alios acta rule; and (2) the testimony of Clive should not have been considered
based on the hearsay rule.

a. Did the Ombudsman err in considering the testimonies of Anne, Mazell and Joana?

No. Technical rules of evidence are not binding on the Ombudsman during preliminary
investigation. Here, the co-conspirators statements were sought to be excluded based on the r es
inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the
rights of a party cannot be prejudiced by an act, declaration, or omission of another, unless the
admission is by a conspirator under the parameters of Section 30 of the same Rule. The
foregoing rule constitutes a technical rule on evidence which should not be rigidly applied in the
course of preliminary investigation proceedings. (Cambe vs. Office of the Ombudsman, G.R. Nos.
212014-15, December 6, 2016, J. Perlas-Bernabe)

b. Did the Ombudsman err in considering the testimony of Clive?

No. Hearsay evidence is admissible in determining probable cause in a preliminary investigation

because such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. Thus, probable cause can be established with hearsay evidence, as long as
there is substantial basis for crediting the hearsay. (Estrada vs. Office of the Ombudsman, G.R.
Nos. 212140-41, January 21, 2015)

160. What is a prejudicial question and its elements?

Prejudicial question is an issue involved in a civil action which is similar or intimately related to the
issue raised in a criminal action, the resolution of which determines whether or not the criminal
action may proceed. Its elements are:

a. The civil action must be instituted prior to the criminal action;

b. The civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action; and
c. The resolution of such issue determines whether or not the criminal action may proceed. (Sec. 7,
Rule 111)
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161. While driving along a street in Concepcion, Tarlac, Cesar Fontano, a known race car
driver, figured in an accident with an SUV driven by Jericho Morales and owned by
Arnulfo Clavio. Because of such incident, Cesar filed a criminal case against Jericho for
reckless imprudence resulting in damage to property. Jericho and Arnulfo, however,
filed a civil case against Cesar for quasi-delict. The MCTC of Concepcion, Tarlac
dismissed the civil case pursuant to the motion to dismiss filed by Cesar on the ground
of forum shopping. Jericho and Arnulfo moved to reconsider such dismissal alleging
that the civil case is an independent action which can proceed independently of the
criminal action, but to no avail. Should the motion for reconsideration be granted?

Yes. Section 3 of the present Rule 111 expressly allows the “offended party” to bring an
independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code. This civil action shall
proceed independently of the criminal action and shall require only a preponderance of evidence.
Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the
accused. Under paragraph 6, Section 1 of the present Rule 111, the accused is barred from filing a
counterclaim, cross-claim or third-party complaint in the criminal case. However, the same
provision states that “any cause of action which could have been the subject (of the counterclaim,
cross-claim or third-party complaint) may be litigated in a separate civil action.” The present Rule
111 mandates the accused to file his counterclaim in a separate civil action which shall proceed
independently of the criminal action, even as the civil action of the offended party is litigated in the
criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while
refusing to recognize his counterclaim in the criminal case, is to deny him due process of law,
access to the courts, and equal protection of the law. (Casupanan vs. Laroya, G.R. No. 145391,
August 26, 2002)

162. Will the absence of Preliminary Investigation affect the validity of the Information?

No. The right to a preliminary investigation is not a constitutional right, but is merely a right
conferred by statute. The absence of a preliminary investigation does not impair the validity of the
Information or otherwise render the same defective and neither does it affect the jurisdiction of
the court over the case or constitute a ground for quashing the Information. (Serapio vs.
Sandiganbayan, G.R. No. 148468, January 28, 2003)

163. Distinguish amendment from substitution of Information or Complaint.

Amendment
Amendment may involve either formal or substantial
changes.
Amendment before plea has been entered can be
effected without leave of court.
When the amendment is only as to form, there is no
need for another preliminary investigation and the
re-taking of the plea of the accused.
An amended Information refers to the same offense
charged in the original information or to an offense
which necessarily includes or is necessarily included
in the original charge, hence, substantial
amendments to the Information after the plea has
been taken cannot be made over the objection of
the accused, for if the original Information would be
withdrawn, the accused could invoke double
Substitution
Substitution necessarily involves a substantial change
from the original charge.
Substitution of Information must be with leave of
court as the original information has to be dismissed.
In substitution, of Information, another preliminary
investigation is entailed and the accused has to plead
anew to the new Information.
Substitution presupposes that the new Information
involves a different offense which does not include or
is not necessarily included in the original charge,
hence the accused cannot claim double jeopardy.

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 jeopardy.

164. Distinguish Complaint from Information.

Complaint Information
A complaint must be sworn, hence, under oath. Information requires no oath. It merely requires that
it be an accusation in writing. This is so because the
prosecutor filing the information is acting under oath
of his office.

A complaint is subscribed by (1) the offended party; Information is subscribed by the prosecutor.
(2) any peace officer; (3) or other public officer
charged with the enforcement of the law violated.

165. Distinguish Executive Determination of Probable Cause from Judicial Determination of

Probable Cause.

Executive
(Preliminary Investigation)
It is made by the public prosecutor, during a
preliminary investigation, where he is given
broad discretion to determine whether probable
cause exists for the purpose of filing criminal
information in court. Whether or not that
function has been correctly discharged by the
public prosecutor, i.e., whether or not he has
made a correct ascertainment of the existence
of probable cause in a case, is a matter that the
trial court itself does not and may not be
compelled to pass upon.
Judicial
(Preliminary Examination)
It is made by the judge to ascertain whether a warrant
of arrest should be issued against the accused. In this
respect, the judge must satisfy himself that, on the basis
of the evidence submitted, there is a necessity for
placing the accused under custody in order not to
frustrate the ends of justice. If the judge, therefore,
finds no probable cause, the judge cannot be forced to
issue the arrest warrant. (De Los Santos-Dio vs. Court of
Appeals, G.R. No. 178947, June 26, 2013)

166. What is the rule on appeal to the Office of the President? Are there any exception/s?

The general rule is that no appeal from or petition for review of decisions/orders/resolutions of the
Secretary of Justice on preliminary investigations of criminal cases shall be entertained by the Office
of the President.

Exception: those involving offenses punishable by reclusion perpetua to death. (Tan, Criminal
Procedure: A Comprehensive Approach for the Bench and the Bar, 2015, p.471).

167. Alberto Salonga was a DPWH officer and an engineer in Pangasinan. Upon leaving his
office, he was shot by two (2) persons later identified as Mario Neri and Maria Naru.
Dr. Madriaga was implicated in the death of Alberto because he was seen with Mario
before and after the incident happened. An Information for the crime of murder was
filed against Mario, Maria, and Dr. Madriaga. Dr. Madriaga filed a Motion for
Reconsideration with the DOJ. It was denied. Dr. Madriaga appealed to the OP where it
affirmed the ruling of the DOJ. He then submitted newly discovered evidence in the
form of affidavits of several persons. At this instance, the OP granted his motion for
reconsideration. The surviving spouse of Alberto appealed.

a) Did the Office of the President err in taking cognizance of the appeal of Dr.
Madriaga?
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 No. Memorandum Circular No. 58 states that: No appeal from or petition for review of
decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal
cases shall be entertained by the Office of the President, except those involving offenses
punishable by reclusion perpetua to death wherein new and material issues are raised which
were not previously presented before the Department of Justice and were not ruled upon in the
subject decision/order/resolution, in which case the President may order the Secretary of Justice
to reopen/review the case, provided, that, the prescription of the offense is not due to lapse
within six (6) months from notice of the questioned resolution/order/decision, and provided
further, that, the appeal or petition for review is filed within thirty (30) days from such notice.

The offense for which Dr. Madriaga was charged is punishable by reclusion perpetua to death,
which is clearly within the jurisdiction of the OP. As the word "may" in the second paragraph of
Memorandum Circular No. 58 signifies, it is not mandatory for the President to order the DOJ to
reopen or review Dr. Madriaga’s case even if it raised "new and material issues" allegedly not yet
passed upon by the DOJ. Hence, the OP acted well within its authority in reexamining the merits
of Dr. Madriaga’s appeal in resolving the motion for reconsideration.

b) Can the DOJ Secretary still exercise its power of review even after the filing of
information in court?

Yes. The justice secretary is not precluded from exercising his power of review over the
investigating prosecutor even after the information has already been filed in court. However, the
justice secretary’s subsequent resolution withdrawing the information or dismissing the case does
not cause the court to lose jurisdiction over the case. In fact, the court is duty-bound to exercise
judicial discretion and its own independent judgment in assessing the merits of the resulting
motion to dismiss filed by the prosecution.

c) Is it correct that the non-referral by the OP to the DOJ of the appeal or motion for
reconsideration filed by Dr. Madriaga deprived the surviving heir (petitioner) of the
opportunity to confront and cross-examine the witnesses on affidavits belatedly
submitted by Dr. Madriaga?

No. Under the procedure for preliminary investigation provided in Section 3, Rule 112 of the
Revised Rules of Criminal Procedure, as amended, in case the investigating prosecutor conducts a
hearing where there are facts and issues to be clarified from a party or witness, "[t]he parties
can be present at the hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be asked to the party or
witness concerned." Hence, the non-referral by the OP to the DOJ of the motion for
reconsideration of Dr. Madriaga, in the exercise of its discretion, did not violate petitioner’s right
to due process. (Heirs of Nestor Trias vs. Obias. G.R. No. 175887, November 24, 2010)

168. What are the requirements for the appeal, or petition for review to the Office of the
President?

The requirements are as follows:

a. New and material issues are raised which were not previously presented before the DOJ;

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 b. The new and material matters were not ruled upon in the subject decision/order/resolution, in
which case the President may order the Secretary of Justice to re-open or review the case;
c.That, the prescription of the offense is not due to lapse within six (6) months from notice of the
questioned resolution/order/decision; and
d. Provided further, that, the appeal or petition for review is filed within thirty (30) days from such
notice. (Tan, Criminal Procedure: A Comprehensive Approach for the Bench and the Bar, p. 471,
2015

169. When is an inquest required?

An inquest is required when the accused has been lawfully arrested without a warrant. (Sec. 6,
Rule 112, Rules of Court)

170. What is the purpose of inquest?

To determine whether or not the person detained should remain under custody and then charged
in court. (Sec. 1, Part II, Manual for Prosecutors)

171. Should the detained person be present during inquest proceedings?

As a rule, the detained person should be present during the inquest proceedings unless reasons
exist that would dispense with his presence like:

a. Confinement in a hospital;
b. Detention in a place requiring maximum security; or
c.His presence is not feasible by reason of age, health, or similar factors. (Sec. 11, Part II, Manual
for Prosecutors)

172. When is warrantless arrest lawful?

A peace officer or private person may arrest without warrant:

a. When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; (in flagrante delicto)
b. When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
c. When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another. (Sec. 5, Rule 113)
d. When an accused released on bail attempts to depart from the Philippines without permission of
the court where the case is pending. (Sec. 23, Rule 114)

173. Ygan, a neighborhood tough guy, was arrested by a police officer on suspicion that he
was keeping prohibited drugs in his clutch bag. When Ygan was searched immediately
after the arrest, the officer found and recovered 10 sachets of shabu neatly tucked in
the inner linings of the clutch bag. At the time of his arrest, Ygan was watching a
basketball game being played in the town plaza, and he was cheering for his favorite

62 | CLEAR
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 team. He was subsequently charged with illegal possession of dangerous drugs, and he
entered a plea of not guilty when he was arraigned.

During the trial, Ygan moved for the dismissal of the Information on the ground that
the facts revealed that he had been illegally arrested. He further moved for the
suppression of the evidence confiscated from him as being the consequence of the
illegal arrest, hence, the fruit of the poisonous tree.

The trial court, in denying the motions of Ygan, explained that at the time the motions
were filed, Ygan had already waived the right to raise the issue of the legality of the
arrest. The trial court observed that, pursuant to the Rules of Court, Ygan, as the
accused, should have assailed the validity of the arrest before entering his plea to the
Information. Hence, the trial court opined that any adverse consequence of the alleged
illegal arrest had also been equally waived.

Comment on the ruling of the trial court.

The trial court is correct in so far as Ygan is considered to have waived his objections to the
illegality of his arrest. Objections to the irregularity of arrest must be made before his arraignment
(Villanueva vs. People, G.R. No. 199042, November 17, 2014). In this case, Ygan made no
objection to the irregularity of his arrest before his arraignment. Hence, the trial court is correct
when it ruled that Ygan had already waived his right to question the illegality of his arrest. Any
irregularity attending the arrest of an accused should be timely raised in a motion to quash the
Information at any time before arraignment, failing in which, he is deemed to have waived his right
to question the regularity of his arrest (People vs. Cunanan, G.R. No. 198024, March 16, 2015).

However, the trial court erred when it ruled that Ygan likewise waived his right to assail the illegal
search. A waiver of an illegal arrest is not a waiver of an illegal search. While the accused has
already waived his right to contest the legality of his arrest, he is not deemed to have equally
waived his right to contest the legality of the search. Therefore, Ygan may still move for the
suppression of the evidence confiscated from him being the consequences of the illegal arrest.
(Villanueva vs. People, G.R. No. 199042, November 17, 2014).

174. Based on a report of a confidential informant (CI) that a certain "Bato" has been
engaged in the sale of prohibited drugs in Zone 7, Cabina, Bonbon, Cagayan de Oro
City, a team of Philippine Drug Enforcement Agency (PDEA) agents scheduled a buy
bust operation. During the briefing, Clive, Ivan and Kenneth were assigned as the team
leader, the arresting officer/back-up/evidence custodian, and the poseur-buyer,
respectively. As agreed upon, Kenneth bought one (1) sachet of shabu containing 0.02
grams of shabu for Php500.00 from Bato. After completing the exchange, Kenneth
executed a missed call to Ivan, which was the pre-arranged signal. Ivan and Clive,
together with the back-up team from the Philippine National Police, arrived and
arrested Bato. Kenneth took into custody the ₱500.00 bill and the plastic sachet of
white substance he bought from Bato. While in the house, Kenneth marked the plastic
sachet. They then proceeded to the PDEA office for the inventory-taking and
photograph of the seized items. No members of the media and barangay officials
witnessed the inventory-taking and photograph of the seized items because according
to the apprehending officers, it was late at night and it was raining, making it unsafe
for them to wait at Bato's house.

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 a. May Bato be convicted of a violation of Section 5, R.A. No. 9165, as amended, or sale
of dangerous drugs?

No. Section 21(a) of the Implementing Rules of R.A. No. 9165 mandates that the apprehending
officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory and be given a copy
thereof. The prosecution’s failure to follow the mandated procedure must be adequately
explained, and must be proven as a fact in accordance with the rules on evidence. It must be
alleged and proved that the presence of the three witnesses to the physical inventory and
photograph of the illegal drug seized was not obtained due to reason/s such as, among others,
(1) their attendance was impossible because the place of arrest was a remote area; (2) their
safety during the inventory and photograph of the seized drugs was threatened by an immediate
retaliatory action of the accused or any person/s acting for and in his/her behalf. Earnest effort to
secure the attendance of the necessary witnesses must be proven.

Here, the prosecution failed to establish the details of an earnest effort to coordinate with and
secure presence of the required witnesses. They also failed to explain why the buy-bust team felt
"unsafe" in waiting for the representatives in Bato's house. (Romy Lim, G.R. No. 231989,
September 4, 2018)

b. What are the four mandatory policies to be observed in drug cases, in relation to the
“chain of custody rule” as held by the Supreme Court in People vs. Romy Lim, G.R. No.
231989, September 4, 2018?

The following are the mandatory policies to be observed in drug cases:

1) In the sworn statements/affidavits, the apprehending/seizing officers must state their

compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its
IRR;
2) In case of non-observance of the provision, the apprehending/seizing officers must state the
justification or explanation therefor as well as the steps they have taken in order to preserve
the integrity and evidentiary value of the seized/confiscated items;
3) If there is no justification or explanation expressly declared in the sworn statements or
affidavits, the investigating fiscal must not immediately file the case before the court. Instead,
he or she must refer the case for further preliminary investigation in order to determine the
(non) existence of probable cause.;
4) If the investigating fiscal filed the case despite such absence, the court may exercise its
discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the
case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of
Court.

175. Distinguish Motion to Quash from Demurrer to Evidence.

Motion to Quash Demurrer to Evidence

A motion to quash is filed before the accused A demurrer to evidence is filed after the prosecution
enters a plea. rests its case; hence, it presupposes that the accused
has already entered his plea.

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 It does not require a prior leave of court.
The ground for a motion to quash is generally
based on the matters found on the face of the
complaint or information.
It may be filed either with leave or without leave of
court.
The grounds for a motion to quash are not grounds for
a demurrer to evidence. The sole ground for demurrer
is insufficiency of evidence.

When a motion to quash is granted, a dismissal An order granting demurrer to evidence is a resolution
of the case will not necessarily follow as the of the case on the merits amounting to acquittal.
order sustaining the motion is generally not a
bar to another prosecution.

176. Judge Agaton granted an ex-parte motion for bail without conducting any bail hearing.
An administrative case was filed against him on the ground of gross ignorance of the
law in granting such motion without first conducting bail hearing. Will the
administrative case against the judge prosper?

Yes. The Court has always stressed the indispensable nature of a bail hearing in petitions for bail.
Where bail is a matter of discretion, the grant or the denial of bail hinges on the issue of whether
or not the evidence on the guilt of the accused is strong and the determination of whether or not
the evidence is strong is a matter of judicial discretion which remains with the judge. In order for
the judge to properly exercise this discretion, he must first conduct a hearing to determine whether
the evidence of guilt is strong. This discretion lies not in the determination of whether or not a
hearing should be held, but in the appreciation and evaluation of the weight of the prosecution's
evidence of guilt against the accused. In any event, whether bail is a matter of right or discretion,
a hearing for a petition for bail is required in order for the court to consider the guidelines set forth
in Section 9, Rule 114 of the Rules of Court in fixing the amount of bail. Even if the prosecution
fails to adduce evidence in opposition to an application for bail of an accused, the court may still
require the prosecution to answer questions in order to ascertain, not only the strength of the
State's evidence, but also the adequacy of the amount of bail. (Balanay vs. Judge White, AM No.
RTJ16-2443, January 11, 2016)

177. What is Bail?

Bail is the security given for the temporary release of a person who has been arrested and
detained but “whose guilt has not yet been proven” in court beyond reasonable doubt. (People vs.
Escobar, G.R. No. 214300 July 26, 2017)

178. Is the filing of second petition for bail allowed under the present rules?

Yes. An accused may file a second petition for bail, particularly if there are sudden developments
or a “new matter or fact which warrants a different view.” (People vs. Escobar, G.R. No. 214300
July 26, 2017)

179. When the accused is entitled as a matter of right to bail, may the Court refuse to grant
him bail on the ground that there exists a high degree of probability that he will
abscond or escape? Explain.

No. If the bail is a matter of right, it cannot be denied on the ground that there exists a high
degree of probability that the accused will abscond or escape. What the court can do is to increase

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 the amount of bail. One of the guidelines that the judge may use in fixing a reasonable amount of
bail is the probability of the accused appearing in the trial. (Sec. 9(g) Rule 114)

180. Atty. Madlangsakay, a distinguished lawyer from Davao City, argued that an
arraignment is required before the accused can file a petition for bail. Is he correct?

No. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition
for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of
his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a
petition for bail. (People vs. Escobar, G.R. No. 214300, July 26, 2017).

181. When is bail a matter of discretion?

Under Sec. 5, Rule 114 of the Rules of Court, bail is a matter of judicial discretion under the
following circumstances:

a. Before conviction, in cases, where the offense charged is punishable by reclusion

perpetua; and
b. After accused’s conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment.

In People vs. Leviste (G.R. No. 189122, March 17, 2010 ), the Supreme Court ruled that the
absence of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 does not
automatically result in the grant of bail. Such finding will simply authorize the court to use the less
stringent sound discretion approach.

182. Is the inclusion of the summary of evidence for the prosecution required in the court’s
grant or refusal of bail? If yes, what is the effect of its absence?

Yes. The court’s grant or refusal of bail must contain a summary of the evidence for the
prosecution, on the basis of which should be formulated the judge’s own conclusion on whether
such evidence is strong enough to indicate the guilt of the accused. The summary thereof is
considered an aspect of procedural due process for both the prosecution and the defense; its
absence will invalidate the grant or the denial of the application for bail. (Narciso vs. Sta. Romana-
Cruz, G.R. No. 134504 March 17, 2000)

183. Is an Order of the trial court dismissing a criminal case on the ground of violation of
the constitutional right of the accused to speedy trial appealable? Explain.

No. A dismissal on the ground of the denial of the accused’s right to a speedy trial will have the
effect of acquittal that would bar further prosecution of the accused for the same offense. Thus,
where after such dismissal the prosecution moved for the reconsideration of the order of dismissal
and the court reset the case for trial, the accused can successfully claim double jeopardy as the
said order was actually an acquittal, was final and cannot be reconsidered. The Dismissal Order
grounded on the denial of accused’ right to speedy trial is a final order that is not appealable and is
immediately executory. (Bonsurbe, Jr. vs. Yerro, G.R. No. 205952 February 11, 2015)

184. Ponciana Aguirre, a respectable public servant for several years and who has been
witnessing the world since the 1920s, was charged for Plunder before the
Sandiganbayan. Having advanced age and poor health as reasons, she filed a motion to
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 fix bail, which the Sandiganbayan denied. She elevated the matter to a higher court,
and now, she is arguing that she should be entitled to bail as a matter of right before
conviction, and that she should not be considered a flight risk considering her age and
medical condition. Should the court grant her provisional liberty?

Yes. Bail for the provisional liberty of the accused, regardless of the crime charged, should be
allowed independently of the merits of the charge, provided [her] continued incarceration is clearly
shown to be injurious to [her] health or to endanger his life. Indeed, denying [her] bail despite
imperiling [her] health and life would not serve the true objective of preventive incarceration
during the trial. Granting provisional liberty to [Ponciana] will then enable [her] to have [her]
medical condition be properly addressed and better attended to by competent physicians in the
hospitals of his choice. This will not only aid in [her] adequate preparation of [her] defense but,
more importantly, will guarantee [her] appearance in court for the trial. This national commitment
to uphold the fundamental human rights as well as value the worth and dignity of every person
has authorized the grant of bail not only to those charged in criminal proceedings but also to
extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a
danger to the community; and (2) that there exist special, humanitarian and compelling
circumstances. (Enrile vs. Sandiganbayan (Third Division), G.R. No. 213847 August 18, 2015)

185. What is the general rule when it comes to granting bail?

The general rule is that any person, before being convicted of any criminal offense, shall be
bailable, unless he is charged with a capital offense, or with an offense punishable with reclusion
perpetua or life imprisonment, and the evidence of his guilt is strong. Hence, from the moment he
is placed under arrest, or is detained or restrained by the officers of the law, he can claim the
guarantee of his provisional liberty under the Bill of Rights, and he retains his right to bail unless
he is charged with a capital offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong. Once it has been established that the
evidence of guilt is strong, no right to bail shall be recognized. (Enrile vs. Sandiganbayan (Third
Division), G.R. No. 213847, August 18, 2015)

186. If bail is discretionary upon the court, is hearing still required?

Yes. Bail cannot be allowed when its grant is a matter of discretion on the part of the trial court
unless there has been a hearing with notice to the Prosecution. (Enrile vs. Sandiganbayan (Third
Division), G.R. No. 213847, August 18, 2015)

187. What are the kinds of immunity?

a. Transactional immunity – it is broader in the scope of its protection. By its grant, a witness
can no longer be prosecuted for any offense whatsoever arising out of the act or transaction.
b. Use-and-derivative-use immunity – by its grant, a witness is only assured that his or her
particular testimony and evidence derived from it will not be used against him or her in a
subsequent prosecution. (Mapa, Jr. vs. Sandiganbayan, G.R. No. 100295, April 26, 1994).

188. What are factors that can be considered in determining whether there has been
violation of the right to speedy disposition of cases?

a. The length of delay;

b. The reasons for the delay;
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 c.The assertion or failure to assert such right by the accused; and
d. The prejudice caused by the delay (Escobar vs. People, G.R. Nos. 228349 and 228353,
September 19, 2018)

189. The Office of the Prosecutor of Makati City issued a Resolution finding probable cause
against Girlie Quisay for violation of Sec. 10 of RA 7610, and consequently an
Information was filed against her. Quisay moved for the quashal of the Information on
the ground of lack of authority of the person who filed the same before RTC. She
pointed out that the Resolution was penned by Assistant City Prosecutor (ACP)
Estefano De La Cruz and approved by Senior Assistant City Prosecutor (SACP) Edgardo
Hirang but the Information penned by ACP De La Cruz was without any approval from
any higher authority, albeit with a Certification claiming that ACP De La Cruz has prior
written authority or approval from the City Prosecutor to file the Information. She
claimed that such Information must be quashed for being tainted with a jurisdictional
defect that cannot be cured. Should the Motion to Quash be granted?

Yes. Complaints or Informations filed before the courts without the prior written authority or
approval of the foregoing authorized officers renders the same defective and, therefore, subject to
quashal pursuant to Section 3(d), Rule 117 of the Rules of Court.

Here, there was no showing that the Information was approved by either the City Prosecutor of
Makati or any of the OCP-Makati's division chiefs or review prosecutors. All it contained was a
Certification from ACP De La Cruz that there was prior written authority or approval from the City
Prosecutor. Thus, the Information suffers from an incurable infirmity - that the officer who filed the
same before the RTC had no authority to do so. Hence, the Information must be quashed. (Quisay
vs. People, G.R. No. 216920 January 13, 2016, J. Perlas-Bernabe)

190. What are the requisites for provisional dismissal in criminal cases?

a. The prosecution with the express conformity of the accused, or the accused, moves for a
provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move
for its provisional dismissal;
b. The offended party is notified of the motion for a provisional dismissal of the case;
c. The court issues an Order granting the motion and dismissing the case provisionally; and
d. The public prosecutor is served with a copy of the Order of provisional dismissal of the case.
(Atty. Bonsubre, Jr. vs. Yerro, G.R. No. 205952, February 11, 2015, J. Perlas-Bernabe)

191. What is the rule on Revival of Provisionally Dismissed Cases?

If the offense is punishable by imprisonment not exceeding six (6) years or a fine of any amount or
both, the provisional dismissal shall become permanent one (1) year after issuance of the order
without the case having been revived.

If the offense is punishable by imprisonment of more than six (6) years, the provisional dismissal
shall become permanent two (2) years after the issuance of the order without the case having
been revived. (Sec. 8, Rule 117)

Note: The one- or two-year period, as the case may be, starts to run from the time the Order is
received by the public prosecutor.

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192. Is the principle of res judicata applicable in criminal proceedings?

No. Except with respect to civil cases impliedly instituted, res judicata is not applicable in criminal
proceedings. At most, the applicable concept of res judicata is that of res judicata in prison grey as
double jeopardy under Rule 117, Section 7. (Escobar vs. People, 845 SCRA 86, G.R. No. 205576
November 20, 2017)

193. Ping Yuen was charged with a criminal case for Homicide. Upon arraignment, he
pleaded not guilty. The private complainant, Lee Cung Cang, who was diagnosed with
severe pneumonia last month, was having a hard time travelling from South Korea to
the Philippines. Lee Cung Cang was able to attend the first hearing for the case.
However, three (3) days prior to the next hearing, she figured in an accident which
resulted to her being bed ridden for several weeks. As such, her counsel filed with the
inferior court a motion to take oral deposition of Lee Cung Cang alleging that she was
currently being treated in her hometown in South Korea and that, as per doctor’s
advice, she cannot be allowed to take a travel abroad due to her poor condition. The
MTC granted the motion; however, the RTC reversed such decision stating that Section
17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply
suppletorily to the case since there is a specific provision in the Rules of Court with
respect to the taking of depositions of prosecution witnesses in criminal cases, which is
primarily intended to safeguard the constitutional rights of the accused to meet the
witness against him face to face. Was the RTC correct?

Yes. For purposes of taking the deposition in criminal cases, more particularly of a prosecution
witness who would forseeably be unavailable for trial, the testimonial examination should be made
before the court, or at least before the judge, where the case is pending as required by the clear
mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure. The pertinent
provision reads thus:

“Sec. 15. Examination of witness for the prosecution.—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 an examination at the trial.
Failure or refusal of the accused to attend the examination after notice shall be considered a
waiver. The statement taken may be admitted in behalf of or against the accused.”

Since the conditional examination of a prosecution witness must take place at no other place than
the court where the case is pending, the RTC properly nullified the MeTC’s orders granting the
motion to take the deposition of [Lee Cung Cang] before the Philippine consular official in [South
Korea]. (Go vs. People, G.R. No. 185527 July 18, 2012)

194. Is promulgation of judgment in absentia allowed?

Yes. If the accused has been notified of the date of promulgation, but does not appear, the
promulgation of judgment in absentia is warranted. This rule is intended to obviate a repetition of
the situation in the past when the judicial process could be subverted by the accused by jumping
bail to frustrate the promulgation of judgment. (Javier vs. Gonzales, G.R. No. 193150, January 23,
2017)
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195. What are the essential elements of promulgation in absentia?

The only essential elements for its validity are as follows:

a. the judgment was recorded in the criminal docket; and

b. a copy thereof was served upon the accused or counsel. (Javier vs. Gonzales, G.R. No. 193150,
January 23, 2017)

196. Can a motion for reconsideration be filed by the accused to assail a judgment of
conviction despite the fact that he did not appear in the promulgation of judgment?

No. The filing of a motion for reconsideration to question a decision of conviction can only be
resorted to if the accused did not jump bail, but appeared in court to face the promulgation of
judgment. (Javier vs. Gonzales, G.R. No. 193150, January 23, 2017)

197. What is the effect of an acquittal rendered in grave abuse of discretion amounting to
lack or excess of jurisdiction?

An acquittal rendered in grave abuse of discretion amounting to lack or excess of jurisdiction does
not really “acquit” and therefore does not terminate the case as there can be no double jeopardy
based on a void indictment. (Javier vs. Gonzales, G.R. No. 193150, January 23, 2017)

198. What are the requisites for double jeopardy to attach?

a) There must be a valid indictment;

b) Before a competent court;
c) After arraignment;
d) When a valid plea has been entered; and
e) The defendant was acquitted or convicted, or the case was dismissed or otherwise terminated
without the express consent of the accused. (Riano, Criminal Procedure (The Bar Lecture
Series), p. 424, [2016 ed]).

199. Will double jeopardy attach upon conducting preliminary investigation?

No. Preliminary investigation is merely inquisitorial, and it is often the only means of discovering
the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his
complaint or information.

It is not a trial of the case on the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to believe that the accused is
guilty thereof, and it does not place the person against whom it is taken in jeopardy. (Tandoc vs.
Resultan, G.R. Nos. 59241-44 July 5, 1989).

200. What are the requisites for the discharge of the accused as state witness?

1. Two or more accused are jointly charged with the commission of an offense;
2. The motion for discharge is filed by the prosecution before it rests its case;
3. The prosecution is required to present evidence and the sworn statement of each proposed
state witness at a hearing in support of the discharge;
4. The accused gives his consent to be a state witness; and
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 5. The trial court is satisfied that:
a. There is absolute necessity for the testimony of the accused whose discharge is
requested;
b. There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
c. The testimony of said accused can be substantially corroborated in its material points;
d. Said accused does not appear to be the most guilty; and
e. Said accused has not at any time been convicted of any offense involving moral
turpitude. (Section 17, Rule 119)

201. Do private parties in a criminal proceeding have legal personality to file certiorari
petitions assailing trial court’s orders in a criminal case?

Yes. Offended parties in criminal cases have sufficient interest and personality as “persons
aggrieved” to file a special civil action of prohibition and certiorari under Sections 1 and 2 of Rule
65. That ruling was in line with the underlying spirit of adopting a liberal construction of the Rules
of Court in order to promote their object. (Javier vs. Gonzales, G.R. No. 193150 January 23, 2017)

202. Is x-ray scanning in ports an unreasonable search in itself?

No. Searches pursuant to port security measures are not unreasonable per se. The security
measures of x-ray scanning and inspection in domestic ports are akin to routine security
procedures in airports. (Dela Cruz vs. People, G.R. No. 209387, January 11, 2016)

203. What are the instances of a lawful warrantless arrest?

a. in flagrante delicto arrest (Sec. 5[a], Rule 113);

b. arrest under the Hot Pursuit Rule (Sec. 5[b], Rule 113);
c. arrest under the “Escape” Rule (Sec. 5[c], Rule 113);
d. arrest under the “Abscond” Rule (Sec. 23, par. 2, Rule 114)
e. warrantless search incidental to a lawful arrest;
f. seizure in “plain view”;
g. search of a moving vehicle;
h. consented warrantless search;
i. customs search;
j. stop and frisk; and
k. exigent and emergency circumstances (Veridiano vs. People, G.R. No. 200370, June 7, 2017)

204. What are the requisites for a valid customs search?

To be a valid customs search, the requirements are:

a. the person/s conducting the search was/were exercising police authority under customs law;
b. the search was for the enforcement of customs law; and
c. the place searched is not a dwelling place or house (Dela Cruz vs. People, G.R. No. 209387,
January 11, 2016)

205. Lala is a receiving clerk at the Docket Section of the National Prosecution Services of
the DOJ. Part of her job is to encode into the system cases which are filed with the
DOJ. She is aware that visiting website which contains pornographic materials is
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 prohibited in the workplace. However, one afternoon, she felt boredom to the extent of
visiting a prohibited webpage, i.e., a pornographic website. As she was enjoying
watching some graphical representations from such site, she did not notice that Ella,
her co-worker, was watching her silently. As such, Ella reported it to the head of the
department. In response, Coney, the department head, searched the computer of Lala
despite the latter’s plea not to do it because she alleged that such search was a
violation of her right to privacy. As a result of the search, Coney found some traces
proving that Lala had indeed visited prohibited websites. Did Coney’s search amount to
violation of Lala’s right to privacy?

No. A search by a government employer of an employee’s office is justified at inception when there
are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of
work-related misconduct. In one case, it was held that a government agency’s computer use policy
prohibited electronic messages with pornographic content and in addition expressly provided that
employees do not have any personal privacy rights regarding their use of the agency information
systems and technology, the government employee had no legitimate expectation of privacy as to
the use and contents of his office computer, and therefore evidence found during warrantless
search of the computer was admissible. (Pollo vs. Constantino-David, G.R. No. 181881 October 18,
2011)

206. What are the requisites for the issuance of a search warrant?

a. Probable cause is present;

b. Such probable cause must be determined personally by the judge;
c. The judge must examine, in writing and under oath or affirmation, the complainant and the
witnesses he or she may produce;
d. The applicant and the witnesses testify on the facts personally known to them; and
e. The warrant specifically describes the place to be searched and the things to be seized. (Sec. 4,
Rule 126)

207. Who are authorized to act on all applications for search warrants involving heinous
crimes, illegal gambling, dangerous drugs and illegal possession of firearms filed by
PNP, NBI, PAOC-TF and REACT-TF?

The Executive Judge and Vice Executive Judges of the Regional Trial Courts of Manila and Quezon
City, when the application is filed by the Philippine National Police (PNP); National Bureau of
Investigation (NBI); Presidential Anti-Organized Crime task Force (PAOC-TF); and Reaction Against
Crime Task Force (REACT-TF) with the Regional Trial Courts of Manila and Quezon City. (A.M. No.
99-10-09-SC. January 25, 2000)

208. How can such applications be enforced?

The applications shall be personally endorsed by the heads of the said agencies, for the search of
places to be particularly described therein, and the seizure of property of things as prescribed in
the Rules of Court, and to issue the warrants, if justified, which may be served in places outside
the territorial jurisdiction of said courts. (A.M. No. 99-10-09-SC. January 25, 2000)

209. In 2003, Jose Malikbas was charged for violating RA 9165. He is contending before the
Court that the application for search warrant that was served upon him in seizing drug
paraphernalia found in his house was defective because it was not signed by the head
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 of the NBI but only by the deputy director of the said government agency. He alleged
that the absence of the signature of the NBI head was a fatal defect that rendered the
application on the questioned search warrant void per se, and the issued search
warrant null and void. Is the contention of Malikbas tenable?

No. Nothing in A.M. No. 99-10-09-SC prohibits the heads of the PNP, NBI, PAOC-TF and REACT-TF
from delegating their ministerial duty of endorsing the application for search warrant to their
assistant heads. Under Section 31, Chapter 6, Book IV of the Administrative Code of 1987, an
assistant head or other subordinate in every bureau may perform such duties as may be specified
by their superior or head, as long as it is not inconsistent with law. (Marimla vs. People, G.R. No.
158467 October 16, 2009)

210. Where is the venue for criminal actions under the Rule on Cybercrime Warrant?

Criminal actions under the Rule on Cybercrime Warrant shall be filed before the designated
cybercrime court of the province or city where the offense or any of the its elements is committed,
or where any part of the computer system used is situated, or where any of the damage caused to
a natural or juridical person took place; provided, that the court where the criminal action is first
filed shall acquire jurisdiction to the exclusion of the other courts. All other crimes under the RPC
and other special laws committed by or through the use of Information and Communications
Technology shall be filed before the regular court or other specialized regional trial courts. (Sec.
2.1, A.M. 17-11-03-SC)

211. What is the period of effectivity of warrants under the Rule on Cybercrime Warrants?
Can it be extended?

It shall not exceed the period of ten (10) days from its issuance .

The court issuing the warrant may, upon motion, extend its effectivity based only on justifiable
reasons, for a period not exceeding ten (10) days from the expiration of the original period. (Sec.
2.5, A.M. 17-11-03-SC)

212. Can a person be charged of Obstruction of Justice for non-compliance with the orders
from law enforcement authorities under the Cybercrime Prevention Act of 2012? If yes,
where should it be filed?

Yes. Failure to comply with the provisions of Chapter IV, specifically the orders from law
enforcement authorities shall be punished under P.D. 1829.

The criminal charge for obstruction of justice shall be filed before the designated cybercrime court
that has jurisdiction over the place where the non-compliance was committed. (Sec. 2.7, A.M. 17-
11-03-SC)

213. Under the Rule of Cybercrime Warrants, would it be possible to serve warrant and
court processes outside the Philippines?

Yes. For persons or service providers situated outside of the Philippines, service of warrants and/or
other court processes shall be coursed through the Department of Justice-Office of Cybercrime.
(Sec. 2.8, A.M. 17-11-03-SC)

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214. What is a Warrant to Disclose Computer Data (WDCD)?

a. it is an order in writing;
b. issued in the name of the People of the Philippines;
c. signed by a judge upon application by the law enforcement authorities;
d. authorizing the latter to issue an order to disclose and accordingly, require any person or
service provider to disclose or submit subscriber’s information, traffic data, or relevant data in
his/her or its possession or control. (Sec. 4.2, A.M. 17-11-03-SC)

215. When a computer device or computer system has been possessed through a lawful
warrantless arrest, may the law enforcement authorities search it without a warrant?

No. Upon acquiring possession of a computer device or computer system via a lawful warrantless
arrest, or by any other lawful method, the law enforcement authorities shall first apply for a
warrant before searching the said computer device or computer system. Such warrant shall be
denominated as a Warrant to Examine Computer Data (WECD). (Sec. 6.9, A.M. 17-11-03-SC)

216. Who are the other persons allowed to witness the destruction of the computer data?

The accused, or the person/s from whom such items were seized, or his/her representative or
counsel, as well as the law enforcement officer allowed access to such items as indicated in the
inventory, or his/her duly authorized representative; provided that, they appear during the
scheduled date of destruction upon written notice to them by the Branch Clerk-of-Court at least
three (3) days prior to the aforementioned date. (Sec. 8.3, A.M. 17-11-03-SC)

217. What are Prohibited Motions under A.M. 15-06-10-SC or the Revised Guidelines for
Continuous Trial of Criminal Cases?

a. Motion for judicial determination of probable cause;

b. Motion for preliminary investigation filed beyond the 5-day reglementary period in inquest
proceedings, or when preliminary investigation is required, or allowed in inquest proceedings
and the accused failed to participate in the preliminary investigation despite due notice;
c. Motion for re-investigation of the prosecutor recommending the filing of information once the
information has been filed before the court (1) if the motion is filed without prior leave of court;
(2) when preliminary investigation is not required; and (3) when the regular preliminary
investigation is required and has been actually conducted, and the grounds relied upon in the
motion are not meritorious;
d. Motion to quash information when ground is not one of those under Sec. 3, Rule 117;
e. Motion for bill of particulars that does not conform to Sec. 9, Rule 116;
f. Motion to suspend the arraignment based on grounds not stated under Sec. 11, Rule 116;
g. Petition to suspend the criminal action based on prejudicial question, when no civil case has
been filed, pursuant to Sec. 7, Rule 111. (Sec. 2(b), III, A.M. No.15-06-10-SC)

218. Krema filed a criminal complaint against Erika for qualified theft. After the preliminary
investigation, the investigating prosecutor found probable cause to indict Erika of the
crime charged. Subsequently, an Information for qualified theft was filed against Erika
before the Regional Trial Court of Manila. Before her arraignment, Erika filed a Motion
for Judicial Determination of Probable Cause with Prayer to Dismiss the Case Outright.
This was opposed by the investigating prosecutor. After hearing on the Motion, the
RTC Judge issued an order dismissing the case for lack of probable cause.
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 a. Was the dismissal proper?

No. A Motion for Judicial Determination of Probable Cause is a prohibited pleading under the
Revised Guidelines for Continuous Trial in Criminal Cases. Under this rule, a prohibited motion
shall be denied outright before the scheduled arraignment without need of comment and/ or
opposition. (Sec. 2(b), III, A.M. No.15-06-10-SC)

b. After the conduct of the arraignment and the pre-trial/preliminary conference, should
the RTC refer the case for mediation on the civil liability to the Philippine Mediation
Center (PMC) in accordance with the Revised Guidelines for Continuous Trial in
Criminal Cases?

No. Although certain criminal cases may be referred for mediation on the civil liability to the
Philippine Mediation Center (PMC), qualified theft is not one of those cases. Only simple theft
cognizable by first level courts shall be referred to mediation. (Sec. 9, Rule III, A.M. No.15-06-10-
SC)

219. When can there be archiving of criminal cases under A.M. 15-06-10-SC or the Revised
Guidelines for Continuous Trial of Criminal Cases?

A criminal case shall be archived only if, after the issuance of the warrant of arrest, the accused
remains at large for six (6) months from the delivery of the warrant to the proper peace officer.

Also, it can be archived when the proceedings are ordered suspended for an indefinite period
because:

a. The accused appear to be suffering from an unsound mental condition effectively rendering
him unable to fully understand the charge against him and to plead intelligently, or to undergo
trial, and he has to be committed to a mental hospital;
b. A valid prejudicial question in a civil action is invoked during the pendency of the criminal
case, unless the civil and criminal cases are consolidated;
c. An interlocutory order or incident in the criminal cases is elevated to, and is pending
resolution/decision for an indefinite period before a higher court which has issue a TRO or writ
of preliminary injunction; and
d. When the accused has jumped bail before arraignment and cannot be arrested by the
bondsman.

EVIDENCE

220. Distinguish admissibility of evidence from weight of evidence.

Admissibility of Evidence Weight of Evidence

Refers to the question of whether or not the Refers to the question of whether or not the evidence
evidence is to be considered at all. proves an issue.

Dependent on the relevance and competence Pertains to the tendency of the evidence to convice and
of the evidence. persuade.
Source: Evidence (The Bar Lecture Series), pp. 24-25, Riano (2016 ed.)

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221. What are the kinds of Admissibility of Evidence?

a. Multiple Admissibility - Evidence that is plainly relevant and competent for two or more
purposes will be received if it satisfies all the requirements prescribed by law in order that it
may be admissible for the purpose for which it is presented, even if it does not satisfy the other
requisites of admissibility for other purposes. (Regalado, Vol. II, p.706, 2008 ed.)

b. Conditional Admissibility - Evidence that appears to be immaterial is admitted by the court

subject to the condition that its connection with another fact subsequent to be proved will be
established. Otherwise, such fact already received will be stricken off the record at the initiative
of the adverse party. (Regalado, Vol. II, p.705, 2008 ed.)

c. Curative Admissibility - Evidence that is otherwise improper is admitted (despite objection

from the other party) to contradict improper evidence presented or introduced by the other
party, and to cure or neutralize such improper evidence. (Regalado, Vol. II, p.706, 2008 ed.)

222. Distinguish Factum Probandum from Factum Probans.

Factum Probandum Factum Probans

The ultimate fact sought to be established The intermediate facts
Proposition to be established Materials which establish the proposition
Hypothetical Existent

223. In a disbarment case, birth certificates were introduced in evidence against the
respondent to show that he had fathered children by his mistress. The respondent
invokes Article 7 of P.D. No. 603 which provides that the birth records of a person shall
be kept strictly confidential. The respondent further argued that under the law, no
information from birth records shall be disclosed except on request of the person
himself or of a court or proper government official. Are the subject birth certificates
admissible in evidence?

Yes. Article 7 of P.D. No. 603 only provides for sanctions against persons violating the rule on
confidentiality of birth records, but nowhere does it state that procurement of birth records in
violation of said article would render said records inadmissible in evidence. Also, the Rules of
Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches
and seizures. It should be emphasized, however, that said rule against unreasonable searches and
seizures is meant only to protect a person from interference by the government or the state.
Consequently, in this case where complainants, as private individuals, obtained the subject birth
records as evidence against respondent, the protection against unreasonable searches and seizures
does not apply. Since both Article 7 of P.D. No. 603 and the Revised Rules on Evidence do not
provide for the exclusion from evidence of the birth certificates in question, said public documents
are, therefore, admissible and should be properly taken into consideration in the resolution of this
administrative case against respondent. (De Jesus vs. Sanchez-Malit, July 8, 2014).

224. What are the degrees of proof necessary to satisfy the burden of proof?

Civil Case Administrative Case Criminal Case

Preponderance of Substantial evidence - evidence a. During preliminary investigation
evidence - evidence that which a reasonable mind might – Well founded belief of the
is more convincing and accept as adequate to support a fact of commission of a crime

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 more credible than the one conclusion. b. Issuance of warrant of arrest –
offered by the adverse Probable cause
party. c. Conviction of an accused –
Evidence of guilt beyond
reasonable doubt
d. Accused claims
justifying/exempting
circumstances – Clear and
convincing evidence

225. State some of the basic principles on Judicial Notice.

1. The following are matters subject of mandatory judicial notice:

a. Existence and territorial extent of states;

b. Political history, forms of government and symbols of nationality of states;
c. Law of nations;
d. Admiralty and maritime courts of the world and their seals;
e. Policital constitution and history of the Philippines;
f. Official acts of the legislative, executive and judicial departments of the Philippines;
g. Laws of nature;
h. Measure of time; and
i. Geographical divisions.

2. The following are matters subject of discretionary judicial notice:

a. Matters which are of public knowledge;
b. Those capable of unquestionable demonstration;
c. Those ought to be known to judges because of their judicial functions.

3. Judicial notice is based on the maxim “what is known need not be proved”; hence, when the
rule is invoked, the court may dispense with the presentation of evidence on judicially-
cognizable facts.

4. The taking of judicial notice is a matter of expediency and convenience for its fulfills the
purpose that the evidence is intended to achieve, and in this sense, it is equivalent to proof.
(Riano, Evidence: The Bar Lecture Series, Vol. I, p. 76)

226. Differentiate Judicial Admissions from Extrajudicial Admissions.

Judicial Admissions Extrajudicial Admissions

Those made in the course of the Those made out of court or in a judicial proceeding other
proceeding in the same case. They do not than the one under consideration.
require proof and may be contradicted only
by showing that it was made through
palpable mistake or that no such admission
was made.

Judicial admissions need not be offered in Regarded as evidence and must be offered as such.
evidence since it is not evidence. It is Otherwise, the court will not consider it in deciding the
superior to evidence and shall be case.
considered by the court as established.
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 Conclusive upon the admitter. Rebuttable.
Admissible even if self-serving. Not admissible if self-serving.
Subject to cross-examination. Not subject to cross-examination.

227. What are the requisites for admissibility of object evidence?

The requisites for admissibility of object evidence are as follows:

1. The object must be relevant to the fact in issue – There must be a logical connection between
the evidence and the point at which it is offered;
2. The object must be competent – It should not be excluded by law or the rules;
3. The object must be authenticated before it is admitted – Authentication normally consists in
showing that the object is the object that was involved in the underlying event;
4. The authentication must be made by a competent witness; and
5. The object must be formally offered in evidence. (Evidence: The Bar Lecture Series, p. 101, Riano
[2016 ed.])

228. A buy-bust team was created to catch Bato, who was alleged to have committed the
crimes of Illegal Sale and Illegal Possession of Dangerous Drugs. On the course of the
operation, Bato was properly identified and arrested. Subsequently, a preventive
search was conducted on him to ensure that he had no firearms. Upon confiscation and
marking of the items at the place of arrest, PO2 Pollanes brought Bato to the Pulong
Barangay Hall where a blotter of the incident was made. Thereafter, Bato was taken to
Dabaw Hospital for medical examination, and then to the police station where PO2
Pollanes prepared a request for laboratory examination of the seized items. After
securing the letter-request, PO2 Pollanes delivered the said items to the crime
laboratory where it was received by forensic chemist Willie Tong, who confirmed that
they tested positive for the presence of shabu. Bato denied the accusations and
contended that the police officers failed to follow the chain of custody rule, thus, the
alleged seized sachet of shabu cannot be presented as evidence. Was the chain of
custody rule properly observed by the police officers?

No. The mere marking of the seized drugs, unsupported by a physical inventory and taking of
photographs, and in the absence of the necessary personalities under the law, fails to approximate
compliance with the mandatory procedure under Section 21 of R.A. No. 9165. Needless to state,
the barangay blotter, which is merely a recording of the incident, is not equivalent to or a
substitute for a physical inventory that accounts and lists down in detail the items confiscated from
the accused. Besides, “entries in official records, as in the case of a police blotter, are only prima
facie evidence of the facts therein stated" and are "not necessarily entitled to full credit for it could
be incomplete and inaccurate, sometimes from either partial suggestions or for want of
suggestions or inquiries." (People vs. Manansala, G.R. No. 229092, February 21, 2018, J. Perlas-
Bernabe).

229. What are the instances where the rule that “evidence willfully suppressed would be
adverse if produced” does not apply?

a) the evidence is at the disposal of both parties;

b) the suppression was not willful;
c) it is merely corroborative or cumulative; and

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 d) the suppression is an exercise of a privilege (Section 3[e], Rule 131; People vs Padrigone, G.R.
No. 137664. May 9, 2002)

230. State the Best Evidence Rule.

The Best Evidence Rule provides that when the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original document itself, except in the following
cases:

a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith
on the part of the offeror;
b) When the original is in the custody or under the control of the party against whom the evidence
is offered, and the latter fails to produce it after reasonable notice;
c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is
only the general result of the whole; and
d) When the original is a public record in the custody of a public officer or is recorded in a public
office. (Sec. 3, Rule 130)

231. What must be proved before the introduction of Secondary Evidence?

a. The existence or due execution of the original;

b. The loss and destruction of the original, or the reason for its non-production in court;
c. Unavailability of the original is not due to bad faith on the part of the offeror (BPI vs. Mendoza,
G.R. No. 198799, March 20, 2017, J. Perlas-Bernabe)

232. State the Parol Evidence Rule.

The Parol Evidence Rule states that when the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon, and there can be between the
parties and their successors in interest, no evidence of such terms other than the contents of the
written agreement. It seeks to preserve what the parties have reduced in writing and prohibits
evidence aliunde or oral testimonial evidence from being presented to vary the terms of, or add
stipulations to, the written agreement. In other words, any oral evidence of an agreement should
be excluded when the existing agreement is already in writing (Congregations of the Religious of
the Virgin Mary vs. CA, G.R. No. 126363, June 26, 1998).

233. What are the exceptions to the Parol Evidence Rule?

A party may present evidence to modify, explain or add to the terms of the written agreement if he
puts in issue in his pleadings the following:

a. An intrinsic ambiguity, mistake or imperfection in the written agreement;

b. Failure of the written agreement to express the true intent of the parties thereto;
c. Validity of the written agreement; or
d. Existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement (Sec. 9, Rule 130).

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234. State the qualifications of a witness.

a. Can perceive, and perceiving, can make known their perception to others (Sec. 20, Rule 130);
b. Must take either an oath or an affirmation (Sec. 1, Rule 132; Riano, Evidence: A Restatement
for the Bar, p. 245, 2009 ed.); and
c. Must not possess the disqualifications imposed by law or the rules (Ibid.)

235. Differentiate Child Witness from Ordinary Witness.

Child Witness Ordinary Witness

Only the judge is allowed to ask questions to Opposing counsels are allowed to ask questions during
a child witness during preliminary preliminary examination.
examination.
Testimony in a narrative form is allowed. Testimony in a narrative form is NOT allowed.
Leading questions are allowed. Leading questions are generally NOT allowed.
The child witness is assisted by a support An ordinary witness is not assisted by a support person.
person.

With exceptions provided in the Rules of Court, all persons who can perceive, and perceiving, can
make known their perception to others, may be witnesses. That is even buttressed by the Rule on
Examination of a Child Witness which specifies that every child is presumed qualified to be a
witness. To rebut this presumption, the burden of proof lies on the party challenging the child's
competence. Only when substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth
in court will the court, motu proprio or on motion of a party, conduct a competency examination of
a child. (People of the Philippines vs. Ibañez, G.R. No. 197813, September 25, 2013)

236. What is the Marriage Disqualification Rule?

Under the Marriage Disqualification Rule, a spouse cannot testify for or against the other during
the marriage, except in a civil case by one against the other or a criminal case committed by one
spouse against the other or the other’s ascendants or descendants. Marriage must be existing at
the time of the offer of the testimony.

 Where the husband and wife were charged with having colluded to defraud the plaintiff, the wife
cannot be called as an adverse party witness by the plaintiff over the husband’s objection
(Lezama vs. Rodriguez, G.R. No. L-25643 , June 27, 1968).

 Where the husband had tried to set fire to his sister-in-law’s house knowing fully well that his
wife was also inside, the wife could testify against him as he committed a crime against her. The
SC also stated that where there is no more harmony to be preserved nor peace and tranquility to
be disturbed, the reason for the MDR ceases and a spouse may testify against the other (Alvarez
vs. Ramirez, G.R. No. 143439, October 14, 2005).

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237. Distinguish Marital Disqualification from Marital Privilege.

Marital Disqualification Marital Privilege

(Sec. 22, Rule 130)
Can be invoked only if one of the spouses is a
party to the action.
Applies only if the marriage is existing at the
time the testimony is offered.
Ceases upon the death or either spouse.
(Sec. 24, Rule 130)
Can be claimed whether or not the spouse is a party to
the action;
Can be claimed even after the marriage has been
dissolved;
Continues even after the termination of the marriage.

Constitutes a total prohibition against any
testimony for or against the spouse of the
witness.
What is prohibited is the testimony for or against
the other.
Applies only to confidential communications between
the spouses.
What is prohibited is the examination of a spouse as to
matters related in confidence by the other spouse.

238. What are the requisites for the Application of the Dead Man’s Statute?

The following are the elements for the application of the Dead Man’s Statute:

a) The plaintiff is the person who has a claim against the estate of the decedent or person of
unsound mind;
b) The defendant in the case is the executor or administrator or a representative of the deceased
or the person of unsound mind;
c) The suit is upon a claim by the plaintiff against the estate of said deceased or person of
unsound mind;
d) The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is
prosecuted; and
e) The subject of the testimony is as to any matter of fact occurring before the death (ante litem
motam) of such deceased person or before such person became of unsound mind (Sec. 23,
Rule 130).

Note: Dead Man’s Statute applies only to a civil case or a special proceeding.

239. Differentiate Admission from Confession.

Admission
A statement of fact which does not involve an
acknowledgment of guilt or liability.
An act, declaration or omission of a party as to a
relevant fact (Sec. 26, Rule 130).
It is a voluntary acknowledgment made by a
party of the existence of the truth of certain
facts which are inconsistent with his claims in an
action (Black‘s Law Dictionary, 5th Ed.).
Broader than confession.
May be implied like admission by silence.
Confession
A statement of fact which involves an acknowledgment
of guilt or liability.
The declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily
included therein (Sec. 33, Rule 130).
It is a statement by the accused that he engaged in
conduct which constitutes a crime (29 Am. Jur. 708).
Specific type of admission which refers only to an
acknowledgment of guilt.
Cannot be implied, but should be a direct and positive
acknowledgment of guilt.

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240. What are the two classifications of confession? Explain each.

Judicial Confessions Extrajudicial Confessions

Those made in the course of the proceeding in the Those made out of court or in a judicial proceeding
same case other than the one under consideration

Do not require proof and may be contradicted only
by showing that it was made through palpable
mistake or that no such admission was made.
Judicial admissions need not be offered in
evidence since it is not evidence. It is superior to
evidence and shall be considered by the court as
established.
Conclusive upon the admitter
Admissible even if self-serving
Subject to cross-examination
It shifts from side to side as the trial of the case.
Regarded as evidence and must be offered as such,
otherwise the court will not consider it in deciding the
case.
Requires formal offer for it to be considered
Rebuttable
Not admissible if self-serving
Not subject to cross-examination

241. What are the requisites of Hearsay?

a. an out-of-court statement, oral, written or nonverbal conduct, made by one other than the one
made by the declarant or witness testifying at the trial; and
b. the statement made out of court is repeated and offered by the witness in court to prove the
truth of the matters asserted by the statement (Riano, Evidence: The Bar Lecture Series, pp.
284-285 [2016 ed.]).

Note: Newspaper articles amount to “hearsay evidence, twice removed” and are therefore
not only inadmissible but without any probative value at all whether objected to or not, unless
offered for a purpose other than proving the truth of the matter asserted. (Spouses Viloria vs.
Continental Airlines, Inc., G.R. No. 188288, January 16, 2012)

242. Dr. Mijares examined the victim AAA and executed a medical report on his findings. At
the scheduled hearing, Dr. Mijares appeared after several subpoenas and warnings
from the court. However, instead of presenting him to be examined on his medical
report on the alleged rape of AAA, the prosecutor manifested that she was dispensing
with his testimony provided the defense agreed to the prosecution’s offer of stipulation
that AAA submitted herself to medical examination one week after the alleged rape, to
which the defense acceded. Is the medical report hearsay?

Yes since Dr. Mijares did not testify in court regarding the same. In fact, his testimony was
dispensed with. Note that the stipulation was not on the authenticity of the medical report but on
the fact simply that AAA submitted herself to medical examination one week after the alleged rape.
(People vs. Rondina, G.R. No. 207763, June 30, 2014)

243. Distinguish hearsay evidence from opinion evidence.

Hearsay Evidence Opinion Evidence

Consists of testimony that is not based on Expert evidence based on the personal knowledge, skill,
personal knowledge of the person testifying. experience or training of the person testifying and
evidence of an ordinary witness as to:
a) The identity of a person about whom he has

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 adequate knowledge;
b) A handwriting with which he has sufficient
familiarity;
c) The mental sanity of a person with whom he is
sufficiently acquainted; and
d) The witness’ impressions of the emotion, behavior,
condition or appearance of a person (Sec. 50, Rule
130).

244. What are the requisites for a Dying Declaration to be admissible in evidence?

a. The declaration is one made by a dying person;

b. The declaration was made by said dying person under a consciousness of his impending death;
c. The declaration refers to the cause and circumstances surrounding the death of the declarant
and not of anyone else;
d. The declaration is offered in a case wherein the declarant’s death is the subject of the inquiry;
and
e. The declarant is competent as a witness had he survived (Geraldo vs. People, G.R. No. 173608,
November 20, 2008; Riano, Evidence: A Restatement for the Bar, p. 370, 2009 ed.)

245. What are the requisites for the admissibility of res gestae?

a. The principal act or the res gestae is a startling occurrence;

b. The statement is spontaneous or was made before the declarant had time to contrive or devise;
c.The statement is made during the occurrence or immediately prior or subsequent thereto; and
d. The statement made must concern the occurrence in question and its immediately attending
circumstances (Capila v. People, G.R. No. 146161, July 17, 2006).

246. What are the two types of res gestae? Distinguish one from the other.

Verbal acts Spontaneous Statements

The res gestae is the equivocal act.
Must be contemporaneous with or must
accompany the equivocal act to be admissible.
Utterances which accompany some act or
conduct to which it is desired to give a legal
effect. When such act has intrinsically no
definite legal significance, or only an ambiguous
one, its legal purport or tenor may be
ascertained by considering the words
accompanying it, and these utterances thus
enter merely as verbal part of the act.
Reasons for admissibility: The motive, character
and object of an act are frequently indicated by
what was said by the person engaged in the
act.
The res gestae is the startling occurrence.
May be prior to, simultaneous with, or subsequent to
the startling occurrence.
Statement or exclamation made immediately after some
exciting occasion by a participant or spectator and
asserting the circumstances of that occasion as it is
observed by him.
Reason for admissibility: Trustworthiness and necessity
— because statements are made instinctively, and
because said natural and spontaneous utterances are
more convincing than the

247. What is the rule on independently relevant statements?

The doctrine on independently relevant statements holds that conversations communicated to a

witness by a third person may be admitted as proof that, regardless of their truth or falsity, they
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 were actually made. Evidence as to the making of such statements is not secondary but primary,
for in itself it (a) constitutes a fact in issue or (b) is circumstantially relevant to the existence of
such fact. Under the doctrine of independently relevant statements, only the fact that such
statements were made is relevant, and the truth or falsity thereof is immaterial. (Gubaton vs. Atty.
Amador, A.C. No. 8962, July 9, 2018, J. Perlas-Bernabe).

Note: The hearsay rule does NOT apply to independently relevant statements.

A witness may testify as to the state of mind of another person – the latter’s knowledge, belief, or
good or bad faith – and the former’s statements may then be regarded as independently relevant
without violating the hearsay rule. (Republic of the Philippines vs. Heirs of Alejaga, G.R. No.
146030, December 3, 2002)

248. State the rules on Character Evidence.

General Rule: Character evidence is not admissible in evidence.

Exceptions:
1. Criminal cases:
a. The accused may prove his good moral character which is pertinent to the moral trait
involved in the offense charged;
b. The prosecution may not prove the bad moral character of the accused which is pertinent to
the moral trait involved in the offense charged, UNLESS in rebuttal when the latter opens
the issue by introducing evidence of his good moral character; or
c. As to the offended party, his good or bad moral character may be proved as long as it tends
to establish in any reasonable degree the probability or improbability of the offense charged.

Exceptions to the Exceptions:

a. In rebuttal, proof of the bad character of the victim is not admissible if the crime was
committed through treachery and premeditation; and
b. In rape cases, the evidence of complainant’s past sexual conduct, or reputation or opinion
thereof shall not be admitted unless and only to the extent that the court finds that such
evidence is material and relevant to the case (Rape shield law, Sec. 6, R.A. 8505).

2.Civil cases – The moral character of either party thereto cannot be proved UNLESS it is pertinent
to the issue of character involved in the case (Sec. 51, Rule 130).

249. Distinguish the right against self-incrimination of an accused from that of an ordinary
witness.

Accused Ordinary Witness

Cannot be compelled to testify or produce May be compelled to testify by subpoena, having only
evidence in the criminal case in which he is the the right to refuse to answer a particular incriminating
accused or one of the accused. He cannot be question at the time it is put to him.
compelled to do so even by subpoena or other
process or order of the court. He cannot be
required either for the prosecution, for co-
accused or even for himself.

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250. What are the modes of impeaching a witness?

A witness may be impeached through the following modes:

a. By contradictory evidence;
b. By evidence that his general reputation for truth, honesty or integrity is bad; or
c. By evidence that he has made at other times statements inconsistent with his present
testimony (Sec. 11, Rule 132).

251. State the procedure for impeaching a witness by evidence of prior inconsistent
statements.

a. The witness must be confronted with such statements with the circumstances of the times,
places and the persons present in which they were made;
b. The witness must be asked whether he made such statements, and if so, allowed to explain
them; and
c. If the statement be in writing it must be shown to the witness before any question is put to him
concerning them (Sec. 13, Rule 132).

Note: This procedure is also called the rule on laying the predicate. Where the previous
statements of a witness are offered as evidence of an admission, and not merely to impeach
him, the rule on laying the predicate does not apply.

252. How can a handwriting be authenticated?

a. By any witness who actually saw the person writing the instrument;
b. By any person who is familiar or has acquired knowledge of the handwriting of such person, his
opinion as to the handwriting being an exception to the opinion rule under Secs. 48 and 50 of
Rule 130;
c. By a comparison of the questioned handwriting from the admitted genuine specimens thereof;
or
d. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule 130).

Note: The value of the opinion of a handwriting expert depends not upon his mere statements of
whether a writing is genuine or false, but upon the assistance he may afford in pointing out
distinguishing marks, characteristics and discrepancies in and between genuine and false
specimens of writing which would ordinarily escape notice or detection from an unpracticed
observer.(Tamani vs. Salvador, 647 SCRA 132, April 4, 2011)

253. What are the instances when evidence not offered is still considered by the court?

a. Marked exhibits not formally offered may be admitted provided it complies with the following
requisites:
a. must be duly identified by testimony duly recorded; and
b. must have been incorporated in the records of the case (Ramos v. Dizon, G.R. No.
137247, Aug. 6, 2006);
b. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of
speedy administration of justice;

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 c. In summary judgments under Rule 35 where the judge based his decisions on the pleadings,
depositions, admissions, affidavits and documents filed with the court;
d. Documents whose contents are taken judicial notice of by the court;
e. Documents whose contents are judicially admitted; or
f. Object evidence which could not be formally offered because they have disappeared or have
become lost after they have been marked, identified and testified on and described in the
record and became the subject of cross-examination of the witness who testified on them
during the trial.

Note:

● It is basic in the law of evidence that the court shall consider evidence solely for the purpose for
which it was offered (Ragudo vs. Fabella Estate Tenants Assoc., Inc., G.R. No. 146823, August
9, 2005).
● Without a formal offer of evidence, courts are constrained to take no notice of the evidence
even if it has been marked and identified. (Parel vs. Prudencio, G.R. No. 146556, April 19,
2005)
● Documents which may have been identified and marked as exhibits during pre-trial or trial but
which were not formally offered in evidence cannot in any manner be treated as evidence
(Heirs of Pedro Pasag vs. Parocha, G.R. No. 155483, April 27, 2007).
● Exhibits not yet formally offered nor admitted in evidence cannot be considered by the court
(Collado vs. Hernando, G.R. No. L-43866161, May 30, 1988).
● A formal offer 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. It has several
functions: (1) to enable the trial judge to know the purpose or purposes for which the
proponent is presenting the evidence; (2) to allow opposing parties to examine the evidence
and object to its admissibility; and (3) to facilitate review by the appellate court, which will not
be required to review documents not previously scrutinized by the trial court (Union Bank of the
Philippines vs. Tiu G.R. No. 173090-91, September 7, 2011).

254. When must offer be made?

Testimonial Evidence Documentary and Object Evidence

Offer must be made at the time the witness is
called to testify.
Every time a question is propounded to a witness,
there is an implied offer of the evidence sought to
be elicited by the question.
Offer must be made after the presentation of party’s
testimonial evidence, and before resting his case.
The evidence is only offered once, after all the
testimonial evidence and prior to the resting of the
case for a party.

Note: The offer shall be done orally unless allowed by the court to be in writing.

255. When should an objection be made?

Objection to evidence offered orally must be made immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of a witness shall be
made as soon as the grounds therefore shall become reasonably apparent.

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 An offer of evidence in writing shall be objected to within three (3) days after notice of the offer
unless a different period is allowed by the court.

In any case, the grounds for objection must be specified (Sec. 36, Rule 132)

256. What is the Contemporaneous Objection Rule?

It requires that a specific and timely objection be made to the admission of evidence. Objections to
the admission of evidence must be made seasonably, at the time it is introduced or offered,
otherwise they are deemed waived, and will not be entertained for the first time on appeal.
(People vs. Banares, G.R. No. 68298, November 25, 1986)

Objections to admissibility of evidence cannot be raised for the first time on appeal. When a party
desires the court to reject the evidence offered, he must so state in the form of objection. Without
objection, he cannot raise the question for the first time on appeal. (People vs. Salak, G.R. No.
181249, March 14, 2011)

257. What is the rule on continuing objections?

General Rule: When it becomes reasonably apparent in the course of the examination that the
questions asked are of the same class as those to which objection has been made (whether
sustained or overruled), it shall not be necessary to repeat the objection, it being sufficient for the
adverse party to record his continuing objection to such class of questions (Sec. 37, Rule 132).

Exceptions:
a. Where the question has not been answered, it is necessary to repeat the objection when the
evidence is again offered or the question is again asked;
b. Incompetency is shown later;
c.Where objection refers to preliminary question, objection must be repeated when the same
question is again asked during the introduction of actual evidence;
d. Objection to evidence was sustained but reoffered at a later stage of the trial;
e. Evidence is admitted on condition that its competency or relevance be shown by further
evidence and the condition is not fulfilled, the objection formerly interposed must be repeated
or a motion to strike out the evidence must be made; and
f. Where the court reserves the ruling on objection, the objecting party must request a ruling or
repeat the objection.

258. What is tender of excluded evidence/proffer of evidence?

Tender of excluded evidence is a remedy embodied under Section 40 of Rule 132 of the Rules of
Court. The rule is that evidence formally offered by a party may be admitted or excluded by the
court. If a party's offered documentary or object evidence is excluded, he may move or request
that it be attached to form part of the records of the case. If the excluded evidence is oral, he may
state for the record the name and other personal circumstances of the witness and the substance
of the proposed testimony. These procedures are known as offer of proof or tender of excluded
evidence and are made for purposes of appeal. If an adverse judgment is eventually rendered
against the offeror, he may in his appeal assign as error the rejection of the excluded evidence.
(Fortune Tobacco Corporation vs. Commissioner of Internal Revenue, G.R. No. 192024, July 1,
2015)

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259. When may circumstantial evidence be sufficient to warrant a conviction?

Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain

which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the
perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three
requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences
are derived are proven; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.

260. What is the purpose of Judicial Affidavit?

The judicial affidavit shall take the place of direct testimonies of witnesses (Sec. 2, Judicial Affidavit
Rule).

261. What are the Contents of Judicial Affidavit?

A judicial affidavit shall be prepared in a language known to the witness. If NOT in English or
Filipino, it must be accompanied by a translation in English or Filipino, and shall contain the
following:

1) name, age, residence or business address, and occupation of the witness;

2) name and address of the lawyer who conducts or supervises the examination of the witness and
the place where the examination is being held;
3) statement that the witness is answering the questions asked of him, fully conscious that he does
so under oath, and that he may face criminal liability for false testimony or perjury;
4) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

a. Show the circumstances under which the witness acquired the facts upon which he testifies;
b. Elicit from him those facts which are relevant to the issues that the case presents; and
c. Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;
5) The signature of the witness over his printed name; and,
6) Jurat (Sec. 3, AM No. 12-8-8-SC, September 4, 2012)

262. Give the Procedure of Judicial Affidavit Rule in Civil Cases.

1) Parties shall file with the court and serve on adverse party, by personal or licensed courier,
judicial affidavits not later than five (5) days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the following:

a. The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct
testimonies; and
b. The parties' documentary or object evidence, if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the
plaintiff; and, as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

2) Should a party or a witness desire to keep the original document or object evidence in his
possession, he may, after the same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a
faithful copy or reproduction of that original.
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 Note: The party or witness shall bring the original document or object evidence for comparison
during the preliminary conference with the attached copy, reproduction, or pictures. The evidence
shall NOT be admitted if this requirement was not complied with.

3) This is without prejudice to the introduction of secondary evidence in place of the original when
allowed by existing rules. (Sec. 2, AM No. 12-8-8-SC, September 4, 2012)

263. When is Judicial Affidavit Rule applicable in Criminal Actions?

a. When Maximum Penalty does not exceed six years

b. Where accused agrees to Judicial affidavits
c. With respect to civil aspect, whatever the penalties involved are (Sec. 9, AM No. 12-8-8-SC,
September 4, 2012)

Note: Suspended application for 2013; Court intends to make this effective 2014.

264. Give the Procedure of Judicial Affidavit Rule in Criminal Cases.

1) Prosecution - Submit the judicial affidavits of witnesses not later than five (5) days before the
pre-trial, serving copies of the same upon the accused. The complainant or public prosecutor
shall attach to the affidavits such documentary or object evidence as he may have, marking them
as Exhibits A, B, C, and so on.

Note: No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.

2) Defense - If the accused desires to be heard on his defense after receipt of the judicial affidavits
of the prosecution, he shall have the option to submit his judicial affidavit, as well as those of his
witnesses, to the court within ten (10) days from receipt of such affidavits and serve a copy of
each on the public and private prosecutor, including his documentary and object evidence
previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies
of the accused and his witnesses when they appear before the court to testify. (Section 9.b and
9.c, AM No. 12-8-8-SC, September 4, 2012)

265. What are the effects of Non-Compliance with the Judicial Affidavit Rule?

a. A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed
to have waived their submission.

Exceptions:
1) For valid reasons;
2) Not prejudicial to the opposing party; and,
3) Defaulting party pays a fine of not less than Php. 1,000 nor more than Php. 5,000 at the
discretion of the Court.

b. The court shall not consider the affidavit of any witness who fails to appear at the scheduled
hearing of the case as required.
c. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived
his client's right to confront by cross-examination the witnesses there present.

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 d. The court shall not admit as evidence judicial affidavits that do not conform to the content
requirements of Section 3 and the attestation requirement of Section 4. (Sec. 10, AM No. 12-8-8-
SC, September 4, 2012)

266. What is an Electronic Document?

It refers to information or the representation of information, data, figures, symbols or other modes
of written expression, described or however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally
signed documents and any print-out or output, readable by sight or other means, which accurately
reflects the electronic data message or electronic document (Sec. 1(h), Rule 2, Rules on Electronic
Evidence).

267. What is an electronic data message?

It refers to information generated, sent, received or stored by electronic, optical or similar means
(Sec.1 (g), Rule 2, REE).

268. When is electronic document admissible as evidence?

a. When it complies with the rules on admissibility prescribed by the Rules of Court and related
laws; and
b. When authenticated in the manner prescribed by the Rules on Electronic Evidence (A.M. No. 01-
7-01-SC)

269. How can an electronic document be authenticated?

a. By evidence that it had been digitally signed by the person purported to have signed the same;
b. By evidence that other appropriate security procedures or devices as may be authorized by the
Supreme Court or by law for authentication of electronic documents were applied to the
document; or
c. By other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2,
Rule 5).

Note: Sec. 2, Rule 5 applies only when the document is a private electronic document and when it
is offered as authentic. It is not applicable when the electronic document is offered simply for what
it is or for what it is claimed to be without regard to whether or not it is authentic (Riano,
Evidence: A Restatement for the Bar, p. 180, 2009 ed).

270. How can an electronic or digital signature be authenticated?

a. By evidence that a method or process was utilized to establish a digital signature and verify the
same;
b. By any other means provided by law; or
c. By any other means satisfactory to the judge as establishing the genuineness of the electronic
signature (Sec. 2, Rule 6, REE).

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271. How can a text message be admissible as evidence in criminal actions?

Text messages are to be proved by the testimony of a person who was a party to the same or has
personal knowledge of them.

Illustrative Case: PO3 Cambi, posing as the accused Enojas, exchanged text messages with the
other accused in order to identify and entrap them. As the recipient of those messages sent from
and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such messages
and was competent to testify on them. (People vs. Enojas, G.R. No. 204894 March 10, 2014)

272. Can the trial court allow the submission of Supplemental Judicial Affidavit, together
with the documentary evidence attached thereto, even though trial had already
commenced when it submitted the same, and hence, had not been submitted and pre-
marked during the pre-trial?

Yes. Sec. 10 of the Judicial Affidavit Rule contains a caveat that the failure to timely submit the
affidavits and documentary evidence shall be deemed to be a waiver of their submission. However,
the submission of evidence beyond the mandated period in the JA Rule is strictly subject to the
conditions that: a) the court may allow the late submission of evidence only once; b) the party
presenting the evidence proffers a valid reason for the delay; and c) the opposing party will not be
prejudiced thereby. Corollary thereto, the Guidelines on Pre-Trial instructs the parties to submit
their respective pre-trial briefs at least three (3) days before the pretrial. However, the rules confer
upon the trial court the discretion to allow the introduction of additional evidence during trial other
than those that had been previously marked and identified during the pre-trial, provided there are
valid grounds. (Lara’s Gift and Decors, Inc. vs. PNB General Insurers Co., Inc. G.R. No. 230429,
January 24, 2018)

273. When is submission of judicial affidavits allowed in criminal cases?

a. Where the maximum of the imposable penalty does not exceed six years;
b. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved;
or
c. With respect to the civil aspect of the actions, whatever the penalties involved are. (Section 9,
A.M. No. 12-8-8-SC)

WRIT OF AMPARO (A.M. No. 07-9-12-SC)

274. What is a Writ of Amparo?

The petition for a writ of amparo is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. The writ shall cover extralegal killings and
enforced disappearances or threats thereof. (Sec. 1, Rule on the Writ of Amparo)

275. What are the interim reliefs available to the petitioner and respondent under the Rule
on the Writ of Amparo?

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 Interim Reliefs Petitioner Respondent
Temporary protection order – the court, justice or judge, upon motion Available
or motu proprio, may order that the petitioner or the aggrieved party and
any member of the immediate family be protected in a government agency
or by an accredited person or private institution capable of keeping and
securing their safety. If the petitioner is an organization, association or
institution referred to in Section 3 (c) of this Rule, the protection may be
extended to the officers involved.
Inspection order – the court, justice or judge, upon verified motion and Available Available
after due hearing, may order any person in possession or control of a
designated land or other property, to permit entry for the purpose of
inspecting, measuring, surveying, or photographing the property or any
relevant object or operation thereon.
Production order – the court, justice, upon verified motion and after due Available Available
hearing, may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs,
objects if tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the return, to
produce and permit their inspection, copying or photographing by or in
behalf of the movant.
Witness Protection Order – The court, justice or judge, upon motion or Available
motu proprio, may refer the witnesses to the Department of Justice for
admission to the Witness Protection, Security and Benefit Program,
pursuant to Republic Act No. 6981. The court, justice or judge may also
refer the witnesses to other government agencies, or to accredited persons
or private institutions capable of keeping and securing their safety (Sec. 14,
Rule on the Writ of Amparo).

276. What is the nature of the hearing on the petition under the Rule on the Writ of
Amparo?

The hearing on the petition shall be summary. The hearing shall be from day to day until
completed and shall be given the same priority as petitions for habeas corpus. The court justice or
judge may call for a preliminary conference to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties. (Sec. 13, Rule on the Writ of Amparo).

WRIT OF HABEAS DATA (A.M. No. 08-1-16-SC)

277. What is a Writ of Habeas Data?

It is an independent and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to provide a forum to enforce one’s
right to the truth and to informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such information is being collected
through unlawful means in order to achieve unlawful ends. (Gamboa v. Chan, G.R. No. 193636,
July 24, 2012)

278. What does a writ of habeas data seek to protect?

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 It seeks to protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in order to achieve
unlawful ends. (Vivares vs. St. Theresa’s College, G.R. No. 202666, September 29, 2014)

RULES OF PROCEDURE ON ENVIRONMENTAL CASES (A.M. No. 09-6-8-SC)

279. What is Writ of Continuing Mandamus?

Continuing mandamus is a writ issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or series of acts decreed by
final judgment which shall remain effective until judgment is fully satisfied. (Sec. 4 [c] A.M. No. 09-
6-8-SC, Rules of Procedure for Environmental Case)

It is a command of continuing compliance with a final judgment as it “permits the court to retain
jurisdiction after judgment in order to ensure the successful implementation of the reliefs
mandated under the court’s decision.” (Dolot vs. Paje, G.R. No. 199199, August 27, 2013).

280. Distinguish a Writ of Continuing Mandamus from a Writ of Kalikasan.

Writ of Kalikasan Writ of Continuing Mandamus

Venue SC and CA only RTC, CA and SC
Respondents Include private individuals or entities Only Government or its officers
Petitioners Any citizen Only those who are aggrieved
Subject Unlawful act or omission involving Unlawful neglect in the performance of
Matter environmental damage affecting two or more duty; unlawful exclusion from use or
cities or provinces enjoyment of a right
Docket Fees Exempt Exempt
Discovery Ocular inspection & production of documents None
Damages Award not available to individual petitioner. Personal damages may be awarded.
Must file separate action for damages.

281. Is a prior final judgment a condition precedent in filing a petition for the issuance of a
writ of continuing mandamus?

No. The final court decree, order or decision referred to in Section 4 of the Rules actually pertains
to the judgment or decree that a court would eventually render in an environmental case for
continuing mandamus and which judgment or decree shall subsequently become final.

Under the Rules, after the court has rendered a judgment in conformity with Rule 8, Section 7 and
such judgment has become final, the issuing court still retains jurisdiction over the case to ensure
that the government agency concerned is performing its tasks as mandated by law and to monitor
the effective performance of said tasks. It is only upon full satisfaction of the final judgment, order
or decision that a final return of the writ shall be made to the court and if the court finds that the
judgment has been fully implemented, the satisfaction of judgment shall be entered in the court
docket. A writ of continuing mandamus is, in essence, a command of continuing compliance with a
final judgment as it "permits the court to retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the court’s decision. (Dolot vs. Paje, G.R.
No. 199199, August 27, 2013)

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282. What is Strategic Lawsuit Against Public Participation (SLAPP)?

SLAPP Refers to an action whether civil, criminal or administrative, brought against any person,
institution or any government agency or local government unit or its officials and employees, with
the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person,
institution or government agency has taken or may take in the enforcement of environmental laws,
protection of the environment or assertion of environmental rights (Rule 1, Section 1(g), Rules of
Procedure For Environmental Cases)

283. What is a Writ of Kalikasan?

It is a remedy available to a natural or juridical person, entity authorized by law, people’s

organizations, non-governmental organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity without involving
environmental damage of such magnitude as to prejudice the life, health or property of inhabitants
in two or more cities or provinces. (Section 1, Rule 7 of Rules of Procedure for Environmental
Cases). It can be filed before the Supreme Court or with any of the stations of the Court of
Appeals. (Sec. 3, Rule 7 of Rules of Procedure for Environmental Cases)

284. What is a Consent Decree under the Rules of Procedure for Environmental Cases?

Consent Decree refers to a judicially approved settlement between concerned parties based on
public interest and public policy to protect and preserved the environment. (Sec. 4, Rule 1 of Rules
of Procedure for Environmental Cases)

285. State the Precautionary Principle.

Precautionary Principle states that when human activities may lead to threats of serious and
irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be
taken to avoid or diminish that threat (Rule 1, Section 3(f), Rules of Procedure for Environmental
Cases, A.M. 09-6-8-SC).

286. What is the scope and applicability of the Rules of Procedure for Environmental Cases
(A.M No. 09-6-8-SC)?

These Rules shall govern the procedure in civil, criminal and special civil actions before the
Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations
of environmental and other related laws, rules and regulations.

287. Who may file for a Citizen Suit?

Any Filipino citizen in representation of others (minors or generations yet unborn), may file an
action to enforce rights or obligations under environmental laws.

288. What is a Temporary Environmental Protection Order?

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 Order issued by the court directing or enjoining any person or government agency to perform or
desist from performing an act in order to protect, preserve, or rehabilitate the environment.
(Annotation to the Rules of Procedure for Environmental Cases)

289. What are the factors to consider when precautionary principle should be applied?

The following factors, among others, may be considered: (a) threats to human life or health; (b)
inequity to present or future generations; or (c) prejudice to the environment without legal
consideration of the environmental rights of those affected (Sec. 2, Rule 20, Rules of Procedure for
Environmental Cases).

290. How did the Supreme Court apply the precautionary principle as cited in the BT Talong
Case?

The Court held that the precautionary principle applies since the risk of harm from the field trials
of BT Talong remains uncertain and there exists a possibility of serious and irreversible harm. The
Court observed that eggplants are a staple vegetable in the country that is mostly grown by small-
scale farmers who are poor and marginalized; thus, given the country's rich biodiversity, the
consequences of contamination and genetic pollution would be disastrous and irreversible.
(International Service for the Acquisition of Agri-Biotech Applications, Inc., vs. Greenpeace
Southeast Asia (Philippines), G.R. No. 209271, July 26, 2016, J. Perlas-Bernabe)

291. Can the validity of an Environmental Compliance Certificate (ECC) be challenged in a

Petition for the Issuance of a Writ of Kalikasan?

Yes. In general, the proper procedure to question a defect in an ECC is to follow the appeal
process provided in DAO 2003-30 and the Revised Manual. After complying with the proper
administrative appeal process, recourse may be made to the courts in accordance with the doctrine
of exhaustion of administrative remedies. However, in exceptional cases, a writ of kalikasan may
be availed of to challenge defects in the ECC provided that (1) the defects are causally linked or
reasonably connected to an environmental damage of the nature and magnitude contemplated
under the Rules on Writ of Kalikasan, and (2) the case does not violate, or falls under an exception
to, the doctrine of exhaustion of administrative remedies and/or primary jurisdiction. (Paje vs.
Casiño, G.R. No. 207257, February 3, 2015)

292. Can the court award damages to the petitioners in a Petition for the Issuance of a Writ
of Kalikasan?

No. Sec. 15(e), Rule 7 of the Rules of Procedure for Environmental Cases expressly prohibits the
grant of damages in a petition for the issuance of a writ of kalikasan:

Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to
the protection, preservation, rehabilitation or restoration of the environment, except the award
of damages to individual petitioners.

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 PREROGATIVE WRIT

Habeas Corpus Amparo Habeas Data Kalikasan

Essence Involves the right Involves the right to life, Involves the right Involves the
to liberty. It liberty and security. It covers to privacy, life, right to balanced
extends to all extrajudicial killings, enforced liberty, and and healthful
cases of illegal disappearances, and threats security. ecology involving
confinement or thereof environmental
detention by damage of such
which any person magnitude as to
is deprived of prejudice the
liberty, or by life, health or
which the rightful property of
custody of any inhabitants in
person is withheld two or more
from the person cities or
entitled thereto. provinces
Literal “You have the From the Spanish word “You have the data” -
Translation body”. “Amparer”, which translates
“to protect”
Available 1) Deprivation of A violation or threatened A violation or A violation or
against liberty; violation by an unlawful act or threatened violation threatened
2) Withholding omission of: of the right to violation of the
the rightful 1) Public official privacy in life, right to a
custody of any 2) Public Employee liberty, or security balance and
person 3) Private individual or by an unlawful act healthful ecology
entity of omission of: by an unlawful
act or omission
1) Public official of:
2) Public employee 1) Public official
3) Private 2) Public
individual or employee
entity and/or
3) Private
individual or
Engaged in entity
gathering,
collecting, or
storing of data or
information
regarding the
person, family,
home and
correspondence of
the aggrieved
party.

Coverage 1) All cases of 1) Extrajudicial killings 1) Gathering Environmental

illegal 2) Enforced disappearances 2) Collecting damage of such
confinement 3) Storing of data magnitude as to
or detention or information prejudice the
by which any life, health or
person is Regarding: property of
deprived of inhabitants in
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 his liberty 1) Person two or more
2) The rightful 2) Family cities or
custody of 3) Home provinces.
any person is 4) Correspondenc
withheld from e
the person
entitled
thereto
Who may Party for whose Aggrieved party, or any GR: Aggrieved 1) A natural or
file relief it is qualified person or entity in party juridical
intended, or by the following order: person;
some person on EXP: in cases of 2) Entity
his behalf 1) Any member of the extralegal killings authorized by
immediate family namely: and enforced law;
a) Spouse disappearances, the 3) People’s
b) Children and parents of petition may be organization,
the aggrieved party; filed by: non-
2) Any ascendant, descendant governmenta
or collateral relative of the 1) Any member of l
aggrieved party within the the immediate organization,
fourth civil degree of family of the or any public
consanguinity or affinity, in aggrieved party interest
default of those mentioned namely: group
in the preceding accredited by
paragraph; or a) Spouse or registered
3) Any concerned citizen, b) Children with any
organization, association or c) Parents government
institution, if there us no agency, on
known member of the behalf of
immediate family or persons
relative of the aggrieved whose
party constitutional
right to a
balanced and
healthful
ecology is
violated, or
threatened
with
violation.
Venue 1) RTC where 1) RTC of the place where 1) RTC where the
the person is the threat, act or petitioner or
detained; omission was committed respondent
2) Sandiganbaya or any of its elements resides, or that
n; occurred; which has
3) Court of 2) Sandiganbayan; jurisdiction
Appeals; 3) Court of Appeals; over the place
4) Supreme 4) Supreme Court; or where the data
Court; or 5) Any justice of the three or information
5) Any justice of preceding courts is gathered,
the three collected,
preceding stored, at the
courts option of the
petitioner
2) Sandiganbayan

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Pre-week Notes
 3) CA
4) SC
When the action
concerns public
data files of
government offices.
Enforceabilit Issued by the Anywhere in the Philippines Anywhere in the
y of the writ Sandiganbayan, Philippines
CA, SC: Anywhere
in the Philippines

Issued by the
RTC: Judicial
District
Where writ Issued by RTC: Issued by RTC or judge Issued by: RTC or
is returned RTC or judge thereof: Before such court or judge thereof:
thereof: before judge Before such court
such court or - Sandiganbayan, CA or judge
judge or any of its justices: Sandiganbayan, CA
Sandiganbayan, - Before such court or or any of its
CA or any of its justice thereof justices:
justices: - Any regional trial Before such court
- Before court where the or justice
such threat, act , or  Any RTC of the
court or omission was place where the
justice committed or any of petitioner or
thereof its elements occurred respondent
Supreme Court or resides, or that
any of its justices: which has
 Before such jurisdiction over
court or justice the place where
thereof the data or
 Sandiganbayan information is
or Court of gathered,
appeals or any collected or
of its justices stored
 Any RTC where
threat, act, or SC or any of its
omission was justices:
committed or  Before such court
any of its of justice thereof
elements  Before the court
occurred of Appeals or the
sandiganbayan or
any of tis justices
 Any RTC of the
place where the
petitioner or
respondent
resides or that
which ahs
jurisdiction over
the place where
the data or
information is

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 gathered,
collected, or
stored.
When to On any day and at On any day and at any time; Only indigent Exempt from
file/docket anytime. Exempt from docket and other petitioner is exempt payment of
fees lawful fees. from docket and docket fees.
other lawful fees.
Contents of 1) Person in 1) Personal Circumstances of 1) Personal 1) Personal
the petition whose behalf the petitioner; circumstances circumstanc
the 2) Name and personal of the es of the
application is circumstances of the petitioner and petitioner,
made is respondent responsible the respondent 2) Name and
imprisoned or for the threat, act or 2) Manner the personal
restrained on omission, or if the name right to privacy circumstanc
his liberty is unknown or uncertain, is violated or es of the
2) Officer or the respondent may be threatened and respondent
named of the described by an assumed how it affects or if the
person by appellation; the right to life, name and
whom he is so 3) Right to life, liberty and liberty or personal
imprisoned or security of the aggrieved security of the circumstanc
restrained; or, party violated or aggrieved es are
if both are threatened with violation party; unknown
unknown or by an unlawful act or 3) Actions and and
uncertain, omission of the recourses uncertain,
such officer or respondent, and how taken by the the
person may such threat or violation is petitioner to respondent
be described committed with the secure the data may be
by as attendant circumstances or information; described by
assumed detailed in supporting 4) Location of the an assumed
appellation affidavits; files, registers appellation
and the 4) Investigation conducted, or data-bases, 3) Environment
person who is if any, specifying the the al law, rule
served with names, personal government or regulation
the writ shall circumstances, and office, and the violated or
be deemed addresses of the person in threatened
the person investigating authority or charge, in to be
intended individuals, as well as the possession or violation,
3) Place where manner and conduct of in control of the act or
he is so the investigation, the data or omission
imprisoned or together with any report; information if complained
restrained if 5) Actions and recourses known; of, and the
known taken by the petitioner to 5) Reliefs prayed environment
4) A Copy of the determine the fate or for, which may al damage
commitment whereabouts of the include the of such
or cause of aggrieved party and the updating, magnitude
detention of identity of the person rectification, as to
such person, responsible for the threat, suppressions or prejudice
if it can be act or omission; destruction of the life,
procured 6) Relief prayed for the database health or
without or information property of
impairing the Petition must be signed and or files kept by inhabitants
efficiency of verified. the respondent in two or
the remedy; 6) In case of more cities
or, if the threats, the or
imprisonment relief may provinces;

2019 REMEDIAL LAW |99

Pre-week Notes
 or restraint is include a 4) All relevant
without any prayer for an and material
legal order enjoining evidence
authority, the act consisting of
such fact shall complained of the
appear. 7) And such other affidavits of
The petition relevant reliefs witnesses,
shall be as are just and documentar
signed and equitable. y evidence,
verified. scientific or
The petition other expert
shall be in studies, and
writing and if possible,
must be object
verified. evidence;
5) Certification
against
forum
shopping
and
6) The reliefs
prayed for
which may
include a
prayer for
the issuance
of
Temporary
Environment
al Protection
order

Petition must be
verified.
Issuance of Writ shall be Writ shall be issued if on its Writ shall be issued Within 3 days
writ issued if it appears face it ought to issue if on its face it from the date of
that the writ ought ought to issue filing of the
to issue The clerk of court shall issue petition, if the
the writ under the seal of the The clerk of court petition is
The clerk of court court; shall issue the writ sufficient in form
shall issue the writ Or in case of urgent necessity, under the seal of and substance,
under the seal of The justice or the judge may the court and cause the court shall
the court; issue the writ under his or her it to be served give an order:
Or in case of own hand, and may deputize within 3 days from
emergency, the any officer or person to serve the issuance, or in a) Issuing the
judge may issue it case of urgent writ
the writ under his necessity, the And
own hand, and justice or judge b) Requiring
may depute any may issue the writ the
officer or person under his or her respondent
to serve it own hand, and may to file a
deputize any officer verified
or person to serve return.
it. c) The clerk
of court

100 | CLEAR
Bar Ops
 shall forth
with issue
the writ
under the
seal of the
court
including
the
issuance of
a cease
and desist
order and
other
temporary
reliefs
effective
until
further
order
Summary - Not later than 7 days from Not later than 10 The hearing
hearing date the writ was issued working days from including the
the date the writ preliminary
was issued conference shall
not extend
beyond 60 days
and shall be
given the same
priority as
petitions for
writs of habeas
corpus, amparo
and habeas data
How served By leaving the The writ shall be served upon The writ shall be The writ shall be
original with the the respondent by a judicial served upon the served upon the
person to whom it officer or by a person respondent by a respondent by a
is directed and deputized by the court, justice judicial officer or by court officer or
preserving a copy or judge shall retain a copy on a person deputized any person
on which to make which to make a return of by the court, justice deputized by the
return or service. service. In case the writ or judge who shall court, who shall
If that person cannot be served personally retain a copy on retain a copy on
cannot be found, on the respondent, the rules which to make a which to make a
or has not the on substituted service shall return of service. In return of service.
prisoner in his apply. case the writ Ion case the writ
custody, then the cannot be served cannot be served
service shall be personally on the personally, the
made on any respondent, the rule on
other person rules on substituted substituted
having or service shall apply. service shall
exercising such apply.
custody
Return The return or Within 72 hours after the Verified written Within a non-
statement shall be service of the writ, the return together extendible period
signed by the respondent shall file a verified with supporting of 10 days after
person who makes written return together with affidavits within 5 service of the
it supporting affidavits working days from writ, the

2019 REMEDIAL LAW |101

Pre-week Notes
 service of the writ respondent shall
The return shall file a verified
also be sworn by The period may be return which
him if the prisoner reasonably shall contain all
is not produced extended by the defenses to show
court for justifiable that respondent
In all other cases reasons did not violate or
unless the return threaten to
is made and violate, or allow
signed by a sworn the violation of
public officer in his any
official capacity environmental
law, rule or
regulation or
commit any act
resulting to
environmental
damage of such
magnitude as to
prejudice the
life, health or
property of
inhabitants in
two or more
provinces.

All defenses not

raised in the
return shall be
deemed waived

The return shall

include affidavits
of witnesses
documentary
evidence,
scientific or other
expert studies,
and if possible,
object evidence,
in support of the
defense of the
respondent.

A general denial
of allegations in
the petition shall
be considered as
an admission
thereof.

Effect of Hearing of the petition shall Haring of the Hearing of the

failure to proceed ex parte petition shall petition shall
file return proceed ex parte proceed ex parte

102 | CLEAR
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 The court may also
grant the petitioner
such relief as the
petition may
warrant unless the
court in its
discretion requires
the petitioner to
submit evidence
Prohibited 1) Motion to dismiss 1) Motion to 1) Motion to
pleadings 2) Motion for extension of dismiss dismiss
and motions time to file return, 2) Motion for 2) Motion for
opposition, affidavit, extension of extension of
position paper and other time to file time to file
pleadings return, return
3) Dilatory motion for opposition, 3) Motion for
postponement affidavit, postponeme
4) Motion for bill for position paper nt
particulars and other 4) Motion for
5) Counterclaim or pleadings bill of
crossclaim 3) Dilatory motion particulars
6) 3rd party complaint for 5) Counterclai
7) Reply postponement m
8) Motion to declare 4) Motion for bill 6) 3rd party
respondent in default for particulars complaint
9) Intervention 5) Counterclaim 7) Reply
10) Memorandum or crossclaim motion to
11) MR of interlocutory orders 6) 3rd party declare
or interim relief orders complaint respondent
and 7) Reply in default
12) Petition for certiorari, 8) Motion to
mandamus or prohibition declare
against any interlocutory respondent in
order default
9) Intervention
10) Memorandum
11) MR of
interlocutory
orders or
interim relief
orders and
12) Petition for
certiorari,
mandamus or
prohibition
against any
interlocutory
order
Available 1) Temporary protection 1) Ocular
interim order inspection
reliefs 2) Inspection order order
3) Production order 2) Inspection
4) Witness protection order order
3) Production
order

2019 REMEDIAL LAW |103

Pre-week Notes
 Judgement When the court or The court shall render The court shall The court shall
judge has judgement within 10 days render judgement render
examined into the from the time the petition is within 10 days from judgement
cause of caption submitted for decision. If the the time the granting or
and restraint of allegations in the petition are petition is denying the
the prisoner, and proven by substantial submitted for privilege of the
is satisfied that he evidence, the court shall grant decision. writ of kalikasan
is unlawfully the privilege of the writ and within 60 days
imprisoned or such relief as may be proper If the allegations in from the time
restrained, he and appropriate; the petition are the petition is
shall: Otherwise, the proven by submitted for
privilege shall be substantial decision. The
- Forthwith denied evidence, the court reliefs that may
order his shall enjoin the act be granted under
discharge complained of, or the writ are the
from order the deletion, ff:
confinement destruction or
- Such rectification of the  Directing
discharge erroneous data or respondent
shall not be information and s to
effective grant other relevant permanentl
until a copy reliefs as may be y cease
of the order just and equitable; and desist
has been otherwise the from
served on privilege of the writ committing
the officer shall be denied. acts or
or person neglecting
detaining Upon its finality, the
the prisoner the judgement shall performanc
- If the officer be enforced by the e of a duty
or person sheriff or any lawful in violation
detaining officers as may be of
the prisoner designated by the environmen
does not court, justice or tal laws
desire to judge within 5 resulting in
appeal, the working days. environmen
prisoner tal
shall destruction
forthwith be or damage,
released  Directing
the
respondent
public
official,
governmen
t or
agency,
private
person or
entity to
protect,
preserve,
rehabilitate
or restore
the

104 | CLEAR
Bar Ops
 environmen
t;
 Directing
the
respondent
public
official
governmen
t agency,
private
person or
entity to
monitor
strict
compliance
with the
decision
and orders
of the
court;
 Directing
the
respondent
public
official,
governmen
t agency or
private
person or
entity to
make
periodic
reports on
the
execution
of the final
judgement;
and
 Such other
reliefs
which
relate to
the right of
the people
to a
balanced
and
healthful
ecology or
to
protection,
preservatio
n,
rehabilitatio
n or

2019 REMEDIAL LAW |105

Pre-week Notes
 restoration
of the
environmen
t, except
the award
of damages
to
individual
petitioners.
Appeal 48 hrs from notice Any party may appeal from Any party may Any party may
of judgement the final judgement or order appeal from the appeal to the SC
appealed form by to the SC under Rule 45. final judgement or under rule 45.
ordinary appeal The appeal may raise order to the SC The appeal may
questions of fact or law or under Rule 45 raise questions
both The appeal may of fact.
The period of appeal shall be raise questions of The appeal must
5 working days from the date fact or law or both be taken within
of notice of the adverse The period of 15 days from the
judgement. appeal shall be five date of notice of
working days form adverse
the date of notice judgement or
of the judgement or denial of motion
final order. for
reconsideration.
Institution The Rule does not preclude The rule does not The filing of a
of separate the filing of separate criminal, preclude the filing petition for the
action civil, or admin actions of separate issuance of the
criminal, civil, or writ of kalikasan
administrative shall not
actions preclude the
filing of separate
civil, criminal, or
administrative
actions.
Effect of When a criminal action has When a criminal
filing a been commenced, no action has been
criminal separate petition for the writ commenced, no
action shall be filed. The reliefs separate petition
under the writ shall be for the writ shall be
available by motion in the filed. The reliefs
criminal case. under the writ shall
be available by
motion in the
criminal case
Consolidatio When a criminal case action is When a criminal
n filed subsequent to the filing action is filed
of a petition for the writ, the subsequent to the
latter shall be consolidated filing of a petition
with the criminal action. When for the writ, the
a criminal action and a latter shall be
separate civil action are filed consolidated with
subsequent to a petition for a the criminal action.
writ of amparo, the latter shall When a criminal
be consolidated with the action and a
criminal action After separate civil action

106 | CLEAR
Bar Ops
 consolidation, the procedure are filed
under this rule shall continue subsequent to a
to apply to the disposition of petition for a writ of
the reliefs in the petition habeas data, the
petition shall be
consolidated with
the criminal action.
After consolidation,
the procedure
under this rule shall
continue to govern
the disposition of
the reliefs in the
petition.
Source: Special Proceedings: Essentials for Bench and Bar, De Leon and Wilwayco, pp. 363-381
(2015 ed.)

HAIL TO THE CHIEFS

2019 REMEDIAL LAW |107

Pre-week Notes